At time of publication the appeal had not yet been heard by the High Court of Australia.
Proceedings: Application for Special Leave to Appeal from the decision of the Northern Territory Court of Appeal O'Neill v Roy [2019] NTCA 8 (4 September 2019) – Northern Territory Court of Appeal
Issue: Scope and limits of implied licence
Facts: The respondent woman was the subject of a DVO that protected her male domestic partner. The DVO contained various conditions including that she was restrained from consuming and/or being under the influence of alcohol and other intoxicating substances when in the company of the victim [2]. In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime and as part of that operation three officers from the Northern Territory Police Force visited the respondent and victim’s unit. One of the attending officers gave evidence that he had observed ‘antisocial behaviour coming from the property over the weeks prior to the operation’ [3]. One of the officers had previously observed the respondent in an intoxicated state ‘and she was in an intoxicated state every time he had dealt with her’.
Officers approached the shared unit and observed that the respondent "appeared to be just sort of laying on the ground" through the window and called her to come to the door "for the purposes of a domestic violence order check". Officers noted that the respondent’s eyes were bloodshot, her speech was slurred and had "a very strong odour of liquor on her breath", which lead them to conduct a breath test. The respondent was taken to Katherine Watch House after testing positive to alcohol for further breath analysis.
The apartment was accessible to the public and there were no signs suggesting the police were not welcome to approach the unit and knock on the front door. They were not asked to leave by the occupants.
The Northern Territory Court of Appeal held that held that the case involved an implied licence from the occupier of the premises for visitors to be on the footpath and approach the door of the unit rather than an implied licence for a specific purpose. The respondent sought special leave to appeal. The application regards the scope of the licence. It was agreed that the content of the implied licence is determined objectively while the infringement of the implied licence is determined by reference to some subjective characterisation of purpose.
Judgment: The Court granted special leave to appeal subject to noting that the proposed grounds of appeal might be reframed with greater precision.
Charges: Incest x 2; Sexual penetration of a child under 16 x 1; Indecent assault x 1.
Appeal type: Crown appeal against sentence.
Facts: The charge subject of the appeal was one count of incest. The appellant pleaded guilty, and was sentenced to 3 years and 6 months’ imprisonment. The total head sentence was 5 years’ and 6 months’ imprisonment with a non-parole period of 3 years ([12], [23]).
Section 5(2)(b) of the Sentencing Act 1991 (Vic) provided that the court must have regard to current sentencing practices when sentencing an offender. The Court of Appeal stated that ‘but for the constraints of current sentencing practice’, it would have imposed a longer sentence ([33]).
Issues: Whether the sentence for the charge of incest was manifestly inadequate. In resolving this question, the High Court clarified the relevance of ‘current sentencing practices’ to sentencing.
Decision and Reasoning: The appeal was allowed, and the matter was remitted to the Victorian Court of Appeal for determination of the appeal against sentence ([77]). The High Court (Kiefel CJ, Bell and Keane JJ, Gageler and Gordon JJ agreeing) held that the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it ([2]).
Kiefel CJ, Bell and Hayne JJ stated: ‘the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor’ ([9]).
Further, their Honours stated at [50]:
section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle.
Charges: Sexual offences against underage girls x 11.
Appeal type: Appeal against conviction.
Facts: The defendant was Robert Hughes, the star of the TV show Hey Dad! The 11 complainants were friends of his daughters or workers on the set. The prosecution sought to adduce the evidence of each of the 11 complainants to support each of the other counts. The prosecution sought to prove tendencies of ‘having a sexual interest in female children under 16 years of age’ and ‘using his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them’ ([3]). The tendency evidence was admitted, and the appellant was convicted ([8]).
Issues: Whether tendency evidence is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. This issue had been the subject of diverging lines of authority between the Victorian and New South Wales Court of Appeal.
Decision and Reasoning: The High Court (4:3) dismissed the appeal.
The majority (Kiefel CJ, Bell, Keane and Edelman JJ) held that the evidence was admissible. The majority identified that there is likely to be a high degree of probative value when (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged ([41]).
The majority endorsed the test for “significant probative value” posed in Ford, that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged ([40]). The majority at [40] added the following qualification:
it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
Gageler, Nettle and Gordon JJ dissented.
Gageler J advocated for a more conservative approach: his Honour argued that admitting all the evidence risks the jury placing too much emphasis on the series of allegations, and not assessing each charge individually ([109]).
Nettle J emphasised that the fact that an accused has committed one sexual offence against a child is not, without more, sufficiently probative of the accused committing another sexual offence against a child ([158]). Something more is required, for example a similarity in the relationship between the alleged victims, a connection between the details and circumstances of each offence, or a system of offending ([158]). Nettle J also reiterated the dangers in admitting tendency evidence ([174]).
Gordon J agreed with Gageler and Nettle JJ and set out her Honour’s own set of principles at [216].
Charges: Intentionally causing serious injury x 1; Using a prohibited weapon x 1; Dealing with suspected proceeds of crime x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The defendant and victim were in a relationship; the victim was 12 weeks’ pregnant with the defendant’s child ([5]). The defendant pleaded guilty to dousing the victim with petrol and setting her alight ([10]). The victim’s injuries were ‘horrendous’ ([11]), and she terminated her pregnancy ([13]). The sentencing judge said that he found it hard to recall a more serious example of the charge in his 38 years of working in criminal law ([14]). The sentencing judge imposed a head sentence of 15 years with a non-parole period of 11 years ([1]). The Court of Appeal allowed the defendant’s appeal against sentence on the basis that there was ‘such a disparity between the sentence imposed and current sentencing practice’ ([1]).
Issues: Whether the Court of Appeal erred in holding that the sentence was manifestly excessive.
Decision and Reasoning: The High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) overturned the Court of Appeal’s decision and reinstated the original sentence. The High Court discussed two aspects of the Court of Appeal’s decision: first, the Court of Appeal employing the term ‘worst category’ of offending; and second, the Court of Appeal’s interpretation of ‘current sentencing practice’.
First, the High Court held that it is an error to describe offences as being within ‘the worst category of cases’ if the offence does not warrant the maximum penalty ([19]), as the term is likely to cause confusion ([17]-[20]).
Second, the High Court remarked that ‘current sentencing practice’ is likely to change over time, ‘current 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’ [21]. The High Court found that the cases were too few to establish a pattern, one case was 12 years old, and most did not occur in a domestic violence context ([25]-[31]). The High Court said that ‘violence perpetrated in the course of a domestic relationship against the offender's female partner … involve the abuse of a relationship of trust’, and such violence ‘must steadfastly be deterred’ ([28]). This was a distinguishing factor from cases with comparable serious injuries ([28]).
Charge/s: Manslaughter
Appeal Type: Appeal against sentence.
Facts: The appellant, an Aboriginal man, pleaded guilty to the manslaughter of his de facto spouse. He was sentenced to five years and three months’ imprisonment with a non-parole period of three years and three months’. The DPP appealed to the Court of Appeal on the basis that the sentence was manifestly inadequate. The Court of Appeal upheld the appeal and resentenced the appellant to seven years and nine months’ imprisonment with the same parole eligibility conditions. The appellant and the deceased had been in a relationship for approximately 16 years. On the day the deceased was killed, the appellant and the deceased spent the afternoon at a local tavern and both became intoxicated. After returning home, an argument ensued and the appellant assaulted the deceased in a prolonged and brutal way. He threw the deceased about the room, rammed her head into walls and repeatedly punched her on the face and head. There was a history of significant domestic violence in the relationship, including a conviction for grievous bodily harm for which the appellant was sentenced to 12 months’ imprisonment (conditionally suspended) as well as a conviction for common assault. The appellant was subject to a lifetime violence restraining order in favour of the deceased which prohibited him from having any contact with her. However, this order had been ignored by both parties and the relationship had continued.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed by majority (Bell J dissenting).
The joint majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) found no error in the Court’s approach to the issue of manifest inadequacy. In the Court of Appeal, McLure P made express reference to the gross over-representation of Aboriginal people in the criminal justice system (particularly in relation to manslaughter) which is directly related to alcohol and drug abuse. Her Honour also made reference to various ‘weighting errors’ in the sentencing at first instance. The Court held that there was no error in this approach. See in particular at [37], where the joint majority noted ‘her Honour was proceeding to make the point that, even in the context of the circumstances of social disadvantage in which domestic violence commonly occurs, the seriousness of the offence is such as to make a compelling claim on the sentencing discretion. And that is so notwithstanding that the number of Aboriginal offenders (and victims) is "grossly disproportionate".
See also McLure P’s statement quoted at [41] – "In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously". The joint majority approved these remarks at [42] – ‘The passage of time has not lessened the force of that statement. While the appellant's offence may not have been in the very worst category of offences of manslaughter, it is not easy to think of worse examples. Given that the maximum available sentence was 20 years imprisonment, and given the prolonged and brutal beating administered by the appellant upon his de facto spouse, a conclusion that the sentence imposed at first instance was manifestly inadequate cannot be said to have been wrong.’
The appellant did not submit that ‘Aboriginality per se warrants leniency’ (see at [47]). Rather, the appellant contended that social and economic issues commonly associated with Aboriginal communities affected the appellant and that these should have been treated as mitigating factors. He also contended that he was likely to receive traditional Aboriginal and Torres Strait Islander punishment when released from prison and that he was ‘willing, and indeed anxious’ (see at [49]) to subject himself to this payback. He submitted that this should have received greater significance as a mitigating factor.
In dismissing these arguments, the Court noted that while mitigating factors such as social disadvantage need to be afforded appropriate weight in sentencing, this cannot result in the imposition of a penalty which is disproportionate to the gravity of the offending. In particular, the Court noted at [53] – ‘To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity’ and ‘Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.’
The Court also addressed the argument that general deterrence has less significance in relation to crimes which are not premeditated in the context of social disadvantage. In dismissing this assertion, the Court noted that the criminal law is not limited to the ‘utilitarian value of general deterrence’ and stated that the obligation of the State is ‘to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’ (see at [54]). Furthermore, the gravity of the offending in this case was extremely high - see at [55] –
‘A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.’
In relation to the appellant’s alcohol addiction, McLure P held that this factor would increase the weight to be given to personal deterrence and community protection. The joint majority of the High Court agreed and noted that the fact the appellant was affected by an environment of alcohol abuse should be taken into account in assessing personal moral culpability, but this has to be balanced with the seriousness of the offending. See further at [57] where the majority of the High Court said– ‘It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.’
In relation to the relevance of traditional Aboriginal and Torres Strait Islander punishment, the High Court’s disposition was that the appellant’s willingness to submit to this punishment was not a relevant consideration in sentencing. However, the first instance judge did take it into account, which was not challenged in the Court of Appeal. While the joint majority of the High Court did not offer a conclusive opinion, they noted that the courts cannot condone the commission of an offence or ‘the pursuit of vendettas’ and held that the appellant did not suffer injustice because the prospect of traditional punishment was given only limited weight (see at [61]-[63]).
Bell J dissented. Her Honour held that it was open to the primary judge to reach the sentence that he did, based on comparable authorities. Bell J was also critical of the practice of giving too much weight to the maximum penalty, given the wide variety of circumstances in which manslaughter convictions can arise. Her Honour stated that a sentence well short of half the maximum penalty does not of itself give rise to legal error.
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against conviction.
Facts: Mr Roach was convicted of assault occasioning bodily harm of his female partner. At trial, Howell DCJ admitted evidence of previous (uncharged) assaults that Mr Roach committed on the complainant during their relationship. The relevant Queensland provision—s 132B of the Evidence Act 1977—applies to proceedings for assault occasioning bodily harm and provides that ‘[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding’. However, s 130 of the Evidence Act 1977 gives the judge power to exclude otherwise admissible evidence if it is deemed unfair to the accused to admit.
Issue/s: Whether the trial judge should have applied the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and whether ‘viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence’. Only if there is no reasonable view, can the evidence be admissible because its probative value outweighs its prejudicial effect on the accused.
The appellant argued that in considering whether to admit evidence under s 132B, the trial judge ought not to admit that evidence if there was a reasonable view of that evidence consistent with innocence (‘the rule in Pfennig’). The appellant argued that the rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused ("propensity evidence"), and applies at common law to propensity evidence as a measure of the probative force of that evidence. (see Roach v The Queen [2010] HCATrans288 (5 November 2010)).
Decision and Reasoning: The appeal was dismissed. French CJ, Hayne, Crennan and Kiefel JJ of the High Court held firstly that s 132B has a ‘potentially wide operation’. Section 132B contemplates evidence of other acts of domestic violence throughout the relationship being admitted. The section could also be used to admit similar fact evidence to prove the accused’s propensity to commit similar crimes. The Court found it could also be used to admit other types of evidence including evidence of a person’s state of mind, evidence of the circumstances of the crime or to provide context to the history the relationship. It could also be used as evidence in a provocation or self-defence case, or where the offender is a victim of domestic violence. (See at [30]-[31]). The Court then held that the Pfennig test has no application to the common law residual discretion enshrined in s 130. As such, the test of admissibility under s 132B is whether the evidence is relevant, which is subject to the exercise of the discretion preserved in s 130.
The purpose of admitting the evidence here was not to show a propensity of the accused (re the rule in Pfennig); rather, the evidence:
‘was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ at [42].
The High Court noted the permissible ambit of ‘relationship evidence’, and the need for clear directions for juries about the use of such evidence and the purpose for which it is tendered:
[45] In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant's account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant's conduct in relation to the alleged offence intelligible and not out of the blue.
[47] The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.
[48] The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant's evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led "for a very specific purpose" and that they must be "very, very careful in relation to the limited use that [they] may make of such evidence." He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but "to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006."
Hearing: Appeal against decision to allow amendments to statement of claim.
Facts: ANU applied for an adjournment at trial to make substantial amendments to its statement of claim against Aon. The adjournment was granted and the primary judge allowed the application to amend the statement of claim. Aon appealed against the decision.
Decision and Reasoning: This case did not concern family violence but contained a number of relevant statements regarding adjournments. French CJ referred to the decision in Sali v SPC Ltd, which concerned the refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, the High Court held there ‘that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’’ (see [26]). Brennan, Deane and McHugh JJ went on to say:
‘What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources’.
Toohey and Gaudron JJ dissented in the result but acknowledged that:
‘The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard’.
In the present case, French CJ stated at [27]:
‘The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn’.
Charge/s: Murder
Appeal Type: Appeal against conviction.
Facts: The appellant and her son were jointly tried in the Supreme Court of Victoria for the murder of her husband Mr Osland (the appellant’s son’s step-father). The jury convicted the appellant but was unable to reach a verdict with respect to her son. Her son was later retried and acquitted. The prosecution case was that the appellant and her son planned to murder her husband. The appellant mixed sedatives with her husband’s dinner in sufficient quantity to induce sleep within an hour. The appellant’s son later completed the plan by hitting Mr Osland on the head with an iron pipe while he was asleep. He and the appellant then buried Mr Osland in a grave they had earlier prepared. At trial, the appellant and her son relied on self-defence and provocation raised against ‘an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years’ which had allegedly been ‘escalating in the days prior to his death’ (at [4]). The prosecution accepted that Mr Osland had been violent in the past but maintained that this behaviour had ceased well before he was murdered. The appellant raised expert evidence of the ‘battered woman syndrome’ (BWS) in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was ‘consistent with it being a battering relationship’ (at [50]).
The psychologist outlined the general characteristics of battered women as follows (at [51]):
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed by majority (Gaudron and Gummow JJ dissenting). However, all members of the Court were unanimous in holding that the trial judge’s directions with respect to ‘battered woman syndrome’ (BWS) were appropriate.
Gaudron and Gummow JJ:
“Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"” (at [53])
“…there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.” (at [55])
“So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.” (at [56])
“…there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case. In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.” (at [60])
Callinan J (while agreeing that the directions with respect to BWS were appropriate) held that to adopt a new and separate defence of BWS ‘goes too far for the laws of this country’ (see at [239]). His Honour also noted that these issues could be matters for expert evidence as well as matters of common sense for a jury to decide with the assistance from the trial judge.
McHugh J did not make any comments on BWS.
Kirby J:
His Honour discussed the relevance of the BWS defence in abusive relationships. His Honour was of the opinion that the term should not be restricted to women because there may be situations where men are the victims such as similarly abusive same-sex relationships, and ‘unlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims’ (at [159]).
His Honour was broadly supportive of BWS evidence but did note some controversies around it and was somewhat critical of it: “…it appears to be an “advocacy driven construct” designed to “medicalise” the evidence in a particular case in order to avoid the difficulties which might arise in the context of a criminal trial from a conclusion that the accused's motivations are complex and individual: arising from personal pathology and social conditions rather than a universal or typical pattern of conduct sustained by scientific data’ (at [161]).
Further, he was critical of the term itself and stated it should not be used. He was also aware that the syndrome was ‘based largely on the experiences of Caucasian women of a particular social background’ (whose) ‘”passive” responses may be different from those of women with different economic or ethnic backgrounds’ (at [161]).
Ultimately however, his Honour was supportive – ‘Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships’ (at [167]).
Proceedings: Appeal against custody order.
Facts: The trial judge made an order giving the wife guardianship and custody of the child. The wife alleged that the father had sexually abused the child and that the child’s welfare would be put at risk in allowing the father custody. The trial judge was not satisfied that the father had abused the child. However, His Honour considered that there was a possibility that the child had been sexually abused by the father. Accordingly, in the interests of the child, His Honour held that he should eliminate the risk of such abuse by denying access to the father. The father appealed this decision.
Issue/s: What is the correct approach in dealing with sexual abuse allegations and unacceptable risk?
Reasoning/Decision: The appeal was dismissed. The approach to be taken in these matters is not one of competing rights of the parents or ever purely a finding for or against either based on the evidence in support of the allegations. The approach is to determine on all of the evidence what is in the best interests of the child.
The Court concluded and held at [25]:
‘Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm”, “an element of risk” or “an appreciable risk”, “a real possibility”, a “real risk”, and an “unacceptable risk”. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse’.
With regards to the consideration of risk, it is in “achiev[ing] a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. A finding of sexual abuse need not be made to make a finding of unacceptable risk.
Charges: Murder.
Appeal Type: Application for special leave to appeal against conviction.
Facts: The facts of this case were summarised concisely by Martin CJ (with whom Pullin JA and Hall J agreed) in O’Driscoll v The State of Western Australia [2011] WASCA 175 (10 August 2011) [DT1] at [26] as follows -
‘[T]he appellant was convicted of the murder of his wife by shooting her in the back of the head. A critical issue at trial was whether she was deliberately shot or whether the gun had discharged by accident. The Crown led evidence that the deceased said to the accused, in the presence of other witnesses, 'I know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. These statements were admitted by the trial judge, subject to a direction that the jury should not treat them as evidence of the state of mind of the accused.
Issue/s:
Decision and Reasoning: The Court unanimously dismissed both grounds of appeal and held that the evidence was admissible.
Barwick CJ noted at [3] that, ‘The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone.’ Evidence of the ‘nature of the current relationship between the applicant and his wife’ was relevant to the appellant’s guilt. Evidence of a ‘close affectionate relationship’ could be used by the jury to conclude that the appellant was not guilty. Evidence of hostility in the relationship could be used by the jury to conclude that the appellant’s argument that the shooting was accidental lacked credibility. His Honour did concede that if the deceased’s statements ‘had not been part of the evidence of a quarrel of a significant kind’ ([8]), they would have been inadmissible. However, in this case the statements were part of a ‘quarrel’ between the parties and were indicative, ‘of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached’ (see at [8]). More generally, his Honour concluded that ‘evidence of the relations of the accused with others’ is admissible not only in cases where it establishes motive, though this may be the most common way in which it is used. This type of evidence could also be admissible if it explains an ‘occurrence’ or assists in the choice between two explanations of an ‘occurrence’ because such evidence satisfies the test of relevance (see at [7]).
Menzies J (with whom McTiernan J and Walsh J agreed) reached the same conclusion – ‘To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife’(see at [4]).
Proceedings: Petition for divorce on the ground of adultery.
Facts: The applicant sought a dissolution of his marriage to his wife on the ground of her adultery.
Issue/s: What is the standard of proof required in civil matters?
Decision and Reasoning: In explaining the civil standard of proof, Dixon J stated that ‘when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…It cannot be found as a mere mechanical comparison of probabilities’. His Honour went on to explain that the standard is one of ‘reasonable satisfaction’:
‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency’.
Issue: Application for leave to appeal, application to adduce further evidence re criminal history and family violence.
Grounds:
Facts: The appellant fled New Zealand with the assistance of New Zealand Police with her two children, in mid-2019 she believed the children’s father posed a real risk to her and the children. The father had an extensive criminal history which demonstrated "a pattern of increasingly serious charges against the father (not all of which resulted in convictions), domestic violence offences and breaches of bail and parole" [29]. The mother gave evidence of her intention to remain separated from the father but argued that the extensive history of repeated reconciliations between them meant the court should not have accepted that her intention to remain separated would ensure the children’s safety if they were returned to New Zealand. The father invoked the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Abduction Convention’) to secure the children’s return [1]. The application for recovery was made by the Secretary of the Department of Communities and Justice (NSW) as the "Central Authority" under the Family Law (Child Abduction Convention) Regulations 1986(Cth) ("the Regulations"), an Independent Children’s Lawyer (ICL) was appointed and argued at first instance against the Hague Convention Application being granted, but the judge accepted the mother’s evidence she would not resume cohabitation with the father and the application was granted. The mother sought leave to appeal and applied to lead more evidence of the father’s criminal history and family violence history. The ICL did not participate in the application for leave to appeal despite the order for their participation remaining on foot.
Judgment: Leave to appeal granted. Appeal allowed on basis of the intolerable situation defence (not raised as a ground of appeal but by the Court).
Both Ground 1 and Ground 2 contended that the primary judge erred in finding that there is no immediate prospect of a resumption of the parental relationship. This error was based on the judge’s acceptance "of the mother’s evidence that she had permanently separated from the father and had taken necessary steps to keep him away from her and the children" [51]. In support of these contentions, the mother submitted that the primary judge should have considered her history of separation and reconciliation with the father and instead concluded that it was thus unsafe to assume she would cooperate with attempts to keep her and the children safe. The Court noted that this position was inconsistent with the evidence submitted by the appellant at trial and concluded that "given the manner the case was run at trial" the grounds could not succeed [534].
Ground 3 contended that the primary judge erred in assuming that the protection orders against the father in New Zealand would remain in place. As the mother did not submit as part of her case at trial that she would agree to the father’s application to discharge these protections orders being granted, nor was there evidence that the father’s application had any prospect of success, the third ground was "not made good" [55].
Ryan, Aldridge and Watt JJ all, in separate judgements, granted leave and allowed the appeal after considering the intolerable situation defence under reg 16(3) of the Family Law (Child Abduction) Regulations 1986 (Cth). It was noted that the father’s previous convictions and violence, the pattern of parental separation and reconciliation, and the totality of the circumstances in which the children would find themselves if they were to return to New Zealand were unsafe and intolerable [63].
Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the matter: [78] ‘We have been troubled by what occurred in this case and it is timely to mention the importance of adherence to Model Litigant guidelines. The NSW Guidelines, which apply to the Central Authority, requires more than merely acting honestly and in accordance with the law and court rules. Essentially, the guidelines require that the Central Authority acts with complete propriety and in accordance with the highest professional standards. Relevantly, this includes not requiring the other party to prove a matter which the state or an agency knows to be true.’
[79] ‘In this case, the application disclosed the father’s final term of imprisonment in NSW. Even though the Requesting Authority knew that the father was permanently banned from Australia, had effectively been deported and had lived in New Zealand for many years, it would seem that no attempt was made to establish his criminal antecedents or the involvement (if any) of child protection agencies in New Zealand in relation to his other children. The same applies in NSW. To be fair, the Requesting Authority and the Central Authority disclosed the mother’s application for a protection order and thereby flagged that, on the mother’s case, serious risk issues arose.’
[80] ‘It is our understanding that systems are in place in NSW which enable the Central Authority to access/request information from the NSW Police. We assume New Zealand operates in the same fashion. Thus, the Requesting Authority and Central Authority were able to examine and present the father’s complete criminal history and an entire set of COPS records. Instead, it was left to the mother and the ICL to gather records from New Zealand and domestically. It is no small thing to obtain records from abroad, particularly when time constraints are tight. Fortunately, the mother was granted legal aid, but, what we ask, if she was not? How would this young mother on social security benefits have managed to place this vitally important evidence before the court? The prospect that she would not have been able to do so is obvious.’
Case type: Appeal.
Facts: The husband was a tradesman and operated a business, called the Keating Group, through a complex trust and corporate structure. The Group traded throughout the marriage, and since the parties separated in 2010, the husband managed and operated it. Its value and dramatic increase in the husband’s director loan account to the Group were key issues in the proceedings. The primary judge separated the parties’ property into 2 pools: non-superannuation assets and property and liability, and superannuation. The non-superannuation property was worth $1,784,854; however as a result of the husband’s indebtedness to the Group and expenses associated with a failed taxation minimisation scheme, liabilities exceeded assets by $804,805. The husband’s and wife’s contributions were assessed at 70% and 30% respectively. Their superannuation contributions were assessed as equal. No adjustment was made under section 75(2) of the Family Law Act 1975 (Cth).
The wife was ordered to retain her personal possessions, her bank account, car and $12,000 previously received by way of partial property settlement. She also received a superannuation split of $119,000 and 50% of any payment received as a result of a pending class action relating to the tax scheme. The husband retained the Group, which had an annual turnover of $4 million and which provided him with a superior standard of living. He remained personally liable for his loan account and debts due in relation to the tax minimisation scheme.
The wife alleged that she was subject to family violence at the hands of the husband during and after their relationship. Her evidence included that the husband broke her nose, beat her on an overseas trip until she passed out, and that she suffered serious bruising and broken ribs. The primary judge dismissed all incidents of violence towards the wife except that which resulted in her broken wrist, apparently because her evidence was uncorroborated ([41]).
Issue: The wife appealed the property settlement orders on 7 grounds. Relevant grounds of appeal include that:
Held: The Full Court allowed the appeal against the property order.
Grounds 1 and 5.
At [23]-[24], Ainslie-Wallace and Ryan JJ held –
‘[H]is Honour went no further than to say that the wife was ‘aware’ that the investment scheme was unsuccessful…The issue was whether she knew of and supported the husband’s investment in the scheme to the extent that she should shoulder half of the resulting debt. In the result, his Honour’s decision to fix both parties with responsibility for the debt was made ‘…because [the debt] actually exists…’
‘His Honour’s finding that the wife was ‘aware’ that the investment scheme failed falls considerably short of engagement with the reasons why the wife said she ought not to be fixed with joint responsibility for the debt. The same applies to the finding that the debt ‘actually exists’. Although parties would ordinarily be expected to take the good with the bad, there was no active engagement by the primary judge with the wife’s case that the husband should bear sole responsibility for the debt and why.’
Given the primary judge’s failure to engage with the wife’s case on these matters, the Court held that Grounds 1 and 5 had been established.
Ground 4.
The wife argued that she was exposed to significant family violence by her husband during and after the relationship. She sought an adjustment under the principle in Kennon & Kennon (1997) FLC 92-757 where it was held that family violence, which is demonstrated to have a significant adverse impact upon one party’s contributions to a marriage, is a relevant consideration to the assessment of contributions within section 79. According to the Court in Kennon, it is necessary to adduce evidence to prove the incidence and effect of domestic violence, and to enable the court to quantify the effect of that violence upon the parties’ capacity to ‘contribute’ under section 79(4) ([37]). The Court in Kennon also stated that family violence will be relevant if the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party ([36]).
However, at [33] the Full Court held –
‘The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship.’
The Court went on to state that Kennon should not be interpreted as laying down a precise rule that ‘post-separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant’. The reference to ‘quantification’ in Spagnardi & Spagnardi [2003] FamCA 905 appeared ‘to elevate the need for an evidentiary nexus or ‘discernible impact’ between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence.’ Their Honours stated that perhaps the use of the word ‘quantification’ in Spagnardi was ‘infelicitous’ when in truth, the Court ‘was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions’ ([39]). Their Honours also affirmed the well-settled view that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted ([42]).
The Court could not conclusively determine whether the primary judge’s decision not to make a ‘Kennon’ type adjustment was wrong due to the absence of a transcript ([43]). While Kennon appears to remain sound law, its considerations apply to ‘a relatively narrow band of cases’ ([67]).
Proceedings: Appeal - parenting orders.
Facts: The trial judge made final parenting orders which included an order that the mother have sole parental responsibility for the child of the mother and the father. In making these orders, the trial judge found that the father’s behaviour towards the mother amounted to ‘family violence’ within the meaning of s 4AB of the Family Law Act. As a result of this family violence, the presumption of equal shared parental responsibility for the child in s 61DA of the Act did not apply: s 61DA(1). Further, even if the presumption had applied, the trial judge held that it would still not have been in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(4). The father appealed against these orders.
Issue/s: Some of the grounds of appeal included –
Reasoning/Decision: The appeal was dismissed. The Full Court held that the father’s appeal was always doomed to fail because it rested on a misconceived interpretation of s 4(1AB) of the Act. Relevant to the proceedings, the combined effect of s 4(1AB)(e) and s 4(1AC) was that the child was a member of the father’s and a member of the mother’s family. It was never in issue in the proceedings that the mother resided with the child at the material times, the child being a member of the father’s family. Thus, by operation of subparagraph (h) of s 4(1AB), the mother was a member of the father’s family. Further, within the meaning of subparagraph (i) of s 4(1AB) each of the mother and the father, respectively and alternatively, ‘is or has been a member of the family of a child of [the other]’. Accordingly, the father had engaged in family violence against ‘a member of his family’ (see [17]-[24]).
The father’s contention that the trial judge erred in rebutting the presumption of equal shared parental responsibility because the father had committed family violence was therefore dismissed. As demonstrated above, the contention that there was no family violence in this case because the mother was not a member of the father’s family was based on an erroneous reading of the Act.
Additionally, while the trial judge was correct to apply s 61DA(2) and conclude that the presumption did not apply, it was also well within her discretion to conclude that even if the presumption had applied, it would have been rebutted in the child’s best interests: s 61DA(4).
The father also argued that the mother wasn’t fearful, and so the finding of family violence was erroneous. For this argument to be effective, the words of s 4AB(1) would need to be read conjunctively, not disjunctively, as the section is worded. The family member being ‘fearful’ is one possible manifestation of family violence, but is not necessary to make a finding of family violence.
Appeal type: Appeal against interim parenting orders.
Facts: At the contested interim hearing, the mother made allegations of significant family violence perpetrated by the father in the presence of the children. In light of this and one of the children’s epilepsy and developmental delay, she sought an order directing the father’s care of the children to be supervised by another adult. The father disputed the allegations of family violence. In making interim parenting orders, the trial judge said (see [23]-[27]):
‘The evidence lead [sic] as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.
[…]
Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.
As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out’.
Issue/s:
Reasoning/Decision: The appeal was allowed. The Court noted at [36] that, ‘[i]t is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial’.They continued at [39]-[40]:
‘In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH)’.
The Court held that while the trial judge was correct in stating that, at that point, he could not make findings on the disputed allegations, he erred by ignoring the allegations of family violence and finding that the presumption of equal shared responsibility applied. His Honour further erred in his treatment of the allegations of family violence by suggesting with that comment ‘given no other evidence’ that the mother’s allegations required corroboration or objective support and erred in incorrectly referring to the civil standard of proof (see [41]-[45]). Grounds two and three were also successful for similar reasons (see [60],[65]).
Proceedings: Appeal of interim procedural orders in relation to parenting proceedings
Facts: The parties reached agreement in November 2010 that the children live with the mother and spend time with the father. Almost a year later the mother was “psychiatrically unwell” and the children began to live with the father and spend time with the mother. After many years of litigation, including the appointment of an ICL, one child had returned to live with the mother and was to spend time with the father. The matter was listed for trial and an updated family report was ordered.
One ground of appeal was that “[t]he trial judge failed to give sufficient weight to the mother’s evidence of family violence and did not accept the mother’s evidence of it because she had not produced “third party evidence”.
Issues: In the context of apprehended bias, was the trial judge correct in not determining issues of family violence at an interim hearing?
Reasoning/Decision: The Full Court found that the mother’s assertions regarding the trial judge’s consideration of the evidence of family violence were “unsupported by the transcript”. In addition, her Honour was correct in not making findings “until such time as the evidence had been tested” – something which would happen at the final hearing of the matter. Despite the grounds purportedly being a challenge to the trial judge’s “failure to recuse herself”, it was apparent to the Full Court that they were really a complaint that the trial judge did not accept the mother’s evidence, including that of family violence, at the interim stage of proceedings.
The appeal was dismissed.
Proceedings: Appeal against parenting and property orders
Facts: There is one child of the marriage. The parties married in 2002 and separated in late 2008/ early 2009, continuing to live under the same roof until November 2009. The mother claimed that up until November 2004 she was the primary carer for the child and the father worked. In November 2004 the mother went back to work and the father became the primary care-giver for the child. The child had health issues which would require visits to the hospital. The father consulted medical practitioners about the child’s weight and would weigh the child after time in the mother’s care. Around “September 2009 the husband arranged for ongoing surveillance of the wife”. In October the mother became aware of the surveillance and asserted stress and digestive issues as a result. This also affected the child. A consultant psychiatrist provided a Family Report to the Court on 9 January 2011. This report included discussion of risk associated with physical violence during the marriage in addition to the conflict and hostility between the parties in association with the child’s medical issues. It also included risk to the child in regards to the father’s obsession with “health and welfare”.
Issues: Whether the judge erred in attributing significant weight to the family report.
Whether the judge should have made a finding in relation to family violence.
Reasoning/Decision: Despite the father having opportunity to cross-examine the report writer at trial, and opportunity to raise his concerns about the report with the writer, and opportunity for the father to submit to the judge that the report be given little weight, no such cross-examination was forthcoming at trial, and no like submission was made to the trial judge. It was determined that not only was the judge entitled to rely on the expert report as he did, the father was not entitled to make his complaint about its handling to the appeal court.
In the “background facts” of the judgment the trial judge discussed allegations of family violence made by the mother but made no finding that the violence, as alleged, had occurred. The trial judge was not in error by not making findings – “A court need only determine those facts that are necessary for the determination of the issues between the parties”.
Case type: Appeal against final parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, Magistrate Coates made interim parenting orders. The father unsuccessfully appealed against those interim orders (see Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011)).
Subsequently, final orders were made providing that the mother have sole parental responsibility for the children, that the children live with the mother and spend supervised time for two hours per fortnight with the father. The order for supervised time was for an indefinite duration (see Slater & Light [2011] FMCAfam 1021 (22 September 2011 ) ([1]).
Magistrate Coates’ orders turned on a finding that the father posed an unacceptable risk of emotional harm to the children ([2]). The emotional harm was said to take the form of imposing on the children negative views of their mother, alienating the children from their mother and a chaotic regime for the children ([22]).
Issues: Whether Magistrate Coates erred in:
Decision and Reasoning: The appeal was partially allowed. The Court held that the Magistrate did not err in finding that the father posed an unacceptable risk of harm to the children ([69]). This conclusion was open on the psychiatric reports
However, the Court found that the Magistrate erred in ordering an indefinite supervision order, when this was not requested by either the mother or the Independent Children’s Lawyer ([69]-[70]).
The issue of the time and the circumstances in which the father should spend time with the children be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Coates (see Order 3).
Appeal type: Appeal against parenting orders and property orders.
Facts: Prior to the trial, the three children of the relationship lived with the father. In parenting and property proceedings, the Federal Magistrate concluded that the father had been physically and verbally aggressive to the mother and that the father had alienated the children from the mother. The Federal Magistrate accordingly made orders for the children to live with their mother. In reaching this conclusion, the Federal Magistrate referred extensively to external literature. The father appealed against this decision.
Issue/s: One of the grounds of appeal was that the magistrate failed to accord the husband natural justice/procedural fairness because the husband was not given the opportunity to cross-examine, respond to or introduce contrary evidence in relation to a number of academic opinions relied upon by the magistrate in reaching his decision.
Reasoning/Decision: The appeal was upheld and the matter remitted for hearing. The Full Court held that the Federal Magistrate placed considerable reliance on the academic literature on the topic of alienation of children. None of it was introduced into evidence as opinion evidence, and accordingly no consideration was made by the Federal Magistrate as to whether to exclude the evidence and, if not, to consider what weight to give it. Accordingly, none of this evidence was able to be tested by the father nor was it the subject of submissions or contrary evidence. There was therefore a failure to afford the father natural justice and procedural fairness (see [118]-[121]).
Appeal type: Appeal against parenting and property orders.
Facts: The parties had twins. Serious incidents of family violence occurred during their relationship and after separation. At the hearing of the trial, the father was in prison having been convicted of aggravated assault on the mother. Mother granted sole parental responsibility and the children to live with her. The father was to have supervised time (these orders were interim). Property – 25% adjustment re Kennon.
Issues: In making findings regarding family violence and its effect on the mother and children, did his Honour impermissibly take account of extraneous material? Did his Honour err in making a “Kennon type adjustment”?
Decision/Reasoning: The Court held that despite including reference to the mother’s conduct in the courtroom when faced with the father and the discussion about a report, the passages of which were included and relied upon in Re: L (Contact: Domestic Violence) [2000] 2 FLR 334, a decision of the England and Wales Court of Appeal (Civil Division). They were on the public record and so “materially different from matters appearing in reports” which have not yet undergone judicial consideration. While this alone does not guarantee that procedural fairness is achieved in circumstances where the parties were not on notice about the report and did not have opportunity to cross-examine accordingly, the Full Court held that “anything said in Re: L was not necessary to establish the relevance of the findings” made by the Federal Magistrate.
Regarding the property settlement and the “Kennon type adjustment”, the Full Court found that while it represented the “top of the range” it did not “exceed the bounds of a reasonable exercise of discretion”. Regarding the violence that was perpetrated post-separation, the Full Court held it was correctly included by the Federal Magistrate and was a relevant consideration in determining whether the mother’s contributions as a whole were more arduous.
Appeal type: Appeal against interim parenting orders.
Facts: The parties had three children together and separated in 2006. In March 2010, the Federal Magistrates Court made interim parenting orders. The effect of these orders was to allocate parental responsibility for the children solely to the mother, require the children to live with the mother and require the children to spend weekly supervised time with the father at a contact centre. The orders were made pending the preparation of a psychiatric report on the risk the father presented to the children. These orders radically altered previous arrangements, as the Federal Magistrate was concerned about the need to protect the children from physical or psychological harm that would arise from them being exposed or subjected to abuse, neglect or family violence. The father appealed against these orders.
Issue/s:
Decision/Reasoning: The appeal was dismissed. In dismissing the first ground of appeal, the Court held, amongst other findings, that if evidence of abuse or family violence is adduced at trial, the Court is obliged to deal with it. The Court must always critically assess the evidence placed before it in determining the issue (see [46]). It was also noted that a finding of family violence may be made in the absence of a Form 4 Notice.
The Court held that it was clearly open on the evidence for the Federal Magistrate to find that family violence had been perpetrated by the appellant.
In relation to the second ground of appeal, the appellant contended that the Federal Magistrate relied upon erroneous finding of family violence to then improperly find that the presumption of equal shared responsibility did not apply. The Court dismissed this argument by again noting that the finding of family violence was open to the Federal Magistrate (see [64]-[69]).
Note: final orders were subsequently made, but the finding of family violence was not affected (see Slater & Light [2013] FamCAFC 4 (5 February 2013)).
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother from parenting orders that challenged part of the process followed and some of the rulings made during the conduct of the trial. On the final day of the hearing, the self-represented mother sought to tender a 52 page document in response to the report of an expert witness.
Issue/s: One of the grounds of appeal was that trial judge failed to provide the mother with procedural fairness in not ascertaining the reason behind the preparation of this document and in not advising her that she may wish to seek legal advice before tendering the particular document, contrary to the litigants in person guidelines: Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Reasoning/Decision: The appeal was dismissed as the mother here was not the victim of unfairness. Although this appeal did not relate to family violence, the Court relevantly observed that the Litigant in Person Guidelines were no more than guidelines.
See Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).
Proceedings: Appeal against parenting and relocation orders.
Facts: The parties met online and were married in Belgrade. Their child, who had autism, was born in Belgrade. The mother and the son came to live in Australia with the father when the child was 20 months old. The parties subsequently separated, with the mother alleging that the father had perpetrated domestic violence and sexual assault against her. The father denied these allegations. In 2008, a Federal Magistrate made orders granting the mother sole parental responsibility for the child. The mother was also permitted to relocate to Serbia with the child and the father’s contact time with the child was reduced from weekly to possible annual contact. The father appealed against these orders.
Issue/s: One of the grounds of appeal was that the Federal Magistrate erred in accepting the mother’s uncorroborated evidence that domestic violence and sexual assault was perpetrated by the father on the mother.
Reasoning/Decision: This ground of appeal was dismissed but the appeal was allowed on other grounds. In dismissing this ground of appeal, the Court held that a positive finding may be made on the evidence of the victim without corroborating evidence. See [79].
The Court expressed concern at the manner in which the Federal Magistrate had expressed a finding of insufficient evidence re family violence. They were concerned that the Federal Magistrate had felt in some way constrained by law in being able to make a positive determination in relation to allegations of violence even if the evidence had satisfied her on the requisite standard that the violence occurred as alleged. See [95]-[96].
Proceedings: Appeal against parenting orders
Facts: The parties were together for approximately 7 years, separating in March 2006 – there were 2 children of the relationship. The mother had 6 children from previous relationships. The Federal Magistrate described their relationship as “extremely volatile”, ending in an incident of domestic violence. The Federal Magistrate made findings inter alia: that the parties were unable to effectively communicate with each other due to them being “aggressive, provocative … show[ing] a lack of maturity and complete absence of child focus”; that the mother used physical discipline on the children; and that on at least one occasion the mother’s behaviour at changeover was “appalling and did severely distress the children”. The family report included the opinion that the children “have positive attachments to both parents, but experience some trauma associated with the continuing conflict in their parents’ relationship”. Despite the conflict between them, the parties agreed to an order for equal shared parental responsibility. As such, the Federal Magistrate was obliged to consider equal time, or significant and substantial time with each parent. Orders were made that the children live with the mother 9 nights a fortnight and with the father for 5. The father appealed these orders.
Issues: Did the Federal Magistrate give appropriate consideration to the evidence and findings of family violence when making the parenting orders that he did?
Reasoning/Decision: The appeal was dismissed. The Full Court referred to the 2009 publication “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged”, specifically Section F of the 2009 principles which sets out considerations where children are ordered to spend time with a parent where positive findings of family violence have been made against that parent.
The Full Court found that while they agreed with the argument of the mother’s counsel, that the discussion of weight in relation to family violence had been “clipped” they found that there was no appealable error established. The Federal Magistrate had evidence of both parties and their associates hitting the children, and that both parties were verbally and physically abusive of one another in the presence of the children. Despite acknowledging that the mother’s behaviour was, at times, worse than the father's, when taken in the context of the best interests of the children, the conclusion was that it was in their best interests to remain predominantly in the care of their mother.
Proceedings: Appeal against parenting orders.
Facts: Both parents were Aboriginal and Torres Strait Islander, and lived in the NT, one close to Darwin, one quite remote. There was family violence where the father would physically and verbally abuse the mother. On one occasion the paternal grandfather punched the father for hitting the mother. The mother had been the primary care giver of the children. At trial evidence was led about the communities in which each parent lived. The trial judge found that the children would have a greater connection to their father’s culture by living with him.
Issues: Whether the trial judge had adequately considered the evidence of family violence and its potential effects on the children.
Reasoning/Decision: The Full Court held that there was inadequate consideration of the risk to the children given the father’s history of violence and alcohol consumption. The lack of consideration of the evidence that the children had been primarily cared for by the mother, and that there was no evidence that her care was lacking was overlooked, was also an error. A finding was made by the trial judge that the mother’s parenting was reliant on others in the community, referring to it as “collectivist”. He based his finding on an anthropological report quoted in another judgment. There was no anthropological evidence that the mother’s community engaged in such “collective” parenting, and that the mother was not, herself, the children’s primary care-giver. The trial judge’s finding that the best interests of the children would be met by them living with their father cannot be sustained when evidence of the mother’s adequate care, the fact she was the primary care giver and the father’s violence towards the mother, is balanced against the finding of the cultural benefits to the children of living in the father’s community.
Proceedings: Appeal against residence and contact orders.
Facts: The proceedings involved competing applications for residence and contact to the child of the parties. The mother made allegations that the father sexually abused the child. While no finding of abuse was made, the Trial Judge did make a finding of unacceptable risk. On appeal, the father challenged the orders made for contact, in particular, the requirement that the contact be supervised.
Issue/s: The trial judge provided inadequate reasons supporting his finding of unacceptable risk of abuse.
Reasoning/Decision: Although this case did not relate to family violence, the Court made observations relevant to the assessment of unacceptable risk. Bryant CJ and Kay J held at [84] that:
‘There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper’.
Appeal type: Appeal against property orders.
Facts: The parties had two adult children and separated in 2000. The trial judge made a Kennon style adjustment in favour of the wife. His Honour held that the evidence clearly revealed that there had been some violent behaviour by the husband towards the wife. Although there was no explicit evidence from the wife as regards to the effect of the violence on her contributions, the trial judge accepted that the wife’s contributions must have been made significantly more arduous than they ought to have been because of the violence inflicted upon her by the husband.
Issue/s: One of the grounds of appeal was whether the trial judge erred in adjusting the wife’s contributions to account for the domestic violence perpetrated by the husband?
Reasoning/Decision: The appeal was allowed. Here, the evidence could not have properly led to a Kennon adjustment under section 79 (see [48]). In reaching this decision, the Court made a number of statements of principle, elaborating upon the decision in Kennon.
It was held that evidence of violence alone is not enough, but that the “violent conduct by one party towards the other” must be demonstrated to have an effect on contributions.
In addition, the Court also stated that the reference in Kennon to ‘exceptional’ cases should not be understood to mean rare. They adopted the trial judge’s comments that ‘the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. … It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernible impact’. (see [47]).
Proceedings: Appeal against parenting orders and division of property.
Facts: The parties had two children together. At trial, the mother made extensive allegations of physical, verbal and emotional abuse against the father, much of which the father conceded (see [38]). The trial judge made an order that the children should predominately be in the care of their father. Additionally, the trial judge rejected the wife’s submission that the division of property ought to be adjusted to 60/40 from 70/30 division on the basis of the decision in Kennon.
Issue/s: Some of the issues were –
Reasoning/Decision:
The Court held that the trial judge was ‘obliged to adjudicate the violence issue as raised by the wife and to make specific findings in respect of the course of conduct conducted by the husband in the course of the marriage so that he could properly assess relevant aspects of the behaviour of each of the parents in determining in whose care he should place the children’. However, from reading His Honour’s reasons for judgment, it was not clear that he considered and evaluated the relevant evidence and took all the relevant factors into account. The issues raised by the wife in the grounds of appeal could not be described as ‘pernickety or overly critical’ (AMS v AIF) when matters of such significant serious and prolonged violence were clearly raised and left virtually undiscussed in the judgment (see [32]-[53]).
Secondly, the Full Court found that, the trial judge did not attribute responsibility for the domestic violence to the wife: while the trial judge found the wife to have engaged in passive/aggressive conduct, His Honour indicated in the clearest terms that he was not condoning the husband’s conduct in response to such behaviour(see [54]-[57]).
Thirdly, the Full Court held that the application of the principles in Kennon is “not the equivalent of an award for damages”, but used to determine whether the husband’s conduct had the effect of making the wife’s contributions more arduous.
Proceedings: Appeal against parenting orders.
Facts: This was an appeal by the mother against orders made by the trial judge in relation to the residence, contact and other specific issues relating to the child of the parties’ relationship. The effect of the trial judge’s order was that the father was to have residence of the child and be responsible for the child’s day to day care, welfare and development; and that the mother was to have specified contact with the child. The mother was unrepresented for five days of the six day hearing. A claim by the mother of domestic violence at the hands of the father was raised but the trial judge did not accept the mother’s evidence. The trial judge instead made a number of adverse findings against the mother.
Issue/s: A major ground of appeal advanced on the Mother's behalf was that she did not receive a fair trial and that a new trial should be ordered. The gravamen of the Mother's case was that because she was a victim of domestic violence who was unrepresented at trial, she was unable to effectively meet the case of the Father and present her own case. As a consequence, and because the Mother suffered from a personality disorder, the trial judge made negative findings against her, and in particular against her credibility.
Reasoning/Decision: The appeal was allowed on the basis of further evidence tendered on appeal which contained detailed evidence of ongoing domestic violence by the husband, and reports from a psychologist and social worker providing evidence as to the effect of the domestic violence on the mother’s ability to conduct her case at trial. The Court held that if the evidence had been tendered before the trial judge, it would have produced a different result and the best interests of the child required a re-hearing.
Proceedings: Appeal against residence orders and property settlement.
Facts: The parties had two children. The trial judge made an order for shared residency of the children. The trial judge accepted evidence that the husband had anally raped the wife.
Issue/s: Did the trial judge give sufficient weight to the family violence the husband had inflicted on the wife and the subsequent effect or impact on her of that violence in making residence orders?
Reasoning/Decision: The appeal was dismissed. At [32] the Court noted the authorities referred to by counsel for the wife in support of the argument that the trial judge did not give sufficient weight to the effect of the domestic violence perpetrated by the husband against the wife: JG and BG (1994) FLC 92-515, Patsalou (1995) FLC 92-580, Blanch v Blanch & Crawford [1998] FamCA 1908; (1999) FLC 92-837, and Re Andrew [1996] FamCA 43; (1996) FLC 92-692.
The Full Court determined that consideration of the family violence and its effect upon the wife was adequate and orders for fortnight-about care of the children was within the trial judge’s discretion.
Appeal type: Appeal against parenting and contact orders.
Facts: While not a case specifically dealing with family violence, there is a large proportion of self-represented litigants in family law proceedings and as such the guidelines set out in this case pertain.
Issue/s: Did the trial judge contravene the guidelines in respect of the litigants in person set out by the Court in Johnson v Johnson (1997) FLC 92-764?
Reasoning/Decision:
The Full Court provided guidelines as follows (taking a number from Johnson v Johnson (1997) FLC 92-764):
Where the interests of justice and the circumstances of the case require it, a judge may:
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
Appeal type: Appeal against parenting orders.
Facts: The parties were married but separated after seven years. There were two children of the marriage. The wife made allegations of domestic violence against the father; these were denied by the father. The trial judge found at [325] that both parties were responsible for violence in the relationship, and that the relevance of family violence in custody proceedings was to be indicative of a risk ‘to … children in later years that … could cause them harm’. The wife brought an appeal against orders made by the trial judge that the children of the relationship reside with their father.
Issue/s:
Whether the trial judge erred in his findings regarding domestic violence?
Decision/Reasoning: The appeal was allowed.
Counsel for the wife submitted that the trial judge addressed the questions of the husband’s domestic violence ‘in almost a passing manner’, despite the presence of overwhelming evidence from the wife that she was the victim of consistent and frequent violence and abuse. It was held that “in cases such as this, where a case of sustained and severe domestic violence by one party is advanced by the other, the court is obliged to give a clear indication whether it accepts or rejects that case and, in any event, to explain why it has reached that conclusion” (see [333]).
In addition it was held that the trial judge’s conclusion that the responsibility for violence between the parties was fairly evenly shared was not available on the evidence.
Other aspects of His Honour’s treatment of domestic violence were also in issue. First, His Honour’s perception of the relevance of violence to the overall welfare of the children was inadequate. The trial judge failed to consider the significant risk of such violence to the children’s emotional development such as “insecurity, fear, unhappiness, anxiety and hyper vigilance”: Patsalou and Patsalou [1994] FamCA 118 and JG and BG (1994) FLC 92-515 (see [334]). Second, Lindenmayer J also strongly disapproved of the trial judge’s finding that the husband’s violence towards the wife was a product of the marital relationship rather than of the husband’s personality.
Proceedings: Property settlement.
Facts: The parties cohabited for approximately five years before separating. The husband was very wealthy and the wife had far more modest means. The property pool was nearly $9 million. There were no children of the marriage. In 1994, the wife filed a property application under s 79 of the Family Law Act. The husband filed a cross application. The wife subsequently filed an amended application which included a claim under the cross-vesting legislation that the husband pay her damages for assault and battery. The husband denied the allegations of assault and restated his position regarding the property claim. The trial judge accepted that a number of assaults had occurred and awarded damages, but found that the husband's conduct had not affected the wife's contributions to allow an adjustment in relation to s 79(4).
Issue/s: The wife did not challenge the trial judge’s finding that the husband's conduct had not affected her contributions. Consequently, the Full Court's comments on the relevance of domestic violence in claims under s79 of the Family Law Act were made in obiter.
Decision/Reasoning: The appeal was dismissed but the Full Court took the opportunity to clarify the relevance of violence in s79 property adjustments. The Full Court said that earlier authorities on s 79 precluding evidence of domestic violence were no longer binding, acknowledging that the ‘pervasiveness and destructiveness of domestic violence’ was now better recognized by the Australian community and courts.
The Full Court cautioned that s 79 of the Act is not a source of ‘social engineering’ or to be used as ‘a means of evening up’ the financial positions of the parties. They held:
‘Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion’.
The Court also referred to this principle as including ‘exceptional cases’ and noted, ‘[i]t is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party’.
(See also subsequent interpretation in S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003), Baranski & Baranski & Anor [2010] FMCAfam 918 (1 September 2010) and Damiani & Damiani [2012] FamCA 535 (9 July 2012).)
Proceedings: Appeal against supervised access orders.
Facts: The parties separated. Satisfactory access arrangements were in place for 3.5 years. However, the relationship between the parties deteriorated and the husband assaulted the wife. The wife held a genuine belief that the husband had tried to kill her and the child on this occasion and subsequently denied the husband access to the child. The husband filed an application for unsupervised access.
The trial judge found that each parent alone could provide adequately for the needs of the child. However, the wife’s fears had become even more entrenched over time and these fears were a major impediment to access, because they were genuine even if they may not be founded in fact. Her capacity to provide care to the child would be impaired and cause detriment to the child if the husband was given unsupervised access. The trial judge made orders for supervised access.
Issue/s: The trial judge gave too much weight to the mother’s attitude and not enough weight to the benefits to the child of unsupervised contact with the father.
Reasoning/decision: The Full Court dismissed the appeal. After citing extensively from past authorities, it was concluded that the finding that the wife’s genuine fear of the husband would significantly affect her ability to provide adequately for the needs of the child as custodial parent despite the benefits to the child from contact with the father was open to the trial judge.
Proceedings: Appeal against custody orders.
Facts: Not a family violence case, but it discusses principles in determining unacceptable risk in the context of sexual abuse allegations. In custody proceedings, the mother alleged that the father sexually abused their child and sought to have access by the husband to the child prevented. The trial judge was not satisfied on the civil standard of proof that the sexual abuse had occurred. However, he did not conclude that the abuse certainly did not happen. The mother was steadfast in her belief that the child had been abused by the father. The trial judge did not find the father unfit to have custody or access to the child by reason of sexual abuse or unacceptable risk of abuse, however, mitigated against the concerns and effect on the mother by making interim supervised contact orders.
Issue/s: Whether the trial judge erred in finding that the father was not an unacceptable risk?
Reasoning/Decision: The appeal was dismissed by majority. The Full Court held that the trial judge should not have made interim custody orders and failed to take into consideration the effect this would have not only on the child but also on the mother’s ability and capability to parent effectively. However, as the interim custody order was not challenged the Full Court did not set it aside. As regards to no finding of unacceptable risk, on the evidence, this was open to the trial judge.
Appeal type: Appeal against custody orders.
Facts: Allegations of family violence were made in custody proceedings. The trial judge accepted the wife’s evidence that prior to separation the husband had been hitting her on a regular basis, in front of the children on a number of occasions. Her Honour stated that the denigration of one parent by the other and the perpetuation of violence by that parent against the other is of importance when assessing where the interests of the children lie and what future arrangements might best advance their welfare. Her Honour also noted a number of articles on the effect upon children of inter-spousal violence including that such effects may be profound and long-lasting. The trial judge concluded that the children’s welfare would be best promoted by remaining in the custody of the wife.
Issue/s: Some of the grounds of appeal were –
Reasoning/Decision: The Full Court upheld the trial Judge's finding that allegations of domestic violence were relevant to custody proceedings and found that the reference by the trial judge to published social science literature about the impact of family violence on children was permissible as the published research was referred to as background information rather than evidence.
Evidence of family violence was held to be relevant in custody matters, to the extent that it assisted the court to determine what is in the best interests of the children, as its impact could be ‘profound and long-lasting’. The Full Court approved the comments by the trial judge that denigration and assault cause ‘considerable unnecessary strain’ to the victim and ‘may erode the confidence, dignity and self-esteem of the children’s other parent’. Baker, Kay and Tolcon JJ agreed with the trial judge that such conduct modelled inappropriate behaviour for children and could ‘impinge upon the quality of parenting able to be offered to the children’ and ‘reflects poorly upon the assailant’s capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress’.
Appeal type: Appeal against access orders.
Facts: Post separation, an access arrangement for the two children of the relationship was established. The relationship between the parties deteriorated and the mother refused to allow the husband access to the children. One child was found to have been sexually abused, but it was not possible to identify the perpetrator. The mother believed that the father was the perpetrator, however the trial judge was not satisfied that the father had sexually abused the child. The trial judge made orders giving the father unsupervised daytime access to the children to reduce the risk of the mother from making unfounded allegations in the future. The father appealed against these orders. The mother did not challenge the orders, but cross-appealed in relation to findings of fact made by the trial judge.
Issue/s:
Decision/Reasoning: The appeal was allowed in part. Amendments were made to the trial judge’s orders, clarifying the father’s access period and altering the proposed changeover location. The mother’s appeal against factual findings made by the trial judge and the father’s appeal against daytime access were dismissed.
The Full Court found that the relevant considerations when making access orders in cases involving sexual abuse of children were whether sexual abuse had occurred, whether the perpetrator could be identified, the potential risk of harm to the child from sexual abuse, the potential benefit to the child from parental access and the impact of the custodial parent’s beliefs on the welfare of the children. The Full Court said that the custodial parent’s beliefs regarding the child’s exposure to harm are relevant to the extent that they are likely to adversely affect that parent’s parenting ability and that a subjective test is used to assess the custodial parent’s beliefs.
The Full Court was satisfied that it was open to the trial judge to draw inferences regarding the likely future conduct of the mother. As the trial judge had found the mother genuinely believed the child had been sexually abused, that it was highly likely the mother would make further allegations of sexual abuse against the father if unsupervised overnight access was granted and that this risk did not apply to unsupervised daytime access, it was at the trial judge’s discretion to give the husband unsupervised daytime access.
Case type: Interim ruling.
Facts: The applicant and first respondent were in a de facto relationship for 14 years and have two children. They agreed that their respective contributions during the relationship (apart from the Kennon argument) should be regarded as equal ([8]-[10]). The first respondent alleged that the applicant’s conduct amounted to family violence, occurring during and subsequent to their relationship. Her evidence of such violence included a history of protection orders made against the applicant; allegations of physical, verbal, psychological, financial, emotional and mental abuse; allegations of property damage and animal cruelty; and allegations of exposing the children to family violence ([13]).
Issue: The applicant sought a ruling on whether or not family violence evidence relied upon by the first respondent sufficiently met the requirements of the Kennon principles and resulted in an ‘additional adjustment’ to the first respondent.
Held: Carew J ruled that the first respondent’s evidence was insufficient to establish that the Court should make an adjustment on the basis of the Kennon principles. Her Honour stated that ‘[w]hile it is settled at law that family violence can be a relevant factor in determining contributions in property proceedings, the difficulty often faced by a trial judge is the inadequacy of evidence to support any relevant finding and adjustment’. Even if there is no direct evidence as to how the conduct affected the victim’s ability to make his or her contributions, the impact may be inferred provided that the evidence clearly supports it. A person’s conduct will be relevant if it has had a ‘significant adverse’ or ‘discernible’ impact on the contributions of another ([6]).
The applicant submitted that the evidence failed to demonstrate a discernible or significant adverse impact on the first respondent’s contributions ([15]). In relation to direct and indirect financial contributions, the first respondent deposed to finding it difficult to contribute financially because of the domestic violence inflicted upon her by the applicant. In relation to non-financial contributions for the welfare of the family, she gave evidence that the applicant also made it difficult for her to contribute as a ‘mother’ ([17]). The applicant further submitted that the first respondent’s evidence to occasionally feeling nervous or humiliated represented a personal impact on the first respondent, but fell short of establishing that those feelings had any discernible or significant impact on her ability to contribute ([18]).
Carew J noted that the need to establish ‘fault’ has been replaced by a ‘no-fault’ system in order to obtain a divorce or other relief, such as a property settlement or spouse maintenance. The repeal of the ‘fault’ based system avoids the humiliation and expense associated with presenting the necessary evidence ([22]). Nevertheless, according to the Kennon principles, there are circumstances where conduct will be relevant to the determination of a property settlement application ([23]).
Her Honour accepted the applicant’s submission that the evidence relied upon by the first respondent was insufficient to establish the impact of the conduct on her ability to make contributions or the quantification of that impact on her contributions, either expressly or impliedly ([24]).
Case type: Application by both parties for a vexatious proceedings order.
Facts: Mr Xuarez and Ms Vitela (both pseudonyms) had been involved in court proceedings in relation to parenting orders for over 10 years ([7]-[21]). The father had filed 19 separate Applications in a Case between 11 April 2012 and 16 November 2017 ([16]), which were all dismissed, and Notices of Appeal in relation to the dismissals ([17]). Both the mother and the father filed applications for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth).
Issues: Whether the Court should make the vexatious proceedings order against the mother or the father or both.
Decision and Reasoning: The application made by the mother was granted, while the application by the father was dismissed. An order was made prohibiting Mr Xuarez from instituting proceedings against Ms Vitela or any of her legal representatives and dismissing all extant applications ([45]).
Justice Carew at [29] cites Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398 to set out 11 principles to consider when making an order in relation to vexatious litigants. Applying the principles to the father’s conduct, Carew J highlighted the facts that most of the applications were instituted without reasonable grounds, the father sought orders that the Court did not have jurisdiction to make, and the repetitive nature of the applications amounted to an abuse of process ([34]). It was noteworthy that in 2010, the father was declared a vexatious litigant in another court, in relation to proceedings where the father stalked the mother’s former legal representative ([37]). These facts justified the order being made against the father.
Proceedings: Application relating to the admissibility of evidence and application as to whether the rules of evidence ought to apply in a Family Court hearing.
Facts: On the first day of a four day hearing, counsel for the applicant (the mother) sought leave to tender voice recordings and transcripts that had been made without the knowledge of the father. Under s 7 of the Surveillance Devices Act 2007 (NSW), it is unlawful to record private conversations without the consent of the parties to that conversation unless the recording of the conversation falls within one of the exceptions in s 7(2) and (3).
Issue/s:
Reasoning/Decision: First, McClelland J held that both the voice recordings and the transcripts were admitted in evidence under s 7(3) of the Surveillance Devices Act 2007 (NSW) (the recordings were reasonably necessary to protect the applicant’s lawful interests) and, in the alternative, under s 138 of the Evidence Act (the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained improperly).
McClelland J noted the ‘floodgates’ caution from senior counsel for the father i.e. that there was a danger of parties to a marital relationship experiencing difficulties surreptitiously recording their partner. However, in this regard, His Honour stated that his decision was very much one based on the facts of the case, including the allegations that the father had maintained a charming public face but had engaged in conduct within the family home that was alleged to have constituted family violence in terms of the provisions of s 4AB of the FLA. His Honour also had regard to the potential difficulty of obtaining evidence of family violence when it occurs behind closed doors without any witnesses present other than the perpetrator and victim. Further, His Honour noted that the recordings and transcript would be directly relevant to the issue of credibility as to whether family violence occurred in the proceedings (see [6]-[14]).
Notwithstanding the findings above, senior counsel for the father submitted that the Court ought to exclude the voice recordings (permitting the inclusion of the typed transcript) because the danger of the evidence being unfairly prejudicial to the father outweighed its probative value (s 135 Evidence Act). This was because the mother had knowledge and control of the recording and the circumstances in which the conversation occurred and was recorded. McClellan J dismissed this argument and held the voice recordings were admissible. This could be a matter for cross-examination by the father: Huffman & Gorman (No. 2). Further, His Honour noted submissions from counsel for the applicant and counsel for the Independent Children’s Lawyer that an important aspect of the evidence contained in the tapes was not simply what was said but how it was said. This was relevant to whether the father’s behaviour could be modelled or mimicked by the children and whether the parenting abilities of the primary carer had been compromised as a result of the content and tone of the communication (s 69ZN of the FLA) (see [15]-[23]).
Second, McClelland J held that the rules of evidence were to be applied in respect to the issues of the events on 10 September 2013 (these events were the subject of criminal proceedings) and to the issue as to whether the father made threats to the children or to the mother in respect to the children (s 69ZT(3)). For the remainder of the issues, the rules of evidence would not apply (s 69ZT(1) and (2)) and His Honour would therefore have the discretion to consider the probative value of such evidence. His Honour stated, ‘evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in appropriate context and given appropriate weight, depending upon who was expressing the opinion and on what basis, and the establishment of the necessary background facts’ (see [24]-[34]).
Proceedings: Numerous applications including an application to discharge the ICL.
Facts: The mother and the father separated in 2009.There were three children of their relationship. In 2012, a final parenting order was made with the consent of the parties and the Independent Children’s Lawyer (ICL). There was continued conflict between the parents. Numerous applications were considered by the court in this case in particular, an application brought by the father to discharge the ICL.
Issues: Whether the ICL had been negligent and demonstrated bias towards the mother?
Reasoning/Decision: The application was dismissed. Forest J referred to his previous discussion (in Dean & Susskind [2012] FamCA 897 at [19]-[28]) of the principles applicable to such an application:
‘…
The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.[20]
I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL. [21]
…
It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal. [26]
Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case’. [27]
The father submitted a number of facts as evidence of bias. First, the ICL sought the appointment of a new, female report writer (Ms C). The father argued that the ICL failed to give him an opportunity to argue against Ms C’s appointment and, by retaining Ms C, evidenced ‘significant gender bias’ by removing ‘the only male person within our entire court process’. The fact that the ICL disagreed with the father on the issue of appointing a new family report writer, as she was entitled to do, did not prove that the ICL failed to adequately consider the father’s argument. Further, the selection of a report writer alone, who happened to be female, did not demonstrate or prove gender bias (see [58]-[63]).
Second, the father argued that the ICL demonstrated negligence or bias against him because she would not give him a copy of her instructions to the report writer. Forrest J noted that there is nothing in the Federal Circuit Court Rules or the Family Court Rules that obliges an ICL to provide copies of her instructions to an expert retained by her to each of the parents. Further, the father did not actually request the ICL to provide him with a copy of her instructions; he instead asked whether he would receive a copy of the instructions to which the ICL replied ‘you don’t see the letter of instruction’. In these circumstances, the ICL had not demonstrated negligence or bias that warranted her disqualification (see [65]-[70]).
Third, on the day of the interviews for the report, the father argued that the ICL demonstrated bias in directing the waiting arrangements in her office for the parents and children. Forrest J held that, at the interim stage, where the evidence invited a number of possible findings that could not be made without cross-examination of deponents, he was not in a position to say that the ICL had acted in a way that warranted her immediate discharge (see [71]-[78]).
Finally, the father asserted that the ICL was incompetent as well as negligent and biased against him. Forrest J was not persuaded by the father’s evidence and held that (see [79]-[81]):
‘It is most certainly not the case that where a parent might be able to point to a mistake made by an ICL that the Court will necessarily accede to an application by that parent to discharge that ICL. The authorities I have discussed clearly disclose that significantly more than that is required’.
Proceedings: Application for final parenting orders.
Facts: The parties had one child together. During the relationship, the mother alleged that the father often forced her to have non-consensual sex with him. The parties separated and the mother obtained a DVO against the father. The mother initiated proceedings seeking parenting orders and over the next four years a number of parenting orders were made and amended. However, after an incident at handover, the wife formed the belief the husband would abduct or remove the child from her care, and she attacked the father whilst in a dissociative state. She was convicted of unlawful wounding and sentenced to 18 months imprisonment, and immediately released on probation.
The applicant father sought orders for sole parent responsibility for the child, who would live with him and spend supervised weekend and school holiday time with the mother. He argued that the mother presented an unacceptable risk of sexual, physical and emotional harm to the child (the mother suffered sexual abuse as a child). At the time of these proceedings, the father was committed to stand trial on six charges of rape of the mother and one charge of grievous bodily harm against the mother.
The mother sought orders, supported by the Independent Children’s Lawyer, that she have sole parental responsibility for the child, who would live with her and spend no time, nor have any contact or communication with the father. She later amended her orders and sought to include provision for a card or letter for her birthday and for Christmas. The mother sought no contact as she believed any continued interaction between her and the father in relation to the child, was likely to adversely affect her capacity to parent the child.
Issue/s: What parenting order was in the best interests of the child?
Reasoning/Decision: Orders were made providing for the mother to have sole parental responsibility for the child and sole custody of the child, and for the father’s access and communication with the child to be limited to postal correspondence twice a year until the child turned eighteen. His Honour also made a vexatious litigant order against the father, restraining him from bringing further proceedings without leave of the court.
In relation to making a no contact order, his Honour stated that it is a serious matter that a child neither spend time with nor communicate with a parent. Accordingly, such orders ought to be restricted to cases where the outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Three scenarios were considered in which ‘no contact’ orders had been made in the past. First, these orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child. Second, ‘no contact’ orders have been made where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed (on the basis of protecting the child from the consequences of that parent’s belief): Re Andrew. Finally, this approach was taken one step further in Sedgley & Sedgley where the Court held that while the welfare of the child may require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child. However, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation (see [55]-[58]).
The best interest considerations in s 60CC let the court to determine the child live with her mother. His Honour accepted that by time the child turned 12 she would likely come into conflict with the father and was at real risk of harm from his coercive, controlling, dominating and self-serving personality traits (see [177]-[178]). Further, the father was to have no contact with the child except for a card/letter at Christmas and on the child’s birthday. It was found that the father deliberately calculated his interaction with the mother with a view to destabilising her mental health conditions, and even the smallest opportunity for debate or conflict with the mother would be seized upon by the father. If the mother was required to continue to interact with the father in any form of co-parenting, there was a substantial risk that she will either attempt to kill herself, attempt to kill the father, or both.
It was ultimately decided that the prospect and magnitude of the risk of harm to the child if her mother was required to maintain contact with the father far outweighed any benefit the child would obtain by a continuation of any time or communication with her father. It was held that the best interests of the child lay with making a no contact order.
In relation to family violence, his Honour was satisfied that on occasion the father had engaged in non-consensual sexual intercourse with the mother. However, it was both unnecessary and undesirable to make a finding regarding the father’s conduct in relation to the criminal offence of rape (see [168]-[169]). However, the father’s controlling and domineering behaviour was considered and had bearing on the court’s decision for no contact (see [170]-[171]).
Note: this case was confirmed on appeal, see Theophane & Hunt and Anor [2016] FamCAFC 87.
Proceedings: Parenting orders and vexatious proceedings order.
Facts: Over many years, the mother and the 12 year old child experienced harassment, physical violence and stalking behaviour by the father. The father had little or no insight into the impact of his behaviour on the child. This was the third final parenting hearing. The current proceedings were brought about by the father in circumstances where the application was doomed to fail. Seeing the profound impact of these fresh proceedings on her mother, the child resolved that she no longer wanted to see or communicate with her father. Benjamin J was satisfied that the views were her own.
Issue/s:
Reasoning/Decision: In making parenting orders, Benjamin J noted that the presumption of equal shared parental responsibility in s 61DA of the Act did not apply because there were reasonable grounds to believe here that the father had perpetrated family violence. This family violence included the father’s entrenched pattern of behaviour (referred to by a psychologist), the father’s stalking behaviour, the verbal abuse, harassment and the assaults by him on the child. Further, shared parental responsibility could not effectively operate given the views of the child, the approach adopted by the father and the impact upon the mother. Accordingly, Benjamin J made an order that the mother have sole parental responsibility for the child (see [379]-[384]). Benjamin J also made an order that the child spend no time with the father and have no communication with the father (see [387]-[404]).
Benjamin J made a vexatious proceedings order prohibiting the father from instituting further proceedings without leave. This order was made under s 102QB(2) of the Family Law Act 1975 (Cth). At [420], His Honour noted that the fundamental differences between the old section (s118) and s 102QB were: (1) the test was no longer a court having frivolous or vexatious proceedings before it but rather whether or not there was a history of a person having frequently instituted or conducted vexatious proceedings; and (2) Vexatious proceedings were now defined by statute in s 102Q(1).
To make an order under s 102QB(2), Benjamin J noted at [438] that a two part threshold test needs to be met, namely:
Applying this test, Benjamin J proceeded in three parts. First, His Honour determined a number of proceedings initiated by the father constituted vexatious proceedings on the facts (see [441]-[481]). Second, His Honour held that the proceedings amounted to the father ‘frequently’ instituting and conducting vexatious proceedings. In making this determination, Benjamin J noted that the test of ‘frequently’ was used as opposed ‘habitually and persistently’. The term ‘frequently’ is a relative term and is to be considered in the context of the facts of an individual case and, in this case, in the context of the litigation between these parties. This test was said to be satisfied on the facts (see [482]-[494]).
Finally, with the threshold being met, Benjamin J considered whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. His Honour noted that a vexatious proceedings order must be considered in the context where there is a need to balance the serious step of restricting a person from commencing proceedings against the need to protect the mother and the child from the constant impact of litigation. In the circumstances, a vexatious proceeding was made (see [495]-[540]).
Proceedings: Application for parenting orders.
Facts: The mother and the father, who both had compromised mental health: the mother diagnosed as Bipolar and the father also being previously diagnosed as Bipolar, had two children together. Both children had intellectual and developmental disabilities. The parties separated and reconciled several times before final separation, with the mother obtaining Apprehended Domestic Violence Orders (ADVO) on a number of occasions. The father breached one of these orders in February 2010 by breaking into the mother’s home and assaulting the mother. He was charged and spent time in a psychiatric facility. The mother formed a relationship with another man (‘the stepfather’). In 2011, one of the children went temporarily missing in a National Park under the care of the father, the father deliberately sent photographs of his penis to the mother, and one of the children told the mother that the father swore at her. Contact ceased between the father and the children and the mother received victim’s compensation in relation to domestic violence by the father. Proceedings were commenced in relation to the parenting of the children.
Issue/s: It was agreed that the mother and the stepfather would have parental responsibility for the children. However, some of the remaining issues were –
Reasoning/Decision: Orders were made giving the mother and stepfather equal shared parental responsibility for the children, giving the father no parental responsibility, making provision for the children to live with the mother and stepfather and to have no contact with the father, restraining the father from approaching the children, their school and residence and the parents from discussing proceedings with or near the children.
The Court found that the s 61DA presumption of equal shared parental responsibility did not apply as the father engaged in family violence. Further, in relation to the children’s best interests, including consideration of the evidence about family violence, the Court determined that in any case the presumption would be rebutted on the evidence. It was held that any further contact between the father and the mother would destabilise the mother and prevent her from being able to adequately care for the children (see [197]-[205]). Additionally, on this basis, it was ordered that the father spend no time with either child (see [206]-[210]).
Loughnan J also made a number of orders restraining the father from communicating with the children or the mother or stepfather. These orders were necessary for the physical and mental protection of the mother, especially in light of the evidence of family violence. However, Loughnan J ordered that, if required, the father communicate with the step-father through a post office box and be notified if the family relocated from the region (see [217]-[232]).
Proceedings: Application for parenting orders.
Facts: The parties separated and made consensual arrangements for the care of their child. In June 2012, the father detained the child citing a belief that the child had been sexually abused by the mother’s partner. Subsequently the mother, having happened upon the child and the father’s partner, attempted to detain the child herself. This resulted in an Apprehended Violence Order (AVO) being made against the mother in favour of the father’s partner. It applied to the child and the father as well as they lived with Ms E.
The mother refuted the allegation of sexual abuse but her relationship with her partner had ended and the mother acceded to an order precluding any future contact between the child and her former partner. The father then contended that the mother’s deteriorated emotional state constituted a further risk of harm to the child and militated against the child’s return to live with the mother.
Issue/s: What orders regarding the residence of the child and shared parental responsibility were in the best interests of the child?
Reasoning/Decision: The Court was persuaded to make an order for the parties to have equal shared parental responsibility for the child, consistent with their mutual wish, the Independent Children’s Lawyer’s suggestion and the Family Consultant’s recommendation (see [95]-[100]). His Honour ordered that it was in the child’s best interests to live predominately with the mother. Although both parents were equally capable of meeting the child’s intellectual needs, he considered that the mother was better able to meet the child’s physical and emotional needs (see [106]). The child was to spend substantial and significant time with the father (see [105], [109]-[116]).
The parenting orders were inconsistent with the existing family violence order, as the AVO prohibited the mother from approaching and contacting the child or the father. Although the order made an exception for contact that occurred pursuant to the Act, it was only for the restricted purpose of ‘counselling, conciliation, or mediation’. It was noted that where the terms of the parenting and family violence order were inconsistent, the parenting order should take precedence to facilitate communication between the parents regarding the child and to ensure the child was exchanged for periods of contact (see [91]-[94]).
Proceedings: Application for property orders.
Facts: The parties married and lived together for 19 months. They had one child. The husband contributed the bulk of the capital to the marriage and was on a far superior income. The wife had cared for the child since separation, nearly eight years prior. During the marriage, the husband perpetrated family violence against the wife on five occasions, over a period of 15 months. This caused the wife to suffer from post-traumatic stress disorder. The wife claimed the family violence made her contributions in the role of homemaker and parent significantly more arduous. The husband had financially supported the wife and the child during the period since separation.
Issue/s: Whether the court should make a Kennon style adjustment in the property settlement proceeding?
Reasoning/Decision: The Court referred to the Full Court in Kennon where the principles regarding family violence making contributions more arduous lie. The Full Court’s further refinement of the Kennon principles in Spagnardi & Spagnardi was also noted (see [138]-[144].
The Court discussed the approach regarding family violence in property proceedings as broken down into three steps: (1) Make findings of fact about one party’s conduct; (2) (If applicable) make findings about the physical or psychological effect of the conduct on the other party; and (3) Make findings of fact about the effect of the conduct of one party upon contributions made by the other party. It was also noted that it could not be assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions. At trial, the wife had to establish to the judge’s satisfaction a connection between any proven family violence in the case and the contributions she made (see [145]).
On the facts, Watts J first concluded that the wife’s contributions in the role of homemaker and parent during the period over which the violence took place were made significantly more arduous by the violence of the husband. Second, while His Honour also held that the wife’s role as parent post-separation was made significantly more arduous by the family violence during co-habitation, His Honour observed that it was more difficult to make such an assessment. The wife did experience apprehension and heightened emotion around dealing with the husband’s time with the child after the separation. However, the effect of violence on contributions was not constant over the previous eight years, with the wife’s post-traumatic stress disorder having significantly dissipated (see [174]-[179]). Accordingly, it was appropriate to increase the wife’s assessed contributions by 25 per cent for the duration of the relationship and by 5 per cent post separation to take account of the effect of the husband’s conduct on the mother (see [179].
Proceedings: Nullity application.
Facts: Ms Kreet (the wife), an Australian born woman, married Mr Sampir (the husband) on June 2009 in India. She travelled to India with her parents believing she was going to marry her Australian boyfriend, Mr U. Upon arrival, her parents confiscated her passport and was introduced to Mr Sampir. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped if she refused to marry Mr Sampir. Under duress, the wife married Mr Sampir and submitted his Australian visa application to the authorities. She returned to Australia, resumed her relationship with Mr U and withdraw her sponsorship of the respondent’s visa application. She obtained an indefinite Intervention Order against her father.
Issue/s: Whether the marriage was void?
Reasoning/Decision: Section 23B(1)(d) of the Marriage Act 1961 (Cth) states that a marriage is void if ‘the consent of either parties is not real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.
While the legislation does not define duress in the context of a marriage, Cronin J found that ‘there was no reason to give it any other meaning than that which is normally known to the law. It must be oppression or coercion to such a degree that consent vanishes: In the Marriage of S (1980) FLC 90-820’ (see [39]).
Cronin J was satisfied that ‘the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress’ (see [43]).
Proceedings: Parenting orders.
Facts: The father of the two children subject to the parenting proceedings was convicted of three offences involving child pornography.
Issue/s: What parenting orders were in the best interests of the child?
Reasoning/Decision: Although this case did not relate to family violence, it contains observations relevant to risk assessment. The Court held that an allegation of potential risk of harm ought not to divert the court from the central task of assessing the best interests of the children. At [53] Murphy J quoted from an article by psychiatrist and barrister, Mahendra, who stated that risk assessment in any situation involves, in essence, asking the following questions:
Proceedings: Orders sought by consent for supervised and unsupervised time with the father
Facts: The parties had two children. There was a history of violent and abusive conduct by the father against the mother and one of the children (including that he bit the child as a baby). This resulted in a number of periods of separation and reconciliation, with a number of Apprehended Violence Orders being brought against and breached by the father (see [17]-[24], [27]-[28]). The father also regularly smoked cannabis (see [25]-[26]). In April 2001, the mother left the family residence without notice, taking the children with her. At the hearing, the parties attempted settlement. The parties and the Independent Children’s Lawyer proposed consent orders for children to progress from supervised to unsupervised to block periods of time with the father, who would give undertakings regarding his conduct, discipline of the children, substance use and participation in an anger management course.
Issue/s: What orders were appropriate in the best interests of the children?
Decision and Reasoning: Moore J declined to make the consent orders as proposed as the untested evidence raised concerns for the judge that the orders may not be in the children’s best interests. Instead, the judge made orders by consent for supervised contact only. The allegations against the father indicated him to be a violent and abusive person who represented a high risk of harm to the well-being of the mother and a high risk of harm to his children.
While Her Honour acknowledged that the parents’ consent to arrangements about their children is a powerful, and in most cases a deciding, factor, consent does not displace the obligation of the Court to make orders that are in the best interests of children (see [39]). Moore J also expressed her concern that the Independent Children’s Lawyer would provide support for the proposed consent orders in the face of behaviour that had the potential to place the children in serious jeopardy and in light of orders that would give no protection whatsoever to the children (see [40]).
Proceedings: Contact orders.
Facts: The parents had two children together (B and E) and the mother had another son from a previous relationship (D). The children had witnessed violence by the father against their mother, siblings and extended family. The father had several convictions for assault against the mother and one against D, and had been subject to AVOs. After separation, B and E lived with the father, with interim orders made for the mother to have contact with the children. At trial, the parties agreed that B and E should live with the mother but a number of issues were left to be determined. At hearing, a counsellor gave evidence that both children displayed concerning behaviours consistent with early onset and repetitive physical violence.
Issue/s: One of the issues was what contact should the children have with the father?
Reasoning/Decision: On the evidence, the Court held that it was in the children’s best interest that all but in the very short term they should have no contact with the father. Orders were made to reduce contact over the space of 12 months to minimise the distress that could be caused to the children by immediate complete separation (see [96]-[100]). The Court held that the father’s abusive behaviour presented a ‘multi-faceted danger for the children’ including danger of injury as well as “fear, insecurity & vigilance”. It was held there was a risk of the children learning behaviour from the father which would affect their future interactions e.g. the daughter accepting abuse as part of life and the son believing violence is acceptable. See [94]-[95].
Facts: The case concerned the custody of two children aged four and two. The wife alleged that the husband had been physically and verbally violent towards her on a number of occasions.
Issue/s: What is the relevance of family violence in custody, guardianship and access matters?
Decision and Reasoning: The court accepted that the relevance of family violence will vary according to the nature of the proceedings.
Chisholm J went on to consider the relevance of family violence in proceedings relating to children. His Honour considered at [257] that although it is ‘not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims’, family violence is by no means irrelevant. His Honour held that ‘[family violence] is to be taken into account if it is relevant to the determination of the child’s welfare, which is the paramount consideration’. The standard of proof is the civil standard on the balance of probabilities. However, the conduct of a parent is relevant in custody matters only to the extent that it relates to the welfare of the children.
Where violence is directed at the children themselves, or occurs in the presence of the children, it is obviously and directly relevant to their welfare (see [260]). However, other forms of violence could also be relevant to the welfare of the children such as violence affecting the custodial parent, threats, etc. The Court must assess the nature and extent of the harm in light of the evidence and findings before them. See [261].
The Court also stated that it may be possible for the court to decline to make findings in relation to family violence, where it could determine the case without reference to them.
Proceedings: Interim custody application
Facts: Parties married in 1978 and separated under one roof in March 1993. There are 2 children of the marriage aged 13 and 9 at the hearing. There was corroborated evidence of violence perpetrated by the father on the mother. The husband was convicted of assault upon the wife earlier in the same year of the hearing. He was “ordered not to assault, molest or interfere with” the mother. Regardless of these orders he continued to contact the mother and make threats to her and her family. The husband also verbally abused and belittled the mother in front of the children during the marriage. There were also multiple occasions of physical abuse throughout the marriage. Since separation the husband had given the 13 year old daughter Rohypnol and shared a bed with her. He was advised by the Department of Community Services not to do this. Also post separation, the father took out a life insurance policy for the mother. The mother moved from the matrimonial home to her mother’s house in June 1993. The children remained with the father.
Issues: In light of the father’s history of domestic violence and threats, what interim arrangements should be made for the care of the children?
Reasoning/Decision: Due to the violence of the father, the Court held that he was a risk to the children both physically and developmentally (he is an “inappropriate role model”). It was held that the children were to remain in the former matrimonial home to “preserve stability for the children and for their safety” and their mother was to have interim care of the children. The father was restrained from coming within 2 miles of the home due to “serious concerns as to the safety of the wife and the children”.
Proceedings: Contested parenting application.
Facts: The father was physically violent and verbally abusive to the mother and children ([79]). There were two Domestic Violence Orders in favour of the mother ([217]). The two eldest daughters suffered from depression and anxiety, cut themselves, and had self-esteem issues ([2]). The youngest son was diagnosed with autism, but the father refused to accept the diagnosis, and refused to make arrangements to reduce the son’s emotional distress ([162]).
Issues: Parenting orders to be made.
Decision and Reasoning: Judge Willis identified ‘grave concerns’ about the father’s ability to regulate his emotions and about his parenting skills to independently parent ([248]). The children had ‘suffered catastrophically’ from their parents’ separation and their exposure to the family violence ([2]). Due to the father’s admissions to family violence, the presumption of equal shared parental responsibility was rebutted ([238]).
Judge Willis remarked at [247]:
I have the impression that the mother has significant insight into her own behaviour and that of all of the children. She is acutely aware and has the skills to deal with Z and Y cutting themselves, of them suffering depression and anxiety and having self-esteem issues. Some of these issues will, no doubt, be directly related to their exposure to family violence. Day in day out, experts in this Court talk about the effect of family violence in children and their inability to sustain relationships, become depressed and blame themselves for breakdowns. All of these things have happened for Y and Z.
Judge Willis ordered that the father undertake an anger management course, and that the mother undertake a Domestic Violence course in relation to the cycle of violence ([232]-[233]). The judge ordered that the son have limited contact with the father (see Orders).
Proceedings: Application for the admissibility of evidence.
Facts: On the first day of the final parenting hearing in relation to the parties’ only child X, counsel for the mother sought the Court’s leave to tender four short audio recordings of conversations between the mother and father that took place prior to separation. The mother accepted that these recordings were made without the knowledge of the father, that they are ‘private conversations’ and were therefore prima facie made in contravention of s 7 of the Surveillance Devices Act 2007 (NSW). However, counsel for the mother submitted that the recordings were admissible because the recordings were ‘reasonably necessary’ to protect her lawful interests (s 7(3)) or, alternatively, the evidence ought to be admitted under s 138(1) of the Evidence Act 1995 (NSW) because the desirability of admitting the evidence outweighed the undesirability of doing so.
Issue/s:
Reasoning/decision: Sexton J held that the mother’s conduct was lawful under s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) and therefore the recordings were admitted on this basis. In making this finding, Sexton J held that first, s 7(3)(b)(i) was satisfied in relation to the term ‘lawful interests’ as the mother had the right to protect her interest not to be intimidated or harassed, and not to be forced to respond to the father’s demands for sexual activity: DW v R (see [19]-[23]).
Second, Sexton J was satisfied that the recordings were ‘reasonably necessary’ (‘reasonably appropriate’ as opposed to ‘essential’ and judged objectively at the time of the recordings) to protect those lawful interests: DW v R. Here, the mother made the recordings for the purpose of having evidence which she could use to convince others to believe her, or to corroborate her word, or to protect herself and the child from further behaviour. Sexton J stated that, ‘[w]hile the complainant in the present case is an adult, she was, if her evidence is accepted, caught up in an abusive relationship with a man who damaged her self-worth and left her miserable and exhausted. If this was so, as the Court found in R v Coutts, it may not have been a realistic option for her to report her predicament to police and obtain a warrant for conversations with her husband to be recorded’ (see [29]). The evidence also disclosed that the father may have had a very different public face to his private face. The mother was not trying to obtain a confession but to establish her credibility if there was ever a dispute about what actually happened (see [24]-[31]).
Although the matter did not turn on the issue, Sexton J also considered whether the evidence should be admitted on the basis that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. Sexton J concluded that had it been necessary, she would have exercised the discretion to admit the evidence for a number of reasons including that the evidence was highly probative to making parenting orders in the best interests of the child, the allegations were extremely serious and it was necessary for the court to determine if the child was at risk in the father’s care, the impropriety of the mother in making the recordings was not of the “worst kind”, and it was “unlikely” the mother could have gained consent to make the recordings (see [32]-[36]).
Case type: Review
Facts: The female applicant sought review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division, which affirmed the decision of the Department of Human Services rejecting her new start allowance claim because she had a compensation lump sum preclusion period from 2 March 2010 to 21 April 2025. The applicant had received a workers compensation lump sum payment for injuries suffered in a motor vehicle accident. Her evidence was that she suffered severe financial hardship as her abusive male ex-partner had accessed and gambled her savings. She terminated the relationship and had to sell her home due to her financial difficulties, retaining about $400,000. The relationship resumed and he used her ATM card to take money from her bank account threatening to beat her if she did not provide access to her funds. The applicant finally terminated the relationship and said he had taken all the money which she had following the sale of her house which represented all that remained of the settlement sum she had received ([67]). The applicant was unable to obtain continuous employment and was experiencing severe financial hardship ([79]).
Issue: Whether special circumstances exist.
Held: The Tribunal set aside the decision and held that the applicant’s circumstances were "special" pursuant to s 1184K, such that much of her compensation payment should be treated as not having been made so as to reduce the preclusion period applicable to her compensation payment so that it ended on 21 May 2020 ([82]). The special circumstances in accordance with s 1184K(1) related to the totality of the applicant’s circumstances, including her financial hardship, her injuries, her financial deprivation following domestic violence and financial abuse ([79]).
The hearing was conducted via telephone in accordance with the provisions of the Tribunal’s COVID-19 Special Measures Practice Direction - Freedom of Information, General and Veterans’ Appeals Divisions ([29]).
Offences: Common assault x2; possessing offensive weapon with intent x1; d amaging property x 2; make demand with threat to kill x1; aggravated dangerous driving x1
Proceedings: Appeal against sentence
Issues: The Crown submitted that the sentences were manifestly inadequate:
Facts: R (the appellant man) and C (the complainant woman) were in a relationship at the time of offending. An argument had broken out after R told C he wanted to commit suicide. R grabbed C as she tried to leave their shared bedroom and pushed her onto the bed (first common assault). He then retrieved a large axe from their wardrobe. R pushed C to the ground while they struggled over the axe (second common assault) and swung the axe at her head, narrowly missing. R used the axe to damage items within the house before forcing the couple’s four children into his car. He left and returned several times to demand C get in the car. He eventually threatened to kill their eldest daughter with the axe if C did not get in but drove away once more as police approached his vehicle. This led to a large-scale search. The R was located and arrested later that evening. While all four children were physically unharmed, the eldest daughter was later assessed by a paediatrician who thought it was likely that the offences significantly impacted her emotional and behavioural wellbeing.
On the day of offending, the respondent had failed to take his prescribed antidepressant medication and had consumed a significant quantity of alcohol.
Initially R pleaded not guilty to all charges. Following discussions between the parties the respondent pleaded guilty to six charges and was committed to the Supreme Court for sentence.
The sentencing judge imposed a total sentence of 16 months’ imprisonment.
Judgment: In addressing the first aspect, the Court noted that while the offender’s mental health condition somewhat reduced his moral culpability, it was still necessary to consider the sentencing purposes of general deterrence and denunciation. By failing to reflect these purposes, along with the high objective seriousness of the offence, the sentence starting point of 18 months’ imprisonment for the offence of making a demand with threat to kill was "plainly unreasonable" [69-71]. For the second aspect, the Court believed the degree of cumulation failed to achieve a total sentence that was just and appropriate to reflect the overall criminality [73]. The Court did not make a decision as to the third aspect as they had found they had already found the sentences to be manifestly inadequate for other reasons. Despite finding the sentences manifestly inadequate, the Court refused to resentence the offender on the basis that the appeal raised no point of principle, had limited precedent value and would disrupt the offender’s rehabilitation [97].
The Court also discussed the preliminary issue of the correct approach to sentencing for family violence offences and the correct manner of dealing with the effect of a sentence of imprisonment on the offender’s family [44]. The Court rejected the Crown’s contention that family violence offences constitute a special category of offence in relation to which different sentencing principles apply, and instead provided that absent a statutory provision to the contrary, the same sentencing standards should apply to all offenders (Bugmy v The Queen) [48]-[51].
Charges: Engaging in sexual intercourse without consent and being reckless as to whether the person was consenting x 1.
Appeal type: Defendant’s appeal against conviction and Crown appeal against sentence.
Facts: The complainant and defendant were in a relationship ([11]). The defendant asked the complainant to leave the house; she did not want to leave. The complainant alleged that the defendant held her down and digitally penetrated her ([13]). The defendant denied that he digitally penetrated the complainant, and alleged that she damaged a number of his belongings ([14]). The defendant called the police about the property damage, and the complainant called the police about the sexual assault 2 hours later ([20]-[21]). A medical examination of the complainant revealed abrasions consistent with assault ([23]).
The defendant was convicted at trial. He was sentenced to 2 years and 6 months’ imprisonment, served by way of intensive correction order (‘ICO’), and 100 hours’ community service ([2]).
Issues: The defendant appealed against conviction on 3 grounds: (a) the verdict was unsafe and unsatisfactory; (b) the trial judge caused a miscarriage of justice by failing to fairly put the defence case to the jury; and (c) the trial judge caused a miscarriage of justice by failing to direct the jury that the complainant had a motive to lie.
The Crown appealed on the ground that the sentence was manifestly inadequate.
Decision and Reasoning: Both the defendant’s appeal against conviction and Crown appeal against sentenced were dismissed ([8]).
Appeal against conviction
On ground (a), the defendant argued that the verdict was unsafe and unsatisfactory having regard to the unreliability of the complainant’s evidence. The Court (Murrell CJ, Bromwich J and Robinson AJ) held that while it was ‘somewhat implausible’ that the complainant did not cause the property damage, it was open to the jury to convict the defendant ([53]).
On grounds (b) and (c), the defendant argued that the judge should have directed the jury on the complainant’s possible motive to lie to avoid the consequences of her causing the property damage. However, the Court stated that the summing up was fair, given that the motive to lie was not a large issue in the trial ([66]-[68]).
Crown appeal against sentence
The Crown argued that by ordering an ICO, the trial judge failed to give adequate weight ‘to the principle that, for family violence offences, the sentencing purposes of general deterrence and denunciation are particularly important’ ([96]). The Court reiterated the importance of general and specific deterrence in sentencing family violence offenders ([97]), however, the Court emphasised the exceptional nature of the offending at [99]:
This was not a typical offence of family violence. There was no evidence of a history of domestic violence, controlling behaviour or psychological abuse. There were none of the typical indicia of power imbalance. Rather, the offence occurred in the context of a relationship ending, without those features apparently being present.
Imposing an ICO, while lenient, was justified by the defendant’s subjective circumstances, such as his lack of criminal history, and the fact that there was no history of domestic violence in the relationship ([129]-[130]).
Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.
Appeal Type: Appeal against sentence.
Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 hours. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years and 11 months’ imprisonment with a non-parole period of 8 years and 4 months.
Issue/s: Whether the aggregate sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.
Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.
Appeal Type: Appeal against sentence.
Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault, contravention of a protection order.
Appeal type: Appeal against conviction and appeal against sentence.
Facts: The appellant was charged with assaulting his female partner (‘the complainant’) and contravening a protection order in her favour. He pleaded guilty to assault but not guilty to contravening a protection order. The offending came to light after a police officer (‘the informant’) attended the complainant’s premises. The informant observed that the complainant was very distressed and had bruises on her body. A conversation between the complainant and the informant was recorded. In this conversation, the complainant made some allegations that the appellant had hit her but she was largely unresponsive to questions and was affected to a considerable degree by alcohol (See [41]-[43]). At trial, the prosecution sought to prove the tape and transcript of this conversation only for its possible use in refreshing the complainant’s memory. However, counsel for the appellant, Mr Elmaraazey, tendered this document as evidence (‘exhibit 3’).
The complainant was called to give evidence after the informant. When asked about whether there was an incident between her and the appellant, she stated ‘I can’t remember the exact details’ and proceeded to give an account of the evening that made no reference to any physical violence. She agreed that she had a conversation with the informant but could not recall its contents. The prosecution then proceeded to cross-examine the complainant about the various bruises that had been observed on her that evening. The complainant said she could not remember how the bruises happened. The prosecution applied to the magistrate for leave to cross-examine the complainant on the basis that the witness had made a prior inconsistent statement with reference to exhibit 3. Mr Elmaraazey did not object. The complainant’s response was to accept that exhibit 3 accurately reflected what she had told the informant but she could neither confirm nor deny that it represented what actually happened (See [26]-[40]). Accordingly, absent the tender of exhibit 3 as evidence, there would have been insufficient evidence to convict the appellant (See [47]).
The magistrate found the appellant had assaulted the complainant and sentenced him to 12 months imprisonment for the assault and 3 months imprisonment for the breach of protection order. He was sentenced to an additional 6 months imprisonment for breach of an earlier imposed recognisance.
Issue/s:
Decision and reasoning: The appeal was allowed. First, in the absence of the tender of exhibit 3 by Mr Elmaraazey, it was, at the very least, unlikely that the statement would have been admitted as evidence that the appellant assaulted the complainant. It was open to the prosecutor to seek leave to give the statement to the complainant to refresh her memory, if s 32 of the Evidence Act were satisfied. However, the failure of this process to refresh the complainant’s memory meant the prosecutor could not tender the prior statement as evidence of the truth of its contents (See [145]-[180]). There was a resulting miscarriage of justice (See [181]-[191]).
Second, the sentencing judge erred in assuming that all the injuries resulted from the charged assault. Even if the terms of exhibit 3 had been properly proved, they included an allegation of assault that had occurred the previous evening. The only unequivocal allegation of recent violence was that the appellant hit her in the face on their return from the shops. It was an error not to attempt to distinguish between the violence inflicted the previous night and those in the hours preceding the interview with the informant (See [196]-[207]).
Charges: Contravening a family violence order x 1
Case type: Appeal against conviction and sentence
Facts: The appellant man was convicted of contravening a family violence order protecting his female former partner (the victim) and her two children. A conviction was recorded and he was ordered to enter into a good behaviour bond for 12 months.
The family violence order prevented the appellant from being at the premises where the protected persons lived, being within 100 metres of them or engaging in behaviour that constituted family violence. He had attended her home at her invitation after mediation, they had rekindled the relationship and the police were called when the victim sent a text message to a friend asking her to call police. The victim said she sent the text message because the appellant "had begun playing psychological mind games on her and abusing her in relation to a number of morning after pills he had located" ([12]). The appellant claimed that because the victim initiated the contact, he thought that he did not breach the family violence order. The appellant was self-represented at the sentencing hearing. Further evidence of a forensic psychiatrist’s report was also admitted on appeal.
Grounds:
Held: The appeal was allowed, the Magistrate’s orders set aside and the appellant was ordered to enter into a good behaviour order for 9 months without conviction ([75]).
The appellant had faced prior charges of assaulting and resisting an officer and contravening a domestic violence order which were dismissed under the "Mental Health Act" ([18]). He suffered from autistic spectrum disorder which affected his thinking, increased his anxiety and interfered with his ability to maintain relationships. The offending was at the low end of the spectrum for this kind of offence. Extenuating circumstances included (1) the victim’s invitation to recommence contact; (2) the re-establishment of a physical relationship between the parties over a period of weeks before the conduct in question; (3) the victim’s consent to the appellant being at her home; and (4) the absence of any request for him to leave the house or cease contact prior to the police being called ([68]). Mossop J noted that the power in s17 Crimes (Sentencing) Act to not record a conviction will not often be deployed in family violence cases due to the need for general and specific deterrence, but the extenuating circumstances of the present case and the appellant’s personal matters meant a conviction should not have been recorded ([70]). The Magistrate made a specific error in failing to give consideration to the application of s 17 ([51]).
Charges: Burglary x1; Assault occasioning bodily harm x1; Choking a person and rendering them insensible x1;
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male offender was convicted on his pleas of guilty. The female victim was his former partner. He entered her house while she was asleep and remained in the property despite the victim asking him to leave. The offender assaulted the victim after a verbal argument and choked her so as to render the victim unconscious. The offender had a significant criminal history and had been dealt with in the Magistrate’s Court for other offending against the same victim. He attributed his violent and abusive behaviour towards the victim to his struggles to cope with the victim’s psychosocial difficulties due to her long history of trauma and abuse [13].
Held: Justice Elkaim sentenced the accused to 10 months imprisonment for the burglary, 5 months’ imprisonment for the assault, and 20 months imprisonment for the choking offence. The sentences were to be served concurrently.
Elkaim J found the offence of burglary to have "just below medium objective seriousness" [6]. His Honour noted that "Although s 10 of the Crimes (Sentencing) Act 2005 (ACT) says full-time imprisonment should be a last resort, I can see no alternative here. Domestic violence is abhorrent. Choking a person is a serious crime. The offender should not have been anywhere near his victim. He was already on bail for family violence offences against the same victim. When she told him to leave he should have done so. He should not have assaulted her and he certainly should not have choked her." [15]. The seriousness of the offence and the domestic violence were aggravating factors and a 15% discount for the guilty plea was allowed.
Charges: Burglary x 1; Unlawful confinement x 1; Unlawfully choking, suffocating or strangling a person x 1
Case type: Sentence
Facts: The male offender was found guilty by a jury of burglary, unlawful confinement and unlawfully choking, suffocating or strangling a person. He was acquitted of 6 other charges. The offender and female victim (his former partner) were engaged in SMS text conversation about their relationship in the hours leading to the offending conduct. The victim made it clear that the relationship was over, and the offender was angry as a result of this conversation ([4]). The offender attended the victim’s home after midnight, dragged her from her bed into the neighbouring room and choked her ([5]). The offence was accompanied by a death threat, calculated to increase the victim’s fear. The offender and victim had been in an intermittent relationship since 2012, and have a 4-year old son. In her Victim Impact Statement, the victim explained the impact of the domestic violence. She suffers severe anxiety, PTSD and depression, and sometimes "feels very angry that her former partner hurt her so much, both physically and emotionally". At the time of the offending conduct, she felt helpless, fearful and thought that she might die ([6]-[7]).
Held: The offender was sentenced to 5 years’ and 5 months’ imprisonment, with a non-parole period of 3 years and 6 months. The offender has a very lengthy criminal history, including multiple convictions for burglary, assault occasioning actual bodily harm, aggravated burglary, recklessly inflicting grievous bodily harm, assault and drug and traffic offences ([8]). A significant aggravating feature of the offences was that they occurred in a family violence context ([9]). The unlawful confinement lasted for a minimum of 1.5 hours, and this was "impulsive and without any significant planning". The purpose of the confinement was to manifest his anger towards the victim for ending the relationship and to exercise control over her. During the course of the confinement, the offender inflicted extreme violence on, and instilled fear in, the victim, who now suffers continuing psychological consequences ([10]). The choking conduct was deliberate and sustained, and the victim’s ability to breathe was sometimes completely impaired ([11]).
Although the offender’s childhood was marred by instability, he now enjoys a supportive family relationship ([13]). In a pre-sentence report, the offender indicated that he had no intention to reunite with the victim and claimed to have been subjected to violence in the relationship ([14]). He also has a long history of alcohol and drug use, as well as Major Depressive Disorder, which was described as in full remission in 2017. He was also assaulted while in custody that same year. He plans to reunite with his son, with whom he is believed to have a "healthy, loving relationship" ([17]-[20]).
The offender has also shown no remorse for his current and previous offending. This gave rise to a concern regarding his ability and commitment to avoid criminal offending and to achieve a stable, co-parenting relationship with the victim. During his present period in custody, he did not take any steps to address his drug and alcohol abuse issues or his attitude to domestic violence. Therefore, his prospects of rehabilitation could not be described as good ([21]-[23]).
Charges: Sexual intercourse without consent x1; Administration of certain declared substances x1.
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The complainant woman and male offender were married and lived together. The offender engaged in sexual intercourse with the complainant while she was asleep. An audio recording taken during the time reveals that the complainant did not consent to the offender’s conduct and that when she woke up she immediately asked the offender to stop. The offender then left the bedroom, only to return ten minutes later and force a bitter substance into the complainant’s mouth. The substances administered were temazepam and zopiclone.
Judgment: In determining the objective seriousness of the offence, Mossop J noted that "while the offending did occur in a domestic context, the evidence did not establish that it was part of any pattern of oppression of the victim through violence or sexual violence. Nor does it establish that there was any marked inequality of power between husband and wife." [9]. The judge found the offending to also lack other aggravating factors as the offender did not use a weapon or violence, threaten the victim, or have a significant degree of premeditation and the victim was not injured, humiliated or degraded in a way more explicit than the conduct itself [7]. Justice Mossop also did not consider the presence of the sleeping child to be an aggravating factor as the child had no awareness of what was going on. The Court accepted that the offender’s depression and general anxiety disorder meant that "he is likely to find a sentence of full-time imprisonment more onerous than a person without those conditions" [40]. The sexual intercourse offending was held to be in the lower range of objective seriousness for this offence [10]. It was not possible to find on the evidence that the administration of a declared substance offence "was an intention to cause harm to the victim other than through interference with her recollection of events".
The offender was sentenced to 22 months’ imprisonment for the first charge, with the sentence to be suspended after four months upon the offender entering into an undertaking to comply with good behaviour obligations for 19 months. For the charge of administering a declared substance, the offender was convicted and sentenced to a suspended sentence of two months’ imprisonment.
Charges: Act of indecency x 1; Assault occasioning bodily harm x 1
Case type: Sentencing
Facts: The offender attempted to strangle the victim when she refused to engage in sexual activity, pushing the victim face-down against a pillow. After releasing the victim and letting her partially roll-over, the offender grabbed the victim’s throat and restricted her breathing for 5 to 10 seconds while threatening if she continued making noise. There was medical evidence of petechial bruising.
Issue: Sentence to be imposed.
Decision and reasoning: Loukas-Karlsson J discounted the penalty for each charge by 5% as the offender entered guilty pleas one week before a re-trial for the offences. His Honour only reduced the sentences by 5% rather than the usual 10% because the offender demonstrated a lack of remorse and tried to justify his actions. It was also noted at [60] that ‘it must be recognised by the Court that the offences committed against the victim had a serious and significant impact upon her. Both the short and the long-term consequences of being the victim of these offences must be acknowledged’.
‘In respect to the offence of an act of indecency...the offender [was] sentenced to a good behaviour order with the core conditions requiring him to sign an undertaking to comply with good behaviour obligations’ for a period of 20 months reduced to 19 months on account of the guilty plea. ‘In respect of the offence of assault occasioning actual bodily harm...the offender [was] sentenced to a good behaviour bond’ with the same core conditions for a period of 32 months reduced to 30 months on account of the 5% reduction for entering guilty pleas. [64]
Charges: 1 x common assault; 1 x contravention of a Family Violence Order
Case type: Appeal against convictions
Facts: The appellant allegedly kicked the complainant’s leg during an argument (assault charge). At that time, the appellant and complainant were married and living together. The complainant had obtained a Family Violence Order against the appellant, which the appellant allegedly breached during the argument by causing or threatening to cause injury to the complainant or by harassing, threatening or intimidating her ([3]). A central issue was whether an audio recording made by the complainant was admissible.
Issue: The appellant appealed the findings of guilt on the basis that 1) the learned Magistrate erred in ruling that the audio recording made by the complainant was admissible pursuant to s 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA), and 2) the convictions were unreasonable and could not be supported by the available evidence.
Held: The prosecution sought to adduce a recording of the alleged events said to have been made by the complainant on her mobile. The appellant objected on the ground that the recording was made in contravention of the provisions of the LDA ([10]). Burns J did not challenge the Magistrate’s finding that a ‘private conversation’, for the purposes of the LDA, existed ([13]), and turned his mind to whether any of the exception provisions applied such that the complainant’s use of the listening device was not proscribed by the LDA ([15]). In his Honour’s opinion, the Magistrate was correct in finding that the exception in s 4(3)(b)(i) was satisfied. The complainant feared that the appellant might seriously injure or kill her, and gave evidence that she had regularly been abused by him. Therefore, there were reasonable grounds for her to consider that the recording was necessary to protect her lawful interests ([21]). His Honour also found that the exceptions in s 5(2)(d) and (e) were established ([22]).
His Honour concluded that even if the recording had been obtained in contravention of the LDA, the proper exercise of the discretion found in s 138 of the Evidence Act would have resulted in its admission ([31]). The evidence was important, both in its own right and as support for the complainant’s evidence, and its probative value was significant. The gravity of the contravention was low, and there was no suggestion to the complainant that she knew that she was violating the LDA. Further, the offences charged against the appellant were serious domestic violence offences ([26]-[27]). At [30], Burns J noted that ‘[a] criminal has no right to keep their offending private, or to claim that the gathering of evidence of their crime is a breach of their privacy’.
As to the second ground of appeal, his Honour agreed with the Magistrate that the evidence established a breach of the Family Violence Order, as the conduct was harassing and intimidating. The Magistrate was entitled to consider the aggression by the appellant towards the complainant at the time she said she was kicked. As there was sufficient evidence on which the Magistrate was entitled to convict the appellant, the appeal was dismissed ([40]-[41]).
Proceedings: Appeal against Family Violence Order
Facts: The matter was an appeal against a final Family Violence Order (FVO) which was made against the appellant by the Chief Magistrate.
Issues: The appellant argued (1) the length of order (2 years) was too long given an interim order had been in effect for 18 months prior to the final order, that Her Honour failed to take into account either the possibility (2) the respondent could live with her son or (3) whether the appellant had alternative housing and that (4) evidence in relation to matters the subject of the 2018 convictions as well as (5) both the fact of the 2018 convictions which the appellant had sought leave to appeal and 2007 convictions had been erroneously admitted by Her Honour.
Decision and reasoning: The appeal was dismissed and the order was confirmed.
Grounds 1-4 were dismissed. In relation to Ground 1 it was held that ‘In the absence of any evidence to suggest that the risk of further family violence had abated, the ongoing need for the safety and protection of the respondent outweighed the difficult accommodation circumstances suffered by the appellant.’ Her Honour considered the accommodation issues faced by both parties so there was no basis for Grounds 2 and 3. The evidence of matters the subject of the 2018 convictions was correctly admitted with the parties’ consent. The fact the appellant had sought leave to appeal out of time meant that the proceedings should properly have been adjourned pending final disposal of the 2018 conviction matter but did not result in a miscarriage of justice.
Ground 4: Crowe AJ concluded that the Chief Magistrate fell into error in admitting into evidence and taking account of the 2018 convictions. However, the Chief Magistrate’s findings that there had been instances of violence by the appellant toward the respondent and her son, and that the respondent had reason to fear her safety is based on evidence independent of the 2018 conviction evidence. Therefore, there was no miscarriage of justice in making the orders.
Offences: Common assault x 2; Assault occasioning actual bodily harm x 1
Proceedings: Appeal against conviction and sentence
Facts: The female appellant and male victim had been in a relationship for about two years (which was ‘volatile’ and ’they tended to be jealous’ of each other and had numerous ‘fights’) but they had broken up the day before the offending and the appellant had moved out. Early in the morning of the offending, the appellant entered the front door and started punching the victim in the head. The appellant saw another woman on the couch and started moving towards her, so the victim grabbed the appellant’s arm. The appellant bit the victim’s arm hard and grabbed his testicles. She then chased after the other woman before taking the victim’s phone, leaving the house and knocking over the victim’s motorcycle. The appellant was convicted and sentenced to a 12-month Good Behaviour Order. She appealed her conviction on the following grounds:
Judgment: The judge dismissed the appeal. His Honour found that the Magistrate accepted the evidence of the victim (the victim grabbed the appellant’s arm to stop the appellant coming further into the house, not to prevent her from retreating out of the house) and, as such, the basis for self-defence fell away [76]. Regarding Ground 2, his Honour held that "the bare fact of there being a guilty verdict in relation to some charges arising from a course of events and an acquittal in relation to one or more charges arising from the same course of events is not enough to establish that the guilty verdicts must be unreasonable. It is necessary for the appellant to demonstrate that the different outcomes cannot stand together as a matter of logic and common sense" [79]. His Honour found that the Magistrate was correct in distinguishing the verdicts in relation to events that occurred inside the house from those which occurred outside the house [82].
His Honour further held that the sentence imposed fell within the range of appropriate outcomes and was not excessive, let alone "manifestly excessive" [84].
Charges: Common assault
Case type: Appeal against convicions
Facts: The appellant was found guilty of two charges of common assault arising out of an altercation with the victim (his wife). The acts of assault included slapping the victim across the face, pushing her forehead backwards striking the wall behind, grabbing her hair, twisting her head and hitting her face on the wall, and striking his daughter’s shoulder. The charges fell into the category of family violence. The appellant pleaded not guilty to each charge and did not testify. The defence argued that the victim fabricated the assaults with the intention of terminating the marriage ([17]).
Issue: The appellant appealed on the ground that the Magistrate’s findings of guilt were unsafe and unsatisfactory on the basis that:
Held: Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).Crowe AJ dismissed the appeal. His Honour rejected the first ground of appeal and saw no basis upon which to doubt the Magistrate’s rejection of the appellant’s version of events. His version of events changed as the interview progressed. For example, after he said that he had not touched the victim at all, he then said that he had tickled her ([35]). In relation to the second ground, the Magistrate was entitled to accept the complainant as a witness of truth, and reject the proposition that the victim fabricated the entire story in order to terminate her unhappy marriage with the appellant. The discrepancy between the victim’s evidence and that of her female friend did not provide a sufficient basis to reasonably doubt the victim’s evidence as to the appellant’s violence towards her. The discrepancy was explained by reference to the extent of the victim’s distress, and the physical and language communication difficulties at that time ([40]-[47]).
Charges: 1 x threaten to capture or distribute intimate images; 1 x use of a carriage service to menace, harass or cause offence; 2 x indecency; 1 x sexual assault; 1 x common assault; 1 x stalking
Case type: Sentencing
Facts: The offender and victim were in a de facto relationship for approximately 6 years and have a daughter. Despite the breakdown of their relationship, they remained on amicable terms ([7]). The offender was charged with a combination of Federal and Territory offences. The offender pleaded guilty to threatening to distribute an intimate image (Count 5) and using a carriage service to menace, harass or cause offence (Count 6). He was found guilty of 2 charges of committing an act of indecency (Counts 2 and 4) and a charge of sexual assault in the third degree (Count 3). A charge of common assault and stalking were transferred to the Court, which required consideration of the provisions on back-up and related offences in the Supreme Court Act 1933 (ACT) ([13]).
Issue: The issue for the Court was to determine the appropriate sentence for the offences.
Held: The Court sentenced the offender to 3 years’ imprisonment with a non-parole period of 18 months for the Territory offences, and declined to make a recognizance release order with respect to the Federal offence as the offender would still be serving a period of imprisonment for the Territory offences after the expiration of that offence. The charge of common assault was dismissed.
The offender’s subjective circumstances were observed at [32]-[40]. He had 2 daughters from a previous marriage and worked as a self-employed technician prior to custody. However, he had not been working for the past 6 months due to mental health issues, and suffered financial distress as a result ([35]). The offender reported infrequent social use of cannabis and his self-reported alcohol use was deemed ‘risky’ ([36]). The offender showed some insight into the impact of his offending, but attempted to minimise and justify some of his actions ([39]). The offender was also being treated for symptoms of depression ([40]).
The Court did not attribute significant weight to the offender’s expression of remorse ([41]-[44]). He had no relevant criminal history and was of prior good character ([45]-[46]). He pleaded guilty to 2 charges before the trial commenced, and the 2 further transfer charges in the course of the sentencing hearing. Accordingly, the Court allowed a discount of approximately 10% in each case ([47]-[54]). The Court also considered the time spent in custody ([55]-[56]), and analysed relevant cases and statistics ([57]-[69]). At [89], the Court found that all the offences committed against the victim significantly impacted her. The Court also took into account the principles of totality, concurrency and accumulation ([70]-[78]), and relevant statutory considerations ([79]-[88]). Significantly, it was noted at [88] that the ‘Courts have made it clear that women must not be treated by men as property’.
Charges: 5 x contravention of a Family Violence Order; 1 x use carriage service to harass/menace
Case type: Appeal against sentence
Facts: In early 2019, the appellant was sentenced to a total of 2 years’ and 8 months’ imprisonment, with a non-parole period of 18 months, following guilty pleas to 6 charges, namely, contravening family violence orders obtained by his parents and his ex-partner against him and using carriage service to harass/menace.
Issue: The appellant appealed against the sentence on various grounds, including that the total sentence was manifestly excessive and that her Honour erred in her approach to s 110(2)(a) Crimes (Sentence Administration) Act 2005 (ACT) by ordering that the suspended sentences imposed for the breach offences be served cumulatively.
Held: Murrell CJ noted that the appellant had a very significant domestic violence history ([52]). Her Honour considered the appellant’s prior convictions of matters of dishonesty, and contravening protection orders ([25]), for which he had been sentenced to 5 months’ imprisonment suspended for 12 months. Offences 1 and 2 were committed while he was subject to these suspended sentences, and Offence 3 was committed 3 days after his release from prison (for contravening a protection order) ([26]). Further, the appellant’s illicit substance abuse rendered him unsuitable for an Intensive Corrections Order (ICO) ([29]).
Murrell CJ held that the appellant’s continued contraventions of court orders required a significant total sentence to be imposed. Her Honour was not satisfied that, when considering the appropriateness of the total sentencing, the sentencing judge erred in exercising her sentencing discretion ([41]).
The appellant argued that, as the original suspended sentences were concurrent, the sentencing judge fell into specific error when she made them cumulative ([56]). After analysing the interpretation of s 110(2) in some detail, her Honour concluded that the sentencing judge fell into error ([95]). The appeal was therefore allowed and the appellant was re-sentenced to a total sentence of 2 years’ imprisonment with a non-parole period of 13 months ([100]).
Charges: Unlawful confinement x 1; choking, suffocating or strangling x 1; common assault x 1.
Case type: Conviction and sentence.
Facts: The offender engaged in controlling and violent behaviour towards the victim during their relationship and had threatened to kill her and her family if she ended the relationship. On 1 November 2016, the offender drove himself and the victim home. He did not allow her to exit the vehicle, pulled her hair and punched her in the face several times. On 21 March 2017, the victim visited the offender’s residence and an argument ensued. The offender grabbed the victim, pushed her down and squeezed her neck. Later that night, the offender choked the victim for ‘about 20 minutes’ and threatened to kill her, he intermittently released his hands [7]. On 22 March 2017, the victim fled and called her brother to get her. The offender later attended the brother’s residence, and made threats and attempted to drive his vehicle towards the brother. The brother was the victim of the common assault charge.
Issue: The Court determined the appropriate sentence for the offences in the circumstances.
Held: The Court considered the objective circumstances of the offending. The unlawful confinement charge was serious as it involved gratuitous violence against the victim, including punching her in the face. The choking charge was also serious as the victim felt that she could pass out and the conduct was accompanied by threats ([27]-[28]). The offender reported that he attended psychological counselling sessions in the past ([34]). His personal circumstances were also taken into account. His parents separated when he was young, he reported a supportive family environment, he has a four year son with an ex-partner with whom he maintains contact, and he is currently employed. He denied any past or current drug use. Although there was an almost decade-old matter for possession of prohibited drugs, no conviction was recorded ([33]). Further, his criminal history was limited. The Court refused to take into account a current family violence charge against him, as he had not yet been convicted and was entitled to a presumption of innocence ([44]-[45]). The offender’s remorse, references provided to the court, time already spent in custody, and sentencing principles, particularly rehabilitation, were also taken into account in determining the appropriate sentence ([38]-[43], [51], [80-[88]). The Court noted that the offender entered pleas of guilty 11 days prior to when the trial was listed to commence for a second time, and allowed a discount of approximately 15% ([46]-[50]). The offences were found to significantly impact the victim. ‘This sort of violence against women must be deterred and must be punished’ ([100]).
The Court recorded the convictions for the 3 offences. The sentence imposed was ordered to be served by way of an Intensive Corrections Order (ICO), which highlights the importance of rehabilitation. The ICO was made on the condition that the offender perform 400 hours of community service, continue to engage with psychological services to manage his mental health, and be assessed for and complete offence specific intervention ([114]).
Charges: Using carriage service to harass x 2; Demand accompanied by threat to endanger x 1; Threaten to inflict grievous bodily harm x 1; Blackmail x 1; Arson x 1; Recklessly inflicting actual bodily harm x 1; Possession of a prohibited item (as a detainee) x 2; Obstructing a public official x 1; Possessing an offensive weapon with intent x 1.
Proceeding type: Sentencing and application for reparation order.
Facts: The accused had been in a relationship with the female victim for three years, with their relationship ending three months before the offence was committed. After the relationship ended, the accused became a member of a motorcycle gang and the female victim commenced a relationship with her current partner. Upon learning of the victims’ relationship, the offender harassed and threatened his ex-partner (via text message and Facebook). He also threatened and blackmailed her new partner, demanding $5000 for ‘whoring out [his] missus’ [26].
The appellant was arrested for these offences. While in custody, the offender started a fire in his cell and possessed dangerous items out of fear he was at risk from members of rival motorcycle gangs. The offender then injured an officer while being restrained.
Issues: What are the appropriate sentences given the circumstances?
Decision and reasoning: Murrell CJ provided that ‘sentences must deliver appropriate punishment, and speak to the purposes of accountability, denunciation, and recognition of harm’ [81]. In reaching his decision, Murrell CJ consequently considered the high objective seriousness of the accused’s harassment of his ex-partner; the accused’s extensive criminal history; good behaviour during previous periods of imprisonment; his dysfunctional upbringing; and the fact that the accused had allegedly not been receiving proper treatment for his post-traumatic stress disorder.
The accused was sentenced to four years and two months imprisonment with a non-parole period of 33 months.
Charges: Choking, suffocating or strangling a person x 2.
Proceeding type: No-case submission/Directed acquittal application.
Facts: The accused was charged with two counts of choking, suffocating or strangling his mother while in an argument. While the mother claimed that the accused strangled her in her initial accounts of the incident, she eventually recanted her allegations claiming she had fictionalised them while angry with the accused.
Issues: The proceedings focused on the questions of whether the words ‘chokes’ ‘suffocates’ and ‘strangles’ in s 28(2) of the Crimes Act 1900 should be interpreted with respect to their effects on the victim’s breathing and consequently whether the correct interpretations of these words warrant upholding the accused’s no-case submission.
Decision and reasoning: Although choking, suffocating or strangling is an offence under s 28(2), the terms are not defined within the legislation and prior to these proceedings were yet to receive judicial consideration in the ACT. Loukas-Karlsson J provided, in comparing s 28(2) of the Crimes Act to the corresponding offences in other jurisdictions, that the intention behind the provision may have been to build on the ACT’s existing offences which contain the elements of ‘choke, strangle or suffocate’ in an attempt to ‘lower the threshold of conduct to capture a broader range of conduct, particularly in the domestic violence setting’ [34]. Upon considering this intention along with the elements’ statutory context, ‘authoritative’ definitions from the Macquarie Dictionary and extrinsic material (such as the Explanatory Statement) Loukas-Karlsson J concluded that ‘the relevant element is constituted by the stopping of the breath’ [46].
In considering the accused’s directed acquittal application, Loukas-Karlsson J provided that “a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty” (Doney v The Queen [1990] HCA 51) [84]. Since the accused did not stop the victim’s breath on either attempt, his conduct failed to satisfy the necessary element. His Honour therefore concluded that there was a defect in the evidence such that a verdict of not guilty must be directed.
Charges: Five offences including two counts of common assault, one count of assault occasioning actual bodily harm, one count of choking to render insensible, and one count of possession of an offensive weapon with intent.
Case type: Appeal of sentence.
Facts: The victim and the appellant had been in a relationship for approximately two months. The two counts of common assault were constituted by the appellant putting his hands around the victim’s neck and pushing her into a wall, as well as saying intimidating and threatening words. The appellant also armed himself with two knives (count of possession of an offensive weapon with intent), and had wrapped his arm around the victim’s neck cutting off her circulation and causing her to lose consciousness (count of choking to render insensible). The count of assault occasioning bodily harm was established by the appellant kicking the victim numerous times, grabbing her hair and repeatedly hitting her head on the ground, and slapping the victim’s face. The victim suffered significant injuries ([18]). Notably, a total head sentence of three years and six months imprisonment was imposed, with a non-parole period of 18 months.
Issues: The appellant sought leave to appeal on the grounds that that the sentence with the respect to the charge of choke render insensible and the non-parole period were manifestly excessive. He sought leave to add two grounds of appeal: 1) that the Magistrate offended the R v De Simoni principle by punishing him for attempted murder; and 2) that the Magistrate erred by not applying the full discount of 20% to the sentence imposed for the offence to choke to render insensible. He sought orders setting aside the Magistrate’s order, and that he be re-sentenced in respect of that charge.
Decision and reasoning: The Court allowed the appeal and re-sentenced the appellant, in relation to the offence of choking to render insensible, to three years’ imprisonment, with a non-parole period of 17 months. At [43], the Court held that a head sentence of three years and two months was not manifestly excessive. With respect to the non-parole period of 18 months, the Court found that ‘as expressed as a percentage of a head sentence of 3 years and 2 months of imprisonment, the relevant percentage is approximately 47%’. This is outside the usual range of non-parole periods in the ACT. The proper approach to fixing a non-parole period is to have regard to all the sentencing purposes, the objective seriousness of the offence, and the appellant’s subjective circumstances and prospects of rehabilitation. The proportion of the sentence served by way of non-parole period is a matter of judicial discretion, and ordinarily, the non-parole period is a significant part of the total sentence ([52]). The appellant’s youth was important to his prospect of rehabilitation. It was necessary to fix a non-parole period that is relatively low, but also reflected the total sentence and was consistent with sentencing purposes ([53]).
Charges: Attempted sexual intercourse without consent x 1.
Case type: Sentence.
Facts: The accused pleaded guilty to an offence of attempted sexual intercourse without consent. The accused and the victim lived together for two years prior to the accused entering custody, and had a child together ([21]-[22]). The victim was lying on her back when the accused pinned her down and repeatedly placed a pillow over her face. He then attempted to have non-consensual sexual intercourse with her ([4]).
Issues: The Court determined the appropriate sentence for the offence in the circumstances.
Decision and reasoning: Loukas-Karlsson J found that the offence approached mid-range seriousness. The objective seriousness of the offence was informed by the fact that the accused pinned down the victim and repeatedly placed a pillow over her face ([15]-[17]). His Honour considered the accused’s personal circumstances at [18]-[28]. He was young (24 years old), had been diagnosed with PTSD at the age of five as a result of witnessing domestic violence between his parents, reported to have been sexually abused by a family member, left high school early, worked in hospitality and as a removalist, and used drugs from an early age. The accused accepted responsibility for the offence and acknowledged the negative impacts of his actions. He indicated that he was willing to participate in programs and interventions. In considering the objective seriousness of the offence and subjective matters, his Honour held that the appropriate sentence for the offence of attempted sexual intercourse without consent is two years and nine months imprisonment. However, his Honour reduced the sentence to two years and four months due to the guilty plea.
Charges: Recklessly inflicting grievous bodily harm x 1.
Case type: Conviction and sentence.
Facts: The offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm after the matter was committed for trial, but before the trial date was set.
The offender attended a friend’s party in the ACT, but started arguing with his girlfriend and left the party. Later that night, the victim heard the argument and, specifically, a female screaming. Concerned for her safety, the victim approached them. The offender stabbed the victim 3 times, and then ran away, followed by his girlfriend. The offender was arrested and granted bail the following day. He was subsequently imprisoned for offences (involving stabbing another person with a knife) committed in NSW while on bail.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Burns J held that the recent offending demonstrated that the offence in question was not an isolated incident. He was also found in possession of an instrument capable of being used to stab after he was extradited from NSW. These matters strongly suggest the need for specific deterrence. His Honour found the offending was unprovoked. The offender’s personal circumstances were also considered. He is a 20 year old Indigenous man, his parents separated when he was young, and he has anger management, drug and alcohol issues. However, he maintains a good relationship with his family, with whom he had remained in contact since he was incarcerated. It was noted that the offender is in good health, has a positive attitude, has employment available to him, and had completed an anger management course. His Honour was satisfied that the offender had reasonable prospects of rehabilitation, provided that he ceases carrying weapons, and addresses his anger management, drug and alcohol issues and employment. Even though the offender said that he carries a knife for self-protection, Burns J held that ‘no law-abiding citizen in this country, not associating with criminals or engaging in criminal conduct, needs to carry a knife for self-protection’ ([30]).
Notwithstanding his young age and rehabilitation prospects, Burns J held that the sentence needed to reinforce the fact that using knives to seriously harm others will be met with harsh punishment. Nothing less than full-time imprisonment would sufficiently address the sentencing requirements ([31]). The offender was convicted and sentenced to 3 years and 1 month imprisonment, with a non-parole period of 18 months.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant had previously been served with an Interim Family Violence Order (the Order). Among other things, the Order prohibited the appellant from being within 100 metres of the protected person, his wife, except when handing over their child. The wife alleged that shortly after being served, the appellant breached the Order by walking in front of her house at a time she was home. She claimed that when the appellant was walking past her property, he stopped and looked into the residence. She also claimed that the appellant returned twice after leaving and began to follow her when he saw her outside.
The appellant pleaded guilty to the breach in the Magistrate Court. This plea was later withdrawn, but then reinstated during these proceedings.
Issue: Whether the sentence imposed by the magistrate was manifestly excessive.
Decision and reasoning: During the proceedings in the Magistrate Court, the appellant attempted to tender a document detailing the events of the day the offence allegedly occurred. The magistrate rejected this document on the grounds that it sought to ‘traverse’ the plea of guilty [9]. While Burns J disagrees with the grounds on which the magistrate refused the document, His Honour believed it should have been rejected because it was self-serving. The contents and rejection of the appellant’s document formed the main focus of Burns J’s judgment.
Burns J had great difficulty accepting most of the appellant’s evidence both in the document and that which the appellant gave before Burns J. The appellant claimed that he visited the area near to his wife’s residence to find a spot for his daughter to wait for him to pick her up the next day. The appellant also claimed that he had recently undergone a procedure to his eyes which resulted in him being unable to see more than one metre in front of him. Burns J provided that given the condition of the appellant’s eyes and the fact that he visited the residence at 10 pm, ‘it does not make any sense whatsoever that in his circumstances’ he visited the residence for the reason he claimed [13].
Burns J also found it difficult to accept the appellant’s submissions as he had made no challenge to the Statement of Facts that were read before the magistrate. The Statement of Facts did not include any of the above claims and instead provided that the appellant walked passed the protected person’s house while he was out walking to take care of his health (as the appellant claimed to be diabetic). His Honour concluded that he was “not now prepared to find that the events occurred in the way in which the appellant now suggests that they did. On that basis, [Burns J] propose[d] to proceed on the basis that the circumstances of the offence went as put before the magistrate’ [17].
Burns J dismissed the appeal, commenting ‘it has not been demonstrated that the sentence [was] manifestly excessive, nor [was Burns J] satisfied that there was any relevant error which would have affected the outcome of the proceedings before the magistrate’ [21].
Charges: Assault occasioning actual bodily harm x 1; Minor property damage x 2
Facts: The offender was in a relationship with the complainant for 12 years. They had a child, aged seven at trial. The relationship ended late 2017. The offender visited the complainant’s home to visit children. He entered the house, damaged property, and assaulted the complainant with a baton by hitting her on the arms and on the back of the head.
Issues: Sentencing
Decision and Reasoning: The offender pleaded guilty and was sentenced to 12 months’ imprisonment for assault occasioning actual bodily harm, one month’s imprisonment for the first count of damaging property, and one month’s imprisonment for the second count of damaging property. The sentences were to be served concurrently. The term of imprisonment for the offence of assault was suspended on the condition that the offender enter a Good Behaviour Order for 18 months.
The offender had a significant criminal record, which included a contravention of a protection order against the complainant for which he already served a period of time in custody. He grew up in difficult circumstances – his mother had a drug addiction and did not adequately support him. The offender also had a long-standing history with drugs and alcohol which was exacerbated by his separation with the complainant. Whilst in custody, he completed a drug and alcohol awareness program and commenced an anger management course. His Honour noted that domestic violence is an ‘appalling crime’ and ‘offends the most basic norms of society’ ([11]). There were positive signs of rehabilitation, such as the fact that the offender was in a stable relationship, had ongoing accommodation and employment, and was a valuable member at his workplace. The complainant had sent an email to the offender saying she had ‘moved on’ and wanted the offender to attend their child’s graduation. His Honour stated: ‘Expressions of reconciliation by victims of domestic violence are often a regrettable reflection of the dominance of the abuser. However, in this case, primarily because the offender is in a new relationship, I am prepared to accept the sincerity of the victim’s request.’
Charge: Common assault.
Appeal type: Appeal against conviction.
Facts: The appellant had a history of heavy drinking. Despite having been prescribed medication to assist with his alcohol dependence, the appellant was heavily intoxicated on the night the offence occurred. His intoxicated state led him to punch his wife in the back on at least four occasions while she was pretending to sleep and to later threaten to strangle their youngest child to stop him crying. This threat prompted the mother to call the police.
In the magistrate’s judgment, he noted that the wife declined to participate in the Family Violence Evidence-in-Chief interview as she did not want the appellant to know she was the one who had contacted the police. The wife declined out of fear of losing the children due to the husband’s past behaviour and conduct in the relationship. The magistrate attributed the appellant’s behaviour to his dependence on alcohol.
Along with appealing the magistrate’s sentence, the appellant also sought to admit further evidence and to have the sentencing proceedings reopened.
Issues: (1) Was the sentence imposed manifestly excessive; and (2) did the magistrate fail to consider or give proper weight to the subjective circumstances of the appellant; (3) should further evidence be admitted and the sentencing proceedings reopened.
Decision and reasoning: Mossop J dismissed the appeal and confirmed the sentence imposed by the magistrate. His Honour was satisfied that the magistrate considered all possible consequences of a conviction for the appellant’s employment and other subjective circumstances and that the appellant’s submissions failed to demonstrate otherwise. As such, the appellant’s first ground for appeal was unsuccessful.
When considering the second ground, Mossop J used the wife’s fear of making a complaint and of losing her children, and the history of similar events during the relationship as evidence ‘that the offending conduct in the present case occurred in a context of typical domestic violence cases …[This] history of conduct within the relationship indicates that the offending conduct had a more objectively serious character than it would have had if that history was not present’ [21]. Mossop J used these facts to reject the appellant’s claim that the magistrate’s sentence was manifestly excessive.
In relation to the third issue, the appellant sought to admit evidence detailing the consequences of the conviction on his employment and job prospects given that the conviction caused his employer to consider terminating the appellant’s employment and the appellant to consequently resign. Mossop J, however, did not consider the admission of further evidence to be in the interests of justice as the evidence was of limited scope and addressed a matter already considered by the magistrate.
Charges: Unlawful confinement x 1; Threat to kill x 1; Inflicting actual bodily harm x 1; Common assault x 2; Aggravated dangerous driving x 1.
Proceeding type: Sentencing and application for an intensive corrections order.
Facts: At the time the offences were committed, the accused was on bail in relation to family violence charges against his partner. The accused’s bail conditions prohibited him from assaulting or intimidating his partner, being near her, having contact with her and from attending her home. While on bail, the accused assaulted his partner, unlawfully confined her and threatened to kill her. When attempting to flee the home, the accused also struck his partner’s current boyfriend with a car, recklessly inflicting actual bodily harm.
Issues: (1) What are the appropriate sentences given the accused’s offences; and (2) is an intensive correction order appropriate for the accused?
Decision and reasoning: Burns J rejected the submission for an intensive corrections order on the grounds that the accused’s imminent deportation from Australia (due to his visa being revoked) made it unlikely that the accused would comply with the order. The accused was instead sentenced to two years and four months’ imprisonment. Burns J reached this decision by considering the relatively low seriousness of the harm inflicted upon the victim; the victim’s vulnerability; and the fact that the accused was on conditional liberty at the time of committing the offences.
Burns J notes at [5] [The offence of unlawful confinement] ‘involved an attempt by you to control the victim by means of intimidation. Some factors which are relevant to determining the objective seriousness of this offence, but also relevant to all of the offences, were that the offences occurred in the victim's own home and, in fact, in her bedroom. With respect to the particular offence, there was force and intimidation used to stop the victim leaving the room. It occurred in the context of threats being made to the victim. The victim was five and a half months pregnant at the time with your child. There was also another child in the house at the time of the commission of these offences. The offences which occurred with regard to KS, in the first tranche of offending, involved a breach of trust because you were only able to gain access to the premises because you had been in a relationship with the victim.’
Charges: Assault occasioning actual bodily harm x 1; Choke, suffocate or strangle x 1; Assault occasioning actual bodily harm x 1; Unlawful confinement x 1; Threat to kill another person x 1.
Proceeding type: Trial by judge alone.
Facts: The accused and the complainant went out to dinner. At about midnight the accused, apparently intoxicated, went out alone. Some hours later, he returned and although not obviously intoxicated, soon became violent. He dragged the complainant, hit her in the face, held a knife to her throat, and detained her in the flat for about four hours. During this time, he threatened to kill her, and demanded information from her about her mobile phone.
Issues: Whether or not the events as described by the complainant occurred; Whether or not the Court could be satisfied beyond reasonable doubt.
Decision and reasoning: A verdict of not guilty was entered as to each of the six counts in the indictment. The Court was satisfied that the complainant ‘was probably telling the truth’, but noted that the required standard was beyond reasonable doubt. Therefore, his Honour could not accept the complainant’s evidence. The emails, particularly, appeared to seriously contradict her version of events, such that they had a significant effect on her evidence being accepted beyond reasonable doubt.
Charges: Aiding and abetting the commission of an offence - caused damage to two vehicles by fire and intended to cause, or was reckless about causing damage to the vehicles.
Proceeding type: Sentencing.
Facts: The offender aided and abetted the co-offender to set fire to his former partner’s car using accelerant, which caused the destruction of the vehicle. As a result, an adjacent vehicle also caught fire and suffered damage.
Issues: Burns J determined the appropriate sentence for the offender.
Decision and reasoning: In determining the sentence, the Court took into account the age of the offender (19 years old), the fact that he had no previous convictions, his attempt to contact the owners of the vehicle to apologise for his actions, the contents of the Pre-Sentence Report (which revealed that he had continued family support and a positive peer network), the fact that he was in stable employment and that he was considered to be at low risk of re-offending. His Honour also took into account the offender’s plea of guilty, albeit that it was not entered at the earliest opportunity. These matters were relevant to a finding that he had good prospects for rehabilitation ([10]). A sentence of imprisonment should only be imposed as a last resort, and accordingly, the Court ordered a Good Behaviour Order for a period of 12 months and recorded a conviction. He was also required to complete 150 hours of community service and accept supervision of ACT Corrective Services for that period.
Charges: Assault x 1
Appeal type: Appeal against decision to refuse adjournment; appeal against sentence.
Facts: In the course of sentencing submissions, the Magistrate was not willing to accept a submission relating to the likely impact of a conviction upon the appellant’s employment. The appellant sought an adjournment to obtain evidence to put before the Magistrate. The Magistrate refused the request .
Issues: Whether the Magistrate fell into error in refusing the application for an adjournment.
Decision and Reasoning: Burns J upheld the appeal.
The Magistrate’s refusal of an adjournment was unreasonable so as to bespeak error ([5]). Having received fresh evidence (a letter from the principal of the school where the appellant was employed), Burns J held that, if a conviction was recorded, she would lose her ‘working with children’ approval and, consequently, her job as a teacher. Such an outcome would be disproportionate compared to the nature of the offence ([11]).
His Honour took into account the appellant’s character, antecedents, age, health and mental condition, as well as the seriousness of the offence and extenuating circumstances in which the offence was committed.
His Honour noted that there is no rule of law that a domestic violence offence cannot be the subject of non-conviction order ([15]). Consequently, the conviction was set aside and a non-conviction order made. The Court also imposed a good behaviour order.
Charges: Assault occasioning actual bodily harm x 1; Intentionally and unlawfully choking a person so as to render that person insensible or unconscious x 1.
Case type: Sentence.
Facts: The defendant headbutted his wife, causing her to become unconscious. He tightly wrapped a piece of rope around her neck, causing her to again become unconscious. She had lost control of her bodily functions and urinated ([1]). The incident occurred in 2013. The complainant was unwilling to provide a statement previously, because she wanted to continue in her relationship with the defendant ([4]).
The defendant pleaded guilty to the charges ([5]).
Issues: Sentence to be imposed.
Decision and Reasoning: The defendant was sentenced to 2 years and 9 months’ imprisonment, wholly suspended ([17]). Mitigating factors included the defendant’s: pleas of guilty; limited criminal history; childhood trauma; mental health issues; and engagement in psychological services ([11]). Burns J considered that the defendant had very good prospects for rehabilitation ([16]).
Charges: Blackmail x 1; Stalking x 1.
Case type: Sentence.
Facts: The defendant and complainant were in a relationship for 2 years. They sometimes filmed consensual sex ([6]-[7]). After the relationship broke down, the defendant sent the complainant emails and text messages threatening to release the video unless the complainant paid him $20,000 ([8]-[9]). The complainant obtained a protection order, and the defendant breached the order three times ([11]).
Issues: Sentence to be imposed.
Decision and Reasoning: Elkaim J remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’. While the defendant had promising prospects of rehabilitation and had taken steps to reduce his consumption of illicit drugs, Elkiam J considered that a period of imprisonment was necessary ([21-[22]). The defendant was sentenced to a head sentence of 9 months’ imprisonment, to be served concurrently with 6 months’ imprisonment for stalking [22].
Justice Elkaim remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’.
Charges: Making a false accusation x 3; Public mischief x 6.
Appeal type: Appeal against conviction.
Facts: The defendant and ‘EK’ had been in a relationship. After the relationship had ended, the defendant made allegations to the police that EK had sexually assaulted her, had followed her in his car, and had broken into her house ([5]-[12]). The police made investigations, but eventually determined that the accusations were false ([14]).
At trial, the prosecution relied upon the following evidence to show the defendant’s tendency to make false complaints: the fact that there were many allegations supported the inference that each one was false; a complaint of sexual assault made by the defendant against a neighbour when she was 17; and three other allegations made by the defendant against EK’s family ([26], [29]). The defendant was convicted of two counts of making a false accusation and three counts of public mischief (for wasting police officers’ time). She had not yet been sentenced.
Issues: One issues was whether the Magistrate correctly applied tendency evidence.
Decision and Reasoning: The appeal was partially upheld. Justice Refshauge found that the Magistrate applied the tendency evidence incorrectly for two reasons.
Note: this case was subsequently remitted to the Magistrates Court for retrial before a different Magistrate, see Parkinson v Alexander (No 2) [2017] ACTSC 290 (9 October 2017).
Charges: Murder x 1; Recklessly inflicting grievous bodily harm x 1; Assault occasioning actual bodily harm x 1; Contravene protection order.
Case type: Sentence.
Facts: The defendant and the deceased had formerly been in a domestic relationship and had a child together ([9]). The deceased had taken out a domestic violence order (DVO) against the defendant the day before the defendant killed her ([17]-[19]). When the defendant received the order, he bought an axe, drove to the deceased house and cut her neck with the axe, severing her spine. She was holding his newborn child at the time, and her two sons were in the same room ([33]-[36]). The axe severed her sister’s finger, which formed the basis of the grievous bodily harm charge. He then assaulted her brother, which formed the basis of the assault occasioning bodily harm charge ([37]-[39]).
Issues: Sentence to be imposed. The defendant raised the mitigating factor of diminished responsibility.
Decision and Reasoning: Burns J described the objective circumstances of the murder ‘within the worst category of cases of murder, and would warrant a term of life imprisonment’ [133].
Burns J said at [131] ‘For many years now, the courts of this country have spoken of the need to protect members of the community, and particularly women, from domestic violence, and the need for courts to take seriously offences of domestic violence. If these statements are to have meaning, if the protection offered by the [Domestic Violence and Protection Orders Act 2008 (ACT)] is to have significance, it is incumbent on courts to recognise the heinousness of offences of violence committed in retribution for a member of the community invoking the protection provided by the Act.’
His Honour took into account as mitigating factors the defendant’s plea of guilty, his experience of abuse as a child, and his long history of mental health issues ([103]). Other contributing factors included his use of anabolic steroids, methylamphetamines and a personality disorder, but his Honour did not place significant weight on these circumstances ([120]). His Honour also had regard to victim impact statements tendered by the deceased’s family ([124]-[128]). His Honour concluded (at [151]):
‘The present offence of murder was vicious and cowardly. Those who witnessed your violence will have to live with their memories for the rest of their lives. Your actions deprived three children of their mother, including your own infant daughter Ayla. You have effectively deprived Ayla of both of her parents. The effects of your actions will be felt for decades to come. There is a very substantial community interest in retribution, deterrence and punishment. This can only be achieved by a very substantial period of imprisonment.’
His Honour imposed a sentence of 32 years and 2 months’ imprisonment.
Note: the Domestic Violence and Protection Orders Act 2008 (ACT) referenced in this decision has been repealed and replaced by the Family Violence Act 2016 (ACT).
Hearing: Breach of good behaviour order.
Facts: In 2012, Mr Ennis was involved in an altercation with his female partner of 27 years. He was convicted of assault occasioning actual bodily harm and was subject to a good behaviour order for 2 years with a condition to perform 100 hours of unpaid community service work. In 2014, Mr Ennis breached this order by failing to perform the community service work (‘the first breach’). The good behaviour order was extended by 12 months and Mr Ennis ordered to perform 108 hours of community service work (See R v Ennis [2014] ACTSC 369 (4 November 2014)).
However, before the end of the good behaviour order in 2015, Mr Ennis breached the order again (‘the second breach’). Mr Ennis and his partner, who had been drinking alcohol, argued outside their house. Mr Ennis pulled her by her hair and dragged her inside. He let her go and slammed the door in her face (common assault). In March 2016, a magistrate sentenced Mr Ennis to 5 months imprisonment, suspended immediately, and made a good behaviour order for 18 months with various conditions. His Honour then referred the matter to Refshauge J for breach of the good behaviour order that had been extended upon Mr Ennis’ first instance of breach.
Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.
Decision and Reasoning: While Mr Ennis complied with nearly 2 years of the original good behaviour order without breach constituted by further offence and nearly 9 months of the additional period ordered by Refshauge J, Mr Ennis had failed at his attempts at rehabilitation. This offending was also facilitated by the consumption of alcohol. Further, the nature of offending was serious. Per Refshauge J, ‘It is, as his Honour Magistrate Morrison said, a family violence offence, and it is serious in that it was the commission of the offence against the same victim, although many years apart. It is a similar offence also, in that it is an assault and another family violence assault. Nevertheless, it is a much less serious version of the offence, although in this case, because of the earlier history, it attracted a sentence of imprisonment, although suspended’. It was relevant that Mr Ennis’ partner had moved away and it was unlikely that the relationship would resume in the near future (See [15]-[22]). Accordingly, the duration of the good behaviour order was extended to 2 years to run from the date of this decision.
Hearing: Application for evidence to be given by audio visual link from a location outside the courtroom.
Facts: The accused, BNS, pleaded not guilty to 2 counts of incest and 5 counts of committing an act of indecency on TN. At the time of offence, BNS was in a relationship with SN, the mother of TN, and was the step father to TN. SN was called to give evidence at trial. She was expected to give evidence of complaint made by TN and relationship evidence (of her and the child’s relationship with BNS).
Here, an application was made for SN to give evidence by audio visual link from a remote location. BNS was physically abusive to SN during the relationship. SN said she had ongoing anxiety and depression which would inhibit her ability to give her best evidence if she was required to give evidence in the courtroom. In light of the history of family violence, she felt intimidated in front of BNS. Finally, BNS also had a conviction for intimidating a witness.
SN did not have the right to give evidence by audio visual link from a remote location under Part 4 of the Evidence (Miscellaneous Provisions) Act because she was not a child, complainant, or a similar fact witness. In the absence of statutory provision, it was noted that there is no power at common law for a court to allow evidence to be heard by video link: R v Hampson [2009] EWCA Crim 1569. However, s 32 of the Evidence (Miscellaneous Provisions) Act empowered the court to direct a person to give evidence by audio visual link from a remote location.
Issue/s: Whether the application to give evidence outside the courtroom via audio visual link should be allowed under s 32 of the Evidence (Miscellaneous Provisions) Act.
Decision and Reasoning: The application was allowed as the pre-conditions set out in s 32 were met. First, the necessary facilities were available (See [10]). Second, the evidence could be more conveniently given from a remote location by video link. SN’s aversion to the accused would make it more convenient for her to give evidence remotely. It was also more convenient for the court to have the evidence given free of the inhibitions troubling SN (See [12]-[13]). Finally, BNS did not object to SN giving evidence remotely and, accordingly, it could not be said that it would be unfair to the accused for SN to give evidence remotely. Although the general rule is that prosecution witnesses should give evidence in the presence of the accused, it was noted that there have been numerous past occasions where the giving of evidence by video link has not been unfair (See [14]-[22]). Further, there were no discretionary matters requiring the application to be refused (See [23]-[30]).
Hearing: Breach of a good behaviour order.
Facts: Mr Curtis assaulted his female partner by punching her a number of times, causing her bruising. He was charged with assault occasioning bodily harm. In October 2013, Refshauge J sentenced Mr Curtis to 12 months imprisonment, wholly suspended, and imposed a good behaviour order with a probation condition for 2 years (See R v Curtis [2013] ACTSC 291 (16 December 2013)). In April 2015, within the period of the good behaviour order, Mr Curtis was found in possession of a number of electronic and other items reasonably suspected of being stolen. In December 2015, he pleaded guilty in the Magistrates Court and was sentenced to a further good behaviour order for 18 months with a community service condition. The magistrate referred the breach of the earlier imposed good behaviour obligations to the Supreme Court.
Issue/s: Whether further action is warranted in light of Mr Curtis’ breach of a good behaviour order.
Decision and Reasoning: The offence subject of the breach was of a different character and less serious to the offence that Mr Curtis was originally sentenced for. This offending was not part of a life of serious criminal offending but a stupid criminal offence prompted by his perceived necessity. Mr Curtis had otherwise complied with the good behaviour order. His Honour was satisfied that this justified re-sentencing Mr Curtis rather than imposing the suspended sentence (See [45]-[49]).
In re-sentencing Mr Curtis, Refshauge J noted the need for general deterrence because the original offence was of family violence. He further noted that ‘Vindication of the victim is always important in family violence offences and, again, the expression of the court's displeasure with the offending by the imposition of imprisonment will meet that objective’ (See [52]). His Honour further noted Mr Curtis’ youth, his employment, and the birth of his child into a stable relationship (absent any family violence) (See [50]-[55]). Mr Curtis was re-sentenced to 12 months imprisonment to commence from 15 August 2015 (to take into account pre-sentence custody), wholly suspended. His Honour further imposed a good behaviour order for 18 months with probation conditions and a community service condition.
Note: the defendant subsequently breached his good behaviour order (although the breach was not related to further domestic and family violence) and was re-sentenced to 12 months’ imprisonment, wholly suspended (see R v Curtis (No 3) [2017] ACTSC 101 (27 April 2017).
Charge/s: Recklessly inflicting grievous bodily harm.
Hearing: Sentencing hearing.
Facts: After arguing with his brother, Mr Williams chased his brother down the street. He caught up with his brother and hit him with a guitar, rendering him unconscious. Mr Williams’ brother was found to have a depressed skull fracture and a haematoma on his brain. He underwent surgery and spent three weeks in hospital before being moved to a rehabilitation facility.
Decision and Reasoning: This was a serious offence, especially because it involved family violence. The offence was not premeditated but was aggravated because it took place at a time when Mr Williams was already subject to a NSW good behaviour order made in connection with an earlier family violence offence (against Mr Williams’ former partner). Further, Mr Williams tried to minimise his actions. The injuries sustained by his brother were quite serious (See [11]-[22]). Penfold J also had regard to Mr Williams’ subjective circumstances including his extensive criminal history (See [23]-[26]). He noted that Mr Williams had attended some anger management and drug and alcohol programs but these had not had an effective rehabilitative impact (See [27]-[31]).
In terms of general deterrence, His Honour noted, ‘This is an offence of a kind that requires general deterrence, and in some cases at least, general deterrence may be effective. I note defence counsel's comment that general deterrence in relation to the grievous bodily harm offence is particularly relevant in relation to “glassing” offences, but I consider that deterring violence within the family is at least as important as deterring alcohol-fuelled violence between strangers or acquaintances’ (See [33]). Personal deterrence was also relevant on the facts (See [34]). Penfold J sentenced Mr Williams to three years imprisonment with a non-parole period of 18 months.
Charge/s: Assault occasioning actual bodily harm, causing grievous bodily harm.
Hearing: Sentencing hearing.
Facts: After consuming a significant quantity of alcohol, Mr Pikula, a man with Aboriginal and Tongan ancestry, began arguing with his step-brother (Mr Mapa). Another step-brother, Mr King, tried to intervene but was stabbed with a knife in the back of his thigh by Mr Pikula (assault occasioning actual bodily harm). The following evening, Mr Pikula again became highly intoxicated and argued with Mr Mapa. He stabbed Mr Mapa twice in the back. The knife wounds punctured his lung (grievous bodily harm).
Decision and Reasoning: Refshauge J sentenced Mr Pikula to 22 months imprisonment for assault occasioning actual bodily harm and 27 months imprisonment for causing grievous bodily harm (cumulative). His Honour also recommended that a condition of Mr Pikula’s parole would include a requirement that he undergo treatment and counselling for alcohol abuse. In imposing this sentence, Refshauge J noted the importance of both general deterrence and specific deterrence (in light of his violent criminal record). The offending was serious here and warranted denunciation. While it had some association with alcohol, which may provide some opportunity for rehabilitation, this could not be said to overwhelm the other purposes of sentencing. His Honour also had regard to Mr Pikula’s troubled childhood and his long history of alcohol abuse.
At [1], ‘There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family’.
Charge/s: Act of indecency without consent, assault with intent to engage in sexual intercourse.
Hearing: Sentencing hearing.
Facts: The male offender and the female complainant were married. They had been in a relationship for 17 years and had 3 children. The offender and the complainant had been drinking alcohol together when the offender requested oral sex. The complainant declined and went to bed. Five minutes later the offender walked into the bedroom and demanded the complainant perform oral sex on him. She refused repeatedly and started crying. The offender said, ‘Do you think your crying is going to get you what you want? It’s your job to do it’. He then took all his clothes off and positioned himself on top of the complainant. She pushed the offender off but he continued to talk angrily. The offender then dragged the complainant across the bed and pushed her head close to his penis. He tried to slap her twice but was blocked by the complainant. She fell off the bed, hurting her head. The offender continued to demand oral sex. He pinned her down on the bed and yelled, ‘You need to suck me off, it’s not about love or intimacy’. The complainant, crying, pleaded for him to let her go and the offender replied ‘What can you do about it?’ The offender then became upset and the complainant called the police.
Decision and Reasoning: These offences were objectively serious. The assault lasted almost an hour and included physical and mental abuse. Robinson AJ noted, ‘I take into account the fact that prior sexual relationship is relevant in assessing the seriousness of sexual assault. Here it is not a sexual assault by an unknown stranger which would give rise to extreme terror in the mind of the complainant’ (See [8]). His Honour also took into account a number of subjective circumstances. There had been some measure of reconciliation between the offender and the complainant. While these events were not an isolated incident of abuse and this mitigated the leniency that could otherwise have been shown in this case, the offender had taken opportunities to assist himself and took responsibility for his offending (See [9]-[14]).
In sum, His Honour noted: ‘I have come to the view that only a sentence of imprisonment is appropriate to the level of offending in this case. There is a need to punish this offending and to send a clear message by way of general deterrence to others that participation in sexual behaviour is a matter of choice not subjugation. I have also determined to deal with the offending as if it were only one transaction and impose concurrent sentences’ at [15]. The offender was sentenced to one year and nine months on the charge of unlawful assault and seven months imprisonment for an act of indecency. These sentences were wholly suspended upon the offender entering a good behaviour order for three years.
Charges: Assault occasioning actual bodily harm (two counts), damaging property, engaging in sexual intercourse without consent (two counts)
Proceeding: Sentencing
Facts: The offender and the victim were in a relationship. After drinking three bottles of wine one night, the offender smashed a bottle and jar because ‘he was angry’. The victim decided to stay at her mother’s house and that it was best to take the offender’s car keys. When she went to get them, the offender grabbed her by her hair, threw her to the ground, stood over her, stomped on her face and chest and punched her a number of times. During the attack, the offender told the victim ‘This is what you get for lying to me’ and threatened to kill her. He then put his hands around her neck and tried to strangle her (count 1). When the victim tried to phone someone for help, the offender snapped her mobile in half (count 2). About 15 minutes after the initial attack had ended, the offender grabbed the victim by the back of her neck, smashed a mug over her head and hit her multiple times with the smashed mug. After the mug broke, he went to get another mug and again hit her, causing a large laceration to the victim’s head (count 3). After the victim had a shower, the offender told her ‘Now that I have done that to you, we are going to do everything my way from now on. It is not your way, it is going to be my way, okay.’ He then put his penis into the victim’s mouth despite her resisting and turning her head away (count 4) and forced her legs apart and had sexual intercourse with her (count 5).
The next morning the offender asked the victim what had happened. When she told him and asked to be taken to the hospital, he refused until later that day. The offender later apologised to the victim and told her, ‘If you tell the police then we will not see each other again’.
In relation to this conduct the offender was charged and pleaded guilty to two counts of assault occasioning actual bodily harm (counts 1 and 3), one count of damaging property (count 2) and two counts of engaging in sexual intercourse without consent (counts 4 and 5).
Issue: What sentence the offender should receive.
Decision and reasoning: Refshauge ACJ began his judgement by emphasising the seriousness of domestic violence and the considerations relevant to sentencing offenders: ‘Domestic violence is a scourge in the Australian community. It has become so problematic that significant efforts are being made at the Federal, State and Territory levels to address it. Clearly, the courts have a part to play in denouncing such conduct and making it clear that in a civilised society it is completely unacceptable. In sentencing offenders who commit domestic violence against their partners, the courts must use the objectives to be achieved in sentencing: general deterrence, specific deterrence, accountability of the offender and vindication of the victim, as well as denouncing the conduct. Nevertheless, at all times a sentence for any criminal offence must be appropriate to the circumstances of the offence and proportionate to the criminality of the offence and the culpability of the offender’ ([1]-[4]).
The offender had a long history of alcohol abuse and alcohol related violence. He had previously been convicted of a violent assault on his previous partner, two offences of drink driving and driving while disqualified. While in custody, the offender completed the SMART Recovery Program and First Steps to Anger Management Program to address his alcohol abuse and violence. He also accepted that he had an alcohol problem and expressed remorse about the offending and its impact on the victim.
References about the offender were provided by his employer (he was employed as a wards person in a hospital), his brother-in-law and his pastor. All three references described him as a respectful and caring person of good character. His brother-in-law and pastor also commented on the positive changes the offender made while in custody. He developed his faith in God, was obedient and respectful of authority, enjoyed the education and rehabilitation programs available and was very remorseful about his conduct in harming the victim. The victim also prepared a victim impact statement in which she expressed her continued serious emotional trauma and its impact on all areas of her life including friends, family, work and finances.
The offending was very serious with the whole of the events constituting a ‘brutal, extended attack on a victim which not only left her with physical scars but with social and mental scars that will last for some considerable time’ ([70]). The facts the assaults occurred in the context of a domestic relationship and the victim suffered injuries were aggravating factors. The circumstances in which the property was damaged also made the offence more serious: ‘To deny a victim of a brutal assault the opportunity to gain assistance would have increased the terror she must have experienced and has aggravated the offence’ ([67]). The sexual assaults violated the victim’s integrity and were a serious intrusion into her personal life despite occurring in the context of a domestic relationship.
In sentencing, Refshauge ACJ emphasised the need for special and general deterrence to denounce the offences committed by the offender. While the offender had taken positive steps in rehabilitation, this could not overbear the other purposes of sentencing. Rather, it was taken into account in setting the non-parole period. The seriousness of the offending meant that imprisonment was the only appropriate sentence. After considering the principle of totality and ensuring the offender was not punished twice, Refshauge ACJ sentenced him to a total sentence of six years’ imprisonment, backdated for the time already spent in custody. A non-parole period of three years and three months was also ordered. The total sentence comprised of:
Charge/s: Breach of a domestic violence order.
Appeal type: Appeal against sentence.
Facts: The appellant had been in an ‘off and on relationship’ with the female victim for 10 years. A Domestic Violence Order was made in favour of the victim against the appellant. Subsequently, one evening between 9.13pm and 10.04pm, the appellant made 10 telephone calls to the victim. He left one message saying: ‘You wait cunt. Your house is smashed and that fucking cunt you’re rooting. I am going to kill that cunt’. The appellant pleaded guilty at the first reasonable opportunity to the breach and was sentenced to a period of imprisonment of 22 months with a non-parole period of 15 months.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The offence was very serious but the objective circumstances did not warrant a term of imprisonment of 22 months. As per Robinson AJ: ‘Significantly, there was no face to face confrontation, no infringement of the prohibition to be on the property of or within 100 metres of Ms BC and no weapon was involved. Ms BC did not answer the telephone calls’. His Honour referred to R v Loulanting [2015] ACTSC 172 as being a factually similar case. His Honour acknowledged that compliance with any type of protection order is essential to protect members of the community from violence and anti-social behaviour. It is therefore open to the Court to impose a stern penalty to achieve this end. However, the punishment must still be proportionate to the offending and here this could not be said to be the case (See [25]-[26], [32]-[35]).
The appellant was re-sentenced to 14 months imprisonment. Robinson AJ stated: ‘In my view substantial weight should be accorded, in the circumstances of this case, to deterring the offender and others from committing the same offence. His conduct was a defiance of the orders of the Court. This was by no means the first such defiance. There is value in our society upholding all orders of Courts. There could be said to be even more value in upholding protection orders in the context of the role that protection orders now play in our society in all jurisdictions’ at [54].
Charge/s: Common assault, damage to property.
Appeal type: Appeal against sentence.
Facts: The appellant and his former female partner had four children together. They separated two months prior to the offending but the appellant had been staying at the family home for a week prior to the offences. On 6 November 2014 at about 11pm, the appellant banged on his former partner’s window demanding she wake up. She let him in and went back to bed (where her 5 year old daughter was sleeping). The appellant went to the bedroom and punched a hole in the door. He started yelling and abusing his former partner. Despite the cries of the 5 year old daughter to stop, the appellant restrained his former partner and started hitting her. He woke up the couple’s 3 year old son. The appellant then hit the bedroom door several more times and started yelling again. The couple’s 13 year old daughter called the police. The appellant was sentenced to 12 months imprisonment for common assault and 6 months imprisonment for damage to property, suspended after 8 months. The appellant had previously been convicted for offences of assault against his former partner in 2006 and 2012. These offences were also committed under the influence of alcohol.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. First, the sentencing magistrate did not fail to consider the possibility of part of the sentence being served by way of periodic detention. Second, although counsel submitted that the appellant had been compliant with bail conditions imposed in 2014 (namely, sobriety), the magistrate was entitled not to place any great weight on this consideration. This was particularly so given that the appellant had assaulted his former partner before under the influence of alcohol. Finally, counsel for the appellant submitted that previous assaults had been dealt with by a non-custodial sentence and to impose a sentence of full-time imprisonment for at least 8 months was an oversized incremental step. Robinson AJ stated: ‘The argument regarding the oversized incremental step is answered by the proposition that the courts dealing with the earlier assaults allowed leniency (perhaps too much) in a desire to rehabilitate the appellant. Further there is no sentencing principle that requires courts to impose sentences incrementally according to some upward scale’ (See [18]).
Charges: Damaging property, assault, assault occasioning actual bodily harm
Proceeding: Resentencing
Facts: The offender was charged and pleaded guilty to damaging property for breaking a window in his partner’s house. He was convicted and sentenced to one month’s imprisonment. This conviction breached a good behaviour order that was made after he was convicted for assaulting his partner. He was sentenced to six months’ imprisonment, wholly suspended upon complying with a good behaviour order for two years. The good behaviour order was cancelled as a result of the breach and the six months’ suspended sentence was imposed, but was ordered to be served concurrently with another term of imprisonment. The offender successfully appealed this sentence. A sentence of six months’ imprisonment wholly suspended on the condition of a 12-month good behaviour order was imposed on appeal. A good behaviour order for the offence of damaging property was also made.
The offender was subsequently convicted of traffic offences, constituting a breach of both good behaviour orders. As a result, the good behaviour bond imposed for the offence of damaging property was extended for a further 12 months. He was also resentenced to six months’ imprisonment on the assault charge, suspended for a period of 12 months on the conditions of a further good behaviour order for 12 months and 80 hours of community service. This effectively increased the length of the good behaviour orders as well as requiring the offender to perform community service work.
The offender again breached these good behaviour bonds when he was convicted of assault occasioning bodily harm. This conviction arose when the offender choked his partner and threw a chest of drawers that hit her in the head. In relation to this offence, he was sentenced to 18 months’ imprisonment, suspended after nine months with a good behaviour order for two years thereafter.
Issue: How should the offender be resentenced for the final breach of the two good behaviour orders?
Decision and reasoning:
The offender suffered a difficult childhood in which he was sexually abused and had great difficulties in school as a result of having ADHD and dyslexia. After leaving school at 14, he was homeless for many years. He also had a long history of drug and alcohol abuse. The offender also suffered from various mental illnesses, including major depressive disorder, borderline personality disorder and antisocial personality traits, for which he was receiving treatment. He had a long criminal history with 122 offences on his criminal record. This reduced towards the time of offending in question and suggested his criminality was abating.
The final breach of the good behaviour orders was serious when considering ‘the offence was a family violence offence committed on a complainant who had been the victim of earlier offences of a similar type committed by [the offender], for which the current Good Behaviour Orders owe their genesis’ ([37]). However, there was a need to take into account the offender’s mental health. Refshauge J considered that ‘the option for rehabilitation can be given greater prominence without minimising the need for some level of special and general deterrence’ ([38]).
Refshauge J cancelled the good behaviour orders in accordance with s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The conviction of assault occasioning actual bodily harm was confirmed. The offender was convicted to six months’ imprisonment, wholly suspended for a period of two years. A good behaviour order was made for two years with the conditions that the offender would be supervised, must complete 180 hours of community service, and must participate in the Detention Exit Community Mental Health Outreach Program for three months. The conviction for damaging property was also confirmed and the offender was sentenced to one month’s imprisonment, taking into account the time already spent in custody.
Refshauge J concluded by telling the offender, ‘If you are genuine in your efforts, the Court will support you in this, as I hope I have shown you, but if you are not, then you can expect further custodial sentences and a revolving door’ ([57]).
For Refshauge J’s previous decision on appeal, see Guy v Anderson (No 2) [2013] ACTSC 245.
Charges: Common assault, assault occasioning actual bodily harm, contravening a protection order, resisting a public official
Proceeding: Sentencing
Facts: When the offender returned home he tripped after his dogs walked in front of him. In front of his wife (the victim) and children, the offender became angry and started kicking the dogs. After the victim asked him to calm and stop hurting the animals, the offender punched her in the stomach (count 1). Approximately 10 minutes later when they were discussing the punch, the victim said ‘You grew up watching your dad hit your mum and now you think it’s okay to hit me too’. In response, the offender punched her again to the back of her head, causing her to fall to the ground. He then punched her twice more, kicked her in the head five times and stomped on her head. As a result, the victim suffered a large cut to her forehead requiring seven stitches and a bloody nose (count 2). Both children were present during this assault. When the offender was arrested by police he became aggressive, spat at one of the officers (count 3) and resisted the arrest (count 4). Approximately 3 months later a domestic violence order was made against the offender restraining him from engaging in conduct that constitutes domestic violence to the victim, including offensive, harassing or threatening conduct. The offender subsequently had an argument with the victim where he was abusive and threatening towards her (count 5). When someone attempted to intervene, the offender threatened to kick him. At the time this offence took place the offender was on bail for the previous 4 offences.
In relation to this conduct, the offender was charged and pleaded guilty to two counts of common assault (counts 1 and 3), one count of assault occasioning actual bodily harm (count 2), one count of resisting a public official (count 4) and one count of contravening a protection order (count 5).
Issue: What sentence should be imposed.
Decision and reasoning:
In assessing the objective seriousness of the offences, Burns J took into account that the offender was significantly larger than the victim, that the offences occurred in the context of a domestic relationship and that the children were present during the attack. Burns J considered the offender’s conduct to be ‘cowardly, shameful and rightly characterised as criminal’ ([7]). A victim impact statement was also prepared by the victim, explaining the trauma and anxiety the offences caused her and the children. Burns J noted that ‘As is so often the case in domestic violence offences, the long term burden of your violence will not only be felt by your wife, but also by your children’.
The offender’s childhood was marred by exposure to domestic violence and he ‘was disappointed in [his] actions and how [he] exposed [his] children to that type of domestic violence, which [he] despised as a child’ ([22]). He had secure employment to return to after being released from custody. The offender had a history of drug and alcohol abuse and mental health issues including suffering from posttraumatic stress disorder. Due to these concerns, he was assessed as being at moderate risk of reoffending. However, Burns J noted that the offender had been attending numerous rehabilitation programs for his alcohol and drug abuse and was receiving treatment for his mental health issues. Expert psychologist reports noted that the offender’s behaviour was ‘strongly influenced by [his] background of mental health issues arising out of [his] traumatic childhood, particularly [his] ongoing complex post traumatic stress disorder’ and that he was unable to make calm or rational choices at the time of offending ([32]).
The offender demonstrated a degree of remorse in his statements to psychologists and his guilty pleas. Therefore, the sentence was reduced by 25 per cent as a result of these early pleas. The offender’s mental illness was causally connected to his offending and to his abuse of alcohol. It also impaired his mental functioning at the time of the offences and reduced his moral culpability by impairing his ability to exercise appropriate judgement and make calm and rational choices. Full time imprisonment would have a deleterious effect on his mental health and prospects of rehabilitation. Burns J concluded that the need for general and specific deterrence should be moderate in light of the offender’s reduced culpability as a result of his mental illness.
Burns J convicted and sentenced the offender to:
Charges: Assault occasioning actual bodily harm, burglary and choking a person so as to render them insensible or unconscious
Proceeding: Bail
Facts: While on bail for previous offending, the accused allegedly entered his ex-partner’s (the victim) home and attacked her, placing his hand around her neck and squeezing until she felt light headed. At the time these offences were committed, the accused was subject to a protection order in favour of the victim. The breach of this order was a serious offence for the purposes of the Bail Act 1992 (ACT) (the Act) and therefore the presumption against bail did not apply to the accused. In order for bail to be granted, the court must have been satisfied that there were special and exceptional circumstances favouring the grant of bail under s 9D(2) of the Act.
Issue: Whether bail should be granted.
Decision and reasoning: Bail was not granted. The charge of contravening a protection order was ultimately withdrawn because of procedural issues relating to service. However, s 9D of the Act still applies where a person is on bail for a serious offence of which offence that person is acquitted. Therefore, the fact that the charge was withdrawn did not amount to special and exceptional circumstances in favour of granting bail. The accused allegedly committed very serious offences of family violence. He had a history of offending, having previously been convicted of two offences of assault occasioning actual bodily harm, four offences of assault, two offences of contravention of a protection order, numerous traffic offences including drink-driving offences and fives offences of failing to appear in accordance with a bail undertaking. He had also shown an unwillingness to obey and disrespect of court orders. Given the accused’s history and the real risk that he would not attend trial and reoffend, bail should not have been granted even if there were special and exceptional circumstances in favour of granting bail.
Charge/s: Threat to kill, breach of a protection order x 2.
Hearing: Sentencing hearing.
Facts: The offender was charged with and pleaded guilty to 2 counts of breaching a protection order (where the protected person was his former female partner) and making threats to kill. On 18 January 2015, the offender contacted the protected person, asking to see his son. She refused because he had been using ice and was acting aggressive and demanding. The offender then sent her a number of text messages that were indecent, offensive and aggressive. The protected person ignored these messages as he had sent similar messages in the past. However, the next day, the offender called again and left a voice mail and text messages threatening to kill her.
Decision and Reasoning: The offender was sentenced to a total sentence of 4 years imprisonment, including 12 months imprisonment for the breaches of the protection order and 2 years and 6 months imprisonment for the threat to kill. This sentence was appropriate in light of a number of factors. The offences required punishment and denunciation, and considerations of general and specific deterrence were also significant. Refshauge J accepted that the offender genuinely sought rehabilitation but noted that agencies the offender had been referred to in the past had had no significant impact on his behaviour. His Honour took into account the plea of guilty, the offender’s mental health and accepted that the offender felt remorseful (See [44]-[48]).
His Honour further took into account the seriousness of the offences, which were particularly concerning as they were committed in the context of family violence. First, the threat to kill was serious. The use of ice, earlier harassment and changed tone from the earlier conversation all showed the serious intent of the offender and the fear that this threat was likely to have had engendered in the victim. The fact that this offence was brought on by the use of ice was not a mitigating factor but Refshauge J took into the offender’s desire for rehabilitation and the, so far unsuccessful, attempts he had made at rehabilitation. The denial of access to his son also provided explanation for the offence but was not a mitigating factor in any way (See [37]-[40]). Second, the breaches of the protection order were also serious, albeit less serious than the threat to kill. The breaches were deliberate and intentional. While they were not the most serious versions of the offence, they were not made by personal approach, they were still serious as the contact was made over two days and was abusive and indecent (See [41]-[42]).
Refshauge J stated:
There is no doubt that the addiction to drugs creates significant problems for the community, as well as for the user and his or her family. When the drug is methylamphetamine, or ice, the violence that it also generates can create further problems, particularly if there are stressed family situations leading to family violence. When mental health issues are added to the situation, it creates great complexity in trying to deal with the multiple issues that arise (See [1]).
Charge/s: Recklessly inflicting grievous bodily harm, burglary x 2, common assault x 2.
Hearing: Sentencing hearing.
Facts: On two occasions on one evening, the offender attended the residence of his former partner. On the first occasion, the offender entered through a window and engaged in a physical confrontation with his former partner’s boyfriend. The offender then left the premises. He returned later in the evening and picked up a knife from the kitchen. The offender started a physical confrontation with his former partner’s boyfriend. To protect himself, the victim placed his hand on the blade of the knife and sustained a serious injury to his hand.
Decision and Reasoning: On the burglary charges, the offender was sentenced to 12 months imprisonment and 16 months imprisonment, with the balance suspended and a good behaviour order imposed. On the charge of recklessly inflicting grievous bodily harm, the offender was sentenced to 15 months imprisonment, wholly suspended upon entering into a good behaviour order. In imposing this sentence, Burns J took into a number of considerations that warranted greater punishment. His Honour noted that, ‘these offences [were] family violence offences and as such must be treated very seriously by [the] Court. [The] community views with great abhorrence the infliction of violence by people in family relationships’. It was also significant that the offences occurred in the victim’s own home. In mitigation, Burns J took into account the offender’s plea of guilty, the steps taken by the offender to address his alcohol abuse (which was a significant factor in all his offending), his remorse and general prospects for rehabilitation.
Order sought: Application for a domestic violence order (DVO).
Appeal type: Application for extension of time in which to bring an appeal from the decision of the Magistrates Court dismissing an application for a domestic violence order.
Facts: On 25 February 2014, the applicant applied for a DVO against her former male partner. Both parties were represented. The transcript of the proceedings extended over some 86 pages. The applicant gave evidence in chief of a number of incidents involving the applicant and her daughter being followed and stared at by the respondent, being grabbed and punched by the respondent, and the respondent sending threatening messages. Of particular relevance to the appeal, the applicant gave evidence of an incident that occurred on 1 December 2010 at the time of the couple’s separation. The applicant thought the respondent was overseas but he appeared in her house and dragged her into the hallway, sat on top of her, and smashed her head onto the floor (‘the December 2010 incident’). The next day the applicant made an application for housing assistance to the Commissioner for Social Housing stating that she was homeless and escaping violence from her partner.
On 27 May 2014, the magistrate found that the principal incidents of which the applicant gave evidence did not occur or did not constitute domestic violence. In particular, the magistrate was satisfied that the respondent was not in Australia on or about 1 December 2010 and he did not return until after the applicant had gone to the Commissioner for Social Housing. Although the applicant had been injured by someone at the time she went to the Commissioner for Social Housing, Her Honour was not satisfied on the balance of probabilities that the respondent caused that injury.
The application for leave to appeal was not filed until 2 January 2015 (a period of 7 months delay). The applicant was prompted to lodge this appeal because of an adverse decision of a judge of the Federal Circuit Court on 18 December 2014. The decision of the Federal Circuit Court related to parental responsibility and living arrangements for the child of the applicant and the respondent. One of the reasons the applicant sought to overturn the decision of the Magistrates Court was that this decision had an impact on the findings and outcome in the Federal Circuit Court decision.
Issue/s: Whether the grounds of appeal have any reasonable prospect of success and whether the extension of time within which to appeal should be granted.
Decision and Reasoning: Mossop Ass J dismissed the application for an extension of time within which to appeal. His Honour accepted that, at least in relation to the December 2010 incident, there was a reasonably arguable ground of appeal based on documentary evidence presented to the Supreme Court on appeal. Essentially, this paperwork demonstrated that there was at least a possibility that the dates originally provided were incorrect and the respondent could have been in the country at the time of the incident (see [82]-[92]).
However, there were other factors telling against the grant of an extension of time: the length of time since the decision; the limited prospects of ultimately obtaining an order even if domestic violence was ultimately established; the interests of SX in not having a long finalised decision reopened; and the availability of protection under the Act if circumstances warrant it. The way in which the Federal Circuit Court relied on the findings and decision reached in the Magistrates Court was a matter of significant concern to the applicant but the correctness of the Federal Circuit Court’s approach and conclusions was a matter to be resolved in that appellate hierarchy (See [112]-[113]).
Note: this case was affirmed on appeal (see LE v SX [2017] ACTCA 34)
Charge/s: Assault.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant and his former partner had commenced family law proceedings relating to parenting orders for their son. The appellant, a solicitor, was self-represented while his former partner (the complainant) was represented by a firm of solicitors and a barrister. While at the Federal Magistrates Court, the appellant knocked on the interview door where his former partner and her counsel (the solicitor, barrister and a law clerk) were conferring. He asked if they had considered his proposal. When he was told they would be another 10-15 minutes, the appellant replied ‘that’s not good enough’. The barrister attempted to close the door with her left wrist but the appellant forced it open and said, ‘who are you?’ in a raised voice. The barrister called security. 30 minutes later she complained of pain in her wrist. The appellant was charged with assault and pleaded not guilty. The magistrate found the charge proved and fined the appellant $100 and ordered the appellant to pay costs of $69, a criminal levy of $50 and a victim’s service levy of $10.
Issue/s: The appellant appealed against his conviction and sentence. The notice of appeal was nearly 70 pages long and contained many convoluted and repetitive grounds of appeal. Two relevant grounds were:
Decision and Reasoning: The appeal against conviction and the appeal against sentence were dismissed. First, one of the grounds in relation to the appeal against conviction was that the evidence given by the barrister, the solicitor, the law clerk and his former partner was tainted because they all had an ulterior motive i.e. to gain advantage in the family law proceedings. Refshauge J held that there was no evidence to support this allegation and stated, ‘the incident was reported to a security officer of the Commonwealth Law Courts promptly, the evidence of the various parties was not identical, usually a matter indicative of truth, because identical recollections of different witnesses, especially as to inessential facts, is often an indication of concoction and it is not explained what benefit [his former partner] would obtain from such a device’. Further, the allegation that the witnesses perjured themselves was unsustainable. The evidence given was corroborated by the CCTV footage and by the evidence of the other parties(See [301]-[323]).
Second, in relation to the appeal against sentence, the magistrate did not err in placing significance on the fact that the assault took place in a court building. Refshauge J stated, ‘while [the appellant] certainly possessed the right to be within the bounds of the court precinct, this is not an unlimited right and does not give him the right to assault other people. A court precinct is a place where people should be able to expect the law to be observed at all times’. Further, His Honour quoted from Grimshaw and Mann [2013] ACTSC 189, ‘intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious’. However, this was not to state that assaults occurring in a private home are not serious (See [372]-[377]).
Note: this case was affirmed on appeal (see McElholum v Hughes [2016] ACTCA 37 (29 September 2016)).
Charge/s: Aggravated burglary (armed and intent to cause harm).
Hearing: Sentencing hearing.
Facts: S left her male partner, the offender, to be in a relationship with another man (the victim). Thereafter, the offender sent many abusive and threatening text messages to S. On the morning of 26 May 2013, the intoxicated appellant drove to the victim’s house, where S was now living. He was carrying a 1.2 metre spirit level and a bag with an angle grinder, cable ties, electrical tape, a kitchen knife and a timber-handled holding knife. The offender used the spirit level to smash the window of the victim’s bedroom, where the victim and S were asleep. The victim asked the offender what he was there for to which the offender replied, ‘You know what I’m here for; I’m going to kill you’ and ‘You’re sleeping with my wife’. He continued to scream at the victim as the victim walked away. The offender then struck the victim with the spirit level on the left arm and left side of his head, causing significant lacerations. S tried to intervene as the offender punched the victim in the face, threatening to kill him. The police were called and the offender removed.
Decision and Reasoning: The offender was sentenced to 3 years and 1 month imprisonment with a non-parole period of 18 months. In imposing this sentence, Murrell CJ took into account a number of considerations. First, the offender had a history of taking the law into his own hands. He was on bail for common assault at the time of the offences and had previously committed offences of common assault. Second, Her Honour took into the offender’s subjective circumstances namely, the offender’s intention to ‘settle down’ by continuing his employment in the building industry and removing himself from his involvement in the Rebels Motorcycle Gang. However, she noted that it was surprising that someone at age 63 had not ‘learnt his lesson from a series of prior similar incidents’. Third, the objective circumstances were of at least moderate seriousness (See [26]-[33]). Finally, Her Honour took into account general sentencing considerations (See [35]-[40]).
Charges: Engaging in sexual intercourse without consent (3 counts), assault, assault with the intent of engaging in sexual intercourse, theft
Proceeding: Bail
Facts: The applicant and his wife (the victim) lived together for some time after migrating to Perth from Syria. While living in Perth, the victim left the applicant and moved into a refuge as a result of domestic violence in the relationship. After the applicant and victim reconciled, they moved to Canberra where their relationship remained volatile. One day the applicant went into the bedroom and had sexual intercourse with the victim, despite her asking him not to, attempting to push him away and crying throughout. Later in the day, the applicant verbally abused the victim and threatened to withdraw his immigration sponsorship of the victim’s family to come to Australia. He then again had intercourse with the victim, who continued to cry but otherwise did not move. The next day, the applicant slapped the victim and dragged her by her hair, rolled her on her back and again had intercourse with her. The victim continued to struggle, hitting the applicant’s chest and pushing him away. The applicant was charged with three counts of engaging in sexual intercourse without consent, one count of assault, one count of assault with the intent of engaging in sexual intercourse and one count of theft. He pleaded not guilty to each charge.
While in custody, the victim visited the applicant every two or three days. She subsequently made a statutory declaration that she was ‘a little tired and confused’ at the time of making her complaint to the police. She sought to change her statement that all sexual intercourse was consented to and that she had been drinking before the assault. The victim wrote a letter to the Court in respect of the bail application, in which she said she did not object to the applicant being granted bail. She also stated that she was not pressured into writing the letter, that the applicant was not harmful to the community, and that as a pregnant woman she did not want her child to grow up knowing their father was in gaol.
Issue: Whether bail should be granted.
Decision and reasoning: Bail was granted on conditions including that his family pay a surety of $5000, he surrender travel documents, he not contact the victim, and that he reside in Perth.
The offences that the applicant was charged with were serious. However, Refshauge J determined he could not assess the strength of the Crown case given the absence of much evidence and the victim’s damaged reputation as evidence because of her apparent retraction of the complaint. The applicant also had a substantial cash surety available to him and proposed to live with his parents. He had no criminal record. His departure from Canberra to Perth immediately after the offences were alleged was an indication of his intention to flee. However, this risk could be mitigated by imposing conditions on bail such as the surrender of travel documents, that he report to police and be prohibited from being at a place of international departure. Refshauge J accepted that the applicant was likely to commit further violent offences against the victim if he had contact with her. However, this could also be mitigated by the applicant living in Perth and on the condition that he not contact the victim. The Crown’s submission that the applicant could intimidate and interfere with witnesses if bail was granted was rejected. The fact the applicant could withdraw his sponsorship of the victim’s family was unlikely to be affected by his bail status. Further, the victim had already retracted her initial complaint, with no evidence from the prosecution that this was a result of intimidation from the application.
Charge/s: Threatening to commit arson, stalking, breach of a personal protection order x 2.
Hearing: Sentencing hearing.
Facts: The offences arose out of the breakdown of a relationship between the offender and his former female partner. The relationship ended acrimoniously, particularly in relation to the care and access arrangements relating to the care of the couple’s child. The offender’s former partner obtained Domestic Violence Order against the offender and her parents obtained Personal Violence Protection Orders. Subsequently, the offender and his former partner had an argument over the telephone over the care and access arrangements for their daughter. The offender went over to the house of his former partner’s parents and began shouting and swearing at his former partner. He produced a cigarette lighter and threatened to burn her parent’s car. Further, the offender pleaded guilty to a count of stalking on the basis of 25 phone calls made to his former partner. Most were for relatively short periods and were made at varying hours of the day. Finally, the offender breached the Personal Protection Orders by calling his former partner’s parents on multiple occasions.
Decision and Reasoning: Refshauge J imposed a total sentence of 2 years and 4 months imprisonment, suspended for a period of two years. In imposing this sentence, Refshauge J took into account the purposes of sentencing and in particular, specific deterrence and vindication of the victims (in light of the Victim Impact Statements delivered in court — See [67]-[70]). He also took into account the offender’s plea of guilty and his subjective circumstances (including the offender’s drug problem).
These offences were serious and warranted a term of imprisonment. The offence of arson was serious because the offender produced a cigarette lighter, there was a threat with intent to achieve an objective to which he may otherwise not have been entitled, and it was committed at the home of the victim. The stalking offence was also a serious offence particularly because it was committed with a circumstance of aggravation, namely in the presence of a Domestic Violence Order. Finally, the breaches of Personal Protection Orders were serious because they involved a disregard of a court order designed to protect the subjects of the orders.
Charge/s: Aggravated burglary, unlawful confinement, common assault, carry/use a firearm with disregard for own safety or safety of other persons.
Hearing: Sentencing hearing.
Facts: The 26 year old male offender and the 21 year old female complainant commenced a relationship after meeting on an online dating website. Five weeks after their first meeting, the complainant told the offender that she wanted to end the relationship but wished to remain friends. The complainant then went overseas for 2 months. Upon her return, the offender tried to re-commence their relationship but the complainant did not want to. At a meeting between the pair, the offender said the complainant was ‘cruel’, ‘yelled at him’ and ‘humiliated him’. A month later, the complainant was home alone in her apartment. The offender sprung out from behind a door, covered her mouth with a gloved hand and told her not to scream. In his other hand, he was holding a gun. There was a struggle in which the offender tackled the complainant onto the bed and held a gun against her chest. The complainant was confined to the apartment for 3 hours.
Decision and Reasoning: Imprisonment was the only penalty appropriate in the circumstances. These were very serious offences — the complainant was in her own apartment which the offender broke into, he carried a gun, he wore medical gloves, held the gun against the complainant’s chest, and confined the complainant in terrifying circumstances for 3 hours. However, on the balance of probabilities, Robinson AJ found that the offender was suffering from a depressive mental illness on the day of the offence. The moral culpability of the offender was reduced, although not eliminated, by this depressive illness. There was a moderate risk of reoffending but His Honour concluded the offender had very good prospects for rehabilitation in light of the treatment of his mental illness and his new relationship. In the circumstances, it was desirable to give weight to the promotion of the rehabilitation of the offender. Accordingly, the offender, was sentenced to a total effective sentence of 2 years imprisonment, suspended from 9 December 2015.
Note: the convictions in relation to this case were set aside and a retrial was ordered because the trial judge failed to provide a warning about having a support person (see Thompson v The Queen; The Queen v Thompson [2016] ACTCA 12 (6 May 2016).
Charges: Choking a person so as to render them unconscious, assault occasioning actual bodily harm, common assault
Appeal type: Crown appeal against sentence
Facts: The respondent and victim were in a domestic relationship for three and a half years and lived together with the complaint’s son. One afternoon the respondent and victim got into a fight that resulted in the respondent striking the victim across her face and placing her in a chokehold. The respondent then placed his knee on the victim’s shoulder. After the victim asked him to stop, he asked ‘You want to die?’. The respondent then placed his hand around the victim’s throat and started squeezing before placing his other hand over her mouth and nose. As a result the victim briefly lost consciousness. Later the same day the respondent grabbed the victim by her hair and began shaking her. Attempting to free herself from the respondent’s grip, she ended up on the ground when the respondent kicked her face, and jumped and stomped on her arm and head. When the respondent realised the victim’s son witnessed the attack he told him ‘I didn’t do anything wrong. Mum’s flipping out’.
In relation to this conduct the respondent was charged and made late guilty pleas to choking a person so as to render that person unconscious, for which he was sentenced to 15 months’ imprisonment; assault occasioning actual bodily harm, for which he was sentenced to 10 months’ imprisonment, with three months to be served cumulatively on the sentence imposed for the offence of choking; and common assault, for which he was sentenced to five months’ imprisonment concurrent with the sentence imposed on the charge of choking. A non-parole period of 12 months was ordered. While the offending occurred, the respondent was on parole for burglary, theft and unauthorised possession of a firearm. The respondent’s parole was subsequently revoked and he was liable to serve the remainder of his sentence. The sentence imposed for the offence of choking was ordered to commence at the expiration of the sentence the respondent was serving as a result of the cancellation of the parole order.
The respondent had an extensive criminal history, having been convicted for approximately 80 criminal offences in the past 20 years. He also had a long history of substance abuse and mental health issues including being previously diagnosed with antisocial and paranoid personality traits. A pre-sentence report noted that the respondent made derogatory comments about the victim and demonstrated minimal victim empathy. The report also considered the respondent was at high risk of reoffending.
Issue: Whether the sentence was manifestly inadequate.
Decision and reasoning: The appeal was allowed on the sentences imposed for the offences of choking and assault occasioning bodily harm. These sentences were set aside and the respondent was resentenced to a term of three years and one month’s imprisonment for the offence of choking and 20 months’ imprisonment for the offence of assault occasioning actual bodily harm.
The starting point of 18 months’ imprisonment adopted by the magistrate before a reduction for the guilty pleas was manifestly inadequate in relation to the choking offence when considering the maximum penalty of 10 years’ imprisonment, the objective circumstances of the offence and the subjective circumstances of the offender. Burns J held that an appropriate starting point was three years and nine months’ imprisonment with a reduction of eight months for the plea of guilty. Likewise, the starting point of 14 months’ imprisonment for the offence of assault occasioning actual bodily harm was also manifestly inadequate. An appropriate starting point when considering the seriousness of the offending was two years’ imprisonment, reduced to 20 months’ imprisonment to reflect the plea of guilty.
In coming to this conclusion, Burns J considered that the seriousness of offences of violence within intimate relationships requires sentences that strongly denounce and deter such offending. Citing Wood CJ in R v Edigarov [2001] NSWCCA 436, ‘such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.
Charge/s: Forcible confinement, damaging property, theft.
Hearing: Sentencing hearing.
Facts: The offender, who was on parole at the time, confined his mother in her home for 2 hours. During the course of confinement, the offender verbally abused his mother, threatened violence and damage to property, and damaged a heater and a wooden cedar door. The offender’s anger was based on his belief that his parents were communicating with Corrective Services, putting in jeopardy his parole order. His parents were in fact communicating with Corrective Services because they were concerned he had resumed his methamphetamine use. The offender completed a substance misuse program before being paroled in 2013. His initial response to parole supervision was satisfactory — his urinalysis results were negative and he obtained employment. However, at the time of the confinement, he had resumed his methamphetamine use.
Decision and Reasoning: A sentence of 2 years and 1 month imprisonment was imposed. Burns J took into account the circumstances of the offence (it was committed out of anger and a sense of betrayal, it caused a significant degree of fear but no injuries were inflicted). His Honour also noted the guilty plea, the youth of the offender and that rehabilitation was an important consideration (however, this had to be ‘considered guarded’ (see[16])). There was a need for both general and specific deterrence.
His Honour further took into account that this was a family violence matter and stated, ‘that is relevant because the only reason that you were able to commit this offence was because of the relationship of trust that existed between you and the victim. If you had not been a family member who was loved and trusted by your victim you would not have had the opportunity to commit this offence. I also note that the offence occurred in the victim's own home, where she should have been entitled to feel safe’ (See [17]).
Charge/s: Perjury.
Proceeding: Sentence.
Facts: The defendant gave false evidence in a bail application involving an allegation of assault that had been made against her ex-partner. It was alleged that her ex-partner assaulted his mother. The defendant’s ex-partner also assaulted her prior to the alleged assault on his mother. A psychologist’s report indicated that the defendant was suffering from ‘a major depressive disorder of moderate severity’ (see at [4]) when she was in a relationship with her partner. The report described the relationship as physically and emotionally abusive which resulted in a gradual deterioration of the defendant’s mental health and reported low self-worth and feeling overwhelmed. Notwithstanding this, she felt that her partner was the only person who she could rely on. The defendant had no prior convictions. She was 18 years old when the offence occurred.
Issue/s: The appropriate sentence to be imposed.
Decision and Reasoning: The defendant was ordered to enter into a good behaviour order for 15 months with conditions that she accept the supervision of ACT Corrective Service and not to associate with her former partner. No conviction was recorded. Burns J noted that this offence, while serious, was at the lower end of the spectrum for offences of this nature. His Honour accepted that her mental illness affected her judgment and also noted the fact she was in a controlling relationship with her ex-partner. The defendant had good prospects of rehabilitation. The offence of perjury is serious and normally results in the recording of a conviction and imprisonment. However, in this case, the mitigating factors including her youth and mental illness meant that rehabilitation, rather than general deterrence were the primary sentencing considerations. His Honour warned the defendant that relationships like those with her ex-partner are characterised by a significant degree of manipulation and that the defendant ought to be aware of the likelihood of her ex-partner to attempt to recommence the relationship using protestations that he has changed and is going to behave in a different way. He urged the defendant to be mature enough to understand that such change is not going to happen.
Charge/s: Forcible confinement, common assault.
Hearing: Sentencing hearing.
Facts: The offender was the complainant’s carer and partner. They had been in an ‘on again off again’ sexual relationship for 3 years and the offender had recently moved back into the complainant’s flat. On 14 October 2013, during an argument, the complainant told the offender to get his belongings and leave the flat. She then attempted to leave herself but the offender grabbed her arms and forced her back into the flat. The complainant made a number of unsuccessful attempts to escape and the offender took her mobile phone. The offender refused to leave. At one stage, he agreed to pack his belongings and asked the complainant for some money. When she refused, he forced her onto the couch. She tried to yell but the offender grabbed her throat, restricting her ability to breathe. After 5 hours, the offender gave the complainant her mobile and left the flat. These offences put the offender in breach of a good behaviour order imposed in respect of an earlier offence of a reckless threat to kill made against the same complainant. That offence involved the heavily intoxicated and distressed offender threatening his partner with a knife, a hammer and a piece of concrete.
Decision and Reasoning: The offender was sentenced to 22 months imprisonment, with a non-parole period of 10 months. Penfold J took into account a number of factors in imposing this sentence. In determining the charged offences to be of mid-range seriousness, His Honour noted that in some cases being confined in one’s own home by a partner might be less frightening than being confined in a strange place by a stranger (depending on past experiences with the partner); during confinement, the offender was physically violent to the complainant; the offender was on conditional liberty at the time of the offence; the domestic relationship put the parties into a position of trust and, to an extent, the offender abused this trust (however, the offender’s role as a carer did not mean that the offence involved any extra abuse of a position of trust because the complainant was 14 years older and the offender had a very disturbed upbringing); the offences had a distressing and more than short-term effect on the complainant; and the offender accepted responsibility for his actions (See [13]-[14]).
Penfold J also took into account the subjective circumstances of the offender. He did not seem to have any tendency towards criminal behaviour except in the context of this relationship. However, His Honour noted that ‘much of violent crime committed within domestic relationships is committed by men who otherwise live entirely within the law’. Further, the offender had a very disturbed upbringing. His mother suffered with severe mental illness and schizophrenia and would alternate between being a loving mother to being emotionally and physically abusive towards her children. He witnessed his mother kill herself when he was 8 when she set herself alight. The offender was then raised by his adoptive father, who would drink heavily to cope and belt the children (See [15]-[17]). The relationship between the offender and the complainant was ‘toxic’ and characterised by substance abuse and conflict (See [18]-[22]). Penfold J also took into account general and specific deterrence, the offender’s guilty plea and the offender’s acceptance of counselling.
Hearing: Breach of 12 month good behaviour order.
Facts: In February 2014, BJ was sentenced for burglary, minor theft and common assault. These charges arose out of the breakdown of a relationship between BJ, then aged 17, and the female complainant. He was sentenced to a 12 month good behaviour order, including a condition that he undertake the Cognitive Self-Change Program. Nearly 5 months after BJ was sentenced, he began another serious of offences against another ex-partner. These offences involved: taking his ex-partner’s car keys, damaging her car and stealing the car; using a false Facebook identity to taunt her with pictures of the car hidden in a forest; attempting to get her (alone) to meet him in the forest; further damaging the car; and making a series of harassing phone calls to his ex-partner. He was sentenced to a term of imprisonment for these offences, 3 months served in full time custody and 6 months suspended subject to a 24 month good behaviour order. The matter was referred to Penfold J here to deal with the breach of the earlier imposed good behaviour order.
Issue/s: Whether further action is warranted in light of BJ’s breach of a good behaviour order.
Decision and Reasoning: Penfold J noted that he was incorrect in his 2014 sentencing remarks and BJ did in fact have a tendency to behave inappropriately in the context of failed intimate relationships. He noted that this behaviour needed to be addressed as early as possible. Penfold J imposed a new good behaviour order for 2 years subject to the following conditions: accept the supervision of ACT Corrective Services and obey all reasonable directions, under take counselling courses, programs or treatments, and undertake either one or both of a Men’s Cognitive Self-Change Program and a Family Violence Cognitive Self-Change Program.
Charge/s: Assault occasioning actual bodily harm, common assault x 3, threatening to cause damage to the complainant’s property.
Hearing: Sentencing hearing.
Facts: The offender was a friend and former partner of the female complainant. The offender became jealous when the complainant received a phone call because he suspected it was from another man. The complainant asked the offender to leave her apartment. He refused. He pushed and attempted to choke the complainant and held a knife to the throat of her cat. The assaults were accompanied by verbal abuse and abusive text messaging. The offender also rifled through the victim’s belongings and demanded her phone. The incident lasted about 15 minutes.
Decision and Reasoning: The offender was sentenced to a good behaviour order for 3 years and fined $1750. In terms of the objective seriousness of the offending, Murrell CJ noted that the conduct constituting the assault occasioning bodily harm was extremely serious. It was a very forceful and frightening assault that involved the offender taking hold of the victim’s throat. The actual bodily harm that resulted was at the lower end of the spectrum but the incident had a considerable psychological impact. The other offences were less serious. The incident, while not fleeting, was relatively short. It was not only frightening but designed to humiliate. It occurred within the victim’s home, in circumstances where she had asked him to leave.
Further, this was an incident of domestic violence. Her Honour noted:
‘These offences occurred in the context of a previous relationship between the offender and the victim and involved violence within the victim's home, an apparent sense of entitlement on the part of the offender, and humiliation through verbal and text abuse of the victim.
The sentencing purposes of punishment, general deterrence and denunciation are very important, as well as the recognition of harm to the victim personally and the community generally through offences of this nature. The victim provided a victim impact statement in which she referred to impacts upon her of the type that frequently result from offences of domestic violence, including feelings of anxiety, difficulty sleeping, difficulty concentrating at work and elsewhere, and an adverse effect on her ability to form relationships. Since the incident, the victim has moved house because she felt unsafe in the apartment where the offence occurred’ (See [15]-[16]).
Her Honour also took into account the subjective circumstances of the offender including that the offender had been assessed as being at low risk of re-offending, he was employed, is a member of a close and supportive family and has no problems with drug dependence or mental health. However, Murrell CJ further noted that the offender lacked insight into the seriousness of his conduct and the impact on the victim. Although this was probably a one-off incident, Her Honour considered that it would be of assistance to the offender to undertake courses that may guide him towards greater insight and maturity in relation to interpersonal relationships.
Hearing: Breach of community service condition to a good behaviour order.
Facts: In 2012, Mr Ennis was convicted for assault occasioning actual bodily harm. Mr Ennis and his female partner, who had been together for 27 years, were both drunk and fought ‘over money’. During this argument, Mr Ennis caused his partner to suffer a fracture to the left forearm and a laceration to the outside of her lower leg. Mr Ennis had a long history of cannabis and alcohol abuse. He claimed that this alcohol abuse led to his criminality. The sentencing judge made a good behaviour order for 2 years, with a condition that Mr Ennis perform 100 hours of community service within 12 months. Mr Ennis breached this order by failing to complete the community service work conditions. He submitted that the breach was the result of his alcohol abuse.
Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.
Decision and Reasoning: The order was amended by extending the good behaviour period to a further 12 months, extending the number of hours of community service work to 108 hours to be completed in 12 months, and requiring Mr Ennis to be subject supervision by the Director-General. In imposing this sentence, Refshauge J noted that while Mr Ennis’ breach was unsurprising in light of his alcohol abuse, this did not provide an excuse for his behaviour (See [16]). In favour of Mr Ennis, it was significant that he had not committed any offences in the two years since the order was made. His Honour noted, ‘This is a very important matter, for that is the fundamental objective of the criminal law, namely, as Brennan J described it in Channon v The Queen (1978) 33 FLR 433 at 437, the protection of society which is achieved by the prevention of crime and the eradication of recidivism’ (See [21]).
Further, Mr Ennis had taken steps towards rehabilitation namely, enrolling in a number of programs including drug and alcohol counselling, a Men and Anger Program and an Employment Pathway Plan (See [23]-[27]). Mr Ennis’ partner was also addressing her alcohol abuse and they were both accessing counselling at relationships Australia (See [28]). However, Refshauge J remained sceptical in his assessment of this reform and nevertheless extended the good behaviour order (See [30]-[33]).
His Honour noted: Despite the considerable contribution that illicit drug use makes to criminality in the community, alcohol remains a problem for those addicted to it. Alcohol abuse remains a very significant source of crime and leads the addict to unhealthy and anti-social behaviour and situations (See [1]).
See also R v Ennis [2016] ACTSC 72 (4 April 2016).
Charge/s: Assault.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant pleaded guilty to an offence that he assaulted his former fiance and de facto partner of 2 years (the complainant). The offence occurred about 1 month after the appellant and the complainant had separated in the presence of the complainant, a friend, and the appellant’s young son. The appellant and the complainant argued and the complainant asked him to leave. The garage door hit the appellant on the head as he left and he turned around the pushed the complainant. She fell backwards into the car. The appellant spoke in a threatening manner to the complainant. He pushed her again, kicked her car twice, and left.
Issue/s: One of the grounds of appeal was that the primary judge erred in his assessment of what constituted an aggravating feature of the offence.
Decision and Reasoning: The appeal against conviction and appeal against sentence was dismissed. In relation to the appeal against conviction, the appellant submitted that the mere fact the offence was committed at the home of the victim is not enough to aggravate the offence; there must be some level of intrusion. Murrell CJ noted that a sentencing court must consider all relevant objective and subjective matters. She stated,
‘When considering the sentencing purposes set out in s 7 of the Sentencing Act, including general and personal deterrence, a sentencing court is entitled to consider the fact that an offence involved domestic violence, and that the violence has occurred at the victim’s home. An offence involving domestic violence is one that involves abuse of a partner, former partner or other family member (using the term “family” in the broadest sense). Frequently, such offences occur in the home, where the inhibitions of an offender may be lowered, the impact on the victim may be heightened (as she or he is made to feel that a formerly safe place has been violated) and the occurrence of the offence is more readily concealed. Further, where a domestic violence offence occurs in the victim’s home, it is often associated with secondary abuse to other family members’ (See [16]; See also R v Bell [2005] ACTSC 123 [30]-[31]).
Here, the primary judge did not approach the matter on the basis that the ‘mere fact’ that the incident took place at the complainant’s home was an aggravating feature. He considered the location of the offence in the context of other relevant circumstances namely that it occurred at a place where the complainant was entitled to feel safe, it occurred in the presence of the appellant’s son, and the appellant refused to leave.
Charges: Damaging property, breach of domestic violence order, assault
Appeal type: Appeal against sentence
Facts: The appellant, an Aboriginal man, and the victim were in a relationship and had a son together. The appellant and victim also both had a daughter each from previous relationships. He was charged and convicted of damaging property, assault and breaching a domestic violence order made to protect the victim. No further information about the offending or factual matrix was provided. Since his arrest and while on bail, the appellant attended Oolong House several times where he received rehabilitative treatment. The magistrate sentenced the appellant to 12 months’ imprisonment each for the assault and damaging property offences, to be served concurrently, and two years’ imprisonment for the breach of the domestic violence order. In sentencing, the magistrate stated ‘The current offences continue a pattern of behaviour that appears entrenched in the context of the relationship with the victim. Despite legal sanctions and protection orders, [the appellant] has yet to demonstrate the responsibility to abide by conditions to uphold the safety of vulnerable people in his life. Under the influence of substances his behaviour poses unacceptable risks for such people’ ([5]).
The appellant had a somewhat difficult childhood with his parents divorcing after his father suffered a stroke and his mother abusing alcohol. He finished school at year 10 and had very limited and sporadic employment since then. He had a long history of alcohol and drug abuse and engaged in residential rehabilitation several times. The appellant also suffered depression, stress and anxiety and was housed in the AMC Crisis Support Unit since his remand due to his risk of suicide and/or self-harm. He had an extensive history of criminal offending, including convictions for common assault, assault occasioning actual bodily harm and contravening protection orders against the victim.
Issues: Some grounds of appeal were:
Decision and reasoning: The appeal was dismissed.
Charge: Assault
Appeal type: Appeal against sentence
Facts: The appellant, his wife (the complainant) and their children moved to Canberra in order for him to complete a PhD. After their daughter complained that she did not like the lunch the complainant was preparing, the complainant struck the daughter’s hip with a plastic doll to ‘chastise her for her behaviour’. The appellant became angry at the complainant’s actions and slapped her. When questioned by police, the appellant said ‘I do not think I did anything wrong. In my culture, I did not do anything wrong’. He pleaded guilty to assault at the earliest opportunity and expressed remorse in a letter to the court.
At trial, the appellant was unrepresented but had a Bangladeshi interpreter. A conviction was recorded and the appellant was ordered to sign a good behaviour undertaking for two years. The magistrate noted that ‘cultural differences may be in play here, but I don’t accept them on the basis that you’ve been here for two years, you’ve acknowledged in your own statement to me today that you understand what you did was wrong’.
Issues: Some grounds of appeal were:
Decision and reasoning: The appeal was dismissed and the sentence imposed by the magistrate was confirmed.
The magistrate was obliged to provide an explanation to the appellant for declining to make a non-conviction order. He was unrepresented, inexperienced in the procedures of Australian courts and English was not his first language. The magistrate performed this obligation in explaining that a non-conviction order could not be made due to the nature and circumstances of the offence. However, the magistrate did not allow the appellant to put forward evidence or a proper explanation when he attempted to explain the detriment to his future should a conviction be recorded. Therefore, the magistrate erred in dealing with the appellant’s application for a non-conviction order by failing to give proper consideration to the application, having regard to the particular difficulties faced by the appellant.
Despite this error, the appeal was dismissed because re-sentencing was not appropriate. Having regard to the factors in s 17 of the Act, Penfold J held there were no grounds sufficient to make a non-conviction order. In particular, the appellant’s character, antecedents, age, health and mental condition; the seriousness of the offence; his extenuating circumstances; and the absence of any properly explained or substantiated claim that a conviction would have negative impacts on his future prospects, would not have excluded the making of a non-conviction order.
Charges: Unlawful confinement, assault occasioning actual bodily harm (two counts)
Proceeding: Sentencing
Facts: The offender and victim were in a domestic relationship. The victim had a son from a previous relationship. Six months after moving in together, the offender sat on the victim’s stomach, held both arms above her head and tied her wrists to the bed. The offender told the victim, “you’ve hurt my feelings. Now you have to pay. I’m going to take you for a drive to the forest and I’m going to kill you”. He then slapped her across the face several times and stuck a piece of clothing in her mouth. The victim was gagging and choking and believed that she would suffocate. The offender then hit the victim’s thigh with a car aerial and held a lit match to her face, threatening “have you ever played ‘light the match’ game?”. The next day the offender brought the victim flowers and apologised. Several days later the victim woke up to the offender slapping her face. Her son then walked into the room but returned to his bedroom after the offender screamed at him. The victim packed herself and her son into the car to escape after the offender had left. However, the offender returned and parked his car behind the victim’s car. He grabbed the victim’s shoulders, pushed her backwards causing her to hit to head and dragged her into the house. When inside, he grabbed her throat, kicked her, forced her face under a running tap, slapped her and threatened her.
The offender was charged with unlawful confinement and two counts of assault occasioning actual bodily harm. He maintained a plea of not guilty for nearly two years until changing his plea to guilty on the date the trial was to begin.
The offender had a long history of offending including convictions of nine common assaults, assault occasioning actual bodily harm, stalking and two breaches of domestic violence orders. He also had a history of dysfunctional relationships, with many of these convictions resulting from domestic violence. He abused prescription drugs and suffers from Attention Deficit Disorder, depression and bipolar. During one period of excessive drug use, the offender was diagnosed with amphetamine-induced paranoid psychosis. The offender engaged in the methadone program and drug and alcohol counselling to address his substance abuse. He reported that since the offending, he had ceased using drugs or drinking heavily and that he was no longer short-tempered and jumpy.
Issue: What sentence should the offender receive?
Decision and reasoning: Penfold J emphasised the need for general deterrence and denunciation for domestic violence offences. Having regard to the offender’s criminal history and his repeated failures to take advantage of rehabilitative opportunities, rehabilitation was not the highest priority in sentencing. His Honour accepted some concession was needed for the offender’s improved behaviour in the two years since the offending and his continued engagement with mental health services. However, no sentence other than imprisonment was appropriate when considering the gravity of the offending and the effect on the victim and her son.
The offences were all serious examples of the relevant offences. The presence of the victim’s son during the second assault occasioning actual bodily harm aggravated the offence. All the offences were further aggravated by the breach of trust that is ‘inherent is most if not all domestic violence offences, especially those that occur in the privacy of a home shared by the victim and the perpetrator, a circumstance which of itself — that is the sharing of the home — seems to me to establish a mutual relationship of trust’ ([7]).
Penfold J sentenced the offender to a total sentence of 38 months’ imprisonment, suspended after 24 months. This total sentence comprised of 25 months’ imprisonment for the offence of unlawful confinement, 18 months’ imprisonment for the first offence of assault occasioning bodily harm, and 20 months’ imprisonment for the second offence of assault occasioning bodily harm. The first assault occasioning bodily harm sentence was ordered to be accumulated so as to add three months to the unlawful confinement offence and the second assault occasioning bodily harm sentence was ordered to be accumulated so as to add 10 months to the total sentence.
Charge/s: Intentionally causing damage to property x 2, trespassing without reasonable excuse, assault, minor theft.
Appeal type: Appeal against sentence.
Facts: The appellant was in a relationship with a young woman, the complainant, and they had two children together. The relationship was characterised by ongoing conflict, caused largely by the appellant’s ongoing abuse of alcohol, and subsequently the relationship broke down. Later, the appellant went to the complainant’s house to see the children but she refused to let him in. The appellant damaged the front security door and shouted threats. He was arrested and granted bail for this offence. However, before the proceedings could be resolved, the appellant again went to the complainant’s property, and broke open the front door. The appellant began to strangle the complainant (assault). The complainant’s daughter rang the complainant’s mother who arrived and manage to calm the appellant down. The police arrived and the appellant ran off. On another subsequent occasion, the appellant was charged with minor theft for leaving a petrol station without paying.
The appellant pleaded guilty and was sentenced in the Magistrates Court to: intentionally causing damage to property — fine of $1,500; intentionally causing damage to property — 3 months imprisonment to commence on 1 August 2013; trespassing without reasonable excuse — fine of $500; assault — 17 months imprisonment to commence on 1 September 2013; minor theft — fine of $250. A non-parole period of 12 months was set on the total period of 18 months imprisonment.
Issue/s: One of the grounds of appeal was that the terms of imprisonment imposed, including the non-parole period, were manifestly excessive.
Decision and Reasoning: The sentence for the assault was manifestly excessive, the appeal allowed and the appellant re-sentenced (see R v Beniamini; Beniamini v Storman [2014] ACTSC 40 (22 January 2014)). The offence of assault was serious: it was committed late at night in the complainant’s home; it was an offence in the context of family violence; and the offence was protracted. It was more serious by the fact that the appellant was on conditional liberty at the time, the offence was committed in the presence of children, and the appellant had prior convictions for personal violence (but not family violence).
However, despite the seriousness of the assault, the sentence was manifestly excessive because the magistrate started her calculation of sentence on the basis that this was almost the worst category of the offence (See [119]). Since the time of offences, the appellant had made no further inappropriate contact with the complainant, had managed to resolve issues of access to the children, and had stopped drinking. This was also his first offence of violence in the family context. It was also relevant that the denial of access to his children at the time was arbitrary and not under any court order. He was remorseful and showed insight into his actions (See [94]-[104]).
Charge/s: Assault occasioning bodily harm.
Hearing: Sentencing hearing.
Facts: Mr Curtis, an 18 year old Aboriginal man, and the female victim were in a relationship. On 1 June 2013, Mr Curtis became agitated and aggressive towards the victim. He started punching her legs, arms, torso and stomach, causing bruising. When interviewed by police, he said that the victim had wanted him to teach her how to ‘stick up’ for herself and that they were just ‘mucking around’ but he stopped when he thought that what was happening did not ‘feel right’.
Decision and Reasoning: Mr Curtis was sentenced to 12 months imprisonment, suspended for 2 years, and ordered to comply with good behaviour obligations (a probation condition making Mr Curtis subject to the supervision of the Director-General and required to obey all reasonable directions as to counselling or treatment for his mental health and his abuse of alcohol and other drugs). In imposing this sentence, Refshauge J took into account Mr Curtis’ plea of guilty. He also took into account the subjective circumstances of Mr Curtis including his troubled childhood, his relationship with his 20 month old child, his current committed relationship, his use of alcohol and illicit substances, and his history of mental health issues (See [6]-[19]).
Refshauge J also took into account that the offence was serious especially because it was committed in the context of a relationship. His Honour quoted Higgins CJ in R v Bell [2005] ACTSC 123 at [30]: ‘I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded’ (See [28]-[32]).
Refshauge J further accepted that the youth of Mr Curtis and his prospects for rehabilitation were very relevant to the sentencing exercise. Per His Honour, ‘for youthful offenders rehabilitation is usually more important than general deterrence, especially when retributive punishment may in fact lead to further offending. A youthful offender should not be sent to an adult prison if it can be avoided’ (See [20]). A lengthy good behaviour order was warranted in light of the need for rehabilitation. In this context, His Honour noted the influence of excessive alcohol on the offending which, although not mitigating the offending, was very relevant to rehabilitation (See 36].
See also R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016).
Charge/s: Contravention of a domestic violence order.
Appeal type: Appeal against sentence.
Facts: The female complainant and the male appellant had been in a relationship for 6-12 months and had lived together until mid-December 2012. After the complainant was granted an interim domestic violence order against the appellant, the appellant telephoned the complainant to meet him at a friend’s place so he could give her the keys back to her place. At this meeting, an argument developed and the appellant started chasing the complainant, yelling abuse. When he caught up to the complainant, he raised his arm as if to punch her, but instead he grabbed the complainant’s sunglasses, snapped them in half and threw them in her face. This caused the complainant injury. The appellant was sentenced to 32 months imprisonment for the charge of contravening a protection order, with no further penalty for the charge of assault occasioning actual bodily harm..
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld and the appellant re-sentenced to 23 months imprisonment. Refshauge J noted that there was no doubt that the offending was serious. The fact that the appellant had been convicted of 9 prior offences of the same character against another woman meant that he could be afforded little leniency. However, the sentence was nonetheless disproportionate to the offending conduct.
Three features listed by the sentencing judge as aggravating the offence, were not in fact aggravating features. First, while domestic violence orders play a special place in the criminal law’s efforts to prevent domestic violence, His Honour erred in finding that a domestic violence was a feature of aggravation for the offence of contravening a domestic violence order. Second, His Honour also incorrectly found that the fact the offence occurred in public was a circumstance of aggravation in this particular case as there were no people present at the time of offence. His Honour also previously referred to this issue in the case of Grimshaw v Mann [2013] ACTSC 189 at [49]-[51], where he expressed some difficulty with characterising the public nature of an assault as an aggravating feature, as it implies that a private assault is less serious. Finally, the sentencing judge inferred that the broken part of the complainant’s glasses was sharp and this aggravated the offending. However, this conclusion was not supported by the evidence (See [132]-[138]). Further, the sentencing judge did not take into adequately discount the sentence to account for the appellant’s plea of guilty (See [143]).
In dicta, His Honour considered the principles in Pearce v The Queen. The sentencing judge pointed out that the appellant’s assault covered most, if not all, of the conduct prohibited by the protection order, and decided to impose no penalty, other than the conviction, for the assault offence. His justification was that there was no element in the assault offence that had not been encompassed in the offence of contravening the protection order. Refshauge J stated that ‘[i]f that were strictly correct, then the conviction for the offence of contravening the protection order would have resulted in a requirement that there be a verdict of autrefois convict in respect of the offence of assault occasioning actual bodily harm. That would have been the appropriate response if the elements [were] such that the whole of the criminality of offence of assault occasioning actual bodily harm was contained in the offence of contravening the protection order.’ However, as the parties did not argue on this issue, it was unnecessary for His Honour to resolve it on the appeal. The appellant brought the appeal against the sentence on the charge of contravening the protection order. There was no cross-appeal that the sentence for the assault offence was manifestly inadequate, ‘which would be likely if it was thought that there was criminality in that offence separate from the other such that, for example, the plea of autrefois convict would not apply’ ([150]).In any event, Refshauge J concluded that the offence of contravening the protection order did not include any of the fault element of the offence of assault ([151]).
Refshauge J quoted from R v BG (an unreported judgment from December 2010):
Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused. Thus, the Court cannot punish beyond what is appropriate to the offence (See [4]).
Charge/s: Breaches of an interim protection order x 4, breach of a personal protection order, failure to comply with a bail undertaking to appear in court, common assault x 2.
Appeal type: Appeal against sentence.
Facts: The appellant, an Aboriginal man, had been in a relationship with the female complainant and they had 3 children together. The complainant was granted a personal protection order against the appellant. The appellant breached these orders on 5 occasions by being at the premises of the complainant. The common assault offences occurred when the appellant assaulted his father. The appellant pleaded guilty to 4 breaches of an interim protection order made on 23 July 2012 and breach then of the personal protection order subsequently made on 23 August 2012, a failure to comply with a bail undertaking to appear in court, and 2 offences of common assault. In the Magistrates Court, a total period of imprisonment of 16 months was imposed from 21 March 2013, with a non-parole period of 12 months.
Issue/s: The grounds of appeal were –
Decision and Reasoning: The appeal was upheld on grounds 2 and 3 but not ground 1. The magistrate failed to take into account a period by pre-sentence custody by starting the sentences on 21 March 2013 rather than 23 February 2013. Further, the good behaviour order for which the appellant had been sentenced had previously been cancelled (See [42]-[49]). However, the sentence could not be said to be manifestly excessive. Refshauge J stated,
‘While the offence against Mr Khan’s father could also be described as domestic violence, the fact is that the interim personal protection order and the personal protection orders are there to protect the complainant from what might be described as domestic violence in its widest sense. Therefore, such orders are an important component of the criminal justice system’s response to domestic violence. Breaches of personal protection orders are serious matters which the courts must treat seriously to ensure the integrity of the system which the protection orders are intended to put in to effect’ (See [52]).
Charge/s: Common assault.
Appeal type: Appeal against sentence.
Facts: The Aboriginal male appellant was involved in an altercation with his former female partner (the complainant) of 7 years. The relationship ended in 2010 due to the appellant’s use of drug and alcohol, and he had not seen the children since. In May 2012, the appellant moved to Canberra to be closer to his children and commenced proceedings in the Family Court for access rights. On 2 June 2012, outside a late night convenience store, the appellant started arguing with the complainant and struck her three times with a closed fist. She fell to the ground and hit her head. She was helped up by her two friends and threw a glass soft drink bottle at the appellant. She missed but smashed another glass bottle over his head. The appellant needed four stiches. The appellant voluntarily handed himself into the police two days later. The complainant had previously obtained two protection orders against the appellant. Both had expired at the time of offence.
At the sentencing hearing, a lengthy Victim Impact Statement was tendered. However, it contained a good deal of irrelevant and inadmissible material. Refshauge J on appeal stated:
‘Allegations of further serious offending cannot come within the definition of “harm suffered by the victim [as a result of, or in the course of, the commission] of the offence”: s 47 of the Crimes (Sentencing) Act 2005 (ACT). While defence counsel may be wary of exercising their rights to cross-examine a victim on a Victim Impact Statement, discussions with prosecutors should result in an appropriate response from responsible prosecutors about inadmissible material and such statements. Without that proper approach, it is likely that such statements will lose their value and that the courts will have to intervene to ensure that the legislation is respected to ensure inadmissible, and often inflammatory, material is not included in such statements’ (See [41]).
The appellant pleaded guilty to common assault and was sentenced to 10 months imprisonment, three months to be served by full-time custody, three months by periodic detention and the balance suspended and a two year good behaviour order made. The appellant sought assistance for his alcohol and drug issues, made contact with the Aboriginal Justice Centre, and enrolled in a men’s anger program.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed and the appellant re-sentenced to 10 months imprisonment to commence on 28 May 2013, suspended for two years from 27 August 2013. The sentence was manifestly excessive in all the circumstances. First, the sentencing magistrate did not take into account the appellant’s injuries caused by the complainant which occurred when the appellant was no longer a threat to the complainant. Second, the injuries sustained by the complainant, as apparent from photographic evidence, were not as serious as what was described in the Victim Impact Statement. Finally, the appellant’s criminal history, although containing prior convictions for violent offences, did not demonstrate a propensity to violence. He had not been charged with any domestic violence offences and he had not breached two personal protection orders (See [77]-[82]).
His Honour further stated:
‘The prosecution referred to the aggravating factor that the assault “took place in a public place.” I have some difficulty with that factor as an aggravating one. It implies that an assault in private is less serious. I am not sure that this follows.
Most family violence occurs in private yet is regarded as very serious. Indeed, privacy can emphasise the vulnerability and helplessness of the victim.
However that may be, intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance by the learned Magistrate on the fact that the assault occurred in public as an aggravating factor was not an error’ (See [49]-[51]).
Charges: Assault occasioning actual bodily harm (two counts)
Appeal type: Appeal against sentence
Facts: The appellant and complainant were in a relationship and resided together with their son. While arguing one day, the appellant grabbed the complainant’s arm and punched her in the face a number of times. In response, the complainant struck the appellant in the torso. The pair continued to exchange blows throughout the day with the appellant striking the complainant to the face and punching her thigh, and the complainant hitting the appellant in the torso and face and bitting his arm. A week later, the appellant became angry after having computer difficulties and started swearing at the complainant. When she told him to stop being pathetic and throwing tantrums, the appellant slapped the complainant and caused her eardrum to rupture.
In relation to this conduct the appellant was charged and convicted of two counts of assault occasioning actual bodily harm. He was sentenced to 11 months’ imprisonment for the first offence and five months’ imprisonment, of which two months’ was to be served concurrently with the sentence imposed for the first offence, for the second offence. The total sentence was therefore 14 months’ imprisonment. Five months of that sentence was to be served in full custody, with the following five months to be served by way of periodic detention, and the remaining four months suspended upon the appellant entering into a good behaviour order for two years.
The magistrate considered that it was an aggravating feature of the first offence that the assault was comprised of several violent, physical contacts that extended over a period of time. He also considered it was an aggravating feature of both offences that they included blows to the head and face of a female. Finally, his Honour considered the ruptured eardrum of the complainant was an aggravating factor of the second offence.
Issue: Whether the sentence imposed was manifestly excessive.
Decision and reasoning: The appeal was upheld and the appellant was re-sentenced.
The magistrate erred in considering that the nature and duration of the violence in relation to the first offence was an aggravating feature. Rather, it was a circumstance that was relevant to the sentencing of the appellant. Further, the fact the complainant suffered a ruptured eardrum was not an aggravating feature of the second offence. It was merely an element of that offence — namely, that the assault resulted in actual bodily harm. The magistrate also failed to properly consider a psychiatrist report put before him. That report noted that the appellant’s domestic violence was likely related to his on-going mental health difficulties including suffering from post-traumatic stress disorder.
Burns J considered the term of imprisonment with respect to the offences was excessive where there was evidence that the appellant’s conduct was either caused by or contributed to by mental health conditions. These conditions were capable of being treated. Further, the appellant did not have a significant history of violent offending, having only been convicted of two offences of common assault 11 years prior to the offending.
In resentencing the appellant, Burns J accepted that the offences warranted terms of imprisonment. The appellant was sentenced to six months’ imprisonment for the first offence and two months’ imprisonment for the second offence. The total sentence of seven months’ imprisonment was backdated to recognise the two months the appellant had already spent in custody, and suspended thereafter. Burns J imposed a good behaviour order for two years with the conditions the appellant accept supervision and obey reasonable directions; undertake programs or counselling as directed, including the Family Violence Cognitive Self Change Program if appropriate; and undertake counselling or treatment with respect to mental health issues.
Charge/s: Damaging property, assault occasioning actual bodily harm.
Appeal type: Appeal against sentence.
Facts: The male appellant was in an intermittent relationship with the female complainant. During the course of an argument, the intoxicated appellant shouted in the complainant’s face and hit her. The appellant then sat on top of the complainant and attempted to choke her. He stood up and kicked her in the ribs when she screamed for help. The appellant sat on top of her again and choked her until her vision went blurry. She started retching and the appellant dragged her to the toilet by her hair. When she finished retching, he poured half a bottle of wine over her head and again placed his hands around her throat. The appellant then pulled the complainant into the lounge room and the complainant tried to calm him down. She went to the police the next day. He was sentenced to 3 months imprisonment for common assault and 6 months imprisonment, wholly suspended and conditional on a good behaviour order, for assault occasioning bodily harm.
On a subsequent occasion, the complainant and the appellant again started arguing. The appellant went outside the house to have a cigarette and the complainant locked him out. She packed his bag and left it at the rear door. The appellant, who had not seen the bag, began knocking on the rear door and the window. As the complainant was on the phone to police, she heard the sound of the appellant breaking the window. The complainant told the appellant his belongings were at the front door and he left. He pleaded guilty to damaging property and sentenced to 1 month imprisonment. The conviction constituted a breach of the earlier imposed good behaviour order and the magistrate imposed the full 6 months of this sentence.
Issue/s: The sentence for damaging property and the action taken in respect of the breach of the good behaviour order was manifestly excessive.
Decision and Reasoning: The appeal was allowed. First, the sentence for the offence of damaging property was manifestly excessive in the circumstances. Although this was a domestic violence offence, this did not mandate a particular response and the circumstances as a whole needed to be considered. Refshauge J accepted the fact that complainant and the appellant had reconciled needed to be treated cautiously. He stated that, ‘Forgiveness by victims of domestic violence offences is highly problematic and must be treated with considerable caution for the reasons outlined by Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) at 8. As her Honour said, “the victim’s attitude to sentencing … was not a matter which should have influenced the sentencing decision”.’ However, reconciliation of the complainant and the offender (as opposed to her forgiveness) can be relevant as to prospects of rehabilitation.
Second, the magistrate’s decision to impose the full 6 months suspended sentence was manifestly excessive. While the breaching offence was not trivial, it was at the low end of seriousness for the offence and was also of a different character from the original offence. Significantly, the appellant had also complied with the probation condition, sought mental health assistance of his own volition and participated in the Family Violence Cognitive Self-Change Program. See re-sentencing [1]-[5].
Charge/s: Assault occasioning actual bodily harm, assault.
Appeal type: Crown appeal against sentence.
Facts: During the course of an argument, the 31 year old respondent and his 60 year old mother (the first complainant) began pushing and shoving each other. This culminated in the respondent grabbing the complainant by the neck and pushing her, causing her to fall and fracture her wrist (assault occasioning actual bodily harm). Later that afternoon, the first complainant was visited by the male second complainant and his 4 children. The second complainant heard a revving noise and saw the respondent holding a chainsaw outside the window. The respondent said, ‘You fucking Australian cunt, come out here, I am going to cut you, like this’, and then tried to enter the backdoor. When he failed, the respondent picked up a fish gaff and swung it above his head (assault). The magistrate recorded a conviction and fined the respondent $1,000 for assault occasioning bodily harm and $1,500 for assault.
Issue/s: One of the grounds of appeal was that the sentences imposed were manifestly inadequate.
Decision and Reasoning: The appeal was allowed. The sentence for the assault occasioning actual bodily harm was manifestly inadequate. The respondent was not entitled to leniency in sentencing on the basis of his prior criminal history or on the basis of his plea. The sentence imposed gave little, if any, weight to the requirements of specific and general deterrence, nor did it reflect the objective seriousness of the offence, even taking into account the provocation from the complainant. The appellant was re-sentenced to a suspended sentence of 7 months imprisonment.
In reaching this conclusion, Burns J noted that this was clearly a domestic violence offence. He noted that, ‘It is now well settled that offences of domestic violence must be treated seriously, and frequently display aggravating features not present in offences occurring outside a domestic relationship. The only reason the respondent was in a position to commit the offence on his mother was because of that relationship. As such, the offence involved a serious breach of the trust reposed in the respondent as a son by his mother. Additionally, the age of the complainant was an aggravating circumstance attending the commission of the offence’at [12].
The sentence imposed by the magistrate in relation to the assault was also manifestly inadequate.
Charge/s: Common assault.
Appeal type: Appeal against sentence.
Facts: The appellant forcibly pulled sheets from on top of the complainant when she was in bed. The sheets caught on the complainant’s necklace and this caused pain and a red welt on her lower neck. The magistrate recorded a conviction.
Issue/s: A conviction should not have been recorded.
Decision and Reasoning: The appeal was allowed. The prosecution submitted that, as this was a family violence offence, it had a certain degree of seriousness and a conviction ought to be recorded. Burns J accepted that ‘there are circumstances and principles relating to family violence offences which that they must be taken particularly seriously’. However, the objective seriousness of the offence and the subjective circumstances of the offender are always relevant. Objectively, this offence came very close to the bottom of the range of seriousness of offences of this nature. Further, the appellant was otherwise a man of good character. He had no prior convictions and was spoken of highly in provided testimonials. Further, he was employed in an area in which the recording of a conviction would result in particular hardship (i.e. termination of employment). The conviction was set aside and a good behaviour order for a period of 12 months was imposed.
Charges: Contravening a domestic violence order (two counts)
Appeal type: Appeal against conviction and sentence
Facts: The appellant was subject to a domestic violence order that prohibited him from contacting his former partner (the applicant), behaving in a harassing manner towards her or threatening her. The appellant breached this order by making a number of phone calls to the applicant. He was charged with two counts of breaching the domestic violence order and was convicted of both charges. Those convictions amounted to a breach of two good behaviour orders previously made when the appellant was convicted of stalking and two additional counts of contravening a protection order in December 2007 and common assault in June 2007. He was sentenced to six months’ imprisonment on each of the counts of breaching the domestic violence order, to be served concurrently. On the breach of the first good behaviour order he was sentenced to four months’ imprisonment, one month of which was to be cumulative on the other sentences. All the imprisonment to be served by periodic detention.
In convicting the appellant, the magistrate accepted evidence from the applicant and a friend that they recognised the appellant’s voice. The phone calls were allegedly made using a public phone, so this voice recognition was the only evidence to support that the appellant was guilty of the offences.
The appellant had a long history of criminal offending comprising of 52 charges. A pre-sentence report stated that the appellant had suffered a dysfunctional, violent and unstable family background. His father was an alcoholic and was violence towards his mother. The appellant also abused alcohol, drinking about six stubbies every night. Since the offending, the appellant reported that he was still drinking but not at a problematic level. However, there was no evidence to support these assertions. The appellant suffered from depression and anxiety that ‘result in markedly diminished capacity in judgement’, according to a psychologist’s report. Another psychologist concluded that the appellant’s offending history was alcohol induced and based.
Issues:
The grounds of appeal against the sentence were:
Decision and reasoning: The appeal against the conviction was dismissed. In considering whether the appellant was guilty, the magistrate scrutinised the applicant’s evidence as to voice recognition carefully. Both witnesses knew the appellant well and recognised his voice on the phone. While the magistrate should have given a warning, it would have been confined to the fact that the conversations were limited and that people can be mistaken about the voices of those they know well. Despite the lack of warning, Refshauge ACJ held there was no miscarriage of justice, as even if a warning was given, it would not have affected the magistrate’s conclusion.
However, the appeal against the sentence was allowed and the appellant was ordered to be re-sentenced. The appellant’s offending was at the lower end of the spectrum of contravening a domestic violence order. However, the magistrate did not err in concluding that imprisonment was the appropriate punishment when considering his offending history and breaches of good behaviour orders. Rather, the magistrate erred in dismissing the option of suspending a term of imprisonment with a good behaviour order to include a community service condition. The offences were not so serious that a suspended sentence was too lenient.
Charge/s: Breach of a domestic violence order.
Appeal type: Appeal against refusal to grant bail.
Facts: Mr Hutchings breached an interim Domestic Violence Order by sending the female complainant a letter summarising his feelings towards her and the end of their relationship. This was also in breach of bail conditions imposed for a dangerous driving offence. He was granted bail with a condition included that he not contact the complainant in any way. The complainant later received a telephone call and message, alleged to be from Mr Hutchings. He was arrested and charged with breaches of the Domestic Violence Order. This activated s 9D of the Bail Act which provided that bail could not be granted unless there were special or exceptional circumstances favouring the grant of bail. The magistrate refused bail in those circumstances.
Issue/s: Whether there were special or exceptional circumstances favouring the grant of bail.
Decision and reasoning: The appeal was rejected. The Police were concerned that Mr Hutchings would commit further breaches of the Domestic Violence Order if allowed on bail. They noted that the complainant had made further complaints against Mr Hutchings but there was insufficient evidence to justify the commencement of proceedings. Burns J noted that the courts must be very cautious about relying on uncharged allegations but concluded that it was a concern to be taken into account [10]. While Mr Hutchings’ daughter was pregnant and needed Mr Hutchings to drive her around, Burns J noted that she could make other arrangements [12]. Accordingly, there were no special and exceptional circumstances justifying the grant of bail.
Charge/s: Assault occasioning actual bodily harm, assault, threatening to harm a public official, obstructing a public official.
Appeal type: Appeal against sentence.
Facts: The male appellant and the female victim of the two assaults were in a relationship. The first offence occurred when the intoxicated appellant swore at the victim and smashed a beer glass in her face. She required five stiches (assault occasioning actual bodily harm). At the watch house, the appellant threatened violence against police officers and resisted search attempts. On a subsequent occasion, the appellant and the victim were out drinking together and, during the course of argument, the appellant yelled, ‘I could kill you right now and no-one would ever know’. He then put the victim into a headlock, and head-butted and punched the complainant in the face (assault). A total head sentence of 36 months imprisonment was imposed with a non-parole period of 18 months.
Issue/s: The sentence for the assault occasioning actual bodily harm was manifestly excessive.
Decision and Reasoning: The appeal was allowed. The sentencing magistrate failed to take proper account of the appellant’s plea of guilty in sentencing (See [78]). Refshauge J noted that it is very desirable that a sentencing magistrate or judge makes express reference to the issue of a plea of guilty to show that it has been taken into account. Further, the sentencing magistrate did not address the relevant mental state of the appellant (intention or recklessness). Refshauge J stated, ‘there is no doubt that “glassing” is a serious offence, whether intentionally (significantly more serious) or recklessly. It is a cruel and vicious offence, especially where the damage done is to the victim’s face, the scars from which will be long obvious and distressingly disfiguring. It is a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody’ (See [88]). However, notwithstanding this, on the facts, it was more likely than not that the appellant did not intend to use the glass as a weapon (See [90]).
In re-sentencing the appellant, Refshauge J had regard to a letter from the victim. It showed that she was still devoted to the appellant and wanted to maintain their relationship. She stated, ‘ I know he is truly sorry for hurting me and the time he has spent in jail he has not wasted one day doing everything possible to completely turn his life around, every course available in the prison Egan has not only completed but done so with proud achievement’. This showed that the insight and rehabilitative opportunities noted in the original sentencing hearing had been fulfilled and the appellant had addressed his offending behaviour (See [92]-[94]). The appellant was re-sentenced to 2 years imprisonment for the assault occasioning bodily harm. The other sentences were confirmed leaving a head sentence of 30 months, with a non-parole period of 10 months.
Charge/s: Summary offence of assault.
Appeal type: Appeal against conviction.
Facts: The intoxicated male appellant started arguing with his partner (the female complainant) in their house. The appellant kicked a chair at the complainant and broke it. She threw the broken chair at him and he slapped her in the face. The complainant called the police. After discussion, the appellant agreed to plead guilty to a summary charge of assault and the prosecution agreed to make submissions not opposing the making of a non-conviction order. Her Honour refused to make a non-conviction order, convicted the appellant and imposed a 12 month good behaviour order.
Issue/s: One of the issues was that the sentencing process was flawed.
Decision and Reasoning: The appeal was upheld because the sentencing process in the Magistrates Court was flawed in light of further evidence provided about the agreement between the prosecution and the defence before the hearing. Although the appellant was not entitled to assume that the magistrate would make the orders that had been agreed upon, he was entitled to expect that the prosecution’s attitude to a non-conviction order would have been articulated during the hearing (See [26]-[42]).
Another sentence was appropriate in this case. The appellant had no criminal record nor any identified problem with alcohol or anger management. The offence was an isolated incident in which the complainant also took part. The couple had reconciled and were again living with their child. The appellant had a sound employment record, had already been punished by spending the night in police custody and was unable to return home for 3 weeks because of his bail conditions. Finally, the conviction would make it difficult for him to see his partner’s family in Vietnam (See [43]-[45]).
The appellant’s conviction was set aside and a good behaviour order imposed for 12 months. In re-sentencing the appellant, Penfold J stated:
‘However, the appellant should not interpret this conclusion as in any sense condoning of his use of physical violence on his partner (or anyone else for that matter). Rather, it is a recognition that while it is vital for domestic violence to be taken seriously by the police and the prosecuting authorities and the courts, it is also important for a victim of domestic violence to be able to call for help when she needs it in the belief that after her immediate needs have been addressed, the longer-term consequences of the call for help will be decided in a calmer environment in which her longer-term interests and wishes will also receive recognition. The appellant should be aware however, that if there were any repetition of this kind of behaviour by him, I expect that a sentencing court would take it very seriously’ (See [47]).
Charge/s: Assault occasioning actual bodily harm, assault x 3, damaging property x 2.
Appeal type: Appeal against sentence.
Facts: The male appellant and the female complainant were in a relationship. The appellant became very angry with the complainant and she got in her car with her daughter to leave. The appellant punched the driver’s side window of the car causing the window to shatter. He then punched the complainant in the nose and eye, causing her nose to bleed. On a subsequent occasion, in breach of his bail conditions, the intoxicated appellant went to the complainant’s house. He abused her saying, ‘he would kill her and hurt her,’ and put his right arm around her throat. He threw a jar and punched his fist through the microwave door. On a third occasion, again in breach of bail conditions, the appellant went to the complainant’s home with his teenage son. He grabbed her by the throat, punched her in the face, and kicked her. The appellant only stopped when the complainant’s 10 year old son called the police.
While the sentencing magistrate stated that she intended to impose a total sentence of 48 months, with a 24 months non-parole period, the accumulation of sentences the magistrate articulated in court was only a total of 30 months. However, amendments were subsequently made to the bench sheets to reflect what Her Honour intended.
Issue/s:
Decision and Reasoning: The appeal was upheld. First, the parties should have been given an opportunity to be heard before the sentences were amended. This failure amounted to an error requiring the sentence to be set aside (See [81]-[93]). Second, the offences of damaging property were not in the worst category of offences — the damage was not considerable and there were no matters of aggravation of either offence such as planning or premeditation. The magistrate erred in imposing the imposition of the maximum penalty on these offences (See [94]-[103]).
Third, the sentence of 15 months imprisonment imposed for the second assault was excessive in light of the sentence of 18 months imprisonment for the first assault. The first assault was more serious. It involved the smashing of a window, the appellant caused the complainant’s nose to bleed, it was committed in the presence of a child, and the appellant pleaded not guilty to this offence (See [105]-[109]). Further, by merely accumulating the sentences for the three episodes, the sentencing magistrate could not be said to have applied the principle of totality (See [109]-[116]).
The appellant was re-sentenced by Refshauge J to a total sentence of 34 months imprisonment, with a non-parole period of 15 months based on evidence that the appellant had taken steps to address his drug and alcohol use (See [121]-[130]). His Honour noted, ‘these offences are serious, particularly because they are offences of family violence, some committed in the presence of children, some committed whilst on bail and in breach of conditions of that bail. The repetition of assaults on the victim also makes the offences serious’ [122].
Charge/s: Assault.
Appeal type: Appeal against sentence.
Facts: The male appellant and his wife, the complainant, were involved in a lengthy argument regarding the conduct of the complainant’s daughter. The appellant swore at the complainant and said, ‘I’m going to kill you’. He then pushed the complainant on her forehead, causing her to fall backwards into her chair. The complainant went to her daughter’s bedroom and was followed by the appellant. The argument continued and at one point the appellant came so close he caused the complainant to stumble backwards onto the bed. The appellant pleaded guilty to assault. Counsel for the appellant sought a non-conviction sentence and the prosecution made no opposing submissions. The magistrate imposed a good behaviour order which required the appellant to subject to probation for 18 months and required the appellant to attend counselling on anger management and inter-personal relationships.
Issue/s: The condition of the good behaviour order requiring the appellant to be subject to probation for 18 months was manifestly excessive.
Decision and Reasoning: The appeal was allowed and the period of supervision set aside. This was an offence at the lower end of the scale of seriousness for such offences, notwithstanding that this was a family violence offence. It was committed by a person with no criminal history. Further, a substantial number of very positive references were submitted attesting to the appellant’s good character (See [44]-[47]).
The respondent submitted that weight had to be given to general and specific deterrence because this was a family violence offence. Refshauge J accepted this but noted that ‘supervision on probation is not ordinarily seen as part of the deterrent component of sentencing’. It is generally a rehabilitative part of sentencing. Here, unless actual supervision was required for a rehabilitative purpose, i.e. to ensure the appellant attended counselling, it was not appropriate to make a probation condition. There was no suggestion on the facts that the appellant would benefit from such guidance (See [48]-[59]).
Charge/s: Unlawful confinement.
Appeal type: Appeal against sentence.
Facts: The appellant unlawfully confined his former partner by forcing her into a taxi and compelling her to travel with him, against her will. He then took her to another person’s house where she was prevented from answering her phone. She was held captive for approximately 2 hours. The magistrate imposed a sentence of 20 months imprisonment, with a non-parole period of 15 months.
Issue/s: One of the issues was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The sentence could not be said to be manifestly excessive. This was a very serious offence. Its seriousness was not diminished by the fact that it occurred within the context of a relationship breakdown, that it was not carried out for financial gain, and that it was committed in the presence of third parties. Further, the appellant had a long criminal history (See [3]-[4]).
Charge/s: Threatening to kill, failing to surrender firearms x 3, possessing a quantity of cannabis.
Appeal type: Appeal against refusal to grant bail.
Facts: Mr Breen, an Aboriginal man, was in a relationship with a woman and they had three children. Mr Breen rang the mother of his partner, asking if she knew where his partner was. He was extremely agitated and said, ‘If we were married, we would now be divorced’ and ‘I’ve got big problems with my head’. Mr Breen then said, ‘and if [his partner] gets boyfriends out of this, I will get my gun and blow all their heads off. I will kill us all. Better that than have them molested as I was’. Mr Breen stayed on the phone to his partner’s mother for an hour and on two occasions he threatened to kill the whole family. When police later arrived, Mr Breen said he was depressed and ‘wanted to end it all’. A search of the property uncovered three unregistered rifles and cannabis. He was arrested and was refused bail by a magistrate for ‘mental health issues’ and his access to ‘illicit’ firearms.
Issue/s: Whether Mr Breen should be granted bail.
Decision and reasoning: Section 9B of the Bail Act meant that the presumption in favour of bail did not apply. Refshauge J noted that, in determining whether to grant or refuse bail, the court had to engage in an assessment of ‘future risk’. Given that refusal of bail is tantamount to preventative detention, the court should not make a decision on the basis of suspicion or speculation (See [57]-[61]). His Honour stated, ‘the appropriate initial view was that this was a serious offence which was engendered in emotional circumstances where very serious violence, at least to Mr Breen himself if not to his partner and children, was threatened and where there were apparent means to carry out such a threat. This was exacerbated by the fact that Mr Breen clearly [had] some mental health issues which [made] the likelihood of unpredictable outcomes greater’ at [61].
However, on the basis of tendered evidence, Refshauge J was satisfied that the imposition of strict bail conditions could manage these concerns (See [91]). Mr Breen’s behaviour was caused by a mental impairment that was treatable (and treatment were already occurring). While Mr Breen had a worrying fascination with guns and weapons, he was not in a realistic position or had the immediate capacity to carry out his threat. There was no evidence to satisfy Refshauge J that Mr Breen’s partner would be in danger with the provision of suitable bail conditions. Mr Breen had work available and his parents were prepared to offer a cash surety.
Charge/s: Common assault.
Appeal type: Appeal against sentence.
Facts: The appellant and the complainant had been married for eight years and had two children. An argument arose between the appellant and the complainant. Their 12 year old son stepped between them but was pushed away by the appellant. The appellant grabbed the complainant by the hair, pulled her into the bedroom and threw her on the bed. The complainant called the appellant’s mother a prostitute and he twisted her arm behind her back and slapped her face several times. The police were called. The appellant made full admissions. In sentencing submissions, counsel for the appellant informed the magistrate that a conviction would prevent the family from migrating to Canada and asked for a short adjournment to procure such evidence from his office. The magistrate refused. The appellant was convicted and made subject to a good behaviour order for 12 months.
Issue/s: One of the grounds of appeal was that the magistrate failed to provide procedural fairness by not permitting an adjournment.
Decision and reasoning: The magistrate erred in refusing to allow an adjournment for the material relating to the potential barriers of a conviction to migrating to Canada to be procured. The adjournment would only have been brief and the issue of migration status was of major concern to the family. It was not appropriate to deny the appellant the opportunity of putting his case before the court just because his legal representation had failed to have the requisite documents on hand. The appeal was allowed and it fell to Refshauge J to re-sentence the appellant (See [34]-[51]).
In re-sentencing the appellant, His Honour had particular regard to the issues of the migration process to Canada and the views expressed by the complainant in a letter to the court. First, Refshauge J accepted that there was a real likelihood that in a case of domestic violence the appellant would be refused admission to Canada. This would adversely affect the family (See [73]-[78]). Second, in relation to the letter from the complainant, His Honour stated that:
‘In my view, there is a great danger in putting a victim of domestic violence in the position where they are seen to have some power to influence a sentence. This is often likely to be an intolerable choice between the bonds of affection which often persist despite the violence and their need for protection against recurrence and for the offender to be held accountable’ at [82].
His Honour accepted the letter for the following: the appellant had previously good character, the incident was a one-off occurrence, he voluntarily participated in an anger management course, and it confirmed the effect on the family if they were unable to migrate to Canada. But, in light of the issues mentioned above, accepting the letter as evidence of reconciliation needed to be treated with caution (See [79]-[84]).
The appellant had no prior convictions and previous good character. The offence was serious but at the lower end of the criminal calendar and, as a matter of marginal extenuation, the victim was equally as abusive. A non-conviction order was warranted because of the appellant’s immediate engagement in a rehabilitation program, his plea of guilty and early confession, and the risk to the family if their immigration plans were thwarted (See [92]-[97]).
Charge/s: Contravention of a protection order.
Hearing type: Sentencing hearing.
Facts: On 16 January 2007, the offender was found guilty for breaching a Domestic Violence Protection Order, protecting Ms Perrin (with whom he had two children). He drove past Ms Perrin’s residence, yelled at her, and summonsed another man at the premises to fight him. The offence was committed in breach of two earlier imposed and unrelated good behaviour orders for aggravated robbery and assault occasioning bodily harm (‘the 2004 offences’). Accordingly, it fell to Rares J to sentence the offender for the breach of the protection order and re-sentence the offender for the 2004 offences. At the time of sentencing, the offender and Ms Perrin had reconciled.
Decision and Reasoning: The offender was sentenced to 12 months imprisonment, wholly suspended with conditions [2]. In sentencing the offender, Rares J was satisfied that the offender had made a serious and concerted effort to turn his life around — the offender had stopped taking cannabis and alcohol, had obtained employment, paid for his own attendance with Ms Perrin at a Relationships Australia course, and had the support of his family and Ms Perrin’s family to make a good life for their children. His Honour also took into account the fact that he had pleaded not guilty to the offence of breaching the domestic violence order and that he had a prior criminal history.
Rares J noted that while he did not want to undermine the offender’s ‘terrific’ improvement, a penalty had to be crafted that appropriately reflected the offender’s criminality, the seriousness of the conduct and general deterrence. His Honour noted:
‘In many, many cases before the courts, the subjective impact of a punishment on an offender once brought to justice can be seen to be great. But to do justice according to law, must be to uphold the laws themselves and their purpose to ensure that we all obey the law. The community must know that offenders, whatever their personal circumstances are, receive a punishment that is appropriate and recognises the seriousness of the offending and the breaches of the community’s standards embodied in its criminal laws’ at [17].
Charge/s: Contravention of a protection order x 2.
Appeal type: Appeal against sentence.
Facts: The female complainant obtained a protection order against the male appellant, her former partner. In breach of this order, the appellant attended her home. When she refused to let him inside, he began yelling and attempted to break down the door. She called for help and the appellant fled. The next day, the appellant again tried to obtain entry to the complainant’s home. He struck and damaged the front door when he was refused entry and again ran off when he was told the police had been called. In December 2007, the offender was sentenced to 10 and 15 months imprisonment respectively for these breaches. Earlier, in May 2007, the offender had been sentenced for a number of other offences, including four charges of contravening a protection order. For the most serious of these breaches, he was sentenced to six months imprisonment to be served as periodic detention.
Issue/s: One of the grounds of appeal was that the sentence of 10 months imprisonment and 15 months imprisonment was manifestly excessive.
Decision and reasoning: The appeal was allowed. Penfold J noted that:
‘To the extent that punishing an offender ever more severely because of repeat offending, rather than because the individual offences have become more serious, is justifiable, such an approach must relate to the need for specific deterrence of an offender who appears unwilling to learn from previous penalties. Even in that case, the penalty must still remain referable in some way to the actual offence committed’ at [38].
Here, the sentence was manifestly excessive (See [42]). In particular, the two sentences imposed were at least twice as severe as the most severe penalty previously imposed for breach of a protection order in May 2007. However, if the May 2007 breaches were so much less severe than the conduct here, it was hard to see how they would have justified imprisonment at all (See [37]). Further, at the time of the August breaches, the offender had not served any full-time custody or even any periodic detention. It could not be assumed that his actions in August were informed by any understanding of the reality of a custodial sentence (See [39]). Other relevant mitigating factors were taken into account (See [30]).
The appellant was re-sentenced to 6 months imprisonment for each breach.
Charge/s: Contravention of a domestic violence order x 2.
Appeal type: Appeal against conviction and appeal against sentence.
Facts: The appellant’s former wife, with whom he had a daughter, obtained a domestic violence protection order against him, prohibiting contact. Shortly before the appellant left for an extended visit to the United States, the Family Court made an order which vacated this contact order. It stated that while the appellant was out of the country, he could send gifts and correspondence or postcards to his daughter provided that the contact was directed to the child and that he could send a photograph from time to time. When he was back in Australia, the appellant sent his daughter a package containing photographs, gifts and a letter. Additionally, the appellant mistakenly sent his former wife an email when he sent a group message to his siblings. He had previously been interviewed by police for a similar mistake. The appellant had spent 42 days in custody on remand. The magistrate imposed a six month term of imprisonment from the date he was taken into custody and directed he be released after serving 42 days, effectively that he be released the day following the hearing. He also imposed an 18 month good behaviour bond, subject to some conditions (see[22]).
Issue/s:
Decision and reasoning: The appeal was dismissed. First, His Honour held that: ‘[I]t is certainly fair to say that if a person seeks to rely on a Family Court order that varies what is otherwise a clear domestic violence order, it is incumbent upon that person to take steps to understand what the Family Court order says. And it seems to me that the Magistrate was perfectly entitled to find that Mr Miller was at least reckless in assuming that that order, which on its face only covers the time that he was out of the country, continued to apply after he had returned to Australia’ at [5].
Second, on its own, the email sent in error to his former wife would have been unlikely to meet the requisite standard of intent or recklessness. However, given that the appellant had made the same mistake before and had been interviewed by police for this, there was at least recklessness in relation to the sending of that message.
Third, the sentence could not be said to be manifestly excessive. His Honour noted that these were low level breaches of a domestic violence order, they involved recklessness rather than intent, and the nature of the correspondence in both the letter and the email was non-violent and non-threatening. However, the appellant had three prior appearances relating to seven convictions for breaches of a protection order. Connolly J stated:
‘It seems to me that even though these were lower level, indeed very low level breaches in the sense that there was no actual or apprehended or threatened violence, repeated breaches however low level, do inevitably meet with an increase in sentence on the basic premise that when low level sentences do not stop the offending behaviour a court has little option but to continue a pattern of steadily ramping up the sentence’ at [20].
Charge: Assault occasioning actual bodily harm
Proceeding: Sentencing
Facts: The offender and victim had previously been in a relationship and had two children together. The offender and victim’s version of events differed. The victim alleged that after consuming alcohol with the offender one night, the offender dragged her out of bed, hit her three time in the face and put his hands around her neck and pushed his thumbs into her throat. While doing so, the offender said something to the effect of “Slut, I’ll kill you, I’ll kill you”. When she woke up the next morning the offender continued to follow and abuse her. The offender said that the offending occurred after he blacked out after drinking substantial amounts of alcohol. He said that the assault occurred after the victim, who was drunk, was following him between pubs and abused him verbally and physically by kicking him. After she got in an altercation with a patron, she was removed from the pub and was spoken to by police officers. The offender agreed to take the victim home, where they sat outside smoking marijuana and drinking bourbon. They then got in an argument over their children and the victim struck the offender. According to the offender, this is when he grabbed her throat and beat the victim.
Higgins CJ, after hearing corroborating witnesses, accepted that the assault occurred in the way described by the offender. However, he did not suggest that the victim was fabricating her account: ‘She was savagely beaten, she had a lot to drink and it is unsurprising that some of the details became confused in her mind’ ([26]).
In relation to this conduct the offender was charged and pleaded guilty to one count of assault occasioning actual bodily harm.
For three months prior to the assault, the offender had undergone rehabilitation at Oolong House. He had a long history of offending, including 28 prior assaults. Most of the previous offending occurred after the offender had consumed alcohol. While he acknowledged his alcohol abuse, the offender did not consider he needed drug and alcohol intervention. He also admitted to feeling ‘horrified by what he had done’ and said ‘violence towards women is not in his makeup and he has no excuses for what he has done’.
Issue: What sentence should the offender receive?
Decision and reasoning: The offender was sentenced to two and a half years’ imprisonment with a non-parole period of 18 months. While the preceding conduct on the night of the offending and the alcohol abuse engaged in by both the parties may explain the offending, it did not excuse it. There were some prospects of rehabilitation for the offender. However, having regard to the severity of the attack and the offender’s criminal history and alcohol abuse, a sentence of imprisonment was appropriate: ‘No other sentence will say to men who abuse women that such conduct is abhorrent and will result in severe punishment whatever the status or record of the offender’ ([32]).
In considering the purposes of sentencing domestic violence offending, Higgins CJ noted that while alcohol may have been a triggering factor, offenders must take responsibility for their actions and be seen to do so. As domestic violence offences are often hidden, general deterrence is also an important consideration in sentencing. So too is specific deterrence. Higgins CJ emphasised that domestic violence ‘is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred’ ([30]).
Appeal type: Appeal against refusal of a magistrate to revoke a Domestic Violence Order.
Facts: On 22 October 2003, a Domestic Violence Order was made by the Deputy Registrar of the Magistrates Court for the protection of the female respondent against the appellant, with whom she was in a sexual relationship. Both parties had disabilities. During their ‘physical relationship’, the respondent suffered three separate fractures of her legs. She had no history of such injuries prior to the physical relationship and no history of such injuries subsequent to the physical relationship. On 24 May 2004, the Order was varied by consent and in particular the Order restrained and prohibited the male appellant from taking certain actions in relation to the respondent. The appellant applied to have the order revoked but a magistrate declined to revoke the Order. His Honour concluded that the physical nature of the relationship represented a genuine risk to the well-being of the respondent.
Issue/s: The magistrate erred in failing to revoke the order. His Honour made three errors in reaching his decision to not revoke the order –
Decision and reasoning: The appeal was dismissed. First, the location of where the injuries occurred was not relevant because it was the physical relationship that caused the injuries. Second, there was no evidence that the counselling had been concluded nor that it would reduce the likelihood of injury if the physical relationship was to continue. Accordingly, this was not a relevant consideration. Finally, the magistrate did consider the fact that such a relationship was likely to continue on the basis of evidence before him.
Further, the magistrate did not fail to take into account the fact that persons with disabilities had the same basic rights as other members of Australian society. The magistrate specifically referred to the wishes of the respondent to continue the relationship with the appellant. However, His Honour concluded that the risk to the respondent resulting from such a relationship as such that he was unable to be satisfied that the order preventing such a relationship was no longer necessary for her protection.
Charge/s: Unlawful confinement, assault occasioning bodily harm.
Hearing type: Sentencing hearing.
Facts: The offences occurred after the male offender and his wife, the complainant, had separated and the offender had moved out of the family home. He occasionally stayed overnight to see the children. After seeing his wife kiss another man, the offender arrived at the family home late at night, when the children were present in the house. The complainant let him in and went back to bed. The offender followed her and sat on top of her. He placed a sharp object against her throat and said, ‘This is a knife. If you move I will fucking kill you’. He then placed pre-cut strips of duct tape over the complainant’s mouth and eyes. He bound her wrists and ankles and tied her hands and feet together. He said, ‘You’ll have your wish — you’ll see me die tonight, you’ll see me die’.
The complainant had difficulty breathing and the offender removed the duct tape. He interrogated her about her relationship with the other man, hitting her several times around the head and shoulders. He left the room saying, ‘If you fucking move I’ll kill you’ and returned with a telephone book. The offender asked for the other man’s phone number before leaving the room again. The complainant heard him enter the nearby bedroom, occupied by two of their daughters and heard him say, ‘Now take this darling. I know it tastes awful, doesn’t it’.
He returned to the complainant and resumed interrogating her, striking her. He said multiple times that he was going to kill himself and take the children with him. The offender eventually became tearful and untied the complainant. She rang the emergency number and asked for an ambulance, thinking her children had been poisoned. The police and ambulance arrived. The children were unharmed. The offender left the premises and went to the police station the next morning.
Decision and Reasoning: The offender was sentenced to 6 years imprisonment for unlawful confinement and 3 years imprisonment for assault, concurrent and a non-parole period of 18 months. Crispin J took into account a number of subjective factors in imposing this sentence. The offender pleaded guilty. At the time the offender entered the house, while there was some measure of pre-meditation in the appellant’s actions (the decision to confine and interrogate the complainant), the offender did not intend to threaten the complainant with a knife or to kill his children. The offender stopped the violence and threats of his own volition.
At the time of offending, the offender was suffering from serious psychological illnesses including acute depression and adjustment order. It was submitted on the offender’s behalf that, because of this illness, this made the offender an inappropriate vehicle for general deterrence. Crispin J disagreed and stated,
‘The extent of his psychological condition is relevant to the issue of general deterrence but, in my view, the need to protect former spouses or partners from conduct of this nature cannot be so easily dismissed. Many people no doubt experience great stress upon the breakup of their marriages or other close relationships and in some cases they may suffer from symptoms of an underlying psychological illness or even become psychologically ill for the first time. One may and should respond with sympathy. However, when a person commits serious criminal acts against a former spouse or partner the court must take into account the need to deter other people from similar conduct. The risk of serious injury and, as in this case, grave emotional trauma may be at least as serious when the offender is psychologically ill. Accordingly, the need for deterrence should be given due recognition, though the weight which should be given to that factor will vary according to the circumstances of the case, and the actual sentences must be determined by reference to all relevant factors’ (See [19]).
Other relevant factors included that the offender was remorseful, he had no prior convictions and was previously a committed father and a person of impeccable character. He had taken steps to obtain counselling and achieved a significant measure of rehabilitation. He had already been imprisoned for 8 months and this caused significant distress in light of his inability to see his children and his potential to be a suicide risk.
However, Crispin J was unable to accept counsel submissions that the offender should be released on parole immediately. The offences were too serious to be dealt with in that manner — the complainant was confined for an extended period and intended to cause significant fear in the complainant.
Charge/s: Robbery with an offensive weapon.
Trial: Judge only trial.
Facts: On 20 November 1996, Ms Lorenz (‘the accused’) entered a supermarket and attempted to purchase some cigarettes with her EFTPOS card from the complainant. The transaction could not be completed because there were insufficient funds in the account. The accused maintained she was sure there were funds in the account and re-tried the card but it was again declined. She then left the store. Ten minutes later, the accused returned to the store with a pen knife. She approached the complainant, held the knife out in front of her and said, ‘give me all your fucking money or I’ll slit your throat’. The complainant gave the accused $360 in cash and the accused left the store. While initially denying any involvement, the accused made admissions to the police.
Counsel for the accused argued that the accused was acting out of duress on the basis of a threat made by Ms Lorenz’s partner on the night before the robbery and repeated the following morning to the effect that if she did not obtain enough money to enable him to re-register his car he would kill her. This threat followed a pattern of violent and threatening behaviour towards the accused over a number of years (See [11]). On the morning of the robbery, the accused, who was pregnant with the couple’s third child, found out that she was unable to get the immediate payment of an advance payment from the Department of Social Security to pay the re-registration.
Decision and Reasoning: There was some discussion in this case of ‘battered woman syndrome’ (See [26]-[31]). Crispin J accepted that upon failing to receive advance payment from the Department of Social Security, the accused became frightened and confused and the robbery was an impulsive act due to her fear that her partner would kill her. His Honour stated: ‘In my view her failure to attempt to extricate herself from the situation whether by leaving him or otherwise is largely explicable by her fear and confusion. Furthermore, she may have thought that any escape would have been only temporary and that sooner or later [her partner] would have been bound to have caught up with her and carried out his threat’ at [30].
However, ‘a diagnosis of battered woman syndrome does not of itself give rise to any defence. The law does not recognise any general principle that people should be absolved from criminal conduct because they had been beaten or abused or because a psychological condition caused by such treatment may have led them to commit the offences with which they are charged. Nonetheless, evidence that such a person may have had a psychological condition of this kind may be relevant to several defences known to the law’ at [31].
Here, counsel for the appellant unsuccessfully attempted to rely on the defence of duress. In the accused’s favour, His Honour found that the threat was effective at the time of the offence, the accused did not fail to take advantage of a reasonable opportunity to render the threat ineffective, and, in light of the extremity of the actual and threatened violence displayed by the accused’s partner, a person of ordinary firmness of mind may have acted in the way the accused did (See [35]-[37]). However, the accused’s partner did not direct the accused to commit the offence and accordingly the defence of duress failed (See [38]-[41]). In the alternative, counsel for the accused attempted to rely on the defence of necessity. However, His Honour held that the imminence of danger fell well short of the required standard for the successful proof of the defence (See [42]-[45]). She was accordingly found guilty.
The accused left her partner shortly after the robbery and had formed a relationship with another man. She had just turned 23, had three children and was pregnant to her new partner. The new relationship was apparently a happy one. In these circumstances, and to give her the opportunity to start a new life for herself and her children, Crispin J found it appropriate to defer passing sentence on the condition that she enter into recognisance to be of good behaviour for a period of three years.
Appeal Type: General civil appeal.
Facts: This decision was not concerned with domestic and family violence but is relevant in relation to the admission of expert evidence in cases involving domestic and family violence. The plaintiff was injured after falling down the stairs at work and sued her employer for negligence. At trial, her employer was found to have breached their duty of care because the stairs were slippery and this was the reason the plaintiff fell. This finding of fact made at trial was largely based on expert evidence adduced by the plaintiff. The expert attested to the slipperiness of the stairs. The plaintiff was awarded damages. But for the expert’s report, ‘a conclusion that the stairs were not slippery would have been inevitable’ (see at [56]). The defendant appealed on the basis that, inter alia, the trial judge erred in accepting the expert evidence.
Issues: Whether the trial judge erred in accepting the opinion of the expert regarding the slipperiness of the stairs.
Decision and Reasoning: The appeal was upheld. All members of the Court of Appeal agreed that the trial judge ought not to have accepted the evidence. Importantly, this appeal was concerned with whether the evidence ought to have been accepted by the trial judge, not with its admissibility. Heydon JA firstly considered whether the expert’s testimony ‘(complied) with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions’ ([59]). It was in this context that his Honour engaged in general discussion about the admissibility of expert evidence. Expert evidence cannot usurp the role of the trial judge (or jury if present) in making findings of fact. The task of the tribunal of fact is to make an independent assessment of expert evidence in forming its own conclusion. It cannot do this, ‘if the expert does not fully expose the reasoning relied on’ (see at [67]). The Court is not obliged to accept the opinion of an expert, even if no other evidence is called to contradict it (see at [87]). This is important especially where the evidence goes to the ultimate issue in the case. Evidence which goes to the ultimate issue is not inadmissible for that reason (see s 80 of the Evidence Act 1995 (NSW)). Essentially, an expert gives opinion based on facts, and as such must prove ‘by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based’ (see at [64]).
See at [85] where his Honour summarises the general principles of the admissibility of expert evidence –
‘In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).’
Offences: Causing grievous bodily harm with intent to cause grievous bodily harm
Proceedings: Appeal against sentence
Grounds:
Facts: The male victim was in a relationship with Ms Crowther (‘C’), who was also in a relationship with the appellant, an Aboriginal man. After staying at C’s house overnight, the victim sent C text messages (which were consistent with someone who was in an intimate relationship) but C did not reply so the victim waited for C at her house while consuming alcohol. The victim fell asleep on the front veranda and was awoken by the appellant opening the front door. The victim punched the appellant in the face, causing him to stagger backwards. The victim then went inside and remonstrated with C. He then felt a blow to his stomach and realised he had been stabbed, so he went to the kitchen to escape. He applied paper towel to his stomach and the appellant said, "Come out and I’ll finish ya". C left to collect her daughter from school and the appellant also subsequently left. The victim was left by himself and called 000. He underwent a number of surgical procedures over the following months.
The appellant was convicted and sentenced to six years’ imprisonment with a non-parole period of four years. In sentencing the appellant, the judge found that the appellant was raised in an extremely violent and dysfunctional environment [18]. Furthermore, he left school in year eight, was illiterate [19], had been using drugs since he was 16 [20] and suffered from longstanding mental illnesses [21].
Judgment: The court dismissed the appeal. Regarding Ground 1, the court held that the assessment of objective seriousness was open to the sentencing judge, taking into account the serious injuries and harm suffered by the victim, that the appellant used a knife capable of inflicting serious injury or worse, and that the offence was committed spontaneously as part of an excessive and disproportionate mode of self-defence [54].
The court also held that Ground 2 had not been made out. The court found that the comments made by the sentencing judge regarding general deterrence had direct application to the facts of the case and did not constitute some generalised "motherhood statement", from their context and content [74]. The sentencing judge did not downplay or ignore the appellant’s mental illness [74] because the mental illness aspect of the appellant’s claims "appear[ed] to be unrelated to his criminality generally and this offence in particular" [70].
In holding that Ground 3 had not been made out, the court stated that the "fact that the applicant was subject to conditional liberty at the time of the offences operates as an aggravating factor by virtue of its existence at the operative time and not because of its capacity to rationally affect the criminality of the offence" [86].
The court held that Ground 4 had not been made out and therefore that the sentence was not manifestly excessive because:
Charges: Causing grievous bodily harm with intent to murder; Wounding with intent to cause grievous bodily harm
Case type: Application for extension of time for leave to appeal against aggregate sentence
Ground of appeal: His honour erred in the notional accumulation of indicative sentences in determining the aggregate sentence
Facts: The applicant man and female first victim met shortly after she moved from Columbia in 2011 and they married in 201. They had separated having had ‘relationship difficulties’ at the time of the offences. After a series of arguments, the first victim moved out of the marital home at his demand. A few days later, the applicant began texting her and her friend, then when asked not to text her emailed the first victim’s sister (copied to the victim) and accused the first victim of fraudulently obtaining a visa and of trying to steal money from him and his family. He also stated that he "hope[d] [the victim] were to die in a car accident and that she has to fly home the body" [20]. The first victim subsequently made several statements to police leading up to the offending "in case something happened to [her]" and that she felt vulnerable and ‘unsafe to go outside’ and she was worried about what the applicant would do "because he is very controlling" [21-2]. The Applicant was also found to have searched for the first victim online, her place of work and the phrase ‘carotid artery neck’ [26]. This search history was relied upon by the Crown to contend that the offences were premediated and that the "Applicant armed himself with a knife intending to cut the victim’s carotid artery in her neck with an intention to kill" [26].
On the day of the offence, the Applicant had waited for the first victim to arrive at work. When she arrived, he approached her, produced a knife from his pocket and "lunged at the victim’s head and neck area, stabbing her in the forehead, the left-chest area and the left arm which she had raised to protect herself" [32]. One of her colleagues approached the Applicant and told him to stop. The Applicant then stabbed the colleague in the skull, causing immediate bleeding and a bone fracture. The Applicant then ran to his vehicle and accelerated quickly towards the first victim, who had collapsed on the ground, and crushed her between the bumper bar of his vehicle and another parked vehicle before driving away.
The first victim suffered abrasions and bruising, multiple fractured ribs, fractures to the left scapula, several vertebrae and pelvis. She had stab wounds to her chest and arm and a laceration to her left forehead. She was hospitalised for two weeks, a number of days in intensive care and required surgery for several injuries. The second victim required sutures for a laceration as a result of the stab wound to the top of her head and the injury caused a mildly displaced fracture of the skull.
The Applicant admitted that he brought the knife with him "intending to cut [his] throat in front of [the victim]" but instead "completely lost it" during a police interview. He had a major depressive illness but no evidence of psychosis or hallucinations and there was expert evidence he was capable of forming and intention to kill, wound and/or do grievous bodily harm.
The applicant had no prior criminal history. He pleaded guilty and was sentenced to an aggregate sentence of 21 years comprising a non-parole period of 14 years commencing on 19 August 2015 and expiring on 18 August 2029, with a balance of term of seven years commencing on 19 August 2029 and expiring on 18 August 2036 [4]. The sentencing Judge gave the following sentence indications:
The applicant lodged his Notice of Intention to Seek Leave to appeal in time on 1 May 2019 and it was extended until 1 February 2019. Notice of Application for leave to Appeal was not lodged until 30 August 2019. The Crown submitted that the extension of time should not be granted as there was not merit in the ground of appeal.
Held: The ground of appeal lacked sufficient merit to warrant and extension of time to bring an application for leave to appeal against sentence [114]. Johnson J (Macfarlan JA concurring) provided that "the Applicant’s submission in support of [the] ground of appeal are based upon a misconception concerning the operation of the statutory provisions providing for aggregative sentencing in this State" [87]. "The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court."[91] The sentencing judge was found to have correctly complied with the statutory provisions as well as to have taken a "detailed, careful and balanced approach in reaching sentence in this case" [113].
Charges: Murder x 1; Contravening an apprehended domestic violence order x 1; Using an unregistered firearm x 1; Assault occasioning actual bodily harm x 1.
Case type: Appeal against sentence
Facts: The applicant man pleaded guilty to the murder of his wife (the victim), and to three related offences, namely, contravening an apprehended domestic violence order, using an unregistered firearm, and assault occasioning actually bodily harm. The victim was shot dead by the applicant. They had been married for 40 years and had 2 adult children. The applicant was sentenced to an aggregate sentence of 41 years 6 months imprisonment, with a non-parole period of 31 years and 1 month. He was born in 1956 and, if alive, would be 91 at the time of eligibility for parole.
The sentencing judge described the murder as a "chilling and deeply shocking crime which, without hyperbole, could be described as an execution" ([46]). Her Honour stated that while the applicant did not have a lengthy criminal history for domestic violence, the incident occurred in the context of a history of significant domestic violence ([63]). It was against this background that the sentencing judge found the applicant to be motivated by hatred to kill the victim as she was instrumental in the issue of an ADVO and the bringing of associated criminal charges. She also highlighted the need for specific and general deterrence, "describing domestic violence as a profoundly serious problem in the community, extending not infrequently to the murder of a spouse or partner" ([64]). Her Honour did not make a finding of special circumstances and emphasised that the "principle consideration is to ensure that the minimum period of incarceration reflects the crime and the subjective case".
Issue: The applicant sought leave to appeal against the aggregate sentence on two grounds:
Held:
Appeal Ground 1:
It was submitted that the sentencing judge erred in determining that it was unnecessary to make a finding of special circumstances, having regard to the applicant’s age, health, lack of experience in prison and risk of institutionalisation ([70]). All judges dismissed the first ground of appeal. Bathurst CJ held that the sentencing judge did not err in reaching her conclusion that the non-parole period was the minimum period of incarceration appropriate, as she took into account the applicant’s age, the nature of the case and the applicant’s subjective circumstances ([77]). Fullerton J added that the sentencing judge was justified in declining to make a finding of special circumstances, as she gave "extensive consideration" to matters relevant to determining the minimum period of incarceration, including, but not limited to, the objective gravity of the totality of the offending, and the lack of evidence of genuine remorse or prospects of rehabilitation ([125]). Similarly, Bellew J found that just because a sentence may have the practical effect of amounting to a sentence of life imprisonment, it does not mean that a sentencing judge has erred. The objective seriousness of an offence is a fundamental principle that should be reflected in a sentence, even where adherence to such a principle may impose a life sentence on an offender of middle to advanced age ([215]).
Appeal Ground 2:
Bathurst CJ dissented on the second ground of appeal. His Honour found that the indicative sentence of 40 years and 6 months imposed after a discount for the guilty plea was extremely high. He noted that the sentence appeared to be inconsistent with legal principle in sentencing for this type of offence ([112]). Further, he found that the aggregate sentence was substantially imposed for the murder offence, and as a consequence, it was manifestly excessive and should be set aside ([114]-[115]). As this was a dissenting judgment, it was not necessary for his Honour to re-sentence the applicant ([116]).
Fullerton and Bellew JJ, on the other hand, dismissed the second ground of appeal. After taking into account the sentencing judge’s sentencing remarks and giving due weight to "the applicant’s calculated and brazen determination to kill his wife in an act of callous and unbridled revenge", Fullerton J was not satisfied that the aggregate sentence was "unreasonably or plainly unjust" ([132]-[133]). Before concluding that the sentence imposed was not unreasonable or unjust, Bellew J set out the circumstances of the offending which indicated that it was towards the very top of the range:
Charges: Destroying or damaging property x 1 (domestic violence offence).
Case type: Application for leave to appeal against sentence
Facts: This is an application for leave to appeal against the sentence imposed by Colefax DCJ in R v Amante [2019] NSWDC 222. The applicant, whilst under the influence of ice, threatened his estranged partner and subsequently set fire to her Department of Housing unit causing significant damage, potential danger and hardship to other residents ([11]). The applicant was sentenced to 3 years and 9 months imprisonment, with a non-parole period of 2 years.
Issue: The applicant sought leave to appeal against his sentence on two grounds. Firstly, he contended that the sentencing judge erred in taking "judicial notice" of the fact that the fire in the roof cavity "posed a serious structural risk to the integrity of the building". Secondly, he alleged error in the way in which the sentencing judge dealt with the applicant’s mental health issues, specifically in finding that they were "largely untreated and largely unresolved".
Held: The application for leave to appeal was granted, but the appeal was dismissed.
Beech-Jones J acknowledged the sentencing judge’s remarks at [46]-[48]. The applicant had a dysfunctional upbringing, which reduced his moral culpability. Moreover, he was genuinely remorseful and his rehabilitation prospects were found to be reasonable provided that he "receive appropriate treatment". The sentencing judge also found special circumstances and varied the statutory ratio accordingly.
The first ground was a challenge to the factual finding of the sentencing judge. The applicant contended that the sentencing judge erred in taking judicial notice of the fact that the spread of the fire to the roof cavity "posed a serious structural risk to the integrity of the building". The applicant argued that he had found this fact to be an aggravating factor, and as such was required to be satisfied of it beyond reasonable doubt. The applicant warned of the dangers of relying on photographic evidence, and contended that it was "somewhat remarkable" that the sentencing judge purported to take judicial notice of the structural integrity of the building, whilst also noting the lack of expert evidence in relation to the fire ([52]). N Adams J (Payne JA concurring) found that Ground 1 had not been established. She treated Ground 1 as a challenge to the factual conclusion of the sentencing judge and in submissions counsel for the applicant accepted that the relevant test was whether the conclusion was open to His Honour (R v O’Donoghue (1988) 34 A Crim R 397) [55]. Beech-Jones J agreed the matter should be considered by reference to evidence available to support His Honour’s conclusion. Her Honour found that the sentencing judge drew an inference that was open to him based on both the agreed facts that the fire went into the roof void, as well as the photographic evidence which showed that the wooden beams in the roof were burnt ([62]). She was also not satisfied that the sentencing judge found the fact as an aggravating factor, as he had not stated anything to this effect ([64]).
In relation to the second ground, it was submitted that his Honour denied the applicant procedural fairness by finding that considerations of specific deterrence and the need to protect the community were "fully engaged" in the applicant’s case because of his "largely untreated and largely unresolved" mental health issues. The applicant submitted that his mental health issues were being treated with medication and that his major depressive disorder was in remission. Ground 2 was also not established. N Adams J (Payne JA and Beech-Jones J concurring) found that it was open to the sentencing judge to find that the applicant’s mental health issues were unresolved, given his poor history ([82]-[83]). This case is a "classic example" of how sentencing judges may be required to make "individualised discretionary decisions" based on the available material. The sentencing judge "ameliorated the sentence on the basis that no rational person would react to a break-up by setting fire to their ex partner’s house threatening the lives of other people", however, specific deterrence became a relevant consideration as the applicant’s mental health and drug issues was found to have led him to commit the offence ([85]).
Consequently, the appeal against sentence was dismissed.
Charges: Stalking or intimidation with intent to cause fear or physical or mental harm x 2; aggravated detain for advantage x 1; common assault x 1; influence witness x 1
Case type: Application for leave to appeal against sentence
Facts: The applicant man was sentenced with respect to 5 offences involving domestic violence against his female de facto partner (complainant), including one offence of seeking to dissuade her from giving truthful evidence. He was sentenced to an aggregate term of 6 years’ 6 months’ imprisonment, with a non-parole period of 4 years 8 months. The applicant and complainant had known each other since childhood, and their relationship commenced in 2016. At that stage, the complainant had 5 children living with her. The Department of Community Services took the children into care as both parties were using drugs. The relationship soon became dysfunctional with constant arguments and pushing and shoving by each party.
The applicant had intimidated the complainant on several occasions by making threats to kill. One incident involved the use of a syringe to intimidate, and another involved the complainant threatening to take her own life ([5]-[7]). The applicant also detained the complainant without her consent with an intention to obtain an advantage, namely psychological satisfaction, and caused actual bodily harm ([10]]-[11]). On another occasion, the applicant pushed the complainant, causing her to fell particularly frightened ([13]). Whilst the applicant was shopping, the complainant ran to a nearby police station, claiming to have been kept hostage by him and fearful for her life. He was later arrested, charged and refused bail. The police also gave an ADVO for the complainant’s protection, prohibiting the applicant from contacting her. While in custody, the applicant contacted the complainant and pressured her to give false evidence by making a statutory declaration which described her allegations as false and misleading ([17]). She did so, and the applicant was released on bail. He continued to commit further offences against the complainant. He was arrested again and charged with contravening the ADVO, assault occasioning actual bodily harm, common assault, intentionally choking a person with recklessness, and escaping police custody ([18]-[19]).
Grounds: The aggregate sentence was manifestly excessive
Held: The application for leave to appeal against the aggregate sentence was granted; the appeal was dismissed. The Appeal Court was unable to conclude that the sentencing judge failed to apply the relevant principles such that there was an error in the sentence imposed ([42]-[45]). The sentence was not manifestly excessive ([56]).
It was submitted inter alia that the sentence did not reflect the factual findings made by the judge as to his disadvantaged background and the genesis of his drug dependency ([2]).
The sentencing judge emphasised the need for the court to provide full protection to domestic violence victims, because such conduct involves a violation of trust and the use of physical strength to control and subordinate the other party to an intimate relationship ([28]). The sentencing judge found that the offence of influencing a witness involved overtones of domestic violence in that the applicant, although in custody, continued "to exert the power, influence and control that he had established over the complainant, as a result of her dependency upon him" ([34]).
The applicant’s subjective circumstances included that: his father was murdered, he grew up in a household which involved alcohol and drug use, and violence, and he began using drugs and alcohol himself at an early age ([40]). The sentencing judge noted that although his deprived upbringing and early onset of drug and alcohol abuse served to ameliorate his level of moral culpability, he nevertheless had a substantial level of moral culpability ([41]). The Appeal Court considered cases like R v Fernando and Bugmy v The Queen, which discussed the role of alcohol abuse and alcohol-fuelled violence in Aboriginal communities. Wood J in Fernando recognised that both of these problems are endemic in some Aboriginal communities, and considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised, it should be taken into account as a mitigating factor. In Munda, the Court addressed the tension between accepting a reduction in moral culpability due to the offender’s disadvantaged background, and the need to provide the victim of violence with "such protection and vindication as the criminal law can provide."
Offences: Sexual intercourse without consent; Contravene Apprehended Domestic Violence Order (‘ADVO’)
Proceedings: Application for leave to appeal against sentence
Grounds:
Facts: The male applicant and female victim had been in a relationship for six years and lived with the applicant’s parents (as they were only 18 and 20 years old respectively). At the time of the offending, the applicant was subject to an ADVO not to assault, molest, harass, threaten or otherwise interfere with his partner. The order did not prohibit contact or cohabitation with her. The applicant and victim were having consensual intercourse when the applicant started touching the victim’s bottom without her consent. He then inserted his finger into her anus with force, causing the victim to scream so loudly that the applicant’s mother called out to them. The applicant responded by pushing the victim away from him with both fists. The victim immediately complained to the applicant’s mother and asked her to notify the police.
The applicant plead guilty and was sentenced to four years and six months’ imprisonment with a non-parole period of three years, after the sentencing judge took into account an offence of common assault on a Form 1.
Judgment: The court granted leave and allowed the appeal, upholding Ground 3, and resentenced the applicant to three years and two months’ imprisonment with a non-parole period of one year and eight months. The court found that the sentencing judge was satisfied that a number of circumstances, both personal to the applicant (such as his compromised level of cognitive functioning) and features of the sentencing process itself, supported a finding of special circumstances [50]. Having made such a finding, the sentencing judge was required to determine the extent or the degree to which the statutory ratio should be reduced, both in the appointment of the aggregate sentence and after accumulation in the ultimate sentencing order [54]. Where a finding of special circumstances is not based solely on the fact of accumulation (as occurred in this case), the sentencing judge is required to carry that finding into effect on accumulation or give an explanation for why it was not done [61]. The court accepted the applicant’s contention that the judge’s discretion miscarried because the sentencing judge did not indicate that he intended that the effective non-parole period would not reflect the finding of special circumstances that had been given effect to in the appointment of the aggregate sentence [55].
While the court endorsed the sentencing judge’s finding that there was an attenuation of the applicant’s moral culpability for the sexual offending by reason of his compromised level of intellectual functioning, the court also found that the applicant was, for that reason, an inappropriate vehicle for general deterrence [67]. Furthermore, the court accepted that the applicant had been convicted of multiple charges of assault and offences of stalk and intimidate in a domestic context, both as a juvenile and as an adult, none of which attracted a sentence of imprisonment [28].
The court rejected Ground 1, finding that the sentencing judge made the correct assessment of the objective seriousness of the offence (in the low and middle range) [40], [41]. The court also rejected Ground 2, finding that no sentencing error was committed because the sentencing judge failed to make mention of the impact of the applicant’s intellectual or cognitive functioning on the question of either general or specific deterrence [48]. Based on its finding in regards to Ground 3, the court found it unnecessary to consider Ground 4.
Charges: Murder x 1; Contravention of an Apprehended Violence Order x 1.
Proceedings: Appeal against sentence.
Facts: The applicant sought leave on the following grounds:
The applicant and the deceased had been in an ‘on again/off again relationship’ characterised by domestic violence for three years [9]. He pleaded guilty and was sentenced to a non-parole period of 19 years 1 month with a balance of term of 6 years and 5 months. The applicant violently killed the deceased, stabbing her with a knife, when both were intoxicated, the applicant having come home an hour earlier than the deceased. At the time of the murder he was subject to a s 20(1)(b) Crimes Act 1914 (Cth) recognisance for 18 months, commencing 17 May 2017 and expiring 16 November 2018 and a s 9 Crimes (Sentencing Procedure) Act bond for 18 months, commencing 17 May 2017 and expiring 16 November 2018.
Decision and reasoning: The application for leave to appeal was granted in respect of grounds 3 and 6, the appeal allowed substituting a sentence of 24 years’ imprisonment with a non-parole period of 18 years.
Regarding the third ground, the court found that the absence of planning is a ‘consideration which goes to the objective seriousness of the offending and was wrongly taken into account by the sentencing judge when considering the applicant’s subjective case’ [108]. This ground of appeal was made out.
Hoeben CJ held that the sixth ground was made out as on the evidence available to the sentencing judge it was not possible to conclude that the injuries were inflicted at a time other than of the killing.
Charges: Grievous bodily harm with intent x 1; Detain with intent to obtain an advantage and immediately beforehand occasion actual bodily harm x 1; use offensive weapon with intent to commit an indictable offence x 1.
Proceedings: Appeal against sentence.
Facts: The applicant sought leave to appeal on grounds that the sentencing judge erred in his assessment of the objective seriousness of the counts, failed to accurately assess the applicant’s prospects of rehabilitation and likelihood of reoffending and the sentence imposed was manifestly excessive (12 years imprisonment, non-parole period 9 years). The accused ‘ambushed his ex-partner outside her house, beating her around the head and body with an improvised metal pole. He then forced the victim into her own car, which he proceeded to drive around to [surrounding suburbs], all the while making threats to kill himself, or to kill them both’. When the victim tried to escape the applicant pulled her back into the car by her hair. The victim was trapped in the car for four hours before the applicant crashed into a telephone pole.
Grounds of appeal:
Held:
Ground 1: The sentencing judge did not err in his assessment of the objective seriousness of Count 1 because the seriousness of the offence was increased by factors including planning, duration, brutality, infliction of pain, lack of provocation, and that it occurred in a context of a domestic relationship. In relation to Count 2, it was found that the magistrate did not err in his assessment as the offence occurred spontaneously.
Ground 2: The court found that it was open on the evidence for the judge to approach the issues relating to the establishment of mitigating factors in the way he did.
Ground 3: ‘Given the gravity of the applicant’s offending and the findings of the judge as to objective seriousness, with full recognition of the mitigating factors that stood in the applicant’s favour’, Hulme J was of the view that the sentence imposed was not manifestly excessive
Charges: The applicant was arraigned on an indictment containing 17 counts. Counts 1 to 11 charged various offences of violence and of detaining for advantage (including common assault); while counts 12 to 15 alleged that the applicant attempted to influence the complainant not to give evidence against him.
Case type: Application for leave to appeal against sentence.
Facts: Norton DCJ sentenced the accused to an aggregate term of imprisonment for 12 years with a non-parole period of 9 years. That sentence was partly accumulated upon an aggregate sentence for other offences imposed on him by Bennett DCJ. The applicant pleaded guilty to offences, such as common assault and attempting to influence the complainant not to give evidence made directly by him and through one of his sisters. He was found guilty of possession of an offensive weapon with intent, reckless wounding, two counts of assault occasioning actual bodily harm, and two counts of detaining for advantage.
The applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive. He sought a lesser non-parole period, and argued that there should be greater measure of concurrency in the indicative sentences ([14]). Although the application was outside the limitation period, there was no objection by the Crown that an extension of time should be granted ([6]).
Issue: Whether, in any event, the aggregate sentence is manifestly excessive.
Held: The Court granted leave to appeal, but would dismiss the appeal.
Personal circumstances:
The applicant was born in Lebanon, his father used to assault his mother under the influence of alcohol, he left school in year 8 and had very little employment since. He began to use drugs at the age of 14. At the time of his arrest, he was using ice on a daily basis ([11]). Notably, the applicant had an extensive criminal history, including drug offences, stalking and intimidating and contravening apprehended violence orders. The present offences were committed while he was on some kind of conditional liberty ([10]).
Non-parole period:
The Court noted that Norton DCJ needed to find special circumstances before departing from the 9 year non-parole period that was the statutory norm in accordance with section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was open her Honour to decline to make a finding of special circumstances ([16]-[18]).
Accumulation/concurrence:
The Crown noted that the total of the indicative sentences for the present offences was 29 years and 10 months, so that the aggregate sentence of 12 years would demonstrate a substantial measure of concurrence. The Court held that Norton DCJ’s determination in that respect, and her decision as to the measure of the accumulation of the aggregate sentence upon the sentence imposed by Bennett DCJ, demonstrated an exercise of discretion consistent with established principle ([23]).
Manifestly excessive:
A sentence will only be manifestly excessive if it is ‘unreasonable or plainly unjust’ ([25]). The Court stated that the offences constituted a pattern of domestic violence of considerable gravity, and noted the seriousness of domestic violence and the need for denunciatory and deterrent sentences. Their Honours found that Norton DCJ fairly described the applicant’s subjective case as ‘far from compelling’, and held that the aggregate sentence, including the non-parole period, were well within the legitimate bounds of the exercise of her discretion. Therefore, the sentence was not shown to be unreasonable or plainly unjust ([28]-[29]).
Charges: Nine counts, including assault occasioning actual bodily harm, sexual intercourse without consent and armed with intent to intimidate.
Case type: Application for leave to appeal.
Facts: The applicant and the complainant were married with three children. The applicant was tried by a jury on nine counts, which included various sex offences and assaults. The complainant alleged that the applicant had punched her in the face and mouth, forcibly held her down and raped her, forced anal intercourse on two instances, pushed her head against a laundry wall, threw her out of a door, and grabbed a knife and threatened physical harm. The jury found the applicant guilty on Counts 6, 7 and 8 and not guilty on Counts 1-5 and 9. The sentencing judge imposed an aggregate sentence of 10 years with a non-parole period of 7 years and 6 months ([92]).
Issues: The appellant sought leave to appeal against the conviction on the grounds that (1) there was a miscarriage of justice as the trial judge failed to discharge the jury following the admission of unfairly prejudicial evidence (ground 1); and (2) the verdict in respect of Count 6 was inconsistent with the not guilty verdicts on Counts 1-5 and 9, and could not otherwise be supported by the evidence at trial (ground 2). The appellant further sought leave to appeal against the sentence on the grounds that (1) there was an error by the sentencing judge in the assessment of the gravity of Count 6 (ground 3); and (2) the indicative sentences for Counts 6, 7 and 8 were excessive and that the level of accumulation was too great (ground 4).
Decision and reasoning: The Court granted leave to appeal against the conviction and sentence. Ground 1 related to an application to discharge the jury on the basis that the jury may have heard the word ‘pistol’. The trial judge refused to discharge the jury and directed them at [78]. The Court held that the trial judge was entitled to assume that the jury understood and complied with his direction. Their Honours were not satisfied that there was any miscarriage of justice ([85]). As to ground 2, the Court held that there was no inconsistency between the jury’s verdicts of not guilty and guilty ([69]). With respect to ground 3, their Honours held that the sentencing judge did not err in finding the offending in Count 6 to be ‘above the mid-range’, and that the indicative sentence for Count 6 was not excessive ([109]). In order to establish ground 4, the applicant was required to show that the sentence imposed was unreasonable or plainly unjust ([111]). The Court did not regard any of the indicative sentences as excessive, having regard to the sentencing judge’s findings and assessment of their seriousness. All three counts involved a grave breach of trust and were aggravated by having occurred in the complainant’s home. Count 7 was further aggravated by having been committed in the presence of their eldest child ([112]).
Charges: Stalking or intimidation with intent to cause fear of physical or mental harm x 9; Knowingly contravene an apprehended violence order x 1; Using a carriage service in a manner that was menacing, harassing or offensive x 4.
Appeal type: An application pursuant to s 49 of the Bail Act 2013 NSW for release on bail pending the hearing of an appeal to the District Court against convictions recorded in, and sentences imposed by, the Local Court.
Facts: The applicant applied for release on bail pending the hearing of an appeal to the District Court against convictions recorded in, and sentences imposed by, the Local Court. The applicant was charged with nine offences of stalking or intimidation with intent to cause fear of physical or mental harm, one charge of knowingly contravening an apprehended violence order and four charges of using a carriage service in a manner that was menacing, harassing or offensive.
Issues: Whether bail should be ordered.
Decision and reasoning: Bail was refused as the Court was not satisfied that cause was established by the applicant. At the time of sentencing, the applicant was 49 years old. He also had health difficulties and family responsibilities. However, the Court noted that the evidence led by the prosecution, his prior criminal record and the Presiding Magistrate’s comments suggested that he was a substantial menace to the community. Evidence of the difficulties that the applicant was experiencing in custody was inadequate ([27]). His Honour nevertheless accepted that the applicant’s family was experiencing hardship as a result of his absence, and that he was experiencing some problems in custody. To the extent that the matters relevant to unacceptable risks can inform whether a show cause was established, the Court noted that there was not any proper bail proposal put forward to the Court which would alleviate the risks to the various persons who experienced the applicant’s behaviour in previous years.
Charges: Grievous bodily harm by the explosion of a substance x 1.
Appeal type: Appeal against sentence.
Facts: The applicant and the victim were in a relationship. In 2013, the applicant was charged with common assault and an apprehended domestic violence order (‘ADVO’) was imposed upon him. In 2014, the applicant doused the victim with methylated spirits and set her alight.
District Judge Syme imposed a sentence of 18 years’ imprisonment with a non-parole period of 13 years and 3 months. The applicant was also sentenced to: 18 months’ imprisonment for the charge of contravening an apprehended domestic violence order; seven months’ imprisonment for breach of bond in relation to the charge of contravening an apprehended domestic violence order; and three months’ imprisonment for breach of bond in relation to the charge of common assault.
Issues: Appeal against sentence on 7 grounds.
Decision and Reasoning: The appeal was allowed.
Leeming JA and Bellew J agreed with Wilson J’s reasoning with respect to grounds 1-6. However, their Honours held that ground 7 (the sentence was manifestly excessive) was established. The applicant had participated in courses, had expressed remorse, had not used drugs in custody, had no other criminal records, and experienced language and cultural difficulties in custody owing to his Thai heritage. Whilst these factors did not detract from the objective seriousness of the offending, they suggested that there was an unarticulated error of principle on the part of the sentencing judge. Their Honours quashed the sentence and imposed a total sentence of 17 years imprisonment, with a non-parole period of 12 years.
Wilson J held that the appeal should be dismissed. Her Honour dismissed ground 4 (failure to properly assess the applicant’s evidence of remorse) on the basis that the applicant had not made reparation and blamed his drug use for the commission of the crime. Accordingly, Wilson J considered that the applicant’s expression of remorse was no more than ‘the often ritual incantation’, easily uttered, whether sincerely or otherwise ([116]).
Her Honour dismissed ground 6 (error by partly accumulating the sentence for the substantive offence on the related offence of contravene ADVO) on the basis that offences committed in breach of an ADVO and the offence of breaching an ADVO, involved separate and distinct criminality which warranted the imposition of distinct sentences for each offence ([131]). Wilson J said at [132]:
‘The criminality of breaching an ADVO rests in the complete disregard for an order of a court, conduct which has the practical effect of undermining the authority of the courts, and preventing the courts from extending effective protection to persons at risk of harm from another. The legislative intent of the scheme for apprehended domestic violence orders is to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship… Conduct which involves deliberate disobedience of a court order must be treated as serious, and should ordinarily be separately punished from any offence that occurs at the same time, always having regard to the requirements of the totality principle as set out in Pearce v The Queen (1989) 194 CLR 610.’
Her Honour disagreed with the majority with respect to appeal ground 7. The applicant's crime was extremely serious, and the consequences for the victim were devastating and long-term. The gravity of the crime warranted a stern sentence representing condign punishment. Accordingly, the sentence imposed was not manifestly excessive ([145]).
Charges: Assault occasioning actual bodily harm x 1
Appeal type: Appeal on the case stated; Appeal against acquittal
Facts: The respondent was convicted of assault occasioning actual bodily harm for assaulting the brother of his ex-partner (the complainant). The complainant’s evidence-in-chief was a recorded statement pursuant to s 289F(1) of the Criminal Procedure Act (NSW). The recording was not tendered in evidence. The transcript did not set out the content of the recorded statement.
On appeal, Colefax SC DCJ held that the recorded statement was required to be tendered as an exhibit. He set aside the respondent’s conviction.
Issues: Whether, in a proceeding for a ‘domestic violence offence’, a recorded statement by a complainant must be formally tendered in the Local Court for the contents of the recorded statement to be put into evidence.
Decision and Reasoning: The Court of Appeal (Payne JA, Hulme and Fagan JJ) quashed the orders made by the District Court, and remitted the matter to the District Court for re-hearing. The Court held that the playing of the recording in the Local Court was sufficient to render it evidence for the purpose of an appeal to the District Court.
The significance of the decision is that recorded statements given by complainants in domestic violence offences can be accepted as evidence as if the contents were given by the complainant in person, notwithstanding that the contents were not recorded on the Local Court transcript or admitted formally as an exhibit.
Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.
Charges: Recklessly causing grievous bodily harm x 1.
Case type Application for leave to appeal against sentence.
Facts: The applicant sought an extension of time for leave to appeal against a sentence of 2 years and 3 months imprisonment, with a non-parole period of 1 year and 4 months, for recklessly causing grievous bodily harm to which he pleaded guilty. A further charge of assault occasioning actual bodily harm was taken into account in the sentence.
Issue: The applicant sought to appeal against the sentence on the ground that it was manifestly excessive.
Held: The Court was not persuaded that the sentence imposed was unreasonable or plainly unjust, and consequently, refused leave to appeal against the sentence ([47]-[48]). Importantly, the Court acknowledged the special dynamics of domestic violence. Their Honours rejected the applicant’s submission that the sentencing judge used him as a scapegoat for the prevalence of domestic violence offences. ‘While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them’. In most cases, the conduct will involve an attack by a male who is in a position to inflict considerable harm to his victim because of his superior physical strength, and where there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths ([39]-[40]).
Charges: Assault x 1; Recklessly causing grievous bodily harm x 1; Perverting the course of justice x 1.
Appeal type: Appeal against sentence.
Facts: The applicant and complainant lived together and had two children. The assault charge occurred when the applicant choked the victim and chased her around the backyard with a wooden stick. The grievous bodily harm charge occurred when the applicant punched the victim, breaking her jaw. The offender then smashed walls with a tow bar and broke belongings in the house. The offender gave a false statement to police alleging that there was a home invasion ([8]).
The chronology of sentencing was ‘unusual’ ([7]). The present offences were committed in August 2013, but the complainant did not report them to the police until July 2014 because of emotional abuse from the applicant ([8]). In March 2014, the applicant committed further offences against the complainant and was sentenced for those offences. At the time of sentencing for the present offences, the applicant was still in custody for the March 2014 offences ([7]). The judge made a finding of special circumstances to recognise the applicant’s mental health issues. The sentencing judge stated that he would reduce the non-parole period so that the offender could be appropriately supervised when released into the community ([27]).
The applicant was sentenced to an aggregate sentence of 7 years’ imprisonment with a non-parole period of 5 years. The sentence was ordered to commence on 7 July 2015 ([5]), the date of expiry of the total sentence (non-parole period and the balance of the term) for the March 2014 offences ([7]).
Issues: The applicant argued that the sentencing judge erred in wholly accumulating the sentence on earlier sentences because the judge failed to take into account:
Decision and Reasoning: The first ground was upheld because Hamill J (Beazley P and Schmidt J agreeing) found that the sentence should have commenced on 7 April 2015, the expiry date of the non-parole period for the March 2014 offences. Hamill J dismissed the second and third grounds of appeal because there was no error in wholly accumulating the sentences or the judge’s application of the principle of totality ([23]-[24]).
Hamill J held that the total impact of the sentence negated the judge’s finding of special circumstances. This was because the when the entire period of imprisonment was taken into account, there was no decrease in the non-parole period ([28]).
Hamill J considered that he needed to exercise the sentencing discretion afresh, in accordance with Kentwell v The Queen [2014] HCA 37 ([30]). Hamill J imposed the same head sentence. His Honour commenced the sentence on 7 April 2015 and reduced the non-parole period to 4 years and 6 months to reflect the finding of special circumstances ([31]).
Charges: Recklessly cause grievous bodily harm x 1; Intending to procure a witness to give false evidence x 1.
Appeal type: Application for leave to appeal against conviction.
Facts: The appellant kicked his partner, the complainant, in the abdomen. The complainant was 12 weeks pregnant, and she miscarried the following morning ([10]). There were conflicting opinions given by experts as to the likelihood that the kick could have caused the miscarriage (see [17]-[44]).
The complainant gave statements to the police immediately after the incident indicating that the appellant had kicked her. In the weeks after the incident, the appellant made a number of phone calls to the complainant to encourage her to lie to the police. In a subsequent statement and in her evidence at trial, the complainant claimed that the appellant had not assaulted her ([8]).
The appellant pleaded guilty to the charge in relation to influencing a witness. The applicant was convicted of the recklessly cause grievous bodily harm charge and was sentenced to a head sentence of 5 years and 6 months with a non-parole period of 4 years.
Issues: Whether the conviction was unreasonable and unable to be supported by the evidence.
Decision and Reasoning: Leave to appeal was refused. The Court discussed the principles governing granting leave to appeal against conviction ([59]-[60]). The Court noted that the Crown had to prove that the kick was a significant cause of the miscarriage, not that that it was the sole cause ([60]-[61]). The Court concluded that it was open to the jury to accept the experts’ evidence, while conflicting, as supporting the conclusion that the kick caused the miscarriage ([89]).
Charges: Aggravated kidnapping x 1; Sexual intercourse without consent x 1; Destroying or damaging property x 4; Assault occasioning actual bodily harm x 1; Common assault x 1.
Appeal type: Appeal against sentence.
Facts: The applicant and victim had been in a relationship for approximately 5 months. The assault and destroying property charges were in relation to arguments where the applicant pulled out some of the victim’s hair, and smashed her phone, a vase and a television set ([13]-[15]). The aggravated kidnapping and sexual intercourse without consent charges occurred when the applicant pinned the victim onto a bed ([17]). He digitally penetrated her, became angry about the contents of her Facebook and text messages ([18]) and punched her approximately 20 to 30 times ([19]-[20]). This continued for about 5 hours ([21]). The applicant had a ‘disturbing’ criminal history including two similar domestic violence offences where the applicant detained the victim in her apartment ([28]-[31]). The applicant was on parole for those sentences at the time of this offence ([33]).
The applicant was sentenced to a head sentence of 7 years and 9 months imprisonment with a non-parole period of 4 years and 6 months ([10]).
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Acting Justice Hidden at [47] endorsed the trial judge’s characterisation of the manner in which the applicant detained the victim “by instilling fear and control over her… by his conduct, demeanour, words and assault” (at [39]).
It was significant that the offences were committed while the applicant was on parole. The domestic violence context of these offences was also important, with Hidden AJ quoting from Johnson J’s judgement in R v Hamid [2006] NSWCCA 302 at [86]:
In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.
Justice Garling added: ‘[in] R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41] of violent attacks in domestic settings this:
Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth, such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.
Charges: Assault x 1; Sexual assault x 2; Aggravated sexual assault x 2.
Appeal type: Appeal against conviction and sentence in relation to the two counts of aggravated sexual assault.
Facts: The appellant and complainant were in a relationship. In the presence of the complainant’s son, the appellant punched and bit the complainant, held her down while she was screaming and pushed his fingers into her vagina and anus ([15]).
The prosecution sought to adduce tendency evidence ([8]). CCTV footage showed the appellant dragging the complainant by her hair ([13]). The Crown relied upon the CCTV evidence to argue that the appellant had a tendency to be violent towards the complainant ([8]). The tendency evidence was admitted, and the appellant was found guilty of the two counts of aggravated sexual assault and was sentenced to a head sentence of 8 years and 9 months’ imprisonment with a non-parole period of 5 years and 9 months.
Issues: Whether the tendency evidence) should have been admitted; and whether the sentencing judge erred in determining the objective seriousness of the offences by not taking into account the fact that they were not committed for sexual gratification.
Decision and Reasoning: The appeal against conviction was dismissed and leave to appeal against sentence was refused. In relation to the appeal against conviction, the Court (Meagher JA, Rothman and Button JJ) stated that tendency evidence need not directly establish the elements of an offence charged, but should make one or more of the facts in issue significantly more likely ([20]). The Court at [19] quoted the majority of the High Court in Hughes v The Queen [2017] HCA 20 (14 June 2017) at [40]:
The test posed by s 97(1)(b) [of the Evidence Act 1995 (NSW)] is as stated in Ford [(2009) 201 A Crim R 451 at [125]]: ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. [emphasis in original]
Since the appellant’s case was that he was acting in self-defence, the Court held that the trial judge did not err in admitting the CCTV footage. The footage was sufficiently probative of the appellant’s propensity to act violently towards the complainant ([21]).
In relation to the appeal against sentence, the Court held that the trial judge did not err, Meagher JA stated that: ‘there is nothing to commend the proposition that engaging in sexual intercourse without consent to gratify oneself is in any sense more objectionable than doing so to humiliate and physically dominate another’ ([35]). Thus, the trial judge did not err in measuring the objective seriousness of the offence.
Charges: Indecent assault x 1; Common assault x 2; intentionally destroy property x 1; Contravene apprehended domestic violence order x 1; Do act with intent to influence witness x 1.
Appeal type: Appeal against sentence.
Facts: The applicant and complainant had been in a relationship and had three children ([10]). The common assault charges occurred when the applicant grabbed the complainant’s throat and forced her against the wall, onto the bed and onto the ground ([11]-[14], [22]-[24]). The indecent assault charge occurred when the applicant forced her onto the bed and placed his fingers in her vagina ([15]-[18]). The ‘do act with intent to influence witness’ charge occurred when the applicant asked the complainant over text message to drop the charges on at least 16 occasions ([33]). For example, one of the text messages said, ‘you will be left with the kids full time with no break so I couldn’t handily [sic] going away so that’s why I want you to drop the charges’ ([33]).
After a plea of guilty, the applicant received a head sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months ([3]). For the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 3 years and 2 months’ imprisonment ([4]).
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed. Adamson J, with whom Hoeben CJ at CL and Davies J agreed, held that the sentence was manifestly excessive.
In relation to the ‘do act with intent to influence witness’ charge, Adamson J at [38] quoted the sentencing judge:
[the charge] reveals a course of conduct that I regard as being particularly serious. It was repetitive and was clearly designed to emotionally manipulate and blackmail the complainant to discontinue the charges against him. It was also conduct that was in breach of his bail conditions as well as another court order, namely an interim ADVO. These are aggravating features.
Adamson J similarly commented at [46] on the importance of the charge (s 323(a) of the Crimes Act 1900 (NSW)) in the context of domestic violence offences:
It is within the common experience of courts that many charges of domestic violence cannot be prosecuted because the defendant manages to persuade the complainant, including by threatening violence, not to give evidence against him. Conduct of this nature against complainants is inimical to the interests of justice and the administration of justice. The perpetrators of domestic violence may, by committing offences under s 323(a) of the Crimes Act, effectively immunise themselves from prosecution.
However, his Honour considered that the text messages were not as serious compared to other possible offences under s 323(a) of the Crimes Act, such as bribing a witness or threatening violence (see [48]-[51]). Therefore, the sentence of 3 years and 2 months was manifestly excessive, and led to the head sentence being manifestly excessive ([51]).
The applicant was re-sentenced to an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years ([61]). On the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 1 year imprisonment (after applying the 20% reduction for his plea of guilty) ([59]).
Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.
Charges: Reckless wounding x 1; kidnapping x 1; assault occasioning actual bodily harm x 1; reckless grievous bodily harm x 1.
Case type Appeal against sentence.
Facts: The respondent was sentenced to 150 hours of community service for reckless wounding, and an aggregate sentence of 21 months imprisonment, which was suspended upon the offender entering into an 18 month good behaviour bond for assault occasioning actual bodily harm and recklessly causing grievous bodily harm. The assaults were committed against the respondent’s partner, with whom he had 3 children, and her father. The respondent, his partner and their children lived in a small town with a largely Aboriginal population.
The respondent struck his partner, causing her to fall to the ground (Count 1). Later that evening, he drove her around the neighbourhood doing burnouts in his vehicle (Count 2). The respondent also hit her in the face while she was still in the car, pulled her from the car and hit her again, knocking her to the ground (Count 3). He also punched his partner’s father a few times (Count 4).
Issue: The issue for the Court was whether to allow the appeal against the sentences.
Held: The Court held that the sentences imposed did not adequately reflect the community interest in general deterrence ([85]). Their Honours allowed the appeal against the sentences, and resentenced the respondent to an aggregate sentence comprising a non-parole period of 15 months, with a balance of term of 15 months, giving a sentence of 2 years and 6 months.
General deterrence is a matter of some importance in cases of domestic violence ([82]-[85]). Citing The Queen v Kilic [2016] HCA 48, the Court noted that ‘…current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. This statement has been understood by the Court as reflecting the current response of the criminal law in relation to domestic violence as requiring ‘rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community’ ([83]-[84], see also Cherry v R [2017] NSWCCA 150 at [78]).
Further, it did not appear on the evidence that the respondent expressed any remorse in relation to his attack on his de facto partner. In the absence of any finding of remorse or significant insight into the behaviour which led to the offending, specific deterrence should have been a key sentencing consideration ([82]). The violence to his partner occurred in a remote community which was not close to any police presence. Importantly, Count 3 took place in the presence of his partner’s father, who tried to stop the attack. The Court held that her father did not escalate the violence or take the law into his own hands. He simply warned that he was calling the police. This act ought to have caused the respondent to come to his senses and cease the violent behaviour, but instead he started to attack the victim’s father, causing grievous bodily harm. Therefore, in light of the statutory purposes of sentencing and the role of criminal law in redressing violence of this nature, the Court held that offences of such gravity cannot be dealt with as leniently as was done in this case ([107]-[108]).
Charges: Assault occasioning actual bodily harm x 3; Assault x 4; Breaking and entering x 1; Contravening domestic violence order x 4.
Appeal type: Application for leave to appeal against sentence.
Facts: The applicant and complainant had been in a relationship since 2013 ([12]). The applicant committed a series of assaults, including striking the complainant with his hands ([16]) and car keys ([13]), touching her with a hot pipe used to smoke ice ([27]), and choking her, once until she was nearly unconscious ([14], [20], [25]). The applicant also entered the home of the complainant’s friend, assaulted her and stole her mobile phone ([34]). The applicant pleaded guilty, and was sentenced to 6 years’ imprisonment with a non-parole period of 4 years ([6]).
Issues: The applicant appealed on three grounds: first, that the judge erred in finding that the offending was in the mid-range of objective seriousness; second, that the sentence accorded insufficient weight to the prospects of rehabilitation; and third, that the sentence was manifestly excessive ([9]).
Decision and Reasoning: The appeal was dismissed.
Justice Johnson briefly dismissed the first and second grounds of appeal ([60, [68]). On the third ground, His Honour discussed the importance of general and specific deterrence and denunciation in domestic violence cases (see [74]-[80]).
His Honour observed: “It is correct to characterise the Applicant’s course of conduct towards NR as one involving escalating violence. His act of choking NR in Count 4 had the potential for very grave consequences. Although not applicable to the Applicant in this case, it is noteworthy that in the second reading speech in support of the Crimes Amendment (Strangulation) Act 2014, which amended s.37 Crimes Act 1900, the Attorney General, Mr Hazzard, observed that strangulation “is prevalent in domestic violence incidents” (Hansard, Legislative Assembly, 7 May 2014)” [75].
He further noted: “In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54].” [79]
The applicant’s regular use of the drug Ice was a relevant factor but not a of itself a mitigating circumstance.[81]
This case concerned repeated offences of escalating violence, in breach of a domestic violence order ([80]). Having regard to these considerations, the sentence was not manifestly excessive ([83]).
Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.
Charges: Wounding with intent to cause grievous bodily harm x 1.
Case type Appeal against sentence.
Facts: The applicant pleaded guilty to one count of wound with intent to cause grievous bodily harm, and was sentenced to 6 years imprisonment with a non-parole period of 4 years. The applicant received a discount of 25% for his guilty plea.
The applicant and victim were husband and wife and had been married for 30 years. The witnesses to the incident were the applicant’s son and daughter-in-law. There had been some history of domestic violence. The applicant started accusing the victim of having an affair, and began to violently threaten and assault her with a knife. Their son intervened and drove his mother to the hospital where she was admitted for her injuries. The applicant said that he had argued with his wife and had accused her of having an affair. He also said that it was very shameful for a man if his wife had an affair in Chinese culture.
Issue: The issue for the Court was whether the sentence was manifestly excessive. The applicant submitted that allowing for the 25% discount for an early plea of guilty, the starting point for the sentence must have been 8 years, which in the circumstances was excessive. The applicant also argued that the 4 year non-parole period was above the majority of sentences imposed for this offence.
Held: The appeal against sentence was refused. The applicant’s circumstances at the time of the offending and his genuine belief that the victim may have been having an affair could not justify or ameliorate the seriousness of the offending. The catalyst of domestic violence is often a genuine, albeit irrational, belief of being wronged in some way by the victim. A resort to violence in such circumstances is unjustifiable, even if the offender’s belief is correct. The court regarded the sentencing judge’s remarks about the courts’ and the community’s concern at the level of domestic violence in the community as ‘timely and appropriate’ ([53]).
Further, the Court found that the notional starting point was not manifestly excessive as no evidence was put before the Court to establish that such a starting point was excessive in the circumstances. In considering whether a sentence is manifestly excessive, approaching the case from a hypothetical starting point diverts attention from the question as to whether the sentence actually imposed was unreasonable ([50]). However, where there is no dispute over whether the discount was excessive, justice demands that the focus be on the starting point ([4], see also TYN v R [2009] NSWCCA 146 [33]-[34]).
Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.
Charges: Assault x 2; aggravated detain for advantage x 1; incite another to commit an act of indecency x 1; maliciously inflict grievous bodily harm with intent to do grievous bodily harm x 1; use offensive weapon with intent to commit the indictable offence of assault occasioning actual bodily harm x 2; aggravated sexual intercourse without consent x 1; assault occasioning bodily harm x 1;
Case type Appeal against sentence.
Facts: The applicant pleaded guilty to 9 offences, relating to physical and sexual violence against his then girlfriend (the complainant), with whom he commenced an intimate domestic relationship in 2005. The sentencing judge imposed a total effective sentence of 18 years imprisonment, with a non-parole period of 12 years. His Honour had regard to the delay in prosecution and noted that the delay was largely due to the complainant’s decision not to proceed against the applicant at the time that the offences occurred.
Issue: The applicant appealed against the sentence on various grounds, including that the sentencing judge erred by failing to make an assessment of the objective seriousness of the offence of aggravated detention for advantage (Ground 1), and that he did not take into account the delay in prosecution and the prejudice suffered by the applicant on sentence (Ground 3).
Held: The Court granted leave to appeal against the sentence, but dismissed the appeal.
Objective seriousness:
The Court was not satisfied that Ground 1 was established on the evidence ([105]-[110]). When a sentencing judge has made it clear from his or her findings that they regard the offence as serious, little more is required ([105]). While he did not expressly determine the objective criminality of the offence of aggravated detain for advantage, he gave due consideration to the nature of the conduct and the circumstances in which it occurred ([109]). Further, the evidence of the applicant’s conduct made a conclusion of significant seriousness self-evident ([109]).
Delay:
Hoeben CJ at CL (with Price and Longergan JJ agreeing) noted that a common aspect of domestic violence related offences is that there may be a considerable delay between the occurrence of the offence and the complaint being made. However such delay should not be held against the victim. It is a direct product of the nature of the offending itself, and it would be incongruous if an offender could gain a benefit from such delay ([132]). Where there is unexplained considerable delay during which there has been steps taken towards rehabilitation, and/or a change of circumstances that increases the hardship brought about by a custodial sentence, it may be appropriate to impose a sentence that would otherwise be considered to fall below the range of an appropriate sentence ([133], see also Hughes v R [2013] NSWCCA 129 at [58]).
The Court noted the significant difference between delay that can be attributed to a police failure to charge and what occurred with the complainant. She was a victim of ongoing domestic violence which involved extremely controlling behaviour, and she chose not to proceed with those charges at the time. It appeared that she did not feel ready and able to address these matters for many years ([138]). The applicant did not make any attempt to rehabilitate in the lengthy period between offending and sentencing. It was open to the sentencing judge to take into account the lack of evidence that the applicant suffered any anxiety as a consequence of concern that he would be prosecuted in connection with any of these matters. His Honour’s further finding that there was no evidence that the applicant had contributed to any delay was ‘somewhat generous’ since the applicant could have brought these matters to the attention of the authorities at any time after they occurred ([140]).
Further, there was no evidence that the delay in the proceedings caused the applicant increased hardship. Even if there were, this ground of appeal was founded entirely upon the apportionment of weight to a particular sentencing factor in the exercise of the sentencing judge’s discretion. In those circumstances, it is well established that matters of weight will only rarely justify the intervention of the Court. Circumstances warranting the Court’s intervention have not been demonstrated in this case ([141]).
Charges: Wounding with intent to do grievous bodily harm x 1.
Appeal type: Appeal against sentence.
Facts: The victim was the appellant’s brother in law. The victim had hit the appellant’s sister, apparently accidentally, in a scuffle outside a nightclub. The appellant’s sister told her that the victim had hit her, but she did not tell her that it was an accident. The appellant followed the victim to a train station and stabbed him in the neck with a broken bottle ([7]).
The appellant pleaded guilty and was sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 2 months.
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The appellant argued that the trial judge failed to take sufficient account of her background as a victim of domestic violence by her stepfather growing up ([23]). It was also submitted that the appellant was subject to domestic violence by her husband, whose death she was still mourning at the time of the offending ([24]). Further, the trial judge made no mention of the fact that her daughter would be left without a parent if the appellant was sentenced to imprisonment ([26]).
The Court of Appeal (Bathurst CJ, R A Hulme and Beech-Jones JJ) emphasised that a trial judge cannot carefully consider their remarks while delivering an ex tempore judgement. If a trial judge does not mention a particular factor, that does not mean that they have not had regard to it ([31]). Even though the trial judge did not specifically mention the factors raised by the appellant, it was evident that the trial judge adopted a sympathetic approach to sentencing while having regard to the maximum sentence and current sentencing practices ([36]-[38]).
Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.
Charges: Numerous charges, including aggravated breaking etc into any house etc and committing serious indictable offence under section 112(2) of the Crimes Act 1900 (NSW).
Case type Appeal against conviction.
Facts: On 18 June 2014, the applicant entered 3 properties, and was arrested and charged with a number of offences alleging breaking and entering, and stealing property. The applicant pleaded guilty to one (Count 5) of 8 counts, and elected to be tried by judge alone. The trial judge acquitted the applicant on Counts 1, 2, 3 and 8, and convicted him on Count 7 (an offence of aggravated break, enter and commit serious indictable offence under section 112(2) of the Crimes Act 1900 (NSW)). The serious indictable offence was one of intimidation with intent to cause fear of physical or mental harm under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The applicant was sentenced to 22 months imprisonment with a non-parole period of 14 months with respect to Count 5. He was also sentenced to 4 years imprisonment with a non-parole period of 3 years with respect to Count 7. The first sentence was wholly concurrent with, and consumed within, the longer second sentence.
The applicant appealed on the ground that the trial judge erred in finding that the offence of intimidation under section 13 is not an offence of ‘specific intent’.
Issue: A key question for the Court was whether the offence of intimidation under section 13 is one of ‘specific intent’, and whether the applicant’s intoxication at the time of the offending can be taken into account in determining his guilt.
Held: The Court refused to grant leave to appeal with respect to the challenge to the findings of fact, and otherwise dismissed the appeal against the conviction. It also refused leave to appeal against the sentence imposed in the District Court.
The provisions of Part 11A dealing with intoxication are concerned with circumstances in which a particular state of mind is required and can be viewed as wrongful. A particular state of mind can involve a specific intent to achieve an identified consequence (as in section 13(1) or section 13(3)), matters of which the accused is aware and consequences which he or she knows to be likely ([39]). The question for the Court was whether the offence of intimidation is an offence of specific intent and whether the provisions under Part 11A of Crimes Act regarding intoxication apply to it.
Basten J found that the offence of intimidation under section 13(1) is one of specific intent, and thus subject to the provisions of Part 11A ([39]). Therefore an offender’s intoxication can be taken into account in determining criminal liability. His Honour reached this conclusion by considering the decisions of R v Grant (2002) 55 NSWLR 80 and Harkins v R [2015] NSWCCA 263 ([39]-[42]).
Charges: Specially aggravated break, enter and commit an indictable offence, namely reckless wounding x 1.
Appeal type: Appeal against sentence.
Facts: The applicant and complainant (both women) lived together with the victim’s two children and had been in an intimate relationship ([4]). The victim and applicant argued, which escalated into a physical confrontation. The victim barricaded herself in a bedroom and picked up her infant child. The applicant broke into the room and stabbed the victim in the back. The applicant continued to chase, hit and choke the victim, and the victim sustained stab wounds to her buttock, arms, wrist and neck ([5]-[8]). The applicant pleaded guilty and was sentenced to 6 years and 3 months’ imprisonment, with a non-parole period of 2 years and 9 months.
Issues: Whether the sentence is manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The Court of Appeal (Ward JA, Bellew J and Hidden AJ) had regard to the applicant’s subjective circumstances, such as the fact that she had experienced domestic violence and sexual abuse as a child, and had been diagnosed with anxiety, depression and borderline personality disorder ([10]-[12]). The Court of Appeal found that the trial judge had adequate regard to the subjective circumstances proffered by the applicant ([27]). The victim did not sustain any serious injuries ([16]).
The Court of Appeal remarked that the charge of break and enter was unusual in this case, given that the applicant broke an internal door. This fact made it impossible to find comparable cases ([22], [26]).
Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.
Charges: Initially charged with wound with intent to murder. He entered into a plea of guilty to a charge of wound with intent to cause grievous bodily harm, as well as one count of contravening an Apprehended Domestic Violence Order (ADVO).
Case type Appeal against decision.
Facts: The appellant pleaded guilty to a charge of wounding with intent to cause grievous bodily harm, as well as one count of contravening an ADVO. He was sentenced to 12 years and 6 months imprisonment, with a non-parole period of 9 years and 4 months. The sentencing judge made a number of observations, including a statement that the victim was a vulnerable person due to the culture of silence and ostracism of those who complain in relation to acts of violence in the Indigenous community. Her Honour also stated that the offence fell within the worst category of offences of its kind.
The appellant was in a domestic relationship with the victim at the time of the offending. There was a history of domestic violence in the relationship to the extent that an ADVO had been taken out against the appellant. He has a long and varied criminal history which included numerous violent offences against 13 separate victims. 3 of those victims were his domestic partners at the time of the offence, and one was his own son. 9 of those instances involved a weapon.
Issue: The appellant relied on the following grounds of appeal:
Held: The Court granted leave to appeal, but dismissed the appeal. It made remarks on the need to take special care when making findings of fact about vulnerable victims.
Vulnerability:
A question arose as to whether the sentencing judge was entitled to take into account the serious problem of under-reporting of domestic violence in Indigenous communities due to a culture of ‘silence and ostracism’, and aggravate the offence on that basis ([83]). Her Honour was entitled to note both the high rates of domestic violence, and the vulnerability of women and children in Indigenous communities, but she erred in finding the offence to be aggravated on account of the victim being classified ‘vulnerable’ due to this under-reporting problem ([85], [90]). ‘A Court may not aggravate an offence by taking judicial notice of the fact that some Aboriginal women might be less likely to complain of domestic violence because of a culture of silence and ostracism in their communities’ ([84], see also [1], [8]). No evidence was capable of establishing beyond reasonable doubt that the victim was a member of a particular class bearing those characteristics ([90]).
Further, the aggravating factor of vulnerability under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 is only engaged where the victim belongs to a class that is vulnerable because of a common characteristic ([8], [75]-[78]). An ultimate finding of vulnerability of the victim in the more general sense of being under an impaired ability to avoid physical conflict with the appellant or to defend herself in the event of conflict was open as an inference from primary facts ([5]).
Fagan J noted that it was a circumstance of the offence, relevant to determining an appropriate sentence, that because of the victim’s emotional and intimate attachment to the appellant, she was less likely than any other potential victim to avoid him or to put herself out of harm’s way ([7]). The individual vulnerability of the victim was an ‘inescapable conclusion from the evidence’ and had, in practical terms, the same consequence for assessment of the objective seriousness of the offence ([8]).
‘Worst category’:
The use of the phrase ‘worst category’ should be avoided by judges unless it is in the context of imposing the maximum penalty available for that offence ([105]). However, when taking into account the features of the offence, such as the seriousness of the victim’s injuries, the appellant’s earlier threat to the victim, the fact that the offence occurred without regard to the ADVO, the prolonged nature of the attack, the location of the offence (the victim’s home), and the appellant’s intoxication at the time of the offence, it was open to the sentencing judge to classify the objective seriousness of the offence as her Honour did ([106]-[114]). It is not necessary for the injuries to be of the ‘worst type’ for an offence to fall into the ‘worst case’ category. The nature of the offence can bring a case within that category ([107]).
Manifestly excessive:
The sentence imposed was not manifestly excessive. The appellant had a history of violent offending, which included offending during parole periods. The sentencing factors of specific deterrence and community protection meant that no shorter sentence could be warranted in law.
Charge/s: Manslaughter.
Appeal Type: Appeal against conviction.
Facts: The female appellant was in a relationship with the deceased, James Polkinghorne, and they had a child together. Evidence was led at trial that the deceased had physically and verbally abused the appellant throughout their relationship. She was unable to leave the relationship and saw seeking help from the police as impossible.
On the 13 May 2012, the appellant went to her parents’ place, against the deceased’s wishes. During the course of the day, there were 80 calls and SMS messages between the appellant and the deceased. These messages and calls were tendered as evidence at trial (recordings were available because the police had been tapping the deceased’s phone in light of his suspected involvement in a previous murder). These messages, while not phrased in terms of ‘killing’ the appellant, were extremely threatening and abusive. The deceased was affected by methylamphetamine.
That night, the deceased went to the home of the appellant’s parents. He was ‘going crazy, screaming and kicking items’. The appellant’s brother called 000. From here, there were some inconsistencies in the accounts of the appellant’s father, brother and the record of interview from the appellant produced after the killing. There was no contention that the appellant was punched and thrown around by the deceased. Both the appellant in her record of interview and her brother at trial said that the deceased yelled, “I’m going to fucking kill her’ and ‘I’ll get youse cunts’. The appellant’s father and brother started fighting with the deceased. The appellant retrieved a knife from inside and stabbed the deceased. After trial by a jury, she was found not guilty of murder but guilty of manslaughter and sentenced to 18 months imprisonment wholly suspended.
Issue/s: Whether it was open for the jury to conclude, to the criminal standard of proof, that the fatal stab wound inflicted by the appellant was not a reasonable response to the circumstances as she saw them?
Decision and Reasoning: The appeal was allowed (McCallum J and RS Hulme AJ in majority, Leeming JA in dissent). In the majority judgment, RS Hulme AJ first held that there was no rational reason for the jury to reject the substance of the evidence before them. This evidence included the terms and tone of what the deceased had said in the phone calls and messages that day. As per His Honour at [163]:
‘Certainly he had not in terms threatened to “kill” the Appellant. However he was powerful, had been violent in the past, had previously attacked the Appellant and on the day in question he was very angry, irrational, and had threatened to seriously hurt her and to come to where the Appellant was, thus providing some opportunity to carry out his threats’.
Further, notwithstanding the inconsistencies, much of the evidence suggested that the appellant and her brother had been in serious danger. Accordingly, RS Hulme AJ concluded that there was sufficient evidence that the appellant believed her act was necessary to defend herself or some other person (see [170]).
Second, His Honour held that the appellant’s response was reasonable. This was in circumstances where the police would have taken time to arrive, the appellant saw substantial disadvantages in calling the police, and it was not obvious that they would be able to overwhelm the deceased. Therefore, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant had not acted in defence of herself or her brother and father (see [171]-[173]). The appeal was allowed.
McCallum J largely agreed with RS Hulme AJ but provided some additional comments. Her Honour was also unable to accept that the jury could, acting reasonably, have been satisfied beyond reasonable doubt that the appellant’s conduct was not reasonable in the circumstances as she perceived them at the time of the stabbing (see [93]). Her Honour noted that Leeming JA in dissent had placed emphasis on the objective medical evidence and the evidence of eye witnesses at the confrontation. Acknowledging that it is important to have regard to the whole of the evidence, McCallum J continued:
‘Ultimately, however, the critical issue in this case is the reasonableness of inflicting mortal injury judging that issue by reference to an assessment of the circumstances in that instant as perceived by Ms Silva. While the evidence directly relating to the time of the stabbing is important, that assessment is also critically informed by a close analysis of the circumstances leading up to the fatal confrontation’ (see [94]).
McCallum J’s own assessment was that the appellant could only have seen the deceased’s attack on her that evening as ‘urgent, life-threatening and inescapable’ and that the events in the street could not be divorced from the ‘irrational, menacing rage exhibited by the deceased in his calls to Ms Silva in the period leading up to the time when he confronted her physically’ (see especially [95]-[109]). Her Honour concluded at [110]:
‘The circumstances described in the evidence in this case are the kind in which, more commonly, it is the woman who is killed. In my assessment of the record of the trial, the evidence was not capable of proving beyond reasonable doubt…that Ms Silva’s conduct in fatally stabbing the deceased was not reasonable in the circumstances as she perceived them at the time of the stabbing’.
In dissent, Leeming J was not persuaded that a deep penetrating stab into the deceased’s chest cavity, while he was struggling with two other men, was a reasonable response to the circumstances as the appellant saw them at 9.09pm and it was therefore open to the jury to reach this conclusion (see discussion at [83]). His Honour also noted that the jury had the advantage of seeing the evidence first hand and therefore declined to interfere with the verdict.
See also R v Silva [2015] NSWSC 148 (6 March 2015).
Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.
Charges: Grievous bodily harm x 2.
Case type Appeal against sentence.
Facts: The applicant was convicted of causing grievous bodily harm with intent to his partner (the victim), with whom he resided with their 2 children. He was intoxicated at the time of the offending and had a prior conviction for domestic violence towards the victim. He was sentenced to 5 years imprisonment with a non-parole period of 3 years.
Issue: The applicant sought leave to appeal on the grounds that the trial judge erred by having regard to his prior conviction in determining the objective seriousness of the offence, and that the sentence was manifestly excessive.
Held: The Court granted leave to appeal, but dismissed the appeal. The applicant’s offending was extremely serious, and constituted a ‘brutal and violent attack…on an innocent, and largely defenceless, victim’. The Court noted that the sentence imposed required a strong measure of general deterrence ([71]). The trial judge correctly took into account the fact that the offending occurred in the context of a domestic relationship ([72]). Denunciation of, and punishment for, ‘brutal’ and ‘alcohol-fuelled’ conduct in such circumstances is particularly apt ([73]).
Further, the trial judge was found not to have improperly used the applicant’s prior convictions as a factor which aggravated the seriousness of his offending. The domestic relationship between the applicant and victim was relevant to determining the objective seriousness of the offending ([45]). In order to make a complaint of manifest excessiveness, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. The submissions and evidence did not establish that the sentence imposed fell into such a category. In light of the circumstances, the sentence was one that might be regarded as modest ([75]).
Charge/s: Using etc explosive substance or corrosive fluid etc with intent to burn, maim, disfigure, disable or do grievous bodily harm, breach of an apprehended domestic violence order x 2.
Appeal Type: Appeal against sentence.
Facts: The applicant and the complainant had been married for 30 years but separated in August 2012. The complainant obtained an Apprehended Domestic Violence order (ADVO) against the applicant for 12 months. Notwithstanding this, the applicant breached the order on two occasions. On a subsequent occasion, the applicant doused the complainant in petrol and made a sustained attempt to light her on fire. He was stopped by three teenage boys. The applicant was sentenced to 7.5 years imprisonment for the offence of using an explosive substance or corrosive fluid with intent, with a non-parole period of four years.
Issue/s: One of the grounds of appeal was that the Court’s finding that the offence of using an explosive substance or corrosive fluid with intent was in the mid-range of seriousness failed to adequately account for the Court’s findings that:
Decision and Reasoning: This ground of appeal was dismissed. Garling J held (Gleeson JA and Johnson J agreeing) that the finding of the sentencing judge that this offence was in the mid-range was, if anything, unduly favourable to the applicant. This was a sustained attempt to set the complainant alight after the applicant had doused her in petrol. The only impediment to his success was the repeated intervention of the teenage men (See [96]-[100] and [3]).
Johnson J made some additional observations at [5]-[8]. His Honour cited with approval Spigelman CJ’s observations regarding apprehended domestic violence orders in John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101 at [20]:
‘The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law’.
His Honour further noted that the applicant was a repeat domestic violence offender. Accordingly, in sentencing for these offences, it was appropriate to have in mind the statement of the Court in R v Hamid [2006] NSWCCA 302 (20 September 2006) at [86]:
‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’.
Finally, Johnson J stated:
‘Where a court has made an apprehended domestic violence order to protect a person, and then further orders are made by way of conditional liberty for criminal offences arising from breaches of that order, the commission of another offence, in breach of that conditional liberty, will constitute significant aggravating circumstances: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. This is especially so where the offence against the protected person is of the very grave character of the s 47 offence in this case, with the offence being committed so soon after the applicant had been given the benefit of conditional liberty by order of the District Court’.
Note: Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced on 25 September 2018 imposing additional requirements in sentencing for domestic violence offences in NSW.
Charge/s: Rape x 15, indecent assault x 2.
Appeal Type: Appeal against conviction and Crown appeal against sentence.
Facts: The male appellant and the female complainant were in a relationship and had a two year old son at the time of the offences. At trial, it was alleged by the prosecution that the appellant was sexually predatory, violent and abusive in his relationship with the complainant and that he was a child molester with a sexual interest in children, including his two year old son. The complainant obtained an apprehended violence order against the applicant in 2009 but the relationship resumed in 2010 because she was concerned about the appellant having unsupervised access with the child. The rape and indecent assault offences occurred throughout one night in 2010, in the presence of their two year old son. The complainant, who was pregnant at the time, pleaded with the appellant to stop, but the appellant threatened to kill her and continued regardless. A number of the sexual acts were accompanied by humiliating and degrading conduct. The appellant was sentenced to seven years imprisonment, with a non-parole period of four years.
Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.
Decision and Reasoning: The appeal against conviction was dismissed but the Crown appeal against sentence was allowed. The overall sentence demonstrated that the sentencing judge either misapprehended the significance of the standard non-parole period or underestimated the objective seriousness of the offences. Here, the gross, repeated attacks on the complainant occurred over an extended period and were committed by the appellant who understood what he was doing despite his (limited) mental issues and possible intoxication. This, combined with deliberate additional humiliation and a callous indifference to the presence of their son, meant that the objective seriousness of the offence fell within the middle of the range and brought the standard non-parole period into sharp focus as a yardstick: Muldrock v The Queen (See [78]-[79]).
Even in light of the residual discretion of the Court to decline to interfere with the sentence, re-sentencing the appellant to nine years and six months imprisonment with a non-parole period of six years and six months was appropriate in the interests of justice. As per Adams J at [83]:
‘In considering the exercise of the residual discretion, it is appropriate in my view to bear in mind - in terms not usually used but implicit in sentencing for offences such as the present - the need to do justice to the victim, so appallingly dealt with, whose vindication is part of the function of the administration of criminal justice. This applies with particular force in cases of so-called domestic violence, where there seems to often be present in offenders a degree of self-justification as if, in some way, the victim (to use the vernacular) had it coming. I do not say that this was specifically the offender's state of mind in the present case but the facts strongly suggest that he thought he had some kind of right to do what he did. This aspect of domestic violence emphasises the importance, to my mind, of general deterrence, as well as the protection of the community, especially women, who are far too often the victims of this attitude. These considerations also underline the importance of denunciation’.
Charges: Assault occasioning bodily harm x 2, sexual assault x 5.
Appeal type: Application for leave to appeal against conviction and sentence.
Facts: The applicant and complainant lived together with their daughters and were in a relationship since 2003. In November 2010, the applicant physically assaulted the complainant in their home on two occasions, by kicking her in the legs, and slapping her face, causing her to fall (see [13]). The sexual assault charges were alleged to have occurred on one night, where the applicant had vaginal penile intercourse five times without her consent (see [13]).
At a voir dire during trial, the applicant’s trial counsel successfully objected to the admission of other evidence of previous penile vaginal penetration without consent (see [27]). That evidence was not admitted because the trial judge found that the ‘evidence is more in the nature of tendency evidence than contextual evidence’ (see [31]). However, evidence of the applicant’s controlling behaviour was admitted, and was relied upon at trial (see [12]).
In summing up, the trial judge gave directions as to the use of the evidence of controlling behaviour, stating that ‘the Crown relies upon this evidence only for one purpose… to put the complainant's allegations concerning the offences in November 2010 into a realistic context’ (see [42]). Her Honour also stated: ‘if that evidence was not there, you would be asking yourselves, well, why would the accused throw his weight around in this horrible manner with the complainant completely out of the blue, when they had been in an apparently normal relationship for the previous six years?’ (see [42]).
Issues: Two of the grounds of appeal concerned ‘context evidence’ (see [6], [44]):
Decision and Reasoning: Leave to appeal was refused on both the ‘context evidence’ grounds.
In relation to the first ground, Meagher JA referred to the use of context evidence as being admissible if it is used to ‘remove implausibility that might attach to a complainant’s account of what otherwise would be seen as isolated incidents’ (see [24]). His Honour referred to HML v The Queen [2008] HCA 16; 235 CLR 334 [6] to observe that ‘by doing so, it bears upon the assessment of the probability of the existence of facts directly in issue (Evidence Act 1995 (NSW), s 55) … Similar observations were made in Roach v The Queen [2011] HCA 12; 242 CLR 610 at [42] and BBH v The Queen [2012] HCA 9; 245 CLR 499 at [146]-[150].’
Meagher JA held that the evidence was properly admitted (see [45]). His Honour found that from the conduct of the trial, ‘it was apparent that the Crown was relying upon it only as showing that the relationship was an unhappy one from the complainant's perspective so as to make more plausible her evidence that she did not consent to having sexual intercourse with the applicant on the five occasions in question’ (see [33]). Furthermore, the fact that trial counsel had not objected to the evidence at the voir dire, despite having objected to the evidence of the other sexual assaults on the grounds that it might invite propensity reasoning, indicated that ‘the parties and the Court were conscious that evidence tendered to explain the context in which the alleged offences occurred might, depending on its content, be relied on or used for a tendency purpose’ (see [30]).
In relation to the second ground, regarding the directions given by the trial judge to the jury, Meagher JA held that the directions did not give rise to a real risk that the jury might employ propensity reasoning, and thus did not occasion a miscarriage of justice (see [49]). His Honour found that the direction regarding the applicant ‘throwing his weight around’ did verge on an invitation to the jury to employ propensity reasoning (see [47]). However, his Honour held that, assessed in context, the other directions made clear to the jury that the evidence of controlling behaviour was not being relied upon to suggest a ‘propensity of the applicant physically or sexually to impose his will on the complainant’ (see [48]).
The other issues concerned two failures of the trial judge. First, the trial judge failed to properly comply with s 55F(2)(b) of the Jury Act 1977 (NSW), and therefore two counts of sexual assault were quashed (see [8]-[11]). Second, the trial judge erred in taking into account as an aggravating factor in sentencing that the offences were committed in the complainant's home: EK v R [2010] NSWCCA 199; 79 NSWLR 740 at [79] (see [54]). Accordingly, the aggregate sentence of imprisonment was reduced from five years and six months with a non-parole period of two years and nine months to four years and eleven months with a non-parole period of two years and five and a half months.
Charge/s: Aggravated rape namely, immediately before sexual intercourse the appellant inflicted actual bodily harm.
Appeal Type: Appeal against sentence.
Facts: The male appellant was physically and verbally abusive towards the female complainant throughout their relationship. At the time of the offence, the relationship had ended and the appellant started yelling at the complainant that they should resume this relationship. He slapped the complainant in the face and proceeded to have sexual intercourse with her without her consent. The appellant was sentenced to 11 years imprisonment with a non-parole period of six years and six months for the principal offence of aggravated rape.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The manifest excess argument was dismissed. Counsel for the appellant submitted that the prior relationship between the appellant and the complainant was a factor that should have mitigated the sentence imposed. Bellew J noted that while the existence of a relationship between offender and victim can be a relevant consideration in determining the objective seriousness of sexual offending, each case must turn on its own facts. Here, the relationship was over and it therefore followed that the existence of a prior relationship was not a factor that warranted mitigation of sentence. In particular, this was not a case where the complainant had invited the appellant to engage in sexual intercourse with her or had indicated that she was prepared to do so (cf NM v R [2012] NSWCCA 215 and Norman v R [2012] NSWCCA 230.) His Honour continued at [131]-[132]:
‘What remains important is that even though the relationship had ended, the offending occurred in what might be loosely described as a domestic setting. In R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41]:
"As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell [2000] NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”
These principles were confirmed, after a review of the relevant authorities, by Johnson J (with whom Hunt AJA and Latham J agreed) in R v Hamid [2006] NSWCCA 302 at [65] and following. Leaving aside the question of general deterrence, the observations of Wood CJ at CL are directly apposite to the present case’.
Charge/s: Aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm).
Appeal Type: Crown appeal against sentence.
Facts: After being in a domestic relationship for nine years and having two children together, the respondent and the complainant separated due to domestic violence perpetrated by the respondent. The complainant was asleep when she was woken by the respondent breaking into the property. He was shouting and looking for the complainant’s new partner. This woke and scared the children. He started throttling the complainant and then punched her in the face. The complainant managed to call the police. In sentencing, the judge characterised the offending as being towards the lower end of the spectrum. This was in light of a number of factors including that the respondent was not a stranger to the complainant (and therefore the offence would have been less frightening than a home invasion by a stranger) and that the respondent’s primary motivation was to protect his children from danger from the complainant’s new partner. The respondent was sentenced to two years imprisonment, suspended conditional upon entering into a good behaviour bond.
Issue/s: Some of the grounds of appeal were –
Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to imprisonment with a non-parole period of 14 months and a balance term of 10 months. First, Price J held that the sentencing judge erred in characterising the objective seriousness of the offence as at the lower end. Home invasion offences do not become less serious by virtue of a prior domestic relationship between an offender and the victim. Rather, the objective gravity of the crime is to be assessed on the facts of the case and here it was not open to the sentencing judge to conclude that the offence would have been less frightening than a home invasion by a stranger (See [35]-[36]). Further, very little weight could be given to the respondent’s motivation to protect his children. His actions terrified the complainant and the children. The offending was aggravated by the fact that it was committed in the presence of the children (See [37]-[45]). Accordingly, the offending was towards the middle of the range for such offences (See [46]).
Second, notwithstanding the respondent’s subjective circumstances including his love for his children, his employment, and good prospects of rehabilitation, a suspended sentence was manifestly inadequate. As per Price J at [54]-[55]:
‘This was a serious offence of violence by the respondent. When women (and men) enter into a new domestic relationship, they are entitled to do so without the threat of violence from a former partner. This is particularly so when there are children of the prior relationship as acts of violence towards a parent particularly when committed in the children's presence have the potential to impact severely upon their well-being and future development.
This Court has emphasised the seriousness with which violent attacks in domestic settings must be treated: Hiron v R [2007] NSWCCA 336. Specific and general deterrence, denunciation of the offending conduct and the protection of the community are important factors in sentencing a domestic violence offender: R v Dunn [2004] NSWCCA 41; R v Edigarov [2001] NSWCCA 436; R v Hamid [2006] NSWCCA 302. In my view, the respondent's subjective circumstances could not justify the suspension of the sentence. A full-time sentence of imprisonment was called for’.
Charge/s: Assault occasioning actual bodily harm x 2, common assault.
Appeal Type: Appeal against sentence.
Facts: The female complainant and her young son moved from Tasmania to Victoria to live with the male applicant, her then de facto partner. At the time of offence, the complainant was vulnerable and isolated in that she was unemployed, cut off from friends and family, and suffered from a physical disability to her leg. Count 1 occurred when the applicant and complainant were arguing and the applicant dragged her off the bed, causing her to hit her jaw and bite her lip. Count 2 occurred when the applicant and complainant were again arguing and the applicant hit her to the side of her head near her eye. Count 3 occurred when they were arguing about an apprehended violence order (AVO) that had been made for the protection of the complainant and, as the complainant walked into her son’s room, the applicant grabbed her by the hair and throat. The applicant was sentenced to a total head sentence of two years and four months imprisonment with a non-parole period of four months.
Issue/s:
Decision and Reasoning: The appeal was dismissed. Error was demonstrated with ground one of the appeal. While there was evidence for Count 3 on which it might have been open to the sentencing judge to find that the child must have realised what was happening (even though he did not see the events), Her Honour did not make such a finding. Accordingly, the sentencing judge erred in taking into account that the offence was committed in the presence of the child (See [31]). Further, for Counts 1 and 2 there was no direct evidence of the presence of a child (See [32]). However, Button J declined to intervene with the sentence on appeal (See [54]-[55]).
The second ground of appeal was dismissed. At [48]-[49] Button J noted that:
‘The approach of this Court to men who assault vulnerable women is well established and need not be elaborated upon by me: see R v Edigarov [2001] NSWCCA 436, R v Dunn [2004] NSWCCA 41, and R v Hamid [2006] NSWCCA 302’.
‘If an offender sees fit repeatedly to visit violence upon a woman in breach of a bond and an apprehended violence order imposed months before with regard to the same behaviour and the same victim, he should expect to be imprisoned, and not for an insubstantial period’.
Charge/s: Indecent assault, rape.
Appeal Type: Crown appeal against sentence.
Facts: The female victim told the male respondent that she wanted to end their relationship. They argued, during which the respondent tried to make sexual advances towards the victim, including trying to kiss her and rubbing her vagina. Despite protestations from the victim, the respondent stayed over the night. The next morning the respondent forced himself on top of the victim, forced at least two fingers into her vagina, and then forced his penis into her vagina and had penile/vaginal intercourse with the victim without her consent. The respondent was sentenced to a good behaviour bond for twelve months for the indecent assault and two years imprisonment, wholly suspended, for the rape offence. In assessing the seriousness of the offending, the sentencing judge stated that the ‘prior sexual relationship [between the respondent and the victim] is an important mitigating factor’ and held the offending was at the bottom of the range (See [36]-[39]).
Issue/s: One of the grounds of appeal was that the sentencing judge erred in her assessment of the objective seriousness of each offence.
Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to three years imprisonment with a non-parole period of 18 months. The sentencing judge erred in her characterisation of the seriousness of the offending. In reaching this conclusion, Beech-Jones J stated at [55] that:
‘…cases confirm that the mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality involved. Needless to say, each case will depend upon facts, but one common circumstance in which a pre-existing relationship has been found to diminish the seriousness of the offence is where it suggests some prevarication or at least initial consent on the part of the victim. Thus, if sexual contact is initiated by the victim or initially consented to by the victim, then the ensuing offence may be considered less serious’: See NM v R [2012] NSWCCA 215; Bellchambers v R [2011] NSWCCA 131; R v Hendricks [2011] NSWCCA 203; Stewart v R [2012] NSWCCA 183.
Here, the pre-existing relationship had no relevance as the victim repeatedly expressed her lack of consent (See [55]). Following from this, it was clear that the sentencing judge’s assessment of the culpability of the respondent was clearly erroneous. This was a case involving the rape of a young woman which occurred in the context of threats of violence, as well as aggressive and humiliating language. It came after she was detained overnight. The offending would likely fall below the mid-range of offences of this character but was not ‘bottom of the range’ (See [56]-[58]).
Charge/s: Aggravated rape (recklessly inflicting actual bodily harm), rape.
Appeal Type: Appeal against sentence.
Facts: The sexual offences were committed in the context of a sexual relationship between the male applicant and the female complainant. The applicant and complainant had been drinking, taking drugs and engaging in consensual sexual relations. The applicant then asked the complainant to drink his urine and, after urging the uncertain complainant to try it, the applicant urinated into her mouth. The complainant, gagging and nearly vomiting, tried to pull away but the applicant forced her head back towards his penis (count 1 — rape). After further sexual activity, the complainant became increasingly distressed and uncomfortable. She attempted to leave but was pushed into the bathroom wall by the applicant. He penetrated her anus with his penis so forcefully that she smashed her head against the tiles and suffered a deep four-centimetre laceration to her forehead. He continued penetrating her and smashed her head against the wall again (count 2 — aggravated rape). The applicant was sentenced to a total effective sentence of nine years and six months with a non-parole period of seven years.
Issue/s: Some of the grounds of appeal were that –
Decision and Reasoning: The appeal was allowed. First, while the sentencing judge accepted the offence as ‘being in the mid range of seriousness’, His Honour later incorrectly referred to count 1 as ‘being at the top of the mid range’ and erroneously sentenced the applicant on this basis. Second, the standard non-parole period played a greater role in the sentencing judge’s decision than as a guidepost, to be taken into account with other factors on sentence, contrary to the principle articulated in Muldrock v The Queen.
In re-sentencing the applicant, Johnson J took into account the objective gravity of the applicant’s offences, his subjective circumstances and other aspects bearing upon the question of sentence, including the maximum penalty and the standard non-parole period for counts 1 and 2. Johnson J noted that the objective gravity of the applicant’s offences needed to be assessed in the context of the relationship between the applicant and the victim. It was true that the complainant was not sexually assaulted by a stranger, where, if she had been, a further element of fear and terror would have been expected. However, the fact that the victim knew the offender and trusted him provided her with ‘little comfort’ here (See [103]). In a case such as this, involving significant violence and infliction of injury, the context of this relationship offered no real assistance to the offender on sentence (See [107]).
Charge/s: Rape x 3.
Appeal Type: Appeal against conviction and appeal against sentence.
Facts: During the course of the complainant’s 13 year marriage to the appellant, the complainant and the appellant had anal intercourse five times but only twice with her consent. At trial, the Crown sought to tender evidence of non-sexual domestic violence (see [22]). They argued that the evidence was not being admitted as evidence indicating a propensity on the part of the appellant which rendered it more likely that he had committed the crimes with which he was charged (therefore ss 97 and 101 of the Evidence Act and the test in Pfennig v R [1995] HCA 7; 182 CLR 461 did not apply). The trial judge accepted this argument and ruled that evidence of non-sexual domestic violence could be admitted for the purpose of showing the relationship between the appellant and the complainant. The appellant was found guilty.
Issue/s: One of the grounds of appeal was that 'relationship' evidence should not have been admitted.
Decision and Reasoning: The appeal was dismissed. MacFarlane J noted the relevant law, stating that: ‘As pointed out in Roach v R [2011] HCA 12; 242 CLR 610, evidence which incidentally shows propensity but which is otherwise relevant will not be excluded provided that the jury is properly warned against its use as propensity evidence (see also BBH v R [2012] HCA 9 at [146] - [149])’.
Relationship evidence may be relevant if it assists in the evaluation of other evidence such as that of a complainant. His Honour continued at [26]: ‘In other words, relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context’.
However, the Courts have emphasised that it is necessary to consider carefully the basis upon which ‘relationship’ evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG v R [2010] NSWCCA 173 at [36] - [37]) (at [29]).
Here, MacFarlane J held that evidence of two isolated incidents of non-sexual domestic violence was irrelevant and should have been excluded. While the Crown submitted that the evidence was relevant to demonstrate ‘the nature of the relationship,’ MacFarlane J noted:
‘[C]onsistently with the approach taken by this Court in Qualtieri and DJV, it is insufficient to rely solely upon such a proposition. Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJV per McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed’.
The evidence was also not relevant to demonstrate why the alleged sexual assaults were not reported earlier, and nor could it be said that the evidence would have assisted the jury, in any permissible way, in evaluating the complainant’s evidence (see [32]-[34]).
Therefore, His Honour concluded at [35]-[36]:
‘[E]vidence of the two isolated incidents of non-sexual domestic violence was not necessary to place the sexual assaults within a meaningful context… [I]t is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning that the appellant was the type of man who might have sexual intercourse with a woman without her consent. Whilst the trial judge directed the jury not to reason in that way, there was unfairness to the appellant in the evidence being before the jury when it was not relevant on any basis’.
Despite this, on the facts, there was no substantial miscarriage of justice. The Crown case against the appellant was so overwhelming there was no significant possibility that a jury would have acquitted the appellant (See [38]).
Charge/s: Rape.
Appeal Type: Appeal against sentence.
Facts: The male applicant and female complainant had been in a somewhat disrupted and non-continuous relationship for some years. On the day of the offence, the complainant informed the applicant that their relationship was over and she was communicating with other men on Facebook. Jealous, the applicant smashed the complainant’s mobile phone. Later that evening, the intoxicated applicant lay on top of the complainant and, while she was struggling, placed his fingers into her vagina for about 30 seconds. The applicant was sentenced to five years and six months imprisonment, with a non-parole period of two years and eight months. In his remarks, the sentencing judge noted that:
‘I just want to make it clear, as I have to do unfortunately in cases of this nature, as far as I am concerned, cases of sexual assault have significant effects on the victim. There are two particular ways, they result in significant distrust as far as the victim is concerned in forming relationships, particularly with males if the assailant was a male. The other very broad area that is affected is the confidence or self-confidence of the victim is significantly damaged, they have concerns about their own self-worth, sometimes that is demonstrated by self-harm but there are other ways in which it is demonstrated. There is no satisfactory material yet available to indicate how long those matters may last, I always proceed on the basis that they will continue to be present for a very long time’ at [58].
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed. The first ground of appeal was dismissed. It would have been preferable for the sentencing judge not to state that he ‘always’ proceeded on the basis that the psychological effects of sexual assaults would last for a long time. This ground of appeal may have had some force if there had been evidence that the complainant had not suffered psychological injury. However, here, the victim impact statement contained clear evidence of the significant psychological injuries the complainant had suffered (See [62]-[64]).
The second ground of appeal was also dismissed. This was a serious example of an offence against the section. Button J noted at [69] that:
‘The matter can be sharply contrasted with a case where two persons are engaged in intimate contact by consent, and one of them fleetingly goes too far. The digital penetration in this case was not fleeting, and it was preceded by a physical assault upon the victim. Throughout the sexual offence the victim was making her lack of consent abundantly clear and struggling to put an end to the invasion of her body. Most importantly, His Honour found that the offence was an attempt to demonstrate dominance over a young woman who was in truth free to engage in Facebook contact, or any other kind of contact, with whomever she wished. An offence of sexual penetration that is motivated by a desire to dominate the victim, because he or she has failed to comply with the expectations of the offender, will very rarely be anything other than a serious offence’.
Further, while this was a stern sentence in light of the applicant’s subjective circumstances, it was not manifestly excessive (See [71]).
Charge/s: Rape x 4.
Appeal Type: Appeal against sentence.
Facts: The female complainant and the male applicant were in a relationship. Counts 1 and 2 took place after the complainant refused to have sex with the applicant but he had sexual intercourse with her regardless. The complainant reported these incidents to her general practitioner and the applicant was charged. Despite these charges, a sexual relationship continued between the applicant and the complainant. Counts 3 and 4 took place again after the complainant said she did not want to have sexual intercourse with the applicant. The applicant was sentenced to ten years imprisonment with a non-parole period of seven years.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The sentencing judge’s decision was replete with errors and the appeal was allowed. First, the sentencing judge failed to set a non-parole period for the first two counts (See [30]-[31]). Second, the sentencing judge erred by stating that the objective seriousness of the offences were ‘at least’ in the mid-range of gravity. The sentencing judge must make apparent and define the extent to which the offence is above the mid-range (See [32]-[36]). Third, the sentencing judge did not follow the approach set out in R v Pearce.
Finally, the sentence was manifestly excessive. The sentencing judge failed to fix individual sentences and review these provisional sentences to ensure they were appropriate for the offences at hand. Further, the sentencing judge erred in his characterisation of the objective seriousness of the offences. While the offences were serious, they occurred in the context of a domestic relationship ‘which involved considerable ambivalence on the part of the complainant’ (See [47]). The sentencing judge also failed to review the subjective circumstances of the applicant. The applicant was resentenced to seven years imprisonment with a non-parole period of five years.
Charge/s: Rape, assault.
Appeal Type: Appeal against conviction and appeal against sentence.
Facts: The male appellant had become violent and abusive towards the female complainant throughout their relationship. On the night of the offences, the complainant was breast feeding their child when the appellant started pulling up her night dress. The complainant said no. She then put her son down and tried to get something from under the bed. While she was kneeling, the appellant forced his penis into her anus. She screamed no but the appellant continued. The next day the appellant yelled at the complainant and physically assaulted her. The appellant was sentenced to three years and six months imprisonment with an aggregate balance of term of two years.
Issue/s: One of the grounds of appeal was that the trial judge erred in law by holding that he was ‘satisfied’ within the meaning of s 294B(6) of the Criminal Procedure Act 1986 that the complainant was “entitled” to give her evidence pursuant to the provisions of s 294B(3) of the Act.
Decision and Reasoning: The appeal was dismissed. The trial judge was correct in ruling that evidence could be given by alternative means. For complaints in sexual offence proceedings, it is generally not a sufficient reason to deny the use of CCTV or other technology merely because the jury might form the impression that the accused is/was violent. As per McClellan CJ at [29]:
‘The submission which the appellant made could of course be made in any case where there is an allegation of sexual intercourse without consent in a relationship of ongoing violence. There are many cases of this character. It was because of the personal trauma likely to be experienced by a complainant when giving evidence that s 294B was enacted. If the submission was accepted a substantial purpose of the legislative provision would be defeated. It may be that in an unusual case a submission in these terms may be accepted by a trial judge. However, the discretion is to be exercised in the individual circumstances of each case’.
Charge/s: Using a prohibited pistol without a licence or permit, detain with intent to obtain advantage occasioning actual bodily harm, attempted rape, indecent assault, breach of apprehended domestic violence order.
Appeal Type: Appeal against sentence.
Facts: The complainant was the applicant’s wife of over 40 years. Their relationship had deteriorated and an apprehended domestic violence order (ADVO) had been issued for the protection of the complainant. The applicant breached this order on a number of occasions and was charged. He was bailed on conditions which included that he not approach or contact the complainant. However, again, the applicant breached these conditions. He wrote to the complainant. Further, one night the applicant, who was intoxicated, entered the property of the complainant without her consent and engaged in serious misconduct throughout the night including physically assaulting the complainant, typing her up, attempting to rape her, pulling out a pistol and threatening the complainant with it, and sexual assaults.
Issue/s:
Decision and Reasoning: These grounds of appeal were dismissed but the appeal was allowed on other grounds. First, the sentencing judge was not obliged to find that the applicant’s judgment was impaired by his illness. To the extent that the depression may have contributed to the applicant’s poor judgement, its significance was diminished by the applicant’s voluntary consumption of large amounts of alcohol. Additionally, there was evidence of advance planning by the applicant. In these circumstances, specific and general deterrence were particularly important. This approach of the sentencing judge was amply endorsed by authority, particularly when offences have been committed in a domestic context: R v Hamid and when such offences occur in breach of extant restraining orders such as an ADVO: Hiron v The Queen(See [33]-[37]).
Second, the sentence could not be said to be manifestly excessive. The relevance of depression was considered in the above ground of appeal. Additionally, in terms of the relevance of a (broken down) domestic relationship, as per Grove J at [46]:
‘That a violent and pre planned attack occurred in what might be classified as a domestic setting is not a matter of mitigation. This Court has repeatedly stressed that it is a circumstance of significant seriousness: R v Edigarov; R v Dunn; and R v Burton’.
Here, the applicant detained and abused his wife verbally, physically and sexually. He did so in defiance of the conditions imposed by the ADVO and by bail. The production and use of the pistol, particularly where the applicant was ingesting significance quantities of alcohol, magnified the fear in the complainant (See [47]).
Charge/s: Detain for advantage and cause actual bodily harm, detain for advantage.
Appeal Type: Appeal against sentence.
Facts: The victim of the aggravated kidnapping was the male applicant’s domestic partner (AW) and the victim of the kidnapping offence was AW’s 15 year old daughter, KW. The relationship between the applicant and AW had been marked by incidents of physical violence. At the time of the offence, AW had obtained an apprehended domestic violence order (ADVO) against the applicant. The applicant physically assaulted and verbally abused AW and KW, including partially ripping AW’s tongue. There was a knock on the door during the incident and someone called out, ‘It’s the police’. The applicant told AW and KW not to say anything. AW and KW were unable to leave the house that night. The applicant was sentenced to seven years and six months imprisonment.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The sentence was not manifestly excessive in light of the objective seriousness of the offences and the absence of any subjective factors operating in the applicant’s favour (at [99]). The offences involved the protracted detention of AW and KW for the advantage of fending off police intervention with respect to the applicant’s violence against both victims. They were committed in the context of the applicant’s controlling and violent relationship with the victim, and he inflicted actual bodily harm of a serious (and bizarre) type on AW. Great fear was instilled in both victims (See [90]).
Significant aggravating factors existed on the facts namely, that the offences were committed whilst the Applicant was on bail for an offence of violence committed against AW and was subject to an apprehended domestic violence order intended to control his conduct towards his domestic partner. These were flagrant violations of both forms of conditional liberty intended to protect AW (See [91]). It was also a significant aggravating factor that the offender’s ‘recidivist conduct demonstrated a propensity to act violently towards his partners’ (See [92]).
Charge/s: Common assault x 3, assault occasioning actual bodily harm x 2, detain for advantage, influencing witness.
Appeal Type: Crown appeal against sentence.
Facts: The respondent was released on parole as part of a sentence of imprisonment for break, enter and steal. He subsequently commenced a relationship with the female complainant, who was eight years older than him, and moved into her home with her two children. The respondent committed a series of offences against the complainant involving violent assaults and threats, including an offence of influencing a witness by convincing the complainant to withdraw the charges against him. The total effective sentence included a non-parole period of one year and nine months with a balance of term of one year. The sentencing judge backdated sentences for Counts 1, 2 and 3 so that they operated concurrently with the balance of parole. Even at sentence, the victim provided a measure of support to the respondent.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. The sentences imposed failed to reflect the objective seriousness of the offences and were so inadequate as to be plainly unjust. Several aspects of the sentence imposed supported this conclusion. First, the approach of making the sentences concurrent meant that no effective sentence was imposed for three separate and serious offences of violence (See [92]-[93]). Second, the sentence for the detain for advantage offence did not reflect its objective seriousness, which was aggravated by the use of a knife. It was committed in the context of a ‘controlling and violent relationship’, extended over some hours, and involved actual threats of violence towards the victim (See [94]-[95]). It was additionally noted at [97] domestic violence offences involve the exercise of ‘power, dominance and control’ over the victim.
Third, the use of a bond for the offence of influencing a witness diluted significantly, and erroneously, the objective criminality in this case and a custodial sentence should have instead been imposed. Johnson J then made some observations regarding the role of victim’s attitude towards the respondent in sentencing, noting that it ought to play ‘no part on sentence’ at [102]. His Honour quoted (at [104]) the remarks of Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) which deal directly with this issue:
‘There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.’
Fourth, the sentencing judge’s remarks made no reference to specific deterrence, general deterrence nor the need for denunciation of the respondent’s conduct (See [106]-[107]). Finally, the final count of assault was a significant and unusual feature, committed after the respondent had been in custody for over two months. It was a further incident of control or dominance by the respondent over the victim, this time in a prison setting (See [108]-[110]).
In resentencing, the Court emphasised the importance of general and personal deterrence, denunciation and community protection, and noted that the offending took different forms and occurred at different times against the same victim and often in the presence of his children. The respondent had a substantial criminal history and showed little prospects for rehabilitation. The total effective sentenced was increased to four years and six months, with a non-parole period of three years (See [115]-[130]).
Charge/s: Aggravated break and enter with actual bodily harm, malicious damage to property.
Appeal Type: Appeal against sentence.
Facts: The male applicant and the female complainant had been in a domestic relationship for approximately five years and lived together with their three children. Following a domestic dispute, the complainant went with the three children to stay at a friend’s place. Over the next five days, the applicant made a number of threats to the complainant’s physical safety by telephone before he, intoxicated, broke into the friend’s place. He demanded to see his son before grabbing the complainant by her hair and striking her a number of times. The applicant had a long criminal history of offending in the domestic context and while those incidents did not involve actual violence, they evidenced a propensity to harassment in domestic situations and a failure to manage his anger. The complainant submitted a statutory declaration taking some responsibility for what she considered to be her part in provoking the applicant to act as he did. The applicant pleaded guilty and was sentenced to six years imprisonment, with a non-parole period of four years.
Issue/s: Whether the sentence was disproportionate to the gravity of the offending.
Decision and Reasoning: The appeal was allowed. Fullerton J found that the fact the offence was a domestic violence offence and that the victim was in a vulnerable position, did not elevate the offending to an ‘objectively high’ level. (See at [36]). The offending was not planned or premeditated, and the applicant did not arm himself with a weapon to inflict injury. As such, the offending was better characterised as in the middle of the range. In relation to the victim’s strong expression of support for the applicant, His Honour acknowledged the caution that must be exercised in attaching weight to such sentiments. In R v Glen [1994] NSWCCA 1 (19 December 1994) Simpson J said:
‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind [general evidence of forgiveness and desire that the assailant/ partner not be imprisoned] in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.
There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases…’
Notwithstanding this, Fullerton J was persuaded to give the victim’s support significant weight in this case. The victim’s view that the offending was ‘totally out of character’ was also supported in evidence from the applicant’s work supervisor. The sentence was reduced accordingly (See at [48]).
Charge/s: Grievous bodily harm with intent.
Appeal Type: Appeal against sentence.
Facts: The male Aboriginal applicant had been in a de facto relationship with the female Aboriginal victim of the assault. Their relationship had been volatile and the police had taken out an interim apprehended violence order (AVO) on behalf of the victim. Three weeks prior to the offence, the victim had ended the relationship and taken the applicant’s medication for schizophrenia with her in her handbag. The applicant began experiencing auditory hallucinations and attacked the victim. She suffered severe physical injuries including facial fractures, fractures to her nasal bones and fractures of the mandible.
At sentence, the applicant explained that he did not obtain replacement medicine because there was no doctor and he did not want to leave his sick father. Nevertheless, the sentencing judge found that the applicant’s state of mind was induced by his failure to take his medication, such that his psychological status was of his own default. The applicant was sentenced to a term of imprisonment consisting of a non-parole period of four years, with a balance of term of three years.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was allowed. First, the sentencing judge failed to give reasons for his finding that the applicant’s psychological status was his own fault. In particular, the sentencing judge failed to examine the circumstances which led to the applicant ceasing to take his medication. Such failure means that the sentencing judge could not arrived at such a conclusion beyond reasonable doubt (See [25]-[27]). Second, the sentencing judge erred in determining the objective seriousness of the offence by only having regard to the physical aspects of the assault and failing to consider the applicant’s psychological condition (See [38]-[40]). Third, the sentencing judge failed to take into account the applicant’s mental disorder as being relevant to the applicant’s moral culpability (See [46]-[49]). Relevant to domestic violence, an aggravating factor of this offending was that at the time of the offence, the applicant was subject to an AVO, taken out to protect the victim (at [8]).
Charge/s: Assault occasioning actual bodily harm x 4, false imprisonment, resist arrest x 2.
Appeal Type: Appeal against sentence.
Facts: The female victim of the assaults and false imprisonment was the applicant’s de facto partner, who was pregnant at the time. The applicant was sentenced to a total effective sentence of imprisonment comprising of a non-parole period of four years with a balance of term of two years.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed. Price J noted at [32] that:
‘Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see for example R v Edigarov; R v Dunn; and R v Hamid’.
Price J then quoted from Wood CJ in Edigarov at [41] where it was said that:
‘…such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’
Here, the sentence could not be said to be manifestly excessive or that the sentencing judge erred in his application of the totality principle. Each of the four offences of assault occasioning actual bodily harm involved separate episodes of violence towards the victim. After each occasion, the applicant had the opportunity to stop. The false imprisonment was serious and distressing to the victim. Some offences involved the use of a weapon and the offences involved gratuitous cruelty. The offences were committed while the applicant was on conditional liberty. The offender abused a position of trust, as the partner of the victim and the father of their children. The victim was vulnerable in that she was a pregnant female of much smaller build than the applicant (See [34]-[39]).
Charge/s: Grievous bodily harm with intent.
Appeal Type: Appeal against conviction and appeal against sentence.
Facts: The male applicant and the female victim had been married for some years before they divorced in mid-2003. The victim then commenced a relationship with another man and an apprehended domestic violence order was obtained protecting both the victim and her new partner. One evening, the victim was at home alone speaking on the telephone when the line went dead. The applicant then broke into the house and beat her with a piece of exhaust pipe and a shortened firearm. The applicant was sentenced to 12 years imprisonment, with a non-parole period of 8 years. This sentence was partially accumulated upon an earlier imposed sentence for grievous bodily harm with intent against the victim’s new partner. Accordingly, the effective overall sentence for both offences was 14 years imprisonment, with a non-parole period of 10 years.
Issue/s: One of the grounds of appeal was that the sentencing judge erred in his description that the offence ‘must be near the top of the range of seriousness’.
Decision and Reasoning: The appeal was dismissed. Adams J stated at [33]:
‘It was once thought in some circles that domestic violence was somehow less serious than criminal violence inflicted in other circumstances. I do not agree. In many cases of domestic violence a distinguishing characteristic is the notion of the offender that he (and it is almost invariably a male) is entitled to act as he did pursuant to some perverted view of the rights of a male over a female with whom he is or was intimately connected. It is this characteristic of self-justification which requires particular emphasis to be given, in cases of this kind, to the elements of general and personal deterrence. In this case, the appellant had already been arrested for another extremely vicious attack on [his ex-wife’s new partner] for motives which were plainly related to those for which he attacked his ex-wife. The notion that this was some kind of temporary aberration is, I think, disproved by this concatenation of events. There was no a sudden loss of control arising out of circumstances beyond his capacity to deal with. It was a cold, calculating and brutal attack upon a helpless woman at night in her own home’.
Here, the characterisation of the offence by the sentencing judge as ‘near the top of the range of seriousness’ related not to the actual physical injuries or to the overall seriousness of the offence but to the circumstances in which the injuries were inflicted. This characterisation was correct (See [34]).
Charge/s: Attempted wounding with intent to cause grievous bodily harm.
Appeal Type: Appeal against sentence.
Facts: The offence arose out of the breakdown of the fifteen year marriage between the applicant and the victim. The victim told the applicant that she was seeing another man and that their marriage was over. Some days later, the applicant beat the victim and attacked her with a 32 cm long kitchen knife. The applicant was sentenced to a head sentence of three years with a non-parole period of eighteen months.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The sentencing judge correctly characterised the objective criminality of the offending as very serious. The sentencing judge emphasised, as many on the bench had done so previously, that however sad and distressing a matrimonial breakdown might be, violence of any kind is not to be accepted as a more or less natural incident of such a breakdown (See [7]). The sentencing judge further gave appropriate weight to the relevant subjective matters (See [8]-[9]).
Charge/s: Assault x 2, assault occasioning actual bodily harm x 5, detaining without consent and with intent to obtain an advantage (to avoid detection for assaulting her), malicious wounding.
Appeal Type: Crown appeal against sentence.
Facts: The total effective sentence included a non-parole period of two years and six months, with the balance of the term lasting two years. The offending involved prolonged and serious violence committed against three women with whom the respondent was either married or in a relationship over an eight year period.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. Johnson J at [65] - [88] provided a very useful summary of the relevant principles, particularly of relevant Court of Criminal Appeal authority. This authority has placed great emphasis on general deterrence, due to the prevalence of domestic violence, as well as the vulnerability of victims and breaches of trust involved. Specific deterrence and denunciation is also important.
Johnson J also quoted Wood CJ in R v Edigarov [2001] NSWCCA 436 who stated –
‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell(2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’
Her Honour went on at [77] –
‘These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pp 6-7.
Her Honour then commented specifically on the relevant considerations when sentencing — ‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’ at [86].
‘This is not to say that promotion of rehabilitation of the offender is not an important factor. It remains necessary to provide individualised justice in the circumstances of the particular sentencing decision. Nevertheless, the factors to which reference has been made above assume particular significance in the case of a domestic violence offender who has committed a series of offences over an extended period of time against different victims’ at [88].
While the respondent did have a mental illness, Her Honour found that it was not such as to reduce his moral culpability, or reduce the need for general deterrence, as he was aware of the gravity of the offending. In applying these principles to the facts, Johnson J found that the sentences imposed at trial were manifestly inadequate and did not reflect the ‘objective criminality’ that was involved. The respondent showed minimal remorse, was seeking to ‘justify his crimes’ and had a criminal record of assaults and breaches of apprehended domestic violence orders. The respondent was re-sentenced accordingly (See at [152]).
Charge/s: Rape, breach of an apprehended violence order.
Appeal Type: Appeal against sentence.
Facts: The applicant and the complainant had been married for 16 years and lived with their eight year old daughter. They had been arguing when the applicant pushed the complainant forcefully. She rang the police and obtained an apprehended violence order (AVO) restraining intimidating conduct and restraining the applicant from being at their premises under the influence of alcohol, liquor or drugs. The applicant arrived back at their premises and complained about the AVO. He then stripped naked. The complainant told the applicant that she was not willing to have sex with him and was not going to change her mind about the AVO. He then raped the complainant. The applicant pleaded guilty and was sentenced to 5 years imprisonment, with a non-parole period of two and a half years. A 10 percent reduction in sentence was made to take into account this guilty plea.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The Court held that the discount for the guilty plea was appropriate, was not ‘meagre’ and was actually quite significant. Further, the applicant contended that the trial judge erred by taking a ‘harsh view’ in finding that the applicant and the complainant continuing their relationship is an issue with regards to the applicant’s rehabilitation. The complainant maintained a ‘favourable’ view of the applicant and the relationship (See at [21]). Bryson JA held that the complainant’s ‘forgiving and optimistic attitude’ should not play a large part in the sentencing decision. The trial judge was correct to conclude that the fact that the offence was committed against his wife was an aggravating factor. As per the trial judge, at [24] ‘The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence’.
The trial judge’s view that the gravity of the offence was severe was correct. Other aggravating factors included his previous conviction for assaulting his wife, the fact that offence was committed after ongoing supervision and a good behaviour bond was completed, and it was in breach of an AVO. This justified a correspondingly high sentence.
Charge/s: Breaking and entering a dwelling armed with an offensive weapon, assault occasioning actual bodily harm, breach of an apprehended domestic violence order.
Appeal Type: Crown appeal against sentence.
Facts: The de facto relationship between the male respondent and the female complainant had ended in mid-2000. In 2001, the respondent was convicted of assault occasioning actual bodily harm and placed on a bond for two years. Six months later, the poorly disguised respondent crashed his car into the complainant’s car, which she was driving with her two children. The respondent then tried to force the complainant out of her car and punched her in the nose, eye and head. In 2002, the respondent broke into the complainant’s house and attacked her with a Stanley knife. The complainant’s new partner intervened. The respondent was sentenced to three years and nine months imprisonment with a non-parole period of one year and nine months.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. Adams J stated at [47]:
‘Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind’.
He found that the sentencing judge did not give adequate weight to the need for deterrence and denunciation. Further, the extent of injury committed by the offender is an important factor in assessing the appropriate measure of punishment and the sentence here did not adequately reflect the pain and suffering the respondent caused. Finally, the sentencing judge erred in imposing wholly concurrent sentences because there were two distinct and separate instances of violence against the complainant and her new partner. The respondent was re-sentenced to four years and six months imprisonment.
Charge/s: Manslaughter.
Appeal Type: Appeal against conviction and appeal against sentence.
Facts: The appellant was found guilty of the manslaughter of her daughter, who died of malnutrition at the age of 14 months. The appellant refused to take the child to the hospital, against the advice of medical practitioners and friends. In a record of interview, the appellant said that she did not take the deceased to the hospital because her husband believed that children should not be infused with fluids or have any artificial substances injected into their bodies. At trial, the appellant gave evidence that her husband was controlling, verbally abusive and violent, and she was afraid to contravene his wishes. Defence counsel also called evidence from a forensic psychiatrist, Dr Nielssen. Dr Nielssen did not find that the appellant suffered from any kind of psychiatric disorder but that her situation fitted ‘battered wife syndrome’. As a result of this, the appellant accepted the decisions made by her husband, despite having reservations about them (See [31]). The appellant was sentenced to five years imprisonment with a non-parole period of two years.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed. First, as per Durford J at [43], ‘although it is undoubtedly the duty of a trial judge in summing up to relate the different pieces of evidence to the different issues in the trial: R v Zorad (1990) 19 NSWLR 91 at 105, this was a "single issue" trial and that single issue was duress. The evidence of Dr Nielssen about the battered wife syndrome was relevant to both the subjective and objective tests and there was no need to divide it up in a way which had not been suggested by either counsel in their addresses: Osland v The Queen [1998] HCA 75 at [59]-[60]’.
Second, a trial judge is not required to read or summarise the whole of the relevant evidence to the jury which has already been heard from witnesses, but merely to present a balanced summary of the salient parts which is fair to both sides. The evidence of Dr Nielssen was sufficiently and fairly summarised by the trial judge. Some of the questions and answers not repeated in the summing-up were merely elaboration of general propositions of the doctor which had been summarised, and one answer in particular which it was claimed should not have been omitted had been substantially paraphrased by the appellant's trial counsel in his final address (See [47]-[48]).
Charge/s: Maliciously inflicting grievous bodily harm.
Appeal Type: Crown appeal against sentence.
Facts: The male respondent and the male victim were drinking partners and got into a fight. The victim suffered a skull fracture. The sentencing judge adjourned proceedings and granted bail to the respondent on certain conditions, under s 11 of the Crimes (Sentencing Procedure) Act
Issue/s: In light of the seriousness of the offence and because it was inevitable that a full-time custodial sentence had to be imposed, it was outside the exercise of His Honour’s discretion to make an order adjourning proceedings.
Decision and Reasoning: The appeal was allowed. This was not a case involving domestic violence but Howie J’s comments regarding the relevance of a victim’s attitude to sentence have been cited in subsequent domestic violence cases. Here, the sentencing judge was unduly influenced by the fact that the victim and the respondent were still friends. At [37] His Honour provided:
‘The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen [1994] NSWCCA 1 (19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim’.
Howie J also noted that a sentencing judge should only give very limited weight to statements made by an offender to a psychiatrist or psychologist reproduced in reports, including expressions of remorse (See [39]-[41]).
Note: Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced on 25 September 2018 imposing additional requirements in sentencing for domestic violence offences in NSW.
Charge/s: Grievous bodily harm with intent to murder.
Appeal Type: Appeal against sentence.
Facts: The applicant began to suspect that his wife, the victim, was having an affair (an allegation without basis). One morning, while the children were at school, the victim was lying in bed and was struck several times, mainly on the head, with a bottle wielded by the applicant. The applicant said to the victim that he wanted to kill her because she did not respect him. He then tied the victim up and gagged her whilst continuing to threaten to kill her and then himself. The victim was not released until her children returned home from school and the victim lost a lot of blood. The applicant was sentenced to nine years imprisonment with a non-parole period of five years. In imposing this sentence, the sentencing judge made reference to the former good character of the accused and stated:
‘We must all accept the fact that differences in marriages do occur and it is expected that people will try and resolve any differences without violence. However to go to the stage of wanting to end the marriage by killing someone is quite unacceptable of course and quite frightening to the wider community. There can be no mitigating factors in such an act with that intention. We do accept the realities of marriages breaking up and people separating but we can never accept or tolerate any person killing someone as the solution. And so it is difficult with reference to a person being a man of good character up until now. It is difficult to know what relevance that has where a person has considered the final solution’ at [16].
The fact is that at the start of the assault that morning the prisoner did state and evidence an intention to kill. Such an expression and intention must immediately negate any consideration of mitigating factors because of good character, then to extend the trauma and terror of the assault all day until the late afternoon takes the actions of the prisoner into a further level of callousness’ at [17].
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed. First, O’Keefe J noted that there is nothing wrong with a judge discussing the weight which should be given to the previous good character of an offender. While the sentencing judge’s remarks at [16] were unexceptional, the sentencing judge erred at [17] when he completely excluded the applicant’s previous good character as a mitigating factor and therefore did not take it into consideration in mitigation of the penalty (see [19]). However, the sentence imposed by the judge and the non-parole period were very lenient given the objective gravity of the offence and taking into account the subjective features of the applicant, and a lesser sentence would not have been appropriate in the circumstances. This ground of appeal was therefore dismissed.
Second, on the facts, it was arguable that the applicant showed contrition and further, the absence of an affirmative finding in relation to contrition by the sentencing judge was not to be regarded as a matter overlooked by His Honour (See [27]). Additionally, O’Keefe J commented on forgiveness of the victim at [28] and stated:
‘The fact that he expressed contrition to his wife and that she said that she forgave him did not detract from the duty of the judge to impose a proper sentence. Her views in relation to the contrition of the Applicant, as opposed to what he said to her, do not seem to have been tested. Furthermore, even the stated acceptance by the victim of her acceptance of her attacker's contrition does not bind the court, nor does it detract from the need to give proper weight to the principle of general deterrence, R v Kanj [2000] NSWCCA 408, a principle that is important in cases of domestic violence (R v Green [2001] NSWCCA 258; R v Glen [1994] [1994] NSWCCA 1). Furthermore, the fact that a victim may forgive her attacker is not determinative. Indeed, its weight in relation to general deterrence will be a variable depending on the offence and the circumstances. It is a matter for judgment by the sentencing judge’.
Charge/s: Common assault, assault police officer occasioning actual bodily harm, kidnapping.
Appeal Type: Crown appeal against sentence.
Facts: On 3 August 1999, the respondent assaulted his wife (the victim) in the presence of their three year old daughter by pushing her against a refrigerator, pursuing her into the bedroom and pushing her to the floor. After throwing and kicking items, he left the unit and the victim went to a friend’s unit for safety. The respondent arrived there an hour later and threatened to kill her if she did not return home. Police were called and the respondent assaulted these officers. The respondent was released on bail and became subject to an apprehended domestic violence order. On 7 October 2000, the respondent kidnapped the victim while she was walking along the street with her daughter. He drove her to his parents’ home and repeatedly punched and kicked her. The victim managed to escape and called the police. The sentencing judge imposed the following sentences:
In imposing the sentence for kidnapping, His Honour found that there were special circumstances in that all of the offences of the respondent were ‘by-products of (his) anger and frustration and disappointment at the failure of (his) marriage and at the imposition of the apprehended violence order against (him)’.
Issue/s: One of the grounds of appeal was that the sentencing judge failed to give sufficient weight to the objective seriousness of the combination of the offences involved.
Decision and Reasoning: The appeal was allowed. Wood CJ held that the sentence imposed failed to give sufficient weight to the objective seriousness of the offences and too much significance was attached to the emotional reaction of the respondent to being thwarted in the marriage, a circumstance that provided no excuse whatsoever for his behaviour (See [39], [52]). In relation to the assault of his wife, Wood CJ found that the offence involved the sustained use of physical violence causing fear in the presence of an equally terrified child. It could not be characterised as a momentary or uncharacteristic loss of self-control, as the aggression continued into the evening. Further, at [41]:
‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.
Additionally, the kidnapping offence involved sustained violence by the respondent who caused substantial injury to his wife and again threatened to kill her. It was again committed in the presence of their young daughter and caused significant fear. Further, the sentencing judge failed to reflect three aggravating factors in the sentence namely, this was not an isolated act of violence, and the offence was committed while the offender was on bail and while the offender was subject to an apprehended violence order in relation to the same victim (See [47]-[51]). In re-sentencing the respondent, the court took into account the principle of double jeopardy (See [55]-[65]).
Charge/s: Attempted murder.
Appeal Type: Appeal against sentence.
Facts: The applicant and the victim had been married for 21 years before the victim left the family home and obtained an apprehended violence order. On the day of the offence, the victim was arriving at the Family Court accompanied by their four year old son when the applicant approached her and produced a knife, approximately 30 cm in length with a serrated edge blade. The victim fled but was chased by the applicant and almost fatally stabbed in the arm, back and stomach. The applicant was sentenced to 16 years imprisonment, with a non-parole period of 12 years. A psychiatric report tendered from Dr Nielssen diagnosed the applicant as suffering from a major depressive illness and a personality disorder.
Issue/s: One of the grounds of appeal was that the sentencing judge erred in failing to accept the findings of Dr Nielssen and in concluding that there was no evidence which established a link between the major depressive illness the applicant was suffering and the commission of the offence (See [51]).
Decision and Reasoning: The appeal was allowed. In light of the opinion of Dr Nielssen and fresh evidence adduced, there was a link between the illness suffered by the applicant and the offence (See [58]). James J also noted that the sentencing judge’s conclusions regarding the severity of the attack (particularly in light of the apprehended violence order) were entirely open to him. The attack was very severe and showed a degree of viciousness. The offence was committed in breach of an apprehended domestic violence order and this was a significant aggravating factor (See [37]-[38]).
Charge/s: Person in authority having sexual intercourse with a person with intellectual disability x 2.
Appeal Type: Appeal against sentence.
Facts: The male complainant, who had an intellectual disability, lived in a group home where the male applicant worked as a team leader. They formed a sexual relationship. The complainant gave evidence at trial that the sexual contact commenced when he turned 18 and that they loved each other. The applicant was found guilty after a trial of two counts of a person in authority having sexual intercourse with a person who has an intellectual disability under Crimes Act 1900 (NSW) s 66F. The applicant was sentenced to a minimum term of three years imprisonment with an additional term of two years imprisonment.
Issue/s: The sentencing judge failed to adequately take into account the evidence of the nature of the relationship between the applicant and the complainant together with the lack of evidence of psychological or other injury suffered by the complainant and his borderline degree of intellectual disability.
Decision and Reasoning: The appeal was dismissed. Carruthers AJ held that even if one were to accept that there was a genuine mutual loving relationship on the facts (of which there was some doubt), this did not reduce the criminality of the applicant as assessed by the trial judge. His Honour noted that the legislature did not encumber s 66F(2) with qualifications and it was clearly intended to prohibit absolutely, persons with authority (as defined) having sexual intercourse with intellectually disabled persons over whom they have authority (See [32]). Deterrence looms large for offences under s 66F(2) as ‘it is the mark of a civilised society that those who are incapable fully of protecting their own interests, should be protected from exploitation by those in whom society vests the responsibility of caring for them. Carers who breach this trust must expect condign punishment’ (See [37]). The seriousness of the offence was explained by Carruthers AJ at [33]-[34]:
‘strong emotional relationships are quite capable of developing between carer and intellectually disabled person, whether they are of the same gender or not. It is essential, therefore, that persons in authority exercise the utmost care to avoid such situations developing, and immediately there are indications of such a situation arising, the obligation is on the person in authority to remove himself or herself from the relationship or, at the very least, immediately to seek expert counselling.
‘Neither of these courses was adopted in the subject case and, intolerably, the relationship developed into one of a continuing and prolonged violation of the provisions of s 66F(2). The applicant knew not only that he was in breach of his position of trust, but that he was in breach of the criminal law, and he was also aware that the complainant had previously been the victim of sexual exploitation and as a consequence a prior carer was serving a lengthy custodial sentence. The fact that the relationship may have developed, as the applicant contends, into a mutual loving relationship could fairly be described as an aggravating feature of the case rather than a mitigating factor’.
Charge/s: Malicious wounding with intent to cause grievous bodily harm.
Appeal Type: Appeal against sentence.
Facts: The victim was the applicant’s estranged wife. Despite living apart and having commenced Family Court proceedings, they continued to work together in a takeaway food business. One day at work, they were arguing and the applicant ‘snapped’. He repeatedly stabbed the victim with a scraper and a trowel before picking up a long bladed knife and lunging at the victim. Someone heard the victim’s screams and managed to intervene. The applicant was sentenced to three years imprisonment with a minimum term of two years and three months.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed by James J (Simpson J agreeing). First, the sentencing judge did not proceed on the basis that the applicant’s belief and feelings about his wife were irrelevant in the sentencing of the applicant. On the contrary, the sentencing judge appropriately took into account these feelings expressly when he noted that the attack by the applicant on his wife was not pre-meditated and that the applicant while subject to stress had ‘snapped’ and had ‘on the spur of the moment’ engaged in a ‘heated’ attack. His Honour was not required to take the applicant’s belief and feelings about his wife any further into account (10-11). Second, the sentencing judge was justified in adopting the position that he would not enter into a determination of the merits of the matrimonial disputes (i.e. who was right and who was wrong) and this was irrelevant to sentencing, except insofar as determining the attack was not pre-meditated (11-14).
Charge/s: Aggravated sexual intercourse without consent, detention against will with intent to carnally know the victim.
Appeal Type: Crown appeal against sentence.
Facts: The female victim and the male respondent had previously been in a consenting sexual relationship but at the time of the offence the relationship had ended and they were merely seeing each other as friends. The respondent asked the victim for another chance at the relationship but the victim refused. He then threatened the victim with a knife and tied her up. The respondent fondled the victim and had penile intercourse with her without her consent. The respondent was sentenced to three years imprisonment, to be served by way of periodic detention for the aggravated sexual intercourse without consent and deferred sentence for the detention offence on the condition that the respondent enter into a recognisance to be of good behaviour for a period of five years. In imposing this sentence, the judge found that these offences were ‘foreign’ to the respondent’s normal character, had their roots in compulsive gambling, and were an ‘aberration committed by a young man who loved a young girl’.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. Sully J held that while there was sufficient evidence to support a finding that the offences were ‘foreign’ to the respondent’s normal character, the offending did not have its roots in ‘compulsive gambling’ and nor could the objective seriousness of the offences be broken down as being no more than ‘an aberration committed by a young man who loved a young girl’. These were extremely serious offences which resulted from the breakdown of the relationship between respondent and the victim and the victim’s rejection of the respondent’s request to resume the relationship (See 8). As per Sully J at p. 9 that where a relationship breaks down:
‘ the woman who is involved in the relationship is entitled to feel that, whatever other consequences ensue, her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of those with which we are now called upon to deal’.
In sum, the sentences imposed were manifestly inadequate. They were wholly inadequate to denounce the violent rape, at knife point, of a defenceless young woman in what ought to have been the safety and security of her own home. They were wholly inadequate to properly denounce the victim’s violent and prolonged detention for that purpose. They were also wholly inadequate to deter both the respondent and other young men from similar behaviour. Further, very importantly, the sentences imposed were hopelessly inadequate to ensure that there is maintained public respect for and confidence in current standards of criminal justice (See 11). The respondent was resentenced to five years imprisonment for the sexual intercourse with consent offence with a minimum term of three years and three years imprisonment on the detention offence.
Charge/s: Kidnapping, rape.
Appeal Type: Appeal against sentence.
Facts: The male applicant and the female complainant lived in an ‘off and on’ de facto relationship over a period of five years and had two children together. Immediately prior to the offences, the relationship had broken down again. The applicant became jealous because he believed the complainant was seeing a new man. He then forced the complainant into his car, drove her to his premises, threatened to kill her family and this new man, and proceeded to have sexual intercourse with her without consent. He was sentenced to seven years imprisonment, with an effective minimum term of four years. The complainant wrote to the sentencing judge stating that she had resumed a relationship with the applicant, she did not want him to go to prison (particularly because of the trauma that would result to their children), and she had forgiven the applicant.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed. First, the sentencing judge did not err when he rejected the claim that these subjective circumstances had a relationship to the commission of these offences and therefore ought to have mitigated the sentence (See 472). Second, Hunt CJ dismissed the contention that the sentencing judge ought to have given greater weight to the wishes of the complainant. As at 472-473:
‘This Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Glen, Simpson J pointed out that, whilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
‘This Court has also said more than once that the hardship upon the family of an offender will not be relevant in mitigation unless it goes beyond that which inevitably results in any case of incarceration and unless it is sufficiently extreme as to demand that the judge draw back. That has not been established in this case. It may be ironic, as has been suggested, that the victim and her children are going to suffer the punishment imposed upon the offender, but the fact remains that the law requires such a punishment to be imposed’.
Charge/s: Sexual intercourse without consent.
Appeal Type: Appeal against conviction and appeal against sentence.
Facts: The male appellant and the female victim had been in an intermittent relationship for two years and had a daughter together. The appellant had sexual intercourse with the victim without her consent in the front yard of his premises. At the time of offence, he was upset about his possible denial of access to his daughter.
Issue/s:
Decision and Reasoning: As per Grove J (Loveday AJ and Simpson J agreeing) the appeal against conviction and the appeal against sentence was dismissed. First, counsel for the appellant at trial obtained adequate written instructions prior to the arraignment that the appellant wished to plead guilty. These evidenced that the appellant knew the consequences of pleading guilty (See 5-6). Second, the terms of the written instructions, the evidence of the solicitor and the lack of credibility attaching to the appellant’s assertion combine to made this ground of appeal untenable (See 7). Finally, none of the above matters were overlooked by the sentencing judge and no error was accordingly demonstrated. In particular, the sentencing judge made express reference to the attitude of the complainant, which cannot govern the duty of the court when proceeding to sentence (See 8).
After agreeing with the reasons of Grove J, Simpson J made further comments on the relevance of the victim’s attitude of the offences to the sentence which should be imposed. Her Honour provided:
‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been be) could attain the victim's forgiveness.
There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.
The second reason of principle for treating with extreme caution the evidence of the forgiveness of the victim in the circumstances of this case is that the legislature has, since 1982, made clear its intention that special considerations apply to offences of domestic violence’.
Offences: Common assault x 1; Assault occasioning bodily harm x1.
Proceedings: Application for bail
Issues: Whether to grant bail; Relevance of the COVID-19 pandemic
Facts: The female victim was married to the accused man and it is alleged that he believed she was conducting an affair with another man (his mother told him she exchanged telephone numbers with a real estate agent) at the time of the alleged offending. It is alleged that the accused became jealous and "punched the victim repeatedly to the face and body, before tackling her to the ground and continuing to punch her." [3] The accused then allegedly hit the victim in the head and face with a hair dryer. The victim had significant bruising and swelling as well as a laceration across the forehead and scratches to her neck.
The victim told police "she fell in the shower and hit her head on the step" [8] while the offender claimed to have not been home at the victim sustained the injuries and refused to give evidence. The offender pleaded not guilty to both charges.
Judgment: Bail granted subject to conditions. The judge noted that in some domestic violence cases, a victim’s refusal to provide evidence may be "a reason for hesitating before granting bail" due to the concern "that the psychology of the victim of domestic abuse is such that they do not want to implicate their intimate partner out of fear or out of love or loyalty. The release of the alleged perpetrator may heighten those emotions" [7].
The judge found that the applicant had a relatively minor criminal history and enjoyed significant family and community support. He accepted evidence demonstrating that the applicant and his father suffer from various illnesses, and that the applicant’s business was experiencing a significant downturn due to his incarceration and the COVID-19 pandemic. Justice Hamill acknowledged that the pandemic and its associated risks were "matters properly to be taken into account" when considering a release application under s 18 of the Bail Act [15]. "Without attempting to be exhaustive, the pandemic may be relevant to the following paragraphs within s 18(1):
Charges: Murder x 1
Proceedings: Sentencing
Facts: The accused was found to have killed his estranged wife in an unknown manner after she ended their relationship and rekindled a relationship with a man she had an affair with early in the marriage. The accused frequently monitored his estranged wife’s life.
Issues: Appropriate sentence
Decision and reasoning: The accused was sentenced to 24 years imprisonment with a fixed non-parole period of 18 years. At [67] Hulme J said: "Punishment, denunciation, and deterrence are particularly important aspects of the assessment of sentence in a case such as this. I endorse the following observations recently made by Wilson J: [in R v Keith Owen Goodbun [2018] NSWSC 1025 at [202]-[204]]
"[D]omestic violence is a profoundly serious problem in this community, extending, not infrequently, to the murder of a spouse or partner ...
Too often, these are crimes committed by men against women who have chosen to live a separate life – a decision the male partner is not prepared to accept ...
... The courts must ensure that those who commit offences like those now before this Court pay a heavy price for their crimes, to punish them, to denounce the crime, and to deter others. The victims of domestic violence must be protected insofar as the courts are able to afford them protection."
Charges: 1 x murder; 1 x breach of ADVO
Case type: Sentence
Facts: The victim was murdered by the offender, caused by multiple blows to her head. At the time of the murder, the offender and victim were living together in an intimate domestic relationship. The offender had a tendency to be violent towards his partners by using physical force to their ‘head region’ ([11]). He was subjected to an ADVO, which prohibited him from assaulting or intimidating the victim. Despite the ADVO, the offender continued to be violent towards the victim. The offender called 000, and performed CPR as instructed by the operator. It was argued that this demonstrated a lack of intention to kill ([52]).
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: In assessing the objective seriousness of the offence, the offender’s intention at the time of the offence was relevant ([50]). Although his Honour could not find that the offender intended to kill the victim beyond reasonable doubt, he accepted the Crown’s submission that he must have known that this was ‘a harder and more comprehensive attack’ ([57]-[58]). His Honour also rejected the submission that the attack was a ‘crime of passion’ without premeditation, as it was not an isolated incident, but rather another violent beating, ‘inflicted as part of a sickeningly repeated pattern of physical subjugation’ ([60]-[61]). The absence of specific planning was not a mitigating factor in this instance, given the long history of intentional and disfiguring attacks on the victim and threats to ‘cave her head in’ ([62]).
Lonergan J also took into account the fact that the offence was committed in the victim’s home where she was entitled to feel safe. It was also committed in breach of an ADVO – a matter of serious aggravation ([63]-[65]). The offending was ‘very serious’, given the number of individual injuries, the victim’s powerlessness, and the callousness of the manner in which her head injuries were inflicted ([66]-[67]). Specific deterrence, community protection and retribution were important sentencing factors, as the offender had a history of criminal offending and had inflicted beatings on the victim prior to her death ([68]-[71]). The offender’s subjective circumstances are also discussed at [72]-[92]. The offender continued to deny the offending and ‘victim blame’, showed no remorse for or recognition of what he did, and told lies about the incident on the night of the offending and in his police interview ([86]-[88]). Lonergan J sentenced the offender to 28 years’ imprisonment with a non-parole period of 21 years.
Charges: Murder x 1.
Case type: Conviction and sentence.
Facts: The offender and victim were in a ‘romantic’ relationship and lived together at the victim’s apartment. The victim found the offender to be possessive and controlling. The victim tried to end the relationship, but the offender threatened to commit suicide if she did. The offender eventually moved out of the victim’s apartment, but continued to contact her. On 7 October 2017, the offender went to the victim’s apartment. He punched her in the face, and then threw her body over the balcony railing. He did not call for help. The precise cause of death is not entirely clear. The offender had two prior convictions for common assault and contravention of an apprehended domestic violence order for which he was placed on bonds ([43]-[44]). The bond imposed on the offender for the assault was current at the time of the offending, and thus was breached ([45]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Wilson J convicted the offender of murder. Taking into account a further offence of assaulting and occasioning actual bodily harm to the victim, and his guilty plea, the offender was sentenced to imprisonment for 22 years and 6 months, with a non-parole period of 16 years and 10 months. Wilson J took into account the objective gravity of the crimes, the personal circumstances of the offender, and the relevant principles of sentencing.
The murder was found to be serious ([51]) and brutal ([57]). The victim was physically smaller than the offender, and was unable to sufficiently defend herself. An aggravating circumstance was that she was attacked in her own home – a place of peace and safety ([53]). The offender’s moral culpability was found to be high, as his conduct demonstrated a violent disregard for the victim’s right to autonomy, that is, to choose to end their relationship if she wishes ([59]). He acted from a profound sense of entitlement ([79]). Her Honour noted the ‘distressing frequency’ of the offender’s crime, and the significant role of general and specific deterrence in determining his sentence [79]-[84].
The offender’s background and the breach of his bond suggested that he had relatively poor prospects of rehabilitation ([85]-[86]). Further, the offender was a Korean national with limited English skills and no family locally. Although Wilson J took this into account when fixing the sentence, she was not persuaded that the offender’s circumstances were special or that the statutory ratio of the sentence should be varied ([87]-[88]).
Charges: Murder x 1.
Case type: Judge alone trial.
Facts: Mr Ahmed allegedly murdered his wife (the victim) by inflicting 14 stab wounds. He called 000, and told the operator that he had stabbed and killed his wife. He told police that he assaulted and threatened to kill her if she did not give him access to her phone, and that it was only after he read her recent text messages, which confirmed the continuation of an affair she had with Mr Khan, that he lost control and stabbed her. He also said that he did not intend to kill her. When Mr Ahmed killed the victim, he was suffering a mental illness, which the experts agreed was likely to have been an adjustment disorder, that being a form of depressive illness ([13]). He later offered to plead guilty to manslaughter, but this was not accepted by the Crown. At his trial, Mr Ahmed advanced a partial defence of substantial impairment under section 23A of the Crimes Act 1900 (NSW) which would, if established, reduce the conviction of murder to manslaughter ([1]-[5]).
Section 23A requires that Mr Ahmed establish, on the balance of probabilities, that at the time that he killed the victim:
Issues: The issue before the Court was whether the partial defence of substantial impairment could be established. There were also issues as to what should be made of Mr Ahmed’s various accounts and which expert’s opinion should be preferred.
Decision and reasoning: Mr Ahmed was convicted of murder and did not discharge his onus of establishing the partial defence of substantial impairment by abnormality of mind. In coming to this conclusion, Schmidt J considered the facts, as well as the issues about Mr Ahmed’s accounts and the experts’ competing opinions ([35]). His Honour noted that it was difficult to determine whether the stabbing was a result of Mr Ahmed’s ‘abnormality of mind’ or his deliberately acting on his feelings of humiliation and fury ([221]). This was explained by the diverging expert opinions ([222]).
Schmidt J agreed that Mr Ahmed suffered from an ‘abnormality of mind’ when he killed the victim ([25]), but held that this did not ‘substantially impair’ his capacity to control himself ([200]-[253]). He was satisfied that it had been established on the evidence, beyond reasonable doubt, that he deliberately acted on an intention, formed when he read the text messages, to kill the victim, instead of having an impaired capacity to control himself ([253]). Not only was Mr Ahmed well aware that the victim was intent on divorce, but he also suspected that it was the continuation of her relationship with Mr Khan which was driving her desire for a divorce. This led him to assault and threaten her in order to gain access to her phone, and then kill her when he read the text messages which confirmed his suspicions ([246]).
His Honour held that his sentence could not, in any event, be reduced to manslaughter, particularly in light of community standards. Mr Ahmed neither had a criminal record, nor any history of domestic violence, apart from one occasion in 2016 when he admitted to punching a wall in an argument. However, despite his prior good character, Mr Ahmed was found to have deliberately acted on his intention to kill his wife, evidenced by his deliberate delay in calling 000 until he was certain she had stopped breathing ([255]).
Charges: Murder x 1.
Case type: Application for trial by judge alone.
Facts: Mr Ahmed allegedly murdered his wife (the victim) by inflicting 14 stab wounds. He called 000, and told the operator that he had stabbed and killed his wife. He told police that he assaulted and threatened to kill her if she did not give him access to her phone, and that it was only after he read her recent text messages, which confirmed the continuation of an affair she had with Mr Khan, that he lost control and stabbed her. He also said that he did not intend to kill her. When Mr Ahmed killed the victim, he was suffering a mental illness, which the experts agreed was likely to have been an adjustment disorder, that being a form of depressive illness. He pleaded not guilty to murder, but later offered to plead guilty to manslaughter, which was not accepted by the Crown. At his trial, Mr Ahmed advanced a partial defence of substantial impairment under section 23A of the Crimes Act 1900 (NSW) which would, if established, reduce the conviction of murder to manslaughter.
Issue: A key issue was that a fair trial was unlikely before a jury because of the significant general and social media posts about the accused and the homicide. There was a risk of prejudice from the adverse media and social media commentary about his racial background and faith.
Held: Schmidt J dismissed the application for a trial by judge alone.
The killing attracted substantial social media coverage, with such coverage being shared on Facebook pages of media organisations and ‘professed anti-Islamic’ groups. Many Facebook users shared ‘negatively biased views against Mr Ahmed’ ([26]), and the majority of comments were either directly or indirectly racist ([27]). Some of this adverse coverage focused on his background as a Bangladeshi immigrant and presumed membership of the Muslim faith ([32]). However, as per the Court in Hughes v R [2015] NSWCCA 330, an offender who is subject to intense community interest may still be able to receive a fair trial ([33]). The Court in Hughes v R stated that the modern world is one of instant, largely unregulated communication of opinions, ranging from mild to extreme, which can be accessed and responded to by others. However, there is good reason to continue in the expectation that, notwithstanding advances in technology and what they permit, jurors will decide cases on the basis of evidence, the judge’s directions, and the submissions advanced at trial.
Schmidt J held that a jury would be required to be directed at trial to impartially approach the issue as to whether he has a partial defence, and to make its decision only on the evidence, the parties’ submissions and the judge’s directions, rather than on the basis of their own enquires on the internet ([35]). His Honour held that ‘there is no question that there is a risk, which exists at every trial, that a member of the jury will not adhere to such directions, but will access prejudicial material of the kind on which Mr Ahmed relies, to advance this application’ ([36]). Nevertheless, as observed in Hughes v R, it has been long settled that jurors will ‘approach their tasks conscientiously’. In Schmidt J’s view, the stereotypical opinions expressed on social media about Mr Ahmed would not necessarily deprive him of a fair trial before the jury, even though it may have to consider some distressing photographs of the victim’s injuries ([38]). The issues for determination in relation to the domestic violence killing had nothing to do with his racial background or religion, but on his mental state and whether that entitles him to a partial defence ([37]).
Note: Schmidt J refused Mr Ahmed’s application for a judge alone trial. However, only days before the trial was due to commence, a large volume of documents was served, which included internet searches by Mr Ahmed about punishing adulterous wives. The Crown consented to the offender being tried by a judge alone. Therefore, a trial by judge alone order was made under section 132(2) of the Criminal Procedure Act 1986 (NSW). See R v Ahmed (No 2) [2019] NSWSC 517 (8 May 2019).
Charges: Manslaughter x 1.
Case type: Sentencing.
Facts: The offender, with the help of her new fiancé, murdered her ex-husband after luring him to his townhouse, where she was lying in wait for him. When he returned home, he was struck and punched many times, resulting in a broken nose. There was also evidence that an electrical prod or Taser was used during the assault. He later died of asphyxia. The major perpetrator of the violence was found to be the offender due to the anger and hatred she had for the victim as he had custody of their two children. One of those children, their son, was present in the house at the time of the offence and witnessed many of the events leading to his father’s death ([4]-[11]).
Issues: The issue was the appropriate sentence to be imposed.
Decision and reasoning: The offender was sentenced to imprisonment for 9 years with a non-parole period of 5 years and 6 months. In Hamill J’s opinion, this was a serious example of manslaughter because of the planning and premeditation involved in the assault. Even though there was no intention to inflict grievous bodily harm, the fact that the intention was formed whilst the offender was in a rage adds to the gravity of the manslaughter. There were various aggravating features, the most serious being the fact that the offence was committed in the presence of a child ([26]). She exposed her son to the extreme brutality of the assault and killing of his father, which resulted in emotional and psychological damage. Another powerful aggravating feature was the fact that the offence was committed inside the victim’s home – a place where people are entitled to feel protected and safe ([27]). The psychiatric incapacity of the offender also played an important role in reducing her liability from murder to manslaughter, and was relevant to the subjective component of self-defence and to her defence of substantial impairment. The offender’s personal circumstances were considered. She was a victim of child sexual abuse, had a long-standing substance abuse disorder and a history of psychiatric problems ([36]). Although it was found that she tried to be a good mother, Hamill J was not satisfied that she was a person of good character due to her bad associations, erratic behaviour and chronic drug dependence ([38]). However, given her lack of significant prior offences and the efforts she made in custody, his Honour was satisfied that she had good prospects of rehabilitation and was unlikely to reoffend. She also made an early plea of guilty to manslaughter.
Charges: Murder x 1.
Proceeding type: Sentencing.
Facts: The offender and deceased married in Iran. The offender started a fire in his wife’s bedroom in the family home. She died in the fire. Their relationship prior to the fire had ‘deteriorated’ [5]. Davies J accepted that the offender became aware of the deceased’s intention to leave him. This was confirmed by the offender’s visit to the Department of Human services the day before the fire where he made a claim for a benefit, on the basis that he was separated. His Honour also accepted beyond reasonable doubt that the offender was responsible for the fire in the presence of their two young children.
Issues: Davies J determined the appropriate sentence for the offender.
Decision and reasoning: The offender was sentenced to imprisonment for a period of 36 years with a non-parole period of 27 years. His Honour remarked that ‘[t]he murder of any person is intolerable and unacceptable, but the circumstances of this murder can only be described as confronting, shocking and gruesome to a marked degree’ ([24]). The murder was aggravated by the fact that it was carried out in the presence of their two young children, in circumstances where the offender actively prevented one of their children from trying to save his mother, and at the deceased’s home where she was entitled to feel safe. It also involved gratuitous cruelty and planning and preparation (albeit minimal, [32]). However, his level of culpability was not so extreme so as to attract a life sentence. Whilst specific and general deterrence are important factors in sentencing for murder in a domestic setting (see Hiron v R [2007] NSWCCA 336), specific deterrence was not significant because of the offender’s low risk of reoffending. This was consolidated by the fact that the offender had no prior criminal record, the offence was committed against a person known to the offender (rather than the public at large) and his older age. His Honour concluded at [37] –
‘This was a very bad murder, but the limited planning, the absence of the need to give significant weight to community protection, and the fact that a lengthy sentence will meet the need for specific deterrence, mean that the community interest in retribution, punishment, community protection and deterrence can be met by other than the imposition of life sentence.’
Although his Honour noted that the offender had no prior convictions, he was not able to mitigate the enormity of the crime against the deceased ([46]). Further, his Honour found it difficult to see how the offender could be fully rehabilitated without acknowledging the shocking act against his wife and the impact that it continued to have on their children and the deceased’s family. Accordingly, his prospects of rehabilitation were only average.
Charges: Murder x 1.
Case type: Trial.
Facts: The accused and the victim were in a relationship, characterised by incidents of violence by both sides. They immigrated to Australia from Ireland and shared accommodation with different people over a period of time. The accused stabbed the victim in the neck, resulting in his death. This matter relates to the additional evidence that Johnson J demanded from the Crown in R v Cahill (No 2) [2018] NSWSC 1531. This evidence related to things said by the victim to other persons with respect to events concerning the accused ([2]). Firstly, the Crown sought to tender a statement by a man who claimed that the victim told him that the accused hit him when he was sleep ([3]). He also stated that the victim told him that the accused had sent him a text that she would kill him ([25]). Secondly, the Crown sought to tender evidence arising from another man’s statement that the victim told him that he was attacked by the accused with a screwdriver ([16]).
Issues: Whether certain evidence is admissible.
Decision and reasoning: The decision involved rulings made on admissibility of evidence (see [12], [14], [24] and [28]). With respect to the first statement, the Court held that the passage of time and the lack of precision as to the incident to which the statement related affected the question as to whether or not it ought to be admitted as evidence of truth of the fact ([10]). However, the Court held that this evidence will be admitted at the trial, but the jury will be directed that it cannot be used as evidence of the truth of the facts of the matters asserted in the representation ([11]-[12]). The Court did not allow the Crown to adduce the additional statement about the text message as there was no indication as to when it was sent. The absence of any time when it was said to have occurred significantly reduced the evidentiary use of the material ([25]-[28]). With respect to the second statement, the Court considered s 65 of the Evidence Act 1995 and admitted it as evidence of the truth of the fact ([21]-[24]).
Charges: Murder x 1.
Case type: Trial.
Facts: The accused and the victim were in a relationship, characterised by incidents of violence by both sides. They immigrated to Australia from Ireland and shared accommodation with different people over a period of time. The accused stabbed the victim in the neck, resulting in his death. The defence adduced evidence from various people, such as an ex-partner of the victim and the father of another ex-partner. Both provided supporting evidence of incidents of violence during the relationships ([92]-[93]). The Crown submitted that the material lacked significant probative value as it was expressed vaguely and was remote in time from the events in the trial ([94]). The Crown also sought to have admitted as relationship evidence the totality of the evidence sought to be tendered for tendency purposes together with additional evidence of the accused’s various roommates ([96]-[98]).
Issues: Whether certain evidence of the Crown and defence was able to be adduced.
Decision and reasoning: The judgment by Johnson J deals with a number of evidentiary issues, involving tendency and relationship evidence ([99]-[123]). With respect to the statements by an ex-partner and the father of another ex-partner, the events to which they referred were significantly remote in time from those relevant to the trial and did not involve the accused. Consequently, his Honour did not allow the accused to rely upon this evidence for tendency purposes ([114]-[119]). Further, Johnson J was satisfied that the evidence tendered by the Crown should be admitted as relationship evidence ([99]-[103]). At [120]-[122], Johnson J sought further submissions about particular areas of the tendered material. These areas related to the Crown’s intention to adduce evidence of things said by the victim to other persons with respect to events concerning the accused.
Charges: Murder x 1.
Case type: Applications to adduce evidence from former partner of accused and to give evidence via video link.
Facts: The defendant was on trial for murder of an associate. The prosecution sought to adduce evidence from the defendant’s former partner describing assaults he committed against her while he was on drugs ([5]). The prosecution sought to establish a tendency to ‘detain persons and to intimidate and physically assault them’ ([3]).
Issues: Whether the evidence should be admitted.
Decision and Reasoning: Most of the evidence was not admitted because it did not show that the accused had a tendency to detain persons ([8]). One paragraph of the evidence was admitted because it evidenced the defendant locking her in a room and making sure she couldn’t leave ([14]). While the evidence concerned uncharged acts of violence, the judge considered that there was little risk of prejudice given that the trial is a judge-alone trial ([14]).
The former partner applied to give evidence via videolink after evidence from psychologists stated that giving evidence would be an extremely stressful situation. The judge accepted that using the videolink facility would reduce her trauma. The defence’s ability to assess her credibility was not significantly compromised ([18]).
Charges: Negligent manslaughter x 1.
Case type: Sentencing.
Facts: The offender’s partner, JK, committed serious acts of physical and psychological violence against the defendant and her two daughters for years ([4]), including striking them with sticks, tying one of them (CN) to a bed and hitting her with wooden slats ([13]-19], [36]-[38]). The worst of the violence was directed towards CN, which eventually resulted in her death. By her plea of guilty, the offender acknowledged that her failure to remove CN from the violence and obtain medical treatment for her serious injuries was the cause of her death ([3], [25]). Expert evidence established that the offender suffered from ‘battered wife syndrome’ - a syndrome likely to exhibit symptoms of post-traumatic stress disorder and depression caused by repeated exposure to violence ([5], [40]-[41]).
Issues: The issue was the appropriate sentence to be imposed.
Decision and reasoning: Hamill J remarked that ‘[the] criminal law is a blunt tool in circumstances such as these’ ([8]). The offender’s psychological conditions substantially impacted the application of the principles of sentencing, the purpose of punishment and reduced the ultimate sentence. The impact was significant for various reasons. Firstly, there was a clear and direct link between the violence suffered by the offender and her criminal neglect of CN ([55]). Secondly, the weight afforded to general deterrence was greatly reduced ([56]-[57]). Thirdly, the offender’s rehabilitation through regular visits to psychologists and psychiatrists would be interrupted if a full-time custodial sentence was imposed ([58]). Fourthly, a custodial sentence would weigh more heavily on the offender than it would on a person who does not suffer from the severe depression, grief and post-traumatic stress disorder ([59]). Fifthly, the offender was unlikely to re-offend ([60]). The offending was aggravated by CN’s young age and fragility after her long-term exposure to abuse ([62]). Having considered all possible alternatives, including a fine, bond or community service order, Hamill J concluded that only a period of imprisonment was appropriate ([78]). His Honour sentenced the offender to four years’ imprisonment with a non-parole period of 18 months ([79]-[80]). Annexed to the judgement, at [82], is a useful summary of comparable cases. However, there are no cases in the annexure that had precisely the same features as this one.
Charges: Assault x 1.
Case type: Application
Facts: The Plaintiff was charged with assaulting his wife ([2]). The Plaintiff issued a number of subpoenas to the Commissioner of Police and a hospital, seeking material including all police records for the immediate proceeding, the victim, all attendances at their home, all records of complaints proceedings instigated by the Plaintiff against the police, copies of notebooks of certain officers, and copies of all internal police communications in relation to the proceedings ([3], [28]).
At a hearing on 5 April 2017 in a Local Court, the police objected to the subpoenas on the basis that they were too wide ([29]). The Plaintiff then issued two more subpoenas to prosecution witnesses, which were also objected to on the grounds of absence of legitimate forensic purpose and public interest immunity ([34]). At a hearing on 18 and 19 July 2017, the magistrate allowed access to some documents but refused access to others ([36]).
Issues: The Plaintiff appealed against the Magistrate’s decision on 5 April 2017 on 5 grounds outlined at [37]. The Plaintiff appealed against the Magistrate’s decision on 19 July 2017 on 8 grounds outlined at [51].
Decision and Reasoning: The appeal was dismissed because there was no error of law and no basis for a grant of leave for the Plaintiff to rely upon the grounds of appeal ([46], [81]).
Justice Johnson appeared to refer to the Plaintiff being self-represented at [80]:
I provided the Plaintiff with ample opportunity at the hearing on 2 and 10 November 2017 to advance arguments in support of his claim for relief. I have considered those arguments in this judgment, perhaps in greater detail than is called for by the limited statutory avenue of appeal which is available. One reason for taking this approach was to resolve what appeared to be a heavily litigated issue by the Plaintiff at the interlocutory level ahead of the summary hearing in the Local Court. It is appropriate that the way be cleared for the hearing and determination of the charge against him.
Charges: Murder
Case type: Sentence.
Facts: The defendant was convicted of the 1997 murder of his 18-year-old wife. The judge found that the defendant strangled his wife after she proposed to leave him and take the children with her ([50]). The defendant denied the allegations and attempted to cover up the murder, but later made admissions to an undercover police officer in 2013 ([23]).
Issues: Sentence to be imposed.
Decision and Reasoning: Justice Johnson had regard to sentences imposed for similar cases in 1997 ([88]-[93]) and imposed a head sentence of 22 years’ imprisonment with a non-parole period of 16 years and 6 months ([98)). At [50]-[51] Johnson J explained:
The Offender murdered his young wife in the course of a domestic dispute arising from her declaration that she proposed to leave him and take the children with her. Although the Offender and Jodie had lived together for about two years, they had only been married for three months at the time of her death. Jodie was a young mother who, despite her considerable life experience at that time, was barely an adult. The Offender was 26 years old at the time of the offence.
The fact that the marriage was breaking down (after only three months) does not assist the Offender. It has been observed that killings within a domestic situation occur very often when there has been a build-up of tension between the killer and victim over a period of years: R v Whitmore [1998] NSWCCA 75 at [16]. That is not the position in this case. Here, the Offender murdered his very young wife at a time of marital strain after just three months of marriage.
Justice Johnson also noted the lack of previous domestic violence, and the prevalence of choking in domestic violence:
The evidence does not suggest a prior history of domestic violence on the part of the Offender towards Jodie. That said, their relationship was not a particularly long one and his response to Jodie’s desire to leave was a savage and homicidal one.
The use of choking in the course of domestic violence is now well recognised as a gross form of control with a capacity (as occurred here) to cause death: Cherry v R [2017] NSWCCA 150 at [75].
Charges: Murder.
Case type: Application by the accused to sit outside the dock.
Facts: The accused was on trial for murder for stabbing the victim, who was her husband. It was undisputed that at the time of stabbing, she had been subjected to severe violence at the time of the offence, and for over a year prior to the stabbing (see R v Stephen (No. 3) [2018] NSWSC 168 (20 February 2018) ). The accused made an application to sit outside the dock, next to her legal team. The Crown supported the application ([1]-[2]).
Issues: Whether the judge should exercise his discretion to grant the request pursuant to s 34 Criminal Procedure Act 1986 (NSW).
Decision and Reasoning: The application was refused.
Justice Button weighed up the countervailing factors. Factors in favour of granting the application were that the accused had been on bail for many months, she was not a security risk, she suffers from post-traumatic stress disorder, and she argued that sitting in the dock will be prejudicial for the jury ([3]-[6], [9]). Factors weighing against granting the application were that the accused is not a child or a person suffering from a disability, that the dock is a traditional symbol of the gravity of the proceedings, that there is no inconvenience for the accused being in the dock, and she is charged with a very serious offence ([8], [10]-[14]).
Justice Button concluded that there was nothing exceptional about the matter to justify the request being granted. The next day, his Honour received further submissions with more detailed evidence about the accused’s mental health issues but declined to alter the ruling ([18]).
Charges: Possession of unauthorised firearm x 1; Intimidation x 1; Handling firearm while intoxicated x 1.
Case type: Bail application.
Facts: While under the influence of alcohol and cocaine, the defendant repeatedly called and texted the complainant, his ex-partner ([5]). He drove to her house with the gun in the passenger seat (of which she took photographs). He aimed the gun at her with his finger on the trigger. He ultimately returned to his vehicle ([3]). The defendant refused to co-operate with the police or disclose the location of the firearm ([5]). The defendant had been in custody for four months ([6]).
Issues: Whether bail should be granted. The application was opposed by police.
Decision and Reasoning: Judge Harrison refused bail. The decisive matter was that the complainant had not revealed the location of the firearm, so there was a real possibility that he would have unrestricted access to it if he was released. But for this matter, Harrison J would have granted bail with appropriate conditions.
Charges: Murder x 1.
Case type: Voir dire.
Facts: The accused was on trial for murdering his de facto partner. During the relationship, neither the victim nor the police had obtained an AVO against the accused, despite evidence of injuries caused by the accused ([3]). The Crown sought to adduce hearsay evidence of statements the victim had made to her doctor. In a discussion about the victim taking out an AVO, the victim had said ‘I don’t deserve it’ and ‘don’t want to cause trouble’ ([1]).
Issues: Whether the evidence was admissible.
Decision and Reasoning: The evidence was admitted.
The statements fell within an exception to the hearsay rule because they were evidence of the victim’s state of mind (s 66A of the Evidence Act 1995 (NSW)) ([5]). Nevertheless, the accused argued that the statements should not be admitted for three reasons:
However, Schmidt J held that the statements should be admitted for three reasons:
Therefore, the statements were not unfairly prejudicial ([11]).
Charges: Common assault x 1.
Appeal type: Appeal against conviction.
Facts: The appellant was convicted of common assault against his former partner ([1]). The police applied for an apprehended domestic violence order ([3]). The Magistrate conducted the summary trial on the basis that the Magistrates Court had jurisdiction to hear the criminal proceedings and civil proceedings for apprehended violence orders concurrently, which was incorrect ([5], [15]).
Issues: Orders to be made.
Decision and Reasoning: The DPP conceded that the Magistrate erred in law, so the only contentious point was in relation to the orders to be made. First, McCallum J ordered the DPP to pay half of the plaintiff’s costs, since the plaintiff had been denied a hearing according to law ([22]). Second, the parties sought an order remitting the matter to a ‘differently constituted Local Court’ ([23]). Judge McCallum considered that there was no need for an order to a ‘differently constituted’ Court in the absence of apprehended bias or prejudgement ([24]). Judge McCallum remitted the matter of the assault charge to the Local Court to be heard and determined according to law.
Charges: Murder x 1.
Case type: Judgement on the admissibility of relationship evidence.
Facts: The accused and deceased were married. The accused was on trial for her murder. It was the Crown case that the accused had stabbed his wife. He gave evidence that she stabbed herself. The prosecution case was circumstantial ([1]).
Issues: Whether evidence of the accused and deceased’s relationship was admissible ([2]).
Decision and Reasoning:
Evidence that was admitted without objection:
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender was found guilty at trial of murdering the victim, his 18-year-old girlfriend and mother of his child ([2]). Both were of Aboriginal descent ([32]). He had frequently been violent towards her over their relationship of two years ([8]). The murder occurred after both had consumed alcohol throughout the day ([13]). Six other women were in the house ([4]). The offender dragged her from the kitchen into the bedroom ([15]). There were no witnesses to the attack in the bedroom, but witnesses gave evidence that the deceased screamed for approximately twenty minutes before falling silent ([17]). When the police arrived, the bedroom was covered in blood, and she was declared dead at the scene ([21]). She had injuries consistent with multiple blows to the head ([24]).
Issues: Sentence to be imposed.
Decision and Reasoning: Fagan J sentenced the offender to 24 years’ imprisonment, with a non-parole period of 18 years.
His Honour considered that the murder was in the middle of the range of objective seriousness ([31]). He considered that the deceased’s young age, vulnerability, and the fact that the offender lied to other women who tried to intervene, all contributed to the seriousness of the offence ([31]).
His Honour examined the offender’s personal circumstances ([32]-[38]). His verbal comprehension was in the lowest 1% of the general population, a circumstance which contributes to a higher propensity to violence ([34]). He had a criminal history since 15 years old ([39]), but he proved unresponsive to good behaviour bonds and community service orders ([42]-[47]).
His Honour considered that these offences were the culmination of a course of domestic violence (see from [52]). His Honour remarked at [52]:
‘The experience of courts in this State has shown that men who perpetrate violence against their female partners do not stop after one occurrence. Often they become accustomed to inflicting violence of escalating severity.’
On the failure of the other women in the house to call the police, his Honour said [55]:
‘The apparent lack of a sense of urgency amongst the other women in the house … may have been due to resignation amongst them; a feeling that to some extent domestic violence is inevitable and must be endured and, perhaps, that it is a matter private to the couple, in which others should not interfere. None of that is so.’
Charge/s: Murder.
Hearing: Judge-alone trial judgment.
Facts: On 27 September 2016, the accused pleaded not guilty to the murder of Mary Wallace (the deceased) on 24 September 1983. A significant part of the Crown’s circumstantial case was that the accused possessed a tendency at the time of the alleged murder to choke or strangle women in order to force them to submit to having penile/vaginal sexual intercourse with him. The Crown led evidence of three women who had alleged that they had been sexually assaulted by the accused.
Issue/s: Whether the accused was guilty of the charge of murder.
Decision and Reasoning: In reaching this decision, His Honour first listed the legal matters he took into account in reaching the verdict (see [320]-[359]). Most relevantly, Justice Button noted that it would have to be proven beyond reasonable doubt that at the time of offence the accused possessed a tendency to strangle women to cause them to submit to intercourse with him. This was for at least two reasons: (1) there was authority that tendency must be proven to the criminal standard in order to be taken into account (see the discussion of HML v The Queen in DJV v R at [30], and R v Matonwal & Amood at [92]). (2) In the circumstances of this case, it was agreed between parties that the alleged tendency was an indispensible intermediate fact with regard to the guilt of the accused (Shepherd v The Queen)(see [337]-[339]).
Justice Button then stepped through his sequential reasoning for reaching the verdict of guilty (see [360]-[493]). One of the steps in this reasoning was that His Honour found that the accused possessed a tendency to rape women and to strangle them ancillary to that crime. This was after considering the evidence of three women (see [419]-[420]).
In light of the following evidence, at [491]-[492], Justice Button held that the accused’s guilt had been proven beyond reasonable doubt:
‘the proven tendency of the accused to rape and strangle women; the marked similarities between his interaction with the deceased and his interactions with women whom, I am satisfied, he had raped and strangled; the fact that the deceased has never been seen again after she was in the company of the accused; the fact that, within 48 hours of his interaction with the deceased, the accused undertook an activity relating to his boot that featured the use of a hose; the fact that hairs (which shared a reasonably rare profile with those of the deceased) were seized from the boot of his vehicle, and not disputed at trial to be from the deceased; and the fact that, on any analysis, the accused had ample time to dispose of the body’.
Justice Button concluded: ‘the accused treated the deceased very much as an object, just as he had treated three other young women’.
Charge/s: Manslaughter by excessive self-defence.
Hearing: Sentencing.
Facts: The offender stabbed and killed her partner, James Polkinghorne. The relationship had been characterised by escalating physical and verbal abuse from the deceased towards the offender. On the 13 May 2012, the deceased made increasingly threatening and abusive telephone calls and messages to the offender. That night, he went to the home of the offender’s parents, where the offender was present. He was highly aggressive and high on methylamphetamine. The facts of what followed were confused and confusing (see [29]-[36]). In summary, the deceased threatened to kill the offender, he assaulted the offender, and the offender’s brother and father intervened. They began fighting with the deceased. The offender retrieved a knife from inside and, while the offender was on top of her brother, stabbed and killed the deceased. The offender was found not guilty of murder but guilty of manslaughter.
Decision and Reasoning: A sentence of 18 months imprisonment, wholly suspended was imposed. Hoeben CJ first made a number of factual findings. At [38] His Honour found that:
‘the offender stabbed the deceased with an intention to inflict grievous bodily harm because she believed her act was necessary to defend not only herself but her brother and father. However, in accordance with the jury’s verdict, the offender’s conduct was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence’.
His Honour also had regard, with some qualifications, to the evidence of Associate Professor Quadrio, a consultant psychiatrist. In her report, Professor Quadrio concluded that during her relationship with the deceased, the offender developed chronic and complex Post Traumatic Stress Disorder (PTSD) with particular features which were described as ‘Battered Woman Syndrome’. She also concluded that the offender continued to suffer from PTSD. Hoeben CJ found at [40]:
‘In the absence of any psychiatric opinion to the contrary, I would normally accept such a diagnosis. In this case I am not prepared to do so. This is because the diagnosis is based upon significant pieces of history from the offender which are different to the evidence at trial and to what the offender said in her ERISP. I am prepared to accept that the offender currently suffers from PTSD. The events of the night of 13 May 2012 would of themselves be sufficient to bring about such a condition and there is no reason to doubt the existence of the symptoms which the offender described following the deceased’s death. What I am not prepared to accept is that the Post Traumatic Stress Disorder was due to the offender’s relationship with the deceased and was in existence before the deceased’s death’.
However, His Honour did accept that the offender stabbed the deceased when she was in a highly emotional and hysterical state (see [41]-[43]).
In reaching an appropriate sentence, Hoeben CJ took into account a number of considerations. These included that specific deterrence were not relevant in light of the offender’s rehabilitation and the unlikelihood of re-offending (see [58]). General deterrence was not accorded substantial weight in light of exceptional factual circumstances (the deceased had made escalating threats of violence approaching the offender’s home and the offender’s state of mind was affected by being already brutally assaulted and witnessing the struggle between her family members and the deceased) (see [59]). The objective seriousness was at the lower end of the range as was the offender’s culpability (see [60]-[61]).
As against these matters, Hoeben CJ had regard to the sanctity of human life, the need to denounce the conduct of the offender and hold her accountable for her actions (see [62]).
The offender successfully appealed against her conviction to the Court of Appeal. See Silva v The Queen [2016] NSWCCA 284 (7 December 2016).
Charge/s: Intentionally or recklessly damaging property, intimidation.
Appeal Type: Crown appeal against the dismissal of the charges.
Facts: The male defendant had been in a domestic relationship with the female complainant that had ended some years prior to the offence. Since that time, the complainant had taken steps to conceal where she was living with her children from the defendant. He found where they were living and was permitted to have contact and access to children. One evening, the defendant turned up to the complainant’s home uninvited and unannounced. She locked herself and the children inside the house while the defendant was yelling and screaming and making threats, including threatening to deflate the tyres on her car. It was alleged that he then deflated a tyre on her car. These charges were dismissed by a magistrate.
Issue/s: One of the grounds of appeal was that the magistrate erred in excluding evidence of a ‘pattern of violence’, such evidence being relevant to the intimidation charge under s 7(2) of the Crimes (Domestic and Personal Violence) Act.
Decision and Reasoning: This ground of appeal was dismissed but the appeal was upheld on other grounds (failure to give reasons and error as to what constituted damage). Examination of the transcript indicated that the magistrate’s approach was that the prosecutor should lead evidence of the actual incident itself before leading any other evidence under s 7(2), if it was then considered necessary (See [24]-[30]).
Charge/s: Murder.
Hearing: Sentencing hearing.
Facts: The offender was found guilty for the murder of his female de facto partner after a judge only trial. While the relationship was, at times, loving and happy it was also tumultuous as the offender was a jealous and possessive partner. The offender scrutinised the victim’s conduct openly and covertly, keeping track of her movements through surveillance cameras and secretly monitoring her mobile phone. On 30 July 2011, the victim had decided she was leaving the offender and attempted to leave their apartment. She was physically dragged back into the apartment by the offender and sixty-nine seconds later she fell to her death from the balcony. McCallum J was satisfied beyond reasonable doubt that, in a state of rage, the offender carried the unconscious complainant to the balcony and ‘unloaded’ her over the edge.
Decision and Reasoning: A sentence of 26 years imprisonment with a non-parole period of 18 years was appropriate in the circumstances. McCallum J took into account of a number of considerations in imposing this sentence. Her Honour assessed the objective seriousness of the offence. McCallum J was satisfied beyond reasonable doubt that the act of unloading the complainant’s body over the balcony was done with intent to kill and that, although unconscious, the complainant was undoubtedly in a state of complete terror in the last moments before her death (See [16]-[18]).
A further relevant issue in assessing objective seriousness was whether the killing was planned or premeditated. The Crown tried to adduce evidence establishing that the offender had long had in mind the possibility of committing such an act, and making it look like suicide, in the event of her leaving him. Although witness testimony substantiating this assertion was excluded for its prejudicial content, other evidence was relevant to assessing the offender’s state of mind. During the relationship, the offender engaged in an extraordinary degree of manipulative behaviour and while he was not to be punished for this conduct nor did this conduct aggravate the offence, it did inform the state of mind in which he committed the offence. McCallum J was not satisfied that the offence was planned or premeditated in the traditional sense; however, she was satisfied that the offender must have anticipated the prospect that he would fly into a rage if ever she were to leave him (See [19]-[39]). Her Honour concluded:
‘In my view, that history informs the degree of moral culpability of the offence. The arrogance and sense of entitlement with which Mr Gittany sought to control Lisa Harnum throughout their relationship deny the characterisation of his state of mind in killing her as one of complete and unexpected spontaneity. By an attritional process, he allowed possessiveness and insecurity to overwhelm the most basic respect for her right to live her life as she chose. Although I accept that the intention to kill was formed suddenly and in a state of rage, it was facilitated by a sense of ownership and a lack of any true respect for the autonomy of the woman he claimed to love’ at [40].
In sum, the objective seriousness of the offence committed was not above the middle of the notional range, having regard to the fact that the murder was not premeditated or planned. However, the offence was of sufficient seriousness that the standard non-parole period of twenty years was to be regarded as a strong guide in this case (See [43]).
McCallum J also noted the offender’s personal circumstances, including a troubling prior conviction for malicious wounding (See [44]-[59]) and noted that the complainant was vulnerable. She took into account good character references provided (noting though the contradiction posed by the way he treated the complainant) but was not persuaded that any prospect of rehabilitation existed in this case (See [65]-[74]).
This case was unsuccessfully appealed to the New South Wales Court of Appeal. See Gittany v R [2016] NSWCCA 182 (19 August 2016).
Charge/s: Manslaughter.
Hearing: Sentencing.
Facts: The female offender had lived with her male de facto partner, the deceased, for 25 years (since she was 17 years old). The deceased had been violent towards the offender throughout their relationship, including hitting her in the eye with a baseball bat, but she did not have the means to leave the relationship. The deceased would often taunt the offender and dare her to stab him. They both suffered from alcoholism. One evening, the offender was heavily intoxicated and stabbed the deceased in the chest, killing him. At the time, she did not intend to kill him nor did she realise he was dead and she went to bed. The next morning she called the police and made full admissions. The offender’s recollection of events was imperfect because of her intoxication.
Decision and Reasoning: Buddin J had extensive regard to a psychological report prepared by Ms Danielle Castles, who had 17 years’ experience working in the social welfare field, with particular expertise about drug and alcohol issues and domestic violence (See [32]-[35]). Ms Castles commenced her report by explaining the nature of domestic violence and stated at [32] that:
‘domestic violence is the term used to describe the violence and abuse perpetrated upon a partner in a marriage or marriage like relationship. It is essentially the misuse of power and the exercise of control by one person, usually the man, over another, usually the woman. “Women experiencing domestic violence are often subjected to physical, sexual, emotional/psychological, social and economic abuse. Abuse may be overt (physical violence) or it might be deceptively subtle (emotional abuse). It is the interplay between making the woman fearful and reducing her self-esteem which results in the abuse having significant and prolonged effects on the woman.”
The effects of domestic violence are such that women in violent relationships are convinced they are hopeless, that they need to be dependent upon the abuser and could not possibly survive without him. The most significant aspect of prolonged abuse is the gradual breaking down of a woman’s autonomy’.
Ms Castles then set out the ways in which domestic violence impacted upon the offender here (See [33]-[34]).
Buddin J ultimately found that the offender’s criminality was at the lower end of the scale of culpability of an offence of this kind i.e. non-intentional homicide in circumstances of tragic misadventure. Her intention was no more and no less than to engage in a desperate and objectively dangerous gesture, without intending any real harm or worse to the deceased. This, in conjunction with the very powerful subjective case advanced on behalf of the offender, meant that an exceptional sentence of a good behaviour bond for four years was appropriate, notwithstanding the fact that a life was taken (See [50]). The subjective factors that mitigated sentence included that ‘the offence took place against the background of continuing domestic violence over a prolonged period of time, the impact upon her of which cannot, for the reasons advanced by Ms Castles and others, be underestimated’ (See [45]). Buddin J also derived assistance from cases involving ‘battered spouse or partner syndrome’ (See [48]).
Offences: Indecent assault; The appellant requested that the learned Magistrate take into account two additional offences on a Form 1, they being, that on the same date and in the same place, the appellant:
Proceedings: Appeal against sentence
Facts: The male appellant and female victim had been married since 2003 and had a child together. They divorced in 2008 but recommenced a relationship in 2014 and started living together. In 2015, the appellant assaulted the victim, giving rise to an Apprehended Violence Order. In July 2017, their relationship began to deteriorate. In the lead up to the offending, the victim obtained alternative accommodation and was in the process of moving her belongings. One night, the appellant exchanged text messages with the victim, requesting they have sex (though acknowledging that the victim was moving on), but the victim refused. The appellant went to the lounge room where the victim was on the couch listening to music on her phone, took her phone and refused to give it back unless they talked. The couple began yelling and the victim felt scared so she picked up a knife and told the appellant that she would stab him if he came near her. The appellant left the home with the victim’s phone and refused to return it. The victim slashed two tyres on the appellant’s car then went back inside and locked all the windows and doors, except for a window in her bedroom. The appellant accessed the victim’s phone then returned to the house and demanded she speak to him outside. The victim complied as she was afraid of the appellant, the appellant throwing a beer over her when she got there.
After this, the victim drove to a nearby lookout and fell asleep. The appellant arrived in his truck and parked the victim in so she could not drive away. The appellant demanded that the victim open the doors. She complied as she was afraid. The appellant grabbed the victim’s hair and told her that she had to talk to him to get her phone back. They returned to the house separately and the appellant told the victim he wanted to talk to her in the bedroom. He told her to lie on the bed; she complied. He then started touching her, took her clothes off, pinned her wrists above her head, rubbed his groin all over her and ejaculated on her, despite her cries that she did not want to engage in sexual activity. The appellant told the victim to leave, which she did. The appellant was convicted and sentenced to 21 months’ imprisonment with a 12-month non-parole period.
Judgment: The judge dismissed the appeal, holding that the sentence could be regarded as "lenient" [65]. Her Honour rejected that the appellant’s conduct involved a low level of criminality [59] and further held that there was a greater need for personal deterrence and retribution in this case [61]. Her Honour held that, "whilst acknowledging the relevance of the appellant’s rehabilitation, that consideration is subordinate to the considerations of general deterrence, denunciation and the imposition of adequate punishment, which factor recognises the indignity inflicted upon the complainant" and that "the safety to the community is not seriously imperilled by the appellant if a penalty other than full-time incarceration is imposed. But that consideration is not, in my opinion, paramount in the circumstances of this case" [64].
Her Honour found that the appellant’s contention that the sex occurred as ‘make-up sex’ was a "rank distortion" of what objectively occurred, because the relationship had completely broken down [27]. The appellant did not wish for the relationship to have ended as it did, "So he resorted to the exertion of psychological and physical force against the complainant in order to get her to do what he wanted her to do" [28]. Her Honour found that the appellant knew his conduct was non-consensual and there was nothing to suggest the victim wanted to make up with the appellant [30], and that there was a "humiliating overtone" to the activity [31]. As such, her Honour held the conduct to be above the mid-range of objective gravity [32].
Her Honour rejected the contention that the appellant was sorry for his conduct and had acquired real insight into the wrongfulness of his conduct [47]. However, her Honour found that the likelihood of reoffending was low [55].
Charges: Contravening a prohibition or restriction under an Apprehended Violence Order (AVO) x 2
Case type: Appeal against severity of sentence
Facts: The appellant man was sentenced to 12 months’ imprisonment with a non-parole period of 9 months. He pleaded guilty to 2 charges that he contravened a prohibition or restriction under an AVO. The appellant has remained in custody for a period of around 2 months. Although he lodged an appeal in May 2020, he was refused bail.
The appellant was in a relationship with his then female partner (the victim). As at 26 March 2020, there was an enforceable AVO for her protection which named the appellant as the defendant. A condition of the order was that the appellant not approach or be in her company for at least 12 hours after drinking alcohol or taking illicit drugs. At about 1:00 am on 26 March 2020, police attended the couple’s residence after a domestic dispute. The appellant admitted that he had breached the AVO and had consumed a large quantity of alcohol. There was no suggestion that the appellant was likely to inflict imminent violence or commit some other more serious contravention of the AVO at that time. He was arrested and released on conditional bail at 3:00 am. At about 4:00 am on the same day, police returned to the same address following another complaint of a domestic dispute, and found the appellant intoxicated again.
Grounds: Whether an Intensive Correction Order (ICO) is more appropriate than a period of full time custody; whether there are special circumstances to justify variation of non-parole period.
Held: The appeal was dismissed, but the Court varied the statutory ratio for the non-parole period on account of special circumstances in order to assist with rehabilitative efforts with respect to the appellant’s alcohol consumption issues. Consequently, the Court varied each sentence to 1 year imprisonment, with a non-parole period of 7 months, to be served concurrently ([43]-[47]).
Held: Aggravating circumstances included the fact that the offending conduct occurred not only in contravention of an AVO, but whilst the appellant was subject to an ICO. Further, the second offence occurred when he was on conditional bail after having committed the first offence ([12]-[15]). There was little evidence of the appellant’s circumstances that directly explained why he acted as he did. In May, the appellant acknowledged to a community corrections officer that he breached the condition of the AVO because he had "no choice". However, the Court accepted the characterisation of the community corrections officer that he "blatantly disregarded" the condition twice on the one night ([16]-[18]). The appellant also has a significant criminal history, and has been convicted of several domestic violence offences in the past. Most of these offences were the product of alcohol consumption ([22]). There was no evidence before the Court to indicate remorse or contrition: the appellant blamed the victim and was said to have showed no insight into his offending ([24]). The appellant had a long history of alcohol dependence, and had been diagnosed with depression, post-traumatic stress and attention deficit hyperactivity disorder. He made attempts to rehabilitate himself, but relapsed into consuming alcohol on a regular basis ([25]-[27]).
The ICO breach report noted that since the order had been imposed, the appellant had minimal engagement with community corrections, which impeded his attempts to treat his alcohol usage. The report also expressed concerns for the victim’s safety. The appellant’s prospects of rehabilitation were no more than reasonable. Despite his demonstrated ability to overcome illicit substance abuse, he has struggled to deal with his alcoholism. The Court also noted that the level of community service work that the appellant needs to undertake may be reduced or altered as a result of the COVID-19 pandemic ([28]-[33]).
The ICO breach report noted that since the order had been imposed, the appellant had minimal engagement with community corrections, which impeded his attempts to treat his alcohol usage. The report also expressed concerns for the victim’s safety. The appellant’s prospects of rehabilitation were no more than reasonable. Despite his demonstrated ability to overcome illicit substance abuse, he has struggled to deal with his alcoholism. The Court also noted that the level of community service work that the appellant needs to undertake may be reduced or altered as a result of the COVID-19 pandemic ([28]-[33]).
Offences: Common assault; Reckless wounding; Intimidation; Using explosive fluid; Attempted cause grievous bodily harm to person with intent x 2; Aggravated sexual assault x 4; Contravene Apprehended Violence Order; Threaten witness to withhold true evidence; Aggravated detention with the intention of assaulting and intimidating the victim (at the time of the detention actual bodily harm was occasioned to the victim)
Proceedings: Sentencing
Facts: The male offender and female victim were in an on and off domestic relationship for 12 years. The victim had three children, one of which was the son of the offender. Throughout the relationship, the offender was physically and mentally abusive towards the victim and both parties used drugs. One night, the offender and victim stayed up smoking marijuana and ice. The next morning, the couple were in their car and the offender accused the victim of sleeping with up to 20 men at one time while the offender had been in custody for other charges. The victim denied this, but the offender got angry and cut the victim’s hair with scissors before punching her in the face multiple times, one of these being so hard that the victim’s head hit the windscreen (Common assault). The offender then ordered the victim into the back seat and told her that every time she lied, he would stab her with the scissors (which were small and blunt, not sharp). The offender stabbed the victim on her legs about 30 times (four of which punctured her skin – the others resulted in bruises only) whenever she gave an answer he did not like (Reckless wounding). He also stabbed her left ear and cut open her shirt, exposing her breasts and stomach (Reckless wounding).
The offender than threatened to cut off the victim’s nipples and vagina/clitoris (after removing her pants). The victim tried to deflect the offender and pleaded for him to stop (Intimidation). The offender locked the windows and doors of the vehicle to stop the victim from escaping. A while after a man walked past the vehicle and looked inside, the offender unlocked the car and the victim ran outside screaming for help, although the man could not be seen. The victim ran down the riverbank and saw the offender get out of the car with a jerry can. The offender tipped the can containing diesel over the victim’s head and body (Using explosive fluid). The victim ran down to the river and hid, but the offender chased the victim and told her she needed to wash the diesel out of her hair. The victim complied.
The offender told the victim to go back to the car and she complied. When there, the offender tried to light the victim’s hair on fire with a cigarette lighter (Attempted cause GBH with intent). The victim put it out with her hands, but the offender lit her hair another two times (Attempted cause GBH with intent). The offender and victim then travelled to the offender’s friend’s house, stopping at various places along the way. The offender threatened to harm or kill the victim if she drove off, so the victim complied and did not leave. After visiting the friend’s house, the offender and victim drove to a deserted scrub area where the offender continued to question the victim. The victim told the offender false stories to keep him happy, then the offender told the victim to get in the backseat because he was going to do what they did to her (implying that he would rape her but she would like it). The offender got some lubricant and put this in the victim’s vagina and anus. He then penetrated her vagina and anus, the victim crying the whole time (Aggravated sexual assault x 2). The offender then inserted his entire first into the victim’s vagina and then anus, while the victim screamed in pain and begged the offender to stop (Aggravated sexual assault x 2). The offender could see blood on the ground, running down her legs and on the offender’s hand. The offender then punched the victim in the throat and told her he would do it again to knock her out. He then left her in the bush and drove off. She made it to a road and was picked up by a man passing by in a ute who took her to the police station. When the victim was recovering in hospital later, the offender called her and threatened to shoot the victim’s mum and dad if she pressed charges (Threaten witness to withhold true evidence).
Medical reports showed that the victim may suffer long term issues as a result of her injuries and were potentially life threatening if they had not been treated.
Judgment: The judge convicted the offender of all charges and sentenced him to an aggregate of 24 years’ imprisonment, with an 18-year non-parole period. Although a discount was given for the utilitarian value of the offender’s early pleas, His Honour found that most offences were in the mid-range of objective seriousness, with the Aggravated sexual assault charges being in the highest range of seriousness, having been committed as "deliberate sadistic torture" [36]. His Honour further emphasised that the offender’s "warped and sadistic desire to gratuitously inflict pain, dominate and terrorise overcame any empathy or concern for the wellbeing of his long-time partner, the mother of his child" [7].
All of the offences were committed in the context of a long-term relationship, so were each domestic violence offences. His Honour held that "It has long been recognised that such offences, particularly where the offender is a repeat domestic violence offender, require emphasis in sentencing on specific and general deterrence, together with powerful denunciation by the community of such conduct and the need for the protection of the community" [54].
The judge accepted that the offender’s "long history of emotional and behavioural dysregulation, emanating from his early adolescence, and his complex trauma background, including a history of physical and sexual abuse, loss of family stability and structure from his childhood and a lack of positive and nurturing influences, his exposure to drug and alcohol abuse" had normalised his offending behaviour and desensitised him to the anti-sociality of his crimes, so the offender’s moral culpability should be reduced according to principle in Bugmy v R [2013] HCA 37 [77]. However, His Honour held that, due to the nature of the offending, the offender’s antecedents and his criminal history, there was a need in this case to give significant weight to retribution, specific deterrence and protection of the community, over and above diminution of the sentence by virtue of lessened weight to general deterrence and reduced moral culpability [79].
The judge specifically noted that the offender still blamed the victim for his violent offending, had no insight into his offending, had no compassion, and continued to hold negative attitudes towards interventions [80]. Furthermore, the offender lacked genuine remorse, with all representations on this point being entirely self-serving [91]. His Honour held that the offender had extremely poor prospects of rehabilitation and his risk of reoffending was medium to high [98], finding that he had "a significant history of hostility and aggression towards women, especially his female family members and intimate partners, including expressions of intention to kill" [82].
Offences: Aggravated detention of a person with intent to obtain advantage occasioning actual bodily harm x 2; Reckless wounding causing actual bodily harm x 1; Contravention of a prohibition/restriction under an AVO x 1
Proceedings: Sentencing
Issues: The relevance of a pre-existing alcohol disorder to the assessment of the objective seriousness of the offending; relevance of the COVID-19 pandemic to sentencing considerations.
Facts: The female victim was married to the offender man, although they had not resided together for eight to nine years. The victim was the subject of an Apprehended Domestic Violence Order (AVO) that protected her from the offender. A condition of the order prohibited the offender from approaching the victim or being in her company for at least 12 hours after drinking alcohol or taking illicit drugs. The offender asked the victim to stay with him for a few days at a caravan park where he lived. The victim agreed. On one night, the victim and offender met with Mr Wallace at his caravan and drank alcohol. The offender left earlier than the victim, but later returned and accused Mr Wallace and the victim of being unfaithful together. The offender produced a knife and pressed it to Mr Wallace’s chest before placing it on Mr Wallace’s throat, creating a superficial laceration. The victim attempted to grab the offender’s arm but the offender pushed her backwards where she fell and hit furniture, losing consciousness. Every time the victim tried to get up, the offender hit her against the walls and furniture. He also cut her right leg, causing three wounds. Mr Wallace tried to remove the knife from the offender, but the offender lacerated Mr Wallace’s finger. He told the victim that if she screamed, he would kill Mr Wallace, and told them both that they could not leave.
During the period when the victim and Mr Wallace were detained, the victim also suffered a subdural haematoma, bruising under her right eye, a fractured rib and many abrasions. The offender was heavily intoxicated at the time, having suffered from an alcohol use disorder since he was nine years old.
Held: The offender was sentenced to seven years and six months’ imprisonment, with a non-parole period of four years and six months. The sentencing judge found that the prospects of rehabilitation were reasonable to good [62] because the offender entered an early plea, his conduct was out of character (he had not previously engaged in violent conduct) [49], he was sincerely remorseful, he was suffering significant grief over the death of his wife [53], he behaved in an exemplary fashion whilst in custody [56], and he had agreed to avail himself of alcohol and drug treatment programs upon his release [58].
However, His Honour held that the offending was objectively very serious [70]. The Detention charges fell at the mid-range of objective seriousness for that kind of offence as the detention was relatively short and its purpose was to exert "psychological control" and "emotional ascendency" [21]-[22]. Furthermore, the offender made numerous threats to kill the victim and Mr Wallace when he was unstable. His Honour held that the Wounding charges fell above mid-range as the victim was conscious at the time the wounds were inflicted but was unable to resist [25]-[26]. Breach of the AVO was held to be an aggravating factor [27], as was the use of a weapon [28].
His Honour held that there was a causal connection between the Offender’s alcohol use disorder and the offending, because the disorder led him to misperceive the dealings between the victim and Mr Wallace [11]. As such, His Honour held that the disorder "mitigate[d] to some degree the level of the objective seriousness of the offending" and also had implications for the offender’s prospects of rehabilitation [11]. However, His Honour found that the offender was still culpable for his actions because he had not previously engaged in violent conduct and had stopped making efforts to manage his alcoholism six years earlier [33]. The judge further held that the offender’s culpability was not reduced because of a combination of intoxication and sexual jealousy because he had previously managed these conditions prior to the offending [38].
In relation to the relevance of the COVID-19 pandemic as a sentencing consideration, His Honour provided that "in the short term, the [offender] is likely to find custody generally more onerous to some degree as a result of the general restrictions imposed because of the pandemic" [70], however, "because of the objective gravity of his conduct, he will receive a very substantial period of incarceration" [71]. His Honour further stated that "It is realistic and not unfair to say that the incidence and effect of the pandemic may be more keenly felt for an offender who has a short non-parole period ... in comparison to someone who will receive a significant head sentence" [71] and warned that "courts should not be too ready, in the absence of express legislative action, to be unduly influenced by the pandemic when weighting its significance in the sentencing exercise" [71].
Offences: Entering dwelling-house (aggravated offence) x 2; Using a carriage service to menace, harass or cause offence
Proceedings: Sentencing
Facts: The male offender had been in a relationship with the female victim (who had a child from a previous relationship). The victim ended the relationship after a year due to the offender’s controlling behaviour and anger, but the offender refused to accept that the relationship was over. He continued to contact the victim via telephone and text message (the messages were abusive, controlling and threatening) and attended her home uninvited. One night, the offender repeatedly called the victim and demanded to know who was in her home, threatening to kill anyone who was there. He then went to her house and entered it without her permission. The victim threatened to call police so the offender left the house, but remained outside yelling at her and knocking on doors and windows. He then climbed in through her bedroom window and confronted the victim, standing over her and frightening her (first Entering dwelling house offence). The offender threatened to stab the victim’s male friend and searched the victim’s house. He then picked up a pocket-knife and accused the victim of trying to stab him with it. The victim tried to leave the house and the offender stopped her, but she was ultimately able to get away. The offender followed her into the street and continued to yell at her, despite the victim telling the offender that they were no longer together. The victim ran away and hid in a nearby park, and had a friend call 000. The offender searched for her using the victim’s car but when police arrived, they were unable to find him. An Interim Apprehend Violence Order was obtained by police.
The next day, the victim and her friend, Mick, were in the victim’s backyard when the offender came out of the garage carrying a piece of wood. He took the victim to her car (where he left it the night before) and she drove it home. The offender remained at the victim’s home but the victim would not let him inside. Later that day, the victim found the offender in her kitchen. The offender left after the victim threatened to call police, but he continued to send her text messages. That afternoon, the victim found the offender under her son’s bed (second Entering dwelling house offence). She locked him in the room and ran to her car, but the offender jumped out the window and entered the car and would not leave. The victim continuously sounded the car horn and police arrived.
The offender continued to return to the victim’s house over the next few days, threatening to hurt her and her family, and yelling abuse at the victim and anyone she was with. He also continued to send her text messages and make phone calls to her. During the course of one day, the offender made 488 calls to the victim and sent 98 text messages. Many of these messages sought to cajole her into dropping the charges against him and excusing his criminal actions towards her. The police eventually found the offender at the victim’s home, served him with an Apprehended Violence Order and arrested him.
Sentence: The judge sentenced the offender to three years and three months’ imprisonment for the Entering a dwelling-house offences, with a non-parole period of two years, and nine months’ imprisonment for the Using a carriage service offence. The judge emphasised that the offender’s conduct constituted a "sustained attack on [the victim’s] physical and psychological integrity over a period of weeks" [54] and that "his crimes were so serious he must be removed from the community for a time" [62]. His Honour found that the offender had no concern for the victim’s emotional state and sought to exercise coercive control over her by putting her in fear [31].
When determining the appropriate sentence for each offence, His Honour also took into account other offences that the offender committed. Regarding the offender’s entry into the victim’s bedroom via the window when he knew the victim would be home, His Honour took into account the offender’s crime of intimidation, taking of the victim’s car, and two entries to the victim’s property without her consent [36]. Regarding the offender being found under the victim’s son’s bed, His Honour also took into account the offender’s three acts of intimidation, entry to the victim’s property without her consent and remaining on her property without her consent [37].
His Honour specifically noted that the number and content of the calls and text messages showed that the offender’s intention was to seek to control, threaten and demean the victim, and this was part of a pattern of behaviour [33]. His Honour stated that "the extent of [the offender’s] harassment and motivations for his actions make this a particularly serious example of this type of offence [the Using a carriage service offence]" and therefore a custodial sentence was required [34].
His Honour found that the offender had committed previous domestic violence offences, so was not entitled to any leniency [43]. Although the offender had a history of drug use and mental illness, His Honour held that neither of these mitigated his offending [47]. However, each sentence was reduced to reflect utilitarian value of the offender’s early pleas.
His Honour also commented on the COVID-19 pandemic, holding that "these concerns and considerations [regarding COVID-19 and its restrictions] apply to every prisoner sentenced" [52]. His Honour considered that "if/when COVID-19 enters gaols, early parole may be given to some but not all prisoners" and that the offender is in a category that can be considered for early release [53].
Charges: Wounding with intent to cause grievous bodily harm x 1; assault occasioning actual bodily harm x 1; reckless wounding x 1
Case type: Sentence
Facts: The male offender pleaded guilty to wounding with intent to cause grievous bodily harm, assault occasioning actual bodily harm and reckless wounding. Neilson DCJ also took into account 2 matters on a Form 1, namely, offences of common assault and intimidation. The female complainant (in respect of the charges of wounding with intent to cause grievous bodily harm, intimidation, assault occasioning actual bodily harm and common assault) was in an intimate relationship with the offender, which ended in October 2017 but recommenced a year later. The victim (in respect of the charge of reckless wounding) was a male friend of the offender and complainant. All but one offence (reckless wounding) were domestic violence offences. The offender’s relationship with the complainant was described as ‘toxic’.
Issue: The issue for the Court was to determine the appropriate sentence for the offender.
Held: The offender’s extensive criminal history evidenced a pattern of alcohol-fueled violence and, more recently, offences committed against the current complainant ([28]-[38]). The offender’s personal circumstances were discussed at [39]-[48]: he had a long history of drug and alcohol abuse; he had a problematic pattern of gambling when under the influence of alcohol and cocaine; he only had intermittent and low paying employment; he struggled to maintain stable intimate relationships and his relationship with the complainant was marred by verbal and physical arguments; and he displayed insight into his need for treatment for his addictions and showed no impairment in cognition when he was free of alcohol and drugs. Further, the offender was assessed as being at a high risk of re-offending ([49]), and was considered as requiring ‘as much supervision...and assistance as he can obtain from Community Corrections...to stay free of drugs and alcohol and turn his life around’ ([53]). The Court noted the importance of denunciation, as well as deterrence ‘both of the offender and of others who might want to practise violence, in particular domestic violence’ ([56]). Consequently, the offender was convicted of the 3 charges to which he pleaded guilty, and sentenced to 7 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months ([66]). Special circumstances were established because of the offender’s need for treatment and support for his drug and alcohol addiction ([64]).
Charges: 1 x sexual intercourse without consent; 1 x general offence of perverting the course of justice; 1 x contravention of an apprehended violence order (AVO)
Case type: Sentencing
Facts: The offender was in a domestic relationship with the female victim for 3 years, during the course of which the victim had a child. The relationship was marred by domestic abuse, which eventually led to its termination ([7]-[10]). The offender attended the victim’s house in breach of his bail, told her that she would be raped, and proceeded to have non-consensual intercourse with her ([13]-[20]). The offender also attempted to get the victim to withdraw her cooperation with police, which constituted the breach of the AVO and the pervert course of justice offences ([25]).
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The offender was sentenced to an aggregate term of imprisonment of 7 years, with a non-parole period of 5 years and 3 months ([47]). The sexual assault offence was aggravated because it occurred in the victim’s home, was committed while the offender was on conditional liberty, and involved threats and the use of actual violence ([27]). The Court addressed the offender’s personal circumstances at [30]-[34]: he was 28 years old, had a criminal history, and used various drugs for a long period of time. His Honour described the offender as a ‘vicious’ sex offender ([32]). Although the offender pleaded guilty, he did not express remorse ([35]-[37]). The material before his Honour did not indicate that the offender was interested in rehabilitation, and thus his prospects were found to be poor ([38]). Further, specific and general deterrence, and the need for community protection were highly relevant ([39]).
Charges: Breach of s12 bond by reason of offences of common assault, intimidation, and use of a carriage service to threaten to kill
Case type: Breach hearing and sentence
Facts: The male offender was called up in respect of alleged breaches of a s 12 Crimes (Sentencing Procedure) Act bond that was imposed by Norrish QC DCJ in 2017 in relation to an offence contrary to s 25A Drug (Misuse and Trafficking) Act 1985 ([1]). The offences that constituted the breaches involved elements of domestic violence, and included offences of common assault, intimidation, and use of a carriage service to threaten to kill, to which the offender pleaded guilty ([4]). Material presented to the Court included an apology letter from the offender and a report from a psychiatrist working with the Aboriginal Legal Service ([3]).
Issue: The issue for the Court was whether the breaches were proven and, if so, the appropriate sentence for the offender.
Held: The offences constituting the breach were the offender’s first domestic violence offences but were considered to be serious matters. Norrish QC DCJ noted that the offender’s mental health significantly deteriorated since 2017: he had been diagnosed with post-traumatic stress disorder, a form of schizophrenia or schizoid condition and a polysubstance abuse disorder ([3]). The offender was un-medicated at the time of the offending and exhibited a motivation to address his drug use and a willingness to comply with the requirements of supervision. While the offender’s deteriorating mental condition did not provide a basis for excusing the breaches, it assisted his Honour in determining the non-parole period. He was assessed as being a medium to high risk of reoffending ([10]). Consequently, the Court found the breaches to be proven, revoked the s 12 bond and fixed a term of imprisonment of 1 year 9 months, with a non-parole period of 6 months.
Charges: Common assault x 1; assaulting a police officer x 3; attempting to use an offensive weapon with intent to commit an indictable offence x 1; chocking a police officer and being reckless as to render the officer incapable of resistance x 1.
Proceedings: Sentencing
Facts: The accused pushed his partner during an argument, causing her to stumble. Concerned by the accused’s actions, his partner instructed one of their children to call the police. The accused became further enraged when the police arrived, kicking one of the officers while being questioned. Two of the officers wrestled with the accused while he continued to physically lash out. The accused then grabbed the cord of one of the officer’s radio as she called for assistance and attempted to choke her. As the officers tried to handcuff him the accused attempted to obtain one of their firearms, threatening to use the gun on the police and then bit the officer. When other officers arrived another officer was also bitten by the accused. The accused was intoxicated at the time of offending. The accused pleaded guilty to all charges.
Issue: Appropriate sentence
Decision and reasoning: The accused was sentenced to 3 years and 6 months’ imprisonment with a fixed non-parole period of 1 year and 9 months.
Objective Seriousness: Regarding the assault against the police officers, Abadee J thought that the assault occurring during a violent struggle and in the presence of children were aggravating factors [32]. Consequently, the conduct was assessed as falling within the mid-range of seriousness for the offence.
The presence of children when the accused threatened to use the firearm on the officers was considered to be an aggravating factor along with the context of escalating violence. Abadee J ‘characterise[d] the conduct as falling beyond the mid-range and toward the high range of objective seriousness’ [35]. The same circumstances were aggravating factors for the offence of chocking on of the officer, with the conduct also falling within the high range of objective seriousness.
Subjective Circumstances The accused was 50 at the time of offending and had a criminal history which included some offences of a violent character. The guilty pleas entered by the accused were not made at the earliest opportunity. As the accused was intoxicated, ‘his offending was impulsive or spontaneous; and not pre-planned’. ‘The most significant issue in the sentencing hearing concerned the offender’s background’ of a dysfunctional childhood marked with sexual abuse and moderate alcoholism.
In considering these circumstances, the objective seriousness of the offences and the general principles of deterrence, Abadee J ordered ‘an aggregate sentence to fit the totality of the criminal conduct overall’ discounted by 15% [76].
Offences: recklessly causing grievous bodily harm; assault occasioning actual bodily harm (DV).
Proceedings: Sentencing
Facts: The male perpetrator and female victim were married at the time of offending and the male victim was a friend of theirs. The offender became angered after seeing the female and male victims sharing an ‘intimate’ kiss. He punched the male victim in the left eye before pushing the female victim to the ground. He continued to punch the male victim several times in the head and kick him on the left side of his torso until the female victim asked him to stop. The offender turned to the female victim, slapped her forcefully across the face and kicked her thigh while she lay on the ground. The offender left the scene after punching the male victim a few more times. Neither victim provided a statement to police until a year after the offending, despite the male victim being left with substantial injuries requiring surgical treatment.
The offender was heavily intoxicated at the time of offending.
Decision: The offender was sentenced to Intensive Corrections Order for 1 year and 10 months’ and to a Community Release Order or 1 year and 8 months’.
The Court noted that while the offence is a domestic violence offence, the offender’s violence was "primarily directed at the male victim" [53]. The assault occasioning actual bodily harm was at the lower end of the scale. The female victim suffered minor injuries and the forced used against her was considerably less than that used against the male victim. Furthermore, while the Court acknowledged her victim impact statement, they found its length and detail to be "disproportionate to the seriousness of the harm that could reasonably be considered to have been caused" [31].
In assessing the objective gravity of the offending and sentencing purposes, the Court considered the fact that the offence was unplanned and in response to some form of provocation, the offending was uncharacteristic of the offender, and that the offender’s bipolar affective disorder had some underlying relevance. A discount was given to recognise the utilitarian benefit of the offender’s guilty plea.
Charges: 1 x wounding with intent to cause grievous bodily harm; 1 x reckless wounding
Case type: Sentencing
Facts: The offender initially pleaded not guilty to the charges of reckless wounding and wounding with intent to cause grievous bodily harm. On the fifth and final day of trial, the offender pleaded guilty to the alternative Count 2. The victim was in an intimate relationship with a woman for about 13 years, with whom he had 2 children. On the day of the offending, the offender stabbed the victim around 3 times.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The offender was sentenced to 3 years’ and 3 months’ imprisonment with a non-parole period of 2 years and 2 months. The objective seriousness of the offending was deemed as being in the middle of the range, given the nature of the violence, the nature and extent of the injuries, the fact that the wounds were inflicted by the use of a knife, and the fact that the wounding was completely unprovoked by the victim ([23]-[24]). Aggravating features of the offending included: the use of a weapon, the offending occurred in the victim’s home, and the offender was on conditional liberty at the time of the offending. Although the offender had previous convictions for violent offences and the conduct was an act of gratuitous violence, the Court did not take these matters into account as aggravating features ([25]-[29]). The offender had a long-standing history of drug use ([50]), as well as an extensive criminal history ([30]). He identifies as Aboriginal, and reportedly witnessed domestic violence as a child and had been assaulted ([44]-[46]). There was no evidence of any mental disorder, although the offender reported symptoms of anxiety ([51]). Given his lengthy drug and criminal history, the Court was unable to find that he was unlikely to re-offend ([53]). The offender’s expression of remorse was given limited weight ([54]). Further, the Court was satisfied that special circumstances existed as it was clear that the offender would need extensive supervision on parole to ensure that he did not relapse into drug use ([55]-[56]).
Charges: 2 x detain a person with the intent of obtaining an advantage; 1 x sexual assault; 1 x influencing witness; 2 x common assault; 1 x stalking/intimidating with intent to cause fear of physical or mental harm; 1 x contravening Apprehended Domestic Violence Order (ADVO)
Case type: Sentencing
Facts: The victim and offender were married and had a child who was 2 years old at the time of the offending. The victim had 2 children from a previous marriage, who were 20 and 15 years of age. The offender pleaded guilty to the charges of detaining his wife and his 15 year old stepdaughter without her consent, with the intention of obtaining an advantage (that is, psychological gratification), and the charge of sexual intercourse with his wife without her consent. He also pleaded guilty to the charge of communicating with his wife, who was to be called as a witness, to persuade her to withhold true evidence with the intent of procuring his acquittal of the assault occasioning actual bodily harm. In addition, the offender also requested that the Court sentence him in respect to the charges of common assault, stalking/intimidating with the intent to cause fear of physical harm, and contravening an ADVO.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The Court imposed an aggregate sentence of 10 years’ imprisonment with a non-parole period of 7 years. In relation to the objective seriousness of the detention charges, it was submitted that the Court should consider a number of factors, such as the persons being detained, the period of detention, the circumstances of detention, and the purpose of the detention ([41]). The detainees included his wife, and her 15 year old daughter and 2 year old son. The detention lasted around 10 hours. As part of the detention, there were acts of violence perpetrated against his wife and step-daughter. His wife was also intimidated into changing her story before going to court. Additionally, the offender had sexual intercourse with his wife without her consent while she was being detained ([43]). The purpose of the detention was difficult to ascertain as the offender refused to give evidence on the question. Therefore, the Court could merely speculate ([45]).
Wilson SC DCJ analysed the offender’s medical history. In 2016, he had been diagnosed with a neurocognitive disorder with possibilities of a dementia type illness with psychotic symptoms. Another expert opined that the offender likely suffered from major depression at the time of the offending ([56]-60]).
Aggravating factors affecting the sentence included ([61]):
The offender’s prior criminal history did not aggravate the objective seriousness of the offences, however, it did disentitle him to any leniency resulting from a finding of good character ([65]). His Honour declined to find statutory remorse as a mitigating factor ([66]).
Charges: 1 x causing grievous bodily harm to a person with intent; 1 x intentionally choking a person with recklessness
Case type: Sentencing
Facts: The offender and victim, with whom he started communicating on a social media app, married in China. After relocating to Australia, the relationship deteriorated. The victim formed a romantic attachment to a customer while she was working as a sex worker. When she was asleep, the offender struck the victim 5 times to her head with a hammer and choked her. He suddenly stopped this attack and immediately assisted the victim. He also called his employer, told him that he had seriously injured his wife and asked him to call an ambulance as his English was poor. The victim was physically and psychologically injured. As a result of the incident, she could not work and was in ‘a state of confusion, helplessness, anxiety and panic’ ([35]).
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The grievous bodily harm was a mid-range offence, and the choking with recklessness was slightly below a mid-range offence. Each offence was aggravated by the fact that they occurred in the victim’s home. The offender had no issues with alcohol or drugs, expressed genuine remorse, and the offending was ‘completely out of...character’ and was a result of ‘a perfect storm of a mixture of conflicting emotions’ ([37]-[44]). A psychologist highlighted the need for the offender to continue psychological treatment for a persistent depressive disorder, which was in an acute state leading up to the offence ([45]). The offender’s prospects of rehabilitation were found to be ‘very good’ ([46]). The sentence imposed on the offender sought to discourage others from committing similar offences, and encourage his rehabilitation ([47]). He pleaded guilty at the first available opportunity ([48]), and given his problems with English and his social isolation, the Court made a finding of ‘special circumstances’ ([52]). For the offence of causing grievous bodily harm, the offender was sentenced to 7 years’ and 6 months’ imprisonment, with a non-parole period of 4 years. For the offence of intentionally choking a person with recklessness, the offender was sentenced to a fixed term of 3 years’ imprisonment. Both sentences were ordered to be served totally concurrently.
Charges: 1 x aggravated detention, causing actual bodily harm (kidnapping)
Case type: Sentencing
Facts: The offender pleaded guilty to one count of aggravated detention, causing actual bodily harm. The victim and offender had been in an intimate relationship for 5 months and were living together at the time of the offending. The offender was formerly married for 22 years and had 2 children.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The offender was convicted, and sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months. In assessing the objective seriousness of the offending, Bright DCJ took into account the following factors ([27]):
The objective seriousness of the offending was found to be at the higher end of the mid-range ([28]). An aggravating feature was that the offence occurred at the victim’s home ([29]). The offender began using drugs after separating from his former wife, but otherwise described no use of drugs in his adult life ([47]). While the offender’s self-induced intoxication was not a mitigating factor, his underlying Adjustment Disorder was found to have had an impact on his moral culpability ([60]). He was also remorseful, as evidenced by his letter to the Court ([61]-[63]). His Honour was satisfied that the offender had good prospects of rehabilitation, having regard to his motivation to participate in counselling and rehabilitation, previous employment, insight into his offending behaviour and commitment to being a good father upon release ([64]).
Charges: 1 x use of a carriage service to menace
Case type: Sentencing
Facts: The offender pleaded guilty to one count of using a carriage service to menace. The offender moved to Australia in 2010 on a student visa sponsored by the victim, with whom he was in a relationship. They lived together, with the victim’s 2 children from a previous relationship. ‘Troubles’ in their relationship emerged, and the victim entered into another relationship in the beginning of 2016. A few months later, the parties exchanged a series of text messages. The offender sent a text in Turkish, saying ‘If I’m not going to live, you are not going to live either’. The victim reported feeling threatened by the offender. Although he admitted to using those words, he claimed that they had a different meaning.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The offence was at the very low end of the scale of objective seriousness. The offender had no previous convictions ([5]). Given the fact that he was on bail with strict conditions and had the matter ‘hanging over his head for almost 3 years without any offending’, Williams SC DCJ dismissed the charges under s 19B of the Crimes Act 1914 (Cth) ([7]).
Charges: Destroying or damaging property x 1.
Case type: Sentencing.
Facts: As at January 2018, the offender had been in a turbulent domestic relationship with the victim. The situation between them deteriorated to a point where the victim had obtained an apprehended violence order against the offender. The offender started a fire in the victim’s unit ([16]). As a consequence, the fire caused serious damage to the limited personal belongings of the victim, who was in a somewhat perilous financial situation so as to require Housing Commission accommodation ([25]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: An important consideration in sentencing the offender was the fact that it was a domestic violence offence ([45]). Colefax SC DCJ noted the offender’s long history of offending, and unresolved drug abuse and psychological issues. His Honour stated that the offender is a ‘man of intelligence’, who has been able to work hard and has the support of his immediate family ([51]). The offender’s father was a violent man and he was sexually abused by his brother ([32]-[33]). His mental health problems and excessive drug consumption contributed to the commission of the offence. No rational person would have reacted to a break-up by setting fire to another person’s house, threatening other people’s lives ([42]). Because of his mental health issues, he was not seen as an ‘appropriate vehicle for the full application of general deterrence’ ([44]). The offending was aggravated by the fact that the offender was on bail and that the property damaged was the victim’s home ([28]). He pleaded guilty at the first available opportunity, indicating an element of remorse ([46]). However, remorse is an important but not determinative factor. It was also important to note that the offender had not received effective treatment for his underlying mental health or drug addiction issues ([48]).
Taking into account his guilty plea, reasonable prospects of rehabilitation and the fact that he was in protection, the offender was sentenced to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years.
Charges: The offender pleaded guilty to 3 charges, namely, stalking or intimidation with intent to cause fear of physical or mental harm (Count 1), assault occasioning actual bodily harm (Count 2), and sexual intercourse without consent (Count 3). There was also a charge of driving while suspended.
Case type: Sentencing.
Facts: The victim had been in an intimate domestic relationship with the offender for approximately 2 years, during which time the offender sometimes lived at the victim’s home. The relationship was characterised by violence. On 10 May 2017, the offender carried out the attack after picking the victim up from her home. He began shouting at the victim about a man named Adam. The victim tried to escape from the car. The offender stopped the car, opened the passenger’s door and punched the victim several times in the face, causing bleeding (Count 2). The victim moved to the back seat of the car and called 000 on 3 separate occasions in the hope that the operator would hear what was happening. The offender drove to an address in Young, where he committed Count 3. Count 1 related to the offender’s ongoing threatening and violent behaviour towards the victim. The offender later drove the victim to her home, and apologised to her. When he was arrested, he agreed to be interviewed and admitted to assaulting the victim.
The offender asked the Court to also deal with his appeal against sentence severity in relation to an aggregate sentence of 26 months with a non-parole period of 15 months which had been imposed at the Local Court in respect of two offences (one of which was contravention of a domestic violence order). That offending was committed while the offender was on bail for the other offences for which the offender appeared for sentence.
Issue: The Court determined the appropriate sentence for the offences in the circumstances.
Held:
Severity appeal from the Local Court:
His Honour dismissed the appeal, and confirmed the convictions and the aggregate sentence of 26 months with a non-parole period of 15 months.
Sentence matters:
Judge Lerve noted that the offending was committed in contravention of an apprehended domestic violence order, and highlighted the need for general deterrence in such cases ([35]-[42]). The circumstances in which Count 2 was committed were relevant to the assessment. It was particularly nasty and cowardly as it occurred on the side of the road; however the injuries were limited to bleeding ([19]). Count 1 was found to be serious, as it involved an ongoing course of violent and aggressive threats ([20]). In relation to Count 3, his Honour noted that, in light of the victim’s reaction and the violence which occurred that day, it must have been obvious to the offender that the victim was not consenting ([21]).
Further, the offender’s criminal history was extensive, and he had previously been convicted of offences including contraventions of domestic violence orders, intimidation of a police officer, damage to property, and a number of assault matters. However, the offender had not previously been charged with a sexual offence ([43]-[48]). He also regularly uses drugs, and self-reported that he was diagnosed with PTSD and experienced trauma as a child. He attended a rehabilitation facility while on bail in 2018, but was discharged because of non-compliance with the requirements of the facility ([54]). Judge Lerve could not be satisfied on balance that the offender had good prospects of rehabilitation ([58]). The evidence before his Honour suggested that, given his lack of treatment, he is at an increased risk of violent re-offending in the future ([57]).
His Honour recorded a conviction for each of the matters to which the offender pleaded guilty, and imposed an aggregate sentence of 7 years and 4 months with a non-parole period of 5 years. He also recommended that the offender participate in the Violent Offenders Treatment Programme while in custody. The total effective sentence was one of 8 years and 4 months with a period of 6 years in actual custody.
Charges: Intentionally or recklessly destroy/damage property x 1; common assault x 1.
Case type: Appeal against conviction.
Facts: The appellant and complainant had separated and have a child together. They had ongoing issues regarding the complainant’s use of a phone and their separation in general. The appellant grabbed the complainant’s handbag, containing her phone. In cross-examination, he confirmed that he held the bag to taunt her about the phone because he was upset ([11]). The altercation resulted in the complainant suffering bruises and a scratch on her leg.
Issue: The appellant appealed against the conviction, pursuant to section 18 Crimes (Appeal and Review) Act 2001.
Held: Grant DCJ allowed the appeal. He quashed the conviction, set aside all other orders of the Local Court, found the appellant not guilty and dismissed the charges.
The appellant gave sworn evidence of his good character which was uncontested ([10]). The magistrate was faced with a single witness with no independent supportive evidence ([12]). The appellant had the presumption of innocence ([22]).
Grant DCJ found that, in determining the guilt of the appellant, the Magistrate engaged in ‘illogical, speculative, reverse reasoning’ that led him into error. The Magistrate’s reasoning in respect of the matters listed at para [14] was found to be flawed. He wrongly inferred that because the complainant had not been cross-examined about any inconsistency with a statement made to police, the evidence she gave must be consistent with that statement, therefore supporting her credibility. Such an inference was found to be entirely speculative as no one knew the contents of the statement. Further, Grant DCJ held that making a self-serving statement, or any statement to the police, and giving evidence in accordance with that statement, does not automatically add to a witness’ credibility ([15]-[16]).
The appellant was given the opportunity to conduct an electronic record of interview which he declined. Grant DCJ found that the Magistrate correctly set out the law in that the refusal to participate in a record of interview cannot be construed as an admission of guilt. However, the Magistrate went on to say that such a refusal was relevant in assessing the accuracy of memories in relation to a certain account noted in [19]. Grant DCJ found that this reasoning would lead to the proposition that ‘if a defendant engaged in a record of interview and it was consistent with his evidence, then a witness could be looked upon as a more credible witness.’ This finding would undermine the appellant’s right to silence and may shift the onus on the appellant to demonstrate his credibility by participating in a record of interview ([18]-[20]).
To find the appellant guilty, the magistrate would have to disbelieve his account beyond reasonable doubt ([23]). Grant DCJ was not persuaded that the Magistrate could have properly convicted the appellant ([23]).
Charges: Assault occasioning actual bodily harm x 1.
Case type: Sentencing.
Facts: The offender had known the complainant for a number of years. In the course of a dispute between the parties at the complainant’s residence, the offender put a pillow over her face (common assault). The complainant then ran out of the house, followed by the offender. The offender pushed her on the ground and started to drag her towards the house by the shirt which caused a graze to her back (assault occasioning actual bodily harm). The complainant ran onto the neighbour’s driveway and told the neighbour to ‘call the police’. The police attended the complainant’s residence soon after the incident and recorded her statement on camera.
Issues: The Court determined the appropriate sentence for the offence in the circumstances.
Decision and reasoning: The Court sentenced the offender to an aggregate period of imprisonment of 22 months which, after a discount of 15% for his guilty plea, was a sentence of 18 months ([64]). A non-parole period of 12 months was imposed.
The Court assessed the objective seriousness of the offending, and found that aggravating factors included the offender’s five good behaviour bonds and a string of intensive corrections orders at the time of offending, the place of the offending (complainant’s home), and the brutality of the consecutive acts committed over a short period of time ([13]-[17]).
The Court must be satisfied that imprisonment is more appropriate than all other alternatives, such as non-custodial sentences ([54]). The benefits of rehabilitation in the community were found to be outweighed by the fact that the offender previously had the benefit of conditional liberty orders and failed to comply with them ([56]). General principles of sentencing, such as denunciation, accountability, punishment, deterrence and protection were considered at [46]-[52]. The offender had a number of prior convictions, including common assault, contravention of an AVO, and assault occasioning actual bodily harm ([21]). The matter before the Court was the fourth domestic violence type offence for which the offender had been charged ([30]). Although the number of previous offences was a relevant factor, they were of moderate application as there was no evidence of any present risk. Nevertheless, the court observed at [33] that the offender had a history of domestic violence and non-compliance with court-ordered community based sentencing options.
Although the offender pleaded guilty, the Court was reluctant to accept his expressions of remorse, particularly given his partial attribution of blame to the victim in the Sentencing Assessment Report. The Court referred Munda v Western Australia (2013) 649 CLR 600 at [54]-[55] which held that the State has an obligation to ‘vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence’. The Court noted the offender’s history of drug abuse at [24]-[29], but did not accept that a piece of oral evidence at [29] was sufficient to establish a connection between his domestic violence offending and his substance abuse. The offender’s prospects of rehabilitation were also seen to be ‘guarded’ ([45]).
Charges: Destroy or damage property x 1.
Appeal type: Appeal against conviction.
Facts: In the course of an argument with the complainant, his wife, the appellant damaged a laptop and mobile phone ([4]). The appellant’s case was that he was the sole owner of the items, and thus could not be convicted of the offence ([5]). The appellant had purchased the items and had given them to his wife and did not say they were gifts ([6]). The complainant had day to day use of both items ([7]).
Issues: Whether the items were the property of the appellant or another person.
Decision and reasoning: In reliance on the law of trusts, Scotting J inferred from the actions of the parties that the items were intended to be gifts ([21]-[26]). The presumption of advancement could not be rebutted. The Magistrate’s decision that the items belonged to both the appellant and complainant was affirmed ([28]). Therefore, the appellant’s conviction for property damage is upheld.
Charge/s: Assault occasioning bodily harm x 5, sexual intercourse without consent, common assault x 4, breach of AVO x 5.
Hearing: Sentencing hearing.
Facts: After being found guilty in a trial by jury, the offender was sentenced for 10 domestic violence offences committed against his former female partner. The offender was also sentenced for a number of other charges namely, driving disqualified and numerous breaches of an Apprehended Violence Order (AVO).
Decision and Reasoning: Berman J imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 and a half years. At the outset, His Honour noted that: ‘Women, and it is usually women, too often find themselves subjugated to the demands of their partners, who seem to regard it as entirely acceptable for them to control and manipulate someone with whom they are in a relationship through violent and degrading means’ (see [1]).
Berman J noted that the offender here felt a sense of entitlement and ownership over the victim and blamed her for his violent behaviour. His manipulation of the victim, using violence and protestations of love, was so effective that she did not leave the relationship (even after she had been repeatedly beaten and raped) until she received counselling (see [4]). She was left with significant physical and psychological injury (see [26]).
Moreover, there were a number of serious features of this offending. The victim was assaulted in her own home. Many of the offences occurred in context of offender’s demands that the victim withdraw a complaint she made to the police about him. There were similarities in the way he had treated a previous partner. Some offences were committed in the presence of the victim’s daughter. Many offences constituted breaches of an AVO and demonstrated contempt of these orders (see [28]-[30]).
In the context of mitigating factors, His Honour acknowledged that the offender grew up with domestic violence as a feature of his early life. However, this was not a case in which the offender thought that such behaviour was normal and acceptable because his stepfather was a good role model for him (see [33]-[40]). The offender had taken some steps towards rehabilitation and some references spoke positively of his character (showing how an offender can have a very different face in private life) but there was still need for the sentence to reflect an element of specific deterrence (see [42]-[43]). More importantly, the sentence needed to take into account general deterrence. As per Berman J:
‘Offences such as these cause enormous harm, both to the individual victims concerned and to the community generally. Offenders who commit crimes such as I have described, particularly after they have been subject to apprehended violence orders, put in place to protect their partners from precisely such conduct, need to be given in sentences which will deter others who may be tempted to act in a similar way. Most fundamentally in assessing the relevant sentence to impose upon the offender is, of course, the objective gravity of what he has done’ (see [42]).
Charge/s: Contravention of a protection order, common assault.
Appeal Type: Appeal against conviction.
Facts: A Provisional Apprehended Order was made nominating the appellant’s partner as the protected person and the appellant as the defendant. This was served on the appellant by the police. The appellant then appeared in court represented by counsel from the Aboriginal Legal Service and an interim Apprehended Violence Order (AVO) was made. The appellant assaulted the protected person and was charged. There was a hearing in the Local Court where a plea of guilty was entered with respect to the assault charge and the appellant defended the contravene AVO charge. The Local Court found the appellant guilty of the contravene AVO.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed. First, the Statement of Service complied with the Local Court Rules. It did not need to be signed as it was served by a police officer and it was sufficient that the officer wrote ‘Dubbo’ in the space for the address (r 5.12 Local Court Rules). Rule 5.12 exists to serve the purpose of facilitating proof of service of the process (See [29]-[36]). In any event, the appellant was present in court when the Interim Order was made (See [48]). Second, the magistrate informed himself of the course of events by reading the bench sheet. He was entitled to do so (See [49], [57]).
Charges: Act of domestic/family violence
Case type: Application for Administrative Review
Facts: The applicant sought administrative review of a decision in respect of an application for Victims Support. In 2015, the applicant’s solicitor lodged an Application for Victims Support which alleged that she was the primary victim of an act of domestic/family violence. She also alleged to have suffered a psychological injury as a result of the violent conduct, and she sought counselling, financial assistance for immediate needs or economic loss, and a recognition payment ([2]-[3]).
At first instance, the Assessor approved a Category D recognition payment in the sum of $1500 on the basis that the evidence indicated that the applicant was a victim of an assault that did not result in grievous bodily harm ([7]). Subsequently, the applicant’s lawyer signed an Internal Review request form, submitting that she had suffered grievous bodily harm as a result of the violence and that a Category C recognition payment should have been approved ([9]). The Senior Assessor, however, re-affirmed that the applicant was the primary victim of an act of violence, and was only eligible for a Category D recognition payment in the sum of $1500 ([12]).
Issue: The Tribunal was required to determine an application for an administrative review. Its powers derive from s 63 of the Administrative Decisions Review Act 1997 (NSW).
Held: The applicant’s solicitor cited Helm v Pel-Air Aviation Pty Ltd and BWQ v Commissioner of Victims Rights in the Internal Review form, both of which relate to the characterisation of psychological injury as ‘bodily harm’. The Senior Assessor determined that ‘as [the applicant] relies on a psychological injury as evidence of grievous bodily harm in order to be eligible for a Category C recognition payment’, it is necessary to consider ‘whether the evidence establishes a "really serious” psychological injury’. The Senior Assessor was not satisfied that the applicant’s functioning had been impacted solely as a ‘direct result’ of the domestic violence, or that her psychological injury was sufficiently serious to justify the approval of a Category C recognition payment ([12]).
Ultimately, the decision of the Senior Assessor was set aside, and the Tribunal decided that the applicant was eligible for a Category C recognition payment in the sum of $5000. The Tribunal discussed CZU v Commissioner of Victims Rights and DEL v Commissioner of Victims Rights, which provide some guidance on the types of evidence which may assist in determining whether a psychological injury is sufficiently serious to be considered grievous bodily harm, in order to approve a Category C recognition payment ([11]-[13]). Although the applicant had experienced prior psychological issues, the Tribunal found that the evidence did not support a finding that she required any ongoing psychological treatment for these issues when the act of violence occurred ([32]). Further, the Tribunal was satisfied on the balance of probabilities that the applicant’s current psychological injury resulted from the act of violence ([37]), and that it could properly be considered as being ‘really serious’ ([44]). The applicant was found to have suffered grievous bodily harm, thereby satisfying the eligibility requirement for a Category C recognition payment. Even if the Tribunal had been incorrect in its finding as to the causation of her current psychological condition, it was satisfied that the ‘eggshell psyche’ principle applied and that her pre-existing ‘eggshell psyche’ was aggravated as a direct result of the violent act ([39]).
This matter has been the subject of a successful application for special leave to appeal to the High Court of Australia by the respondent woman (Roy v O'Neill [2020] HCATrans 43 (20 March 2020) ).
Proceedings: Appeal against conviction
Issues: The admissibility of evidence obtained in the course of what was described as pro-active Domestic Violence Order (DVO) compliance checks undertaken by police officers in Katherine.
Facts: The respondent woman was the subject of a DVO that protected her male domestic partner. The DVO contained various conditions including that she was restrained from consuming and/or being under the influence of alcohol and other intoxicating substances when in the company of the victim [2]. In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime and as part of that operation three officers from the Northern Territory Police Force visited the respondent and victim’s unit. One of the attending officers gave evidence that he had observed ‘antisocial behaviour coming from the property over the weeks prior to the operation’ [3]. One of the officers had previously observed the respondent in an intoxicated state ‘and she was in an intoxicated state every time he had dealt with her’.
Officers approached the shared unit and observed that the respondent "appeared to be just sort of laying on the ground" through the window and called her to come to the door "for the purposes of a domestic violence order check". Officers noted that the respondent’s eyes were bloodshot, her speech was slurred and had "a very strong odour of liquor on her breath", which lead them to conduct a breath test. The respondent was taken to Katherine Watch House after testing positive to alcohol for further breath analysis.
The apartment was accessible to the public and there were no signs suggesting the police were not welcome to approach the unit and knock on the front door. They were not asked to leave by the occupants.
It was initially determined by the Local Court that the officers did not have power under either the Police Administration Act 1978 (NT) or the Domestic and Family Violence Act 2007 (NT) to attend the residence and check that the respondent was complying with the terms of the DVO" and the respondent was found not guilty [7]. The Prosecution first appealed the decision on the grounds that the officers had an implied licence to approach the residence, but the appeal was dismissed with the Supreme Court providing that "absent a clear and express statutory power to do so, neither the police nor anyone else has an implied invitation to enter private property, or the threshold of a person’s home, for the mere purpose of investigating whether a breach of the law has occurred or for the purpose of gathering evidence" [8]. The Prosecution appealed the Supreme Court’s decision arguing that the police had an implied licence to enter the premises. The respondent submitted that "no licence could be implied in the present case because the officers’ purpose for attending the respondent’s threshold was for investigation or gathering evidence of criminal activity by the occupier."[9]
Judgment: The Court concluded that the Supreme Court Judge erred in deciding that there was no implied license to approach the door. By drawing similarities to Halliday v Nevill, the Court held that the case involved an implied licence from the occupier of the premises for visitors to be on the footpath and approach the door of the unit rather than an implied licence for a specific purpose [37]. "There was nothing in the facts to suggest that the occupier did anything to negate or rescind any implied license."[37] This licence extended to visitors walking up the path leading to the entrance of the residence in order to knock on the door and undertake lawful communication with someone within the dwelling. The officers’ enquiry into whether the terms of the DVO were being honoured and to check on the well-being of the protected person constituted such legal communication (Halliday) [37].
Charge: Breach of restraining order
Appeal type: Appeal against sentence
Facts: The appellant was convicted of breaching a restraining order. Some months later he was convicted of failing to comply with the terms of the order. Contrary to the order, the appellant visited the victim at her home and entered in a verbal argument with her after consuming alcohol. The restraining order was made and the offences were against the Domestic Violence Act 1992 (NT) (the former Act). This Act was repealed on 1 July 2008 and replaced by the Domestic and Family Violence Act 2007 (NT) (the current Act). The appellant’s trial in respect to the second offence did not occur until after the current Act came into force. The magistrate found that sentencing provisions under the former Act applied to the appellant. Under s 10(1A) of the former Act, where a person is found guilty of a second offence the Court must impose a minimum sentence of at least seven days’ imprisonment. Accordingly, the magistrate imposed a sentence of seven days’ imprisonment. Section 121 of the current Act provides no mandatory minimum sentence for a second breach where no harm is caused and the court is satisfied it is not appropriate to record a conviction and sentence in the circumstances.
On appeal to the Supreme Court, Riley J held the magistrate did not err in sentencing the appellant.
Issue: Whether the magistrate erred in punishing the appellant to a greater extent than was authorised by the current Act by imposing the mandatory sentence of imprisonment of seven days under s 10(1A) of the former Act.
Decision and Reasoning: All three judges on the Court of Appeal allowed the appeal. The sentence was quashed and the matter was referred back to the Court of Summary Jurisdiction for the appellant to be resentenced.
Section 14(2) of the Criminal Code (NT) provides that while the appellant could be sentenced under the former Act for his second breach of the restraining order, he could not be punished to any greater extent than was authorised by both the former Act and the current Act.
Mildren J concluded that the mandatory minimum sentence of seven days’ imprisonment under s 10(1A) of the former Act is a punishment ‘to any greater extent than is authorised by the current law’ pursuant to s 14(2) of the Criminal Code (NT). The Magistrate’s discretion to impose a lesser sentence than seven days under the current Act conferred a punishment to a greater extent than authorised by the current Act.
Southwood J, agreeing with Mildren J, held that the sentence of seven days imprisonment imposed on the appellant was a greater punishment than authorised by ss 121(1) and (3) of the current Act. Those provisions of the current Act decreased the severity of the penalty required to be imposed for a second breach of a restraining order for the purposes of s 14(2) of the Criminal Code (NT). The sentence imposed was disproportionate to the gravity of the offending. Had the magistrate sentenced the appellant pursuant to s 121, he would not have imposed a sentence of seven days’ imprisonment. As a result, the Magistrate failed to sentence the appellant in accordance with s 14(2) of the Criminal Code (NT).
Blokland J held that s 121(3) of the current Act does not authorise a sentencing magistrate to sentence on the basis that its starting point is a conviction and seven days’ imprisonment unless that penalty is appropriate and just in all the circumstances. This was the approach of the magistrate in finding he was bound to apply the mandatory minimum term under s 10(1A) of the former Act. The sentence imposed by the magistrate was not authorised when considering the application of s 14(2) of the Criminal Code (NT).
Offences: Murder
Proceedings: Application for leave to appeal against conviction
Ground: The trial judge erred in directions that were given to the jury bearing on the burden and standard of proof.
Facts: The female victim and male applicant had been in a domestic relationship for a number of years and were staying together at the applicant’s mother’s home the night before the offending. On the morning of the offending, the applicant and victim were alone together at the house. The applicant beat the victim and caused at least 28 injuries, many of which required severe force, including impacts to the scalp and face, impacts to the trunk (corresponding to three fractured ribs), impacts to the arms (causing a complete break in one arm), and impacts to the legs (including stab wounds). Afterwards, the applicant went to a neighbouring house to get help, telling the neighbour that the applicant’s wife was in pain and had been hitting herself. The neighbour took the applicant to the nurse’s residence where the applicant told the nurse that his wife had been drinking, had a sore arm and felt sick. The nurse told the applicant to bring his wife to the clinic at 8:30am as it was not an emergency. The neighbour dropped the applicant back at the house before going back there himself where he saw that the victim was not moving. They fetched the nurse who confirmed that the victim had died.
When police arrived, the applicant told them that his wife "went crazy" after drinking alcohol and hit herself on the head with rocks. He also told them that she started to go a bit crazy and make him angry so he "picked up a knife and stabbed her in the bum and the leg and her hand" and "grabbed [his] axe and hit her on the arm, the leg and the top of the head" [7]-[8]. An axe and knife were found in the applicant’s bedroom. The applicant was found guilty of murder (but argued at trial that it should only have been manslaughter). He appealed this conviction on the ground that the trial judge erred in directions that were given to the jury bearing on the burden and standard of proof.
Judgment: The court dismissed the appeal, finding that the specific directions given by the trial judge were not attended by error nor did they give rise to any miscarriage of justice. The court found that at trial, defence counsel did not raise any query in relation to the first impugned direction and held that "The direction was not at that time considered inconsistent with or inimical to the legal and forensic basis of the defence case" [24]. Furthermore, while the court found that it may have been appropriate to remind the jury, at the point the direction was made, that the prosecution had to prove beyond reasonable doubt that the applicant intended to cause the victim at least serious harm and in that context that the jury should take into account all of the evidence, the court considered that it was unnecessary to do so because of the directions given elsewhere [30].
The court further held that no error was made in relation to the second impugned direction. The court held that it was open to the jury to make no conclusive finding on the issue of whether the applicant thought he was hitting the victim with a stick and still nonetheless be satisfied beyond reasonable doubt that the applicant meant to cause serious harm, simply because of the prolonged nature of the beating and the multiple impacts involved [36].
The court also held that no error was made in relation to the third impugned direction, finding that "the trial judge’s summing up adequately conveyed to the jury that the ultimate question was whether, in the light of the evidence of intoxication and all other relevant circumstances, the prosecution had proven beyond reasonable doubt the intent necessary for the crime of murder" [47].
Charges: Murder x 1.
Case type: Application for leave to appeal against conviction.
Facts: The applicant man pleaded not guilty to an ex officio indictment charging him with the murder of his female de facto partner (the deceased). Prior to the jury trial, a voir dire was conducted to determine the admissibility of admissions made to undercover police and in a police interview. The trial judge ruled these admissions admissible. The applicant was later found guilty of murder by majority verdict and sentenced to life imprisonment with a 21 year and 6 month non-parole period.
A key issue on appeal related to the evidence in relation to the undercover police operation. The Court detailed how undercover police established a fake criminal operation and used various tactics to gain the applicant’s trust. The applicant had participated in various tasks or scenarios, none of which were illegal. These scenarios were designed to make the applicant believe that the group had power, by virtue of its links, to corrupt law enforcement officers, and to destroy incriminating evidence. The applicant then met with a fictitious crime boss. The ‘boss’ utilised the interview technique of ‘minimization’, by which he sought to devalue the deceased and other women in order to create a bond of misogyny to gain the applicant’s trust. The applicant eventually admitted to killing the deceased by punching her to the head and then choking her, and led the operatives to the site of the remains. He subsequently gave evidence at trial that he had killed her under provocation.
Issue: The appellant sought leave to appeal against the conviction on the grounds that:
Held: The application for leave to appeal was refused. The trial judge observed that there was no evidence that the scenarios in which the applicant participated involved violence and held that the undercover police did not engage in oppressive conduct. His Honour had contrasted that position with the scenarios in some of the Mr Big operations in Canada which employed violence to create an impression that the fictitious criminal organisation tolerated and was prepared to use violence. The Canadian approach did not assist the applicant as there was no issue that the applicant made a false or unreliable confession.
Charges: Murder x 1
Proceedings: Crown appeal against sentence
Grounds: The non-parole period fixed by the sentencing judge is manifestly inadequate:
Facts: The respondent man was sentenced to imprisonment for life with a non-parole period of 21 years and six months for the murder of his de facto partner. While initially pleading not guilty, the respondent admitted to killing the deceased during the trial but ‘asserted that he had done so under provocation’ [3]. The trial judge found that a longer non-parole period was warranted because the respondent ‘killed the deceased specifically to ensure that she would have no role in their son’s upbringing...That the respondent engaged in detailed and calculated planning prior to the killing, and a complex cover-up after the event...The respondent positively obstructed and misled police investigating the disappearance of the deceased...[and] that the respondent demonstrated no remorse for killing the deceased’ [5].
Decision and reasoning:
The appeal was dismissed.
‘In our opinion, the sentencing judge was no doubt correct in determining that a longer non-parole period was warranted because the objective and subjective factors affecting the relative seriousness of the crime placed the offending above the middle of the range of objective seriousness even allowing for mitigating factors. The question is whether the non-parole period fixed as part of that assessment was manifestly inadequate.’ The court provided that because the crime committed ‘did not involve the use of a weapon; it was not committed in company; the attack upon the victim was relatively swift and did not involve a prolonged physical assault upon her; the victim was not mutilated; the victim was not psychologically tormented prior to being killed; and the victim was not made to suffer physically prior to being killed’ [56], the non-parole period was not manifestly inadequate. They also provided that ‘the respondent’s lack of remorse did not operate as a ground for increasing the length of the non-parole period’ [56], and that the respondent’s criminal history and personal circumstances were not aggravating factors.
Charges: Murder x 1.
Case type: Application for an extension of time and leave to appeal.
Facts: It was alleged that the applicant and the deceased were drinking with others and became heavily intoxicated. They began arguing over jealousy issues. They made their way to a shed in which the applicant was staying at the time. The following morning, the applicant told an officer at the police station that he had a fight with his wife the previous evening, but did not disclose the nature of the fight or the deceased’s condition. At that time the deceased was lying dead on a mattress in the shed. Forensic testing detected the deceased’s blood on the jeans and boots that the applicant was wearing at the time of his arrest. It is important to note that the Crown adduced evidence of 10 assaults between 2005 and 2013 by the applicant on the deceased to which the applicant had pleaded guilty before the Local Court. The trial judge ruled that the evidence of the assault was admissible as relationship evidence. The applicant filed an application for leave to appeal, as well as an application for an extension of time.
The applicant sought leave to appeal on the grounds that:
Issue: Whether extension of time should be granted; Whether forensic evidence concerning bloodstains were false, misleading, inconsistent, flawed and/or inconsistent with the prosecution case and guilt; Whether the trial judge’s direction to the jury concerning the bloodstains were inconsistent with the evidence; Whether the trial judge wrongly admitted relationship evidence.
Held: By reference to the principles in Green v The Queen [1989] NTCCA 5, the Court dismissed the application to extend time. The applicant did not provide any reason for the delay beyond the fact that he ‘could not find a lawyer’, and there were no exceptional circumstances or special reasons to warrant granting an extension ([31]). The Court also held that no viable grounds of appeal were established. Notably, their Honours upheld the trial judge’s decision to admit the evidence of 10 prior domestic assaults as relationship evidence under Evidence (National Uniform Legislation) Act. They held that the relationship evidence provided insight into the nature of the applicant’s and deceased’s relationship. Such evidence would potentially assist the jury to determine if they were in a ‘harmonious and caring relationship or a relationship marred by anger and violence’, and whether the applicant killed the deceased and, if so, his intention at the time. The probative value of the relationship evidence was not outweighed by the risk of unfair prejudice to the accused. The trial judge’s directions in relation to the jury’s use of the relationship evidence were therefore correct in law ([46]).
Charge/s: Unlawfully causing serious harm.
Appeal Type: Appeal against sentence.
Facts: The applicant and the victim had been married in a traditional Aboriginal manner for 13 years before separating in 2013. The relationship had been blighted by domestic violence, one consequence of which was the issue of a domestic violence order in 2013 protecting the victim. In 2014, the applicant entered the victim’s house without permission. The applicant kicked the victim at the bottom of her left leg, causing her compound fractures. The applicant was sentenced to six years imprisonment without a non-parole period.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed by majority (Grant CJ and Kelly J concurring, Barr J in dissent). The majority made relevant statements about domestic violence in Aboriginal communities. Grant CJ and Kelly J quoted from Amagula v White (unreported, Northern Territory Supreme Court, 7 January 1998): ‘The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased’.
Their Honours continued:
‘As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities’ (at [32]).
They note that while ‘some Aboriginal communities have an unusually high incidence of serious crimes of violence and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence. Aboriginal women and children living in those communities ‘are entitled to equality of treatment in the law’s responses to offences against them’. The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature’ (see [33]-[34]). There are also practical societal reasons to consider personal and general deterrence. As in The Queen v Haji-Noor:
‘The offender’s crime against Mr Ellis was committed in a domestic context. Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it’.
Charge: Unlawfully causing serious harm
Appeal Type: Crown appeal against sentence
Facts: The respondent and the victim were in a domestic relationship and had a young daughter. After drinking together near the remote community of Kalkarindji, the respondent and victim got in an argument. The respondent, who was intoxicated, threatened to stab the victim with a pen and subsequently stabbed him in the back with a knife.
Following an early guilty plea the respondent was sentenced to 18 months imprisonment, suspended immediately. The respondent is an Aboriginal woman who attended school until the end of year 6. She had never been employed and lived with the victim, their child and family. She received parenting payments from Centrelink. The trial judge found the respondent’s remorse was genuine. She waited for emergency services to arrive, made immediate admissions to police and subsequent formal admissions. The respondent continued to look after her young child while living with the victim, who had forgiven her. Finally, the trial judge found she had reasonable to good prospects of rehabilitation having not consumed alcohol since she committed the offence.
Issues:
Decision and Reasoning: The appeal was allowed and the respondent was resentenced.
Charges: Intentionally causing grievous bodily harm x 1; Aggravated assault x 1; Possession of cannabis x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The respondent attacked his former girlfriend and her new partner with a baseball bat ([22]-[23]). The aggravated assault charge was in relation to the respondent attacking his former girlfriend, leaving her with bruises, and the grievous bodily harm charge was in relation to the attack on the former girlfriend’s new partner, leaving him with permanent disability ([25]). There had been a history of domestic violence in the relationship between the defendant and his former girlfriend ([9]-[18]). The sentencing judge imposed a head sentence of 8 years and 6 months’ imprisonment ([4]). In relation to the aggravated assault charge, the respondent was sentenced to 2 years and 6 months’ imprisonment ([34]).
Issues: One issue was whether the sentence for the aggravated assault charge was manifestly inadequate.
Decision and Reasoning: The Court held that the sentence for the aggravated assault charge was within range.
Justice Angel at [31] quoted the sentencing judge:
The crimes of violence of the type you have committed are prevalent and too often occur against the background of a breakdown in a domestic relationship complicated by problems of access to children. Women in these situations are particularly vulnerable. They are entitled to such protection as the law can give them. Deterring you and other men who are minded to behave like you towards their female partners is an important factor in the exercise of the sentencing discretion.
I need to add this. It is not uncommon for men in your position to harbour a belief that their former partner had been unreasonable. Nor is it uncommon for violent men in your position to harbour a belief that the former partner has brought the violence on themselves by being unreasonable. You and others like you must learn that only you are to blame for the situation in which you now find yourself.
Justice Southwood added at [183]:
Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it.
Charge: Murder
Appeal type: Question of law under s 408(1) Criminal Code (NT)
Facts: The accused was charged and pleaded not guilty to murdering her husband (the deceased). For eight years leading up to this incident, the deceased had verbally, mentally and physically abused the accused and their children. The violence and abuse increased substantially in the months prior to the killing. During this time, the deceased threatened to kill the accused, beat her with his hands and a belt and sexually assaulted her. The deceased was a chronic drug abuser. On a road trip the accused noticed a rifle in the back of the car. Upon returning home, the deceased threatened to beat the accused with a belt, punched her in the head, throttled her, and made further threats of abuse. Fearing for her life, the accused retrieved the gun and shot the deceased while he was asleep. At trial, the judge ruled that the issue of self-defence should not be left to the jury. Following this, the accused’s counsel made an application that the subject of the ruling be reserved for the consideration of the Court of Criminal Appeal. Subsequently, the accused pleaded not guilty to the charge of murder, but pleaded guilty to the charge of manslaughter by reason of provocation. The indictment was amended accordingly and the jury found the accused guilty of manslaughter. No conviction was recorded; the trial judge postponed judgment until the Court of Appeal returned an answer on the reserved question of law.
Issue: Whether the trial judge was correct in ruling that self-defence was not open for consideration by the jury in the circumstances of the case.
Decision and Reasoning: In a 2:1 majority, the question was answered in the negative. The conviction was quashed and a retrial was ordered.
The defence counsel contended that as the deceased was asleep at the time he was shot, the accused could not have been acting in self-defence. The trial judge had accepted this reasoning: that because the deceased was asleep he had no ability to implement earlier threats. Mildren J of the Northern Territory Court of Criminal Appeal found that self-defence as provided under s 28(f) of the Criminal Code (NT) does not require a temporal connection between the assault and the force used to defend the assault: ‘The lack of any specific requirement for an apprehension of immediate personal violence, so far as the Code definition of assault is concerned, reinforces the view that an assault is a continuing one so long as the threat remains and the factors relevant to the apparent ability to carry out the threat in the sense explained have not changed’ ([16]-[17]). Accordingly, it was open to the jury to find the deceased’s threat was an assault that continued while he was asleep. Having regard to the history of the domestic violence, it could also be inferred that, upon waking, the deceased intended to kill or cause grievous harm to the accused, and he had the ability to do so. It was also open for the jury to consider that the force used was not unnecessary in the circumstances. Mildren J regarded the jury’s verdict as a conviction despite no conviction being formally recorded by the trial judge. Having found the trial judge was incorrect in ruling self-defence was not open, Mildren J quashed the conviction and ordered a re-trial.
Angel J, agreeing with Mildren J, held that self-defence extends to taking action to defend oneself from threatened assault even if this action is ‘a pre-emptive strike’. It was open to the jury to find the threat of the deceased constituted an assault and this assault continued to exist at the time of the shooting. Therefore, self-defence should have been left to the jury.
In his dissenting judgement, Martin CJ found the trial judge was correct in his ruling. He considered the word ‘being’ in s 28(f) of the Criminal Code (NT) to require a contemporaneous connection between the assault and the act of self-defence. As the accused was asleep at the time of the shooting, no such connection could exist.
Charges: Aggravated assault x2; Breach of bail x1
Appeal type: Appeal against sentence
Grounds:
Facts: The appellant woman, a 28 year old Wurrumiyanga woman and the male second victim of aggravated assault (Elton Limbiari) had been in a domestic relationship for three years and had two children together. Their relationship ended in 2015, and Limbiari later commenced a 2-week relationship with the first aggravated assault victim (Raggett). On the night of offending, the appellant went to Raggett’s property where she found both victims asleep on the veranda. She approach Raggett, grabbed her by the hair and dragged her down from the bed before punching her numerous times in the face, causing immediate pain and minor bruising. Limbiari was woken by the noise and, upon seeing Raggett being assaulted, tried to walk away but was stopped by the appellant punching him from behind. The punch causing minor swelling and bruising to his jaw.
The appellant was arrested and charged the next day. She later pleaded guilty to both charges of aggravated assault and was sentenced to 3 months imprisonment for each count, to be served concurrently. While later on bail to appear, the appellant did not appear and a warrant, thus breaching one of her bail conditions. The appellant also pleaded guilty to the charge of breach of bail and was convicted and sentenced to imprisonment for 1 month to be served cumulatively with the other sentences. The sentencing judge gave consideration to some matters put in mitigation on the appellant’s behalf, but very little consideration to the fact that she was the mother of four children.
Judgment:
The sentence The Appellant’s circumstances were truly exceptional when all relevant circumstances were considered, "including the relatively minor offending, the lack of any serious injuries to the victims, the fact that the appellant has apologised to both victims and the apologies have been accepted, her limited criminal history, the previous assault conviction was a long time ago and only resulted in a good behaviour bond, the extraordinary efforts she has made voluntarily to give up alcohol and attend family violence courses, the fact that she has left Tennant Creek with her children to start a new life away from influences which have got her into trouble in the past and the fact that she is a sole parent of four young children" [30]. His Honour rejected counsel for the respondent’s submission that "to establish one of the exceptions in R v Nagas, it is necessary to produce cogent evidence that imprisonment would effectively deprive the children of parental care", holding that "where the parent is a sole parent, particularly where the children are young and the appellant is the mother and sole carer of the children... different considerations arise. It is relevant that the children have someone close to them to look after them if the appellant is imprisoned, but a term of imprisonment which separates a mother from her young children can have a devastating effect on a child’s welfare and upbringing."[29]
His honour rejected the submissions that the sentence in relation to the breach of bail was manifestly excessive, finding that the offender’s "criminality was properly reflected in the sentences imposed" [31].
Charges: Aggravated assault x 2; Criminal damage x 1; Breach of bail x 3
Proceedings: Appeal against sentence
Facts: The appellant and the first victim were in a domestic relationship for six years (since the appellant was 13), during which the appellant had allegedly been subjected to significant domestic violence at the hands of the victim. On the night of the incident, the appellant started verbally abusing the victim while intoxicated. The victim left the room, but shortly returned to get his wallet. The appellant had found the victim’s wallet and started to cut up his licence. As the victim took and wallet back and tried to leave again the appellant stabbed him behind the knee with the scissors, preventing the victim from being able to walk. During the sentencing hearing, the appellant submitted ‘that on the night the appellant attacked [the first victim] her emotions which had been built up over an extended period of time overflowed and she could not control herself’, claiming the violence to be an exceptional circumstance.
The appellant (and her co-offender) assaulted the second victim a week later. The two offenders were intoxicated and engaged in a verbal argument with the victim. The co-offender then punched the victim in the side of her face with the appellant then punching the victim’s forehead, causing a large haematoma. The two offenders threw rocks at the glass door of the building the victim escaped to, causing the glass panel to break.
Issues:Two grounds of appeal – whether the sentencing Judge failed to properly exercise his discretion to find exceptional circumstances; and whether the sentence was manifestly excessive.
Descision and reasoning: The appeal on the first ground was allowed and the three months actual imprisonment set aside. The appeals on the other grounds were dismissed.
Ground 1:
The appellant had submitted that the violence characterising her relationship with the first appellant amounted to exceptional circumstances. While the sentencing judge had accepted that the appellant had been exposed to domestic violence, he concluded that ‘the material placed before him was not sufficiently specific to allow a firm conclusion to be drawn that the appellant’s background of domestic violence was operative on the appellant at, or generally around the time of offending’ [42]. Southwood J agreed with the sentencing judge, providing that ‘the difficulty with [the appellant’s] submission was that ‘there was no evidence before the Local Court or [the Supreme Court] that violence had become normalised for the appellant. To the contrary, the facts of the offending and the appellant’s criminal record established that the violence was out of character for the appellant and the main criminogenic factors in her offending were the consumption of alcohol and jealousy’ [46]. However, Southwood J still found that the sentencing judge had failed to consider the appellant’s other ‘exceptional’ personal circumstances such as her young age and no prior convictions for criminal offences. As such, the sentence imposed was unjust.
Ground 2:
The sentence of one-month imprisonment is appropriate as it does not crush the appellant’s prospects of rehabilitation and gives necessary and appropriate consideration to the principles of deterrence and denunciation.
Proceedings: Voir dire on admissibility of evidence of past violent conduct by the accused against the complainant
Issues: Admissibility of tendency evidence; whether probative value of the evidence substantially outweighs any potential prejudicial effect on the accused
Facts: One of the facts in issue is whether the complainant consented to sexual intercourse with the accused. The complainant alleged that the accused demanded she have sex with him and threatened her when she refused. The complainant complied by removing her shorts and underwear and lying down on the cement.
The Crown intended to lead evidence of past violent conduct by the accused towards to complainant [2]. The accused would resort "to violence against the [complainant] whenever she displeased him...or he had a state of mind in which he believed he was permitted to discipline her for any perceived failing – and that he was prepared to and did act on that state of mind." [3]. The Defence counsel conceded that the "evidence of past assaults is relevant for this ‘relationship’ or ‘context’ purpose but contends that it should be excluded under Evidence (National Uniform Legislation) Act 2011 (NT) ('UEA') s 137 because its probative value is outweighed by the danger of unfair prejudice to the defendant.
Judgment:
The evidence was admitted both as relationship or context evidence and as tendency evidence and will not be excluded under UEA s 137.
The Judge disagreed with the Defence’s contention that the evidence of past violence by the accused against the complainant should be limited to mere references of past assaults without revealing any details. Kelly J provided that restricting the evidence in this way would conceal the nature of the relationship rather than explain why the complainant submitted in the way she did. His Honour also rejected the claim that the evidence should be excluded under the UAE s 137 as it had high probative value. Namely, it "explains something that may otherwise be inexplicable" [5]. While the risks of rank propensity reasoning and the jury being emotionally repelled by the accused were acknowledged, Justice Kelly believed that the probative value of the evidence outweighed them and thus admitted the evidence of prior assaults as relationship evidence.
Justice Kelly then turned to the Prosecution’s request to use the evidence of prior assaults as tendency evidence. The Prosecution sought to Sought to use the tendency evidence to demonstrate the accused’s tendency to engage in violent conduct against the complainant; to have a violent and controlling disposition towards his domestic partner; to believe that he is permitted to discipline his domestic partner for any of her perceived ‘failings’ [13]. Court noted that under UEA s 97, tendency evidence is not admissible unless ‘appropriate notice has been given and the court thinks that the evidence will...have significant probative value’ [14]. Applying the principles established in Hughes v The Queen, Kelly J concluded that the evidence of prior assaults satisfied the threshold test in UEA s 97, in that it supported "proof of a tendency to engage in violent behaviour, especially after consuming alcohol, for the purpose of controlling his partner’s behaviour and/or punishing her for perceived failings"[18] and "if the jury accepts that the accused had this tendency (or tendencies) that "strongly supports proof of a fact that makes up the offence charged"... It explains what might otherwise be inexplicable and strongly supports proof of a fact in issue – namely whether the complainant consented to have sex with the accused and also, to perhaps a slightly lesser extent, proof that he knew of or was reckless as to her lack of consent."[19]. His Honour also concluded that the evidence substantially outweighed any prejudicial effect (as required by s 101 UEA) as the risks were "largely mitigated" by appropriate directions and warning to the jury. The tendency evidence was therefore admitted.
Charges: Aggravated assault x 1; Threat to kill x 1.
Case type: Appeal against sentence
Facts: The appellant man pleaded guilty to, and was convicted of, committing aggravated assault against his female ex-partner with a knife, and threatening to kill another person who tried to assist his ex-partner with her injury. The appellant had 14 prior convictions, including 12 for aggravated assault, most on women and some of whom were his previous partners, as well as numerous breaches of domestic violence orders and orders suspending sentences. The offending occurred whilst he was intoxicated and angry. The sentencing judge found the conduct to be intentional, and imposed a sentence of 4 years’ imprisonment, with a non-parole period of 3 years.
Issue:
Held: The appeal was dismissed, as neither the head sentence nor the non-parole period was manifestly excessive. The appellant’s extensive criminal history of violent conduct, particularly drunken violence, was relevant as it demonstrated a continuing attitude of disobedience to the law and the need to impose condign punishment for specific or general deterrence. It also indicated that the appellant had poor prospects of rehabilitation, and that community protection was a paramount consideration. Further, the Court noted that the offences, although taking place around the same time, involved two different victims and two different violent acts. It was therefore appropriate for the sentencing judge to reflect those differences in the way she did by fixing a total sentence and allowing for some concurrency ([60]-[61]). In relation to the non-parole period, the appellant’s prospects of rehabilitation, his age, criminal record and the protection of the community were particularly relevant. The non-parole period was justified, given his very poor prospects of rehabilitation and his "dreadful criminal history" ([67]). Further, the sentencing judge did not err in finding that intoxication was an aggravating circumstance of the appellant’s "brazen, excessive and egregious" conduct ([43]-[44]).
Case type: Appeal about domestic violence orders.
Facts: The appellant is an NT police officer stationed in Alice Springs. In 2016, the NT police applied to the Local Court for 2 domestic violence orders. The two applications were heard together.
The two protected persons named in the applications were the appellant’s wife and her daughter from a previous relationship. Both persons immigrated from South East Asia, and started living with the appellant in 2011. The appellant and his wife also had a child together, but separated in 2016. The Local Court in Alice Springs ordered that the appellant be restrained from contacting or approaching the protected persons, either directly or indirectly (‘first order’). In a different proceeding on the same day, the Local Court ordered that the appellant delete and destroy all sexually explicit images of the protected person in his possession or control, and not deal with or publish those images in any other way for a period of 2 months (‘second order’) ([3]-[4]).
The appellant filed 2 appeals in the Supreme Court, one for each of the Local Court proceedings. On 22 June 2017, Southwood J set aside the first order on the basis that the Local Court Judge could not reasonably infer from the facts that the appellant’s wife’s daughter feared the commission of domestic violence from the appellant, and there was no evidence that the appellant harassed her by engaging in regular and unwanted contact ([13]).
His Honour considered the appeal against the second order. The grounds of appeal included that:
Issue: Whether Local Court acted ultra vires in making an order to compel the destruction of sexually explicit images; whether there was a proper evidential basis for the Local Court to conclude there were reasonable grounds for the protected person to fear the commission of domestic violence arising out of the possession of the images.
Held: Southwood J allowed the appeals and set aside both domestic violence orders. His Honour held that the Local Court did not have the power to make the second order. Section 21 of the Domestic and Family Violence Act (the Act) does not grant the Local Court power to order a defendant to destroy his or her personal property. Rather, it enables the Local Court to impose conditions on a defendant’s behaviour with the aim of ensuring that the defendant does not engage in domestic violence. Further, the Act makes specific provision for circumstances in which property rights may be interfered with by the Local Court, none of which applied in this case ([46]-[48]). His Honour was satisfied that the appellant was the owner of the sexually explicit images and that his wife consented to him taking them ([45]).
His Honour also held that the Local Court erred in concluding that there was a reasonable fear that the appellant may use, or threaten to use, the sexually explicit images to continue to control his wife. This conclusion was ‘unreasonable and irrational’ ([54]). Further, the evidence showed that the appellant and his wife took sexually explicit images over a number of years for their own enjoyment ([50]).
Charges: Contravention of domestic violence order x 1; Contravention of alcohol prevention order x 1.
Appeal type: Appeal against sentence.
Facts: The appellant was subject to an alcohol prevention order and a domestic violence order which named his wife and daughter as protected persons. The appellant attended the house at which his wife and daughter were residing, under the influence of alcohol, and caused a disturbance ([2]). The Local Court restored a previously suspended sentence and imposed cumulative terms of imprisonment of 4 months for the breach of domestic violence order and 5 days for the breach of alcohol protection order ([3]). The appellant had a history of breaching the same domestic violence and alcohol prevention orders ([5]).
Issues: The appellant appealed on the grounds that the sentencing judge erred by:
Decision and Reasoning: The first, second and third grounds were dismissed (see [11], [19] and [25] respectively). The fourth ground, manifest excess, was upheld. Grant CJ outlined the following mitigating factors:
His Honour characterised the appellant’s repeated breaches as spontaneous and triggered by alcohol abuse, rather than premeditated ([32]). Quoting from Manakgu v Russell [2013] NTSC 48, his Honour agreed that penalties of more than 3 months’ imprisonment are properly reserved for conduct which constitutes physical assault or serious intimidation and threats ([31], [34]). His Honour reduced the sentence for breach of domestic violence order from 4 months to 2 months’ imprisonment ([37]).
Charges: Driving unregistered vehicle x 1; driving uninsured or improperly insured vehicle x 1; driving whilst disqualified x 1; driving with a high range breath alcohol content x 1.
Case type: Appeal
Facts: On 25 November 2015, the appellant was apprehended while driving a motor vehicle while intoxicated. The appellant was charged with a range of offences under the Traffic Act (NT) (the Act), including driving an unregistered vehicle on a public street (section 33(1)), and driving a vehicle in relation to which a current compensation contribution had not been paid (section 34(1)). The appellant indicated that he would plead guilty to the offence of driving an unregistered motor vehicle, but contended that the offence of driving an uninsured vehicle was a ‘similar offence’ and thus entitled him to the defence under section 18(b) of the Criminal Code (NT). The Local Court found the appellant guilty of these offences.
Issue: The issue for determination is whether the offence under section 33(1) of the Act is a ‘similar offence’, within the meaning of section 18 of the Criminal Code (NT), to the offence under section 34(1).
Held: The Court held that the offence under section 33(1) was not a ‘similar offence’ to the offence under section 34(1). While it may be accepted that the 2 offences shared common features, they nevertheless remained distinct and addressed separate obligations imposed under traffic laws for the protection of the community ([53]-[54]).
The fundamental principle is that a person cannot be prosecuted twice for the same criminal conduct ([16]). The double jeopardy doctrine has a number of different aspects with different operation, including the pleas of autrefois acquit and autrefois convict and the rule against double punishment ([17]). The availability of the pleas of autrefois acquit and autrefois convict will depend on a comparison between the elements of the two offences under consideration. It is insufficient that the two offences arise out of the same conduct, or out of a single event or connected series of events ([21]). The question is whether the elements of the offences charged are identical, or substantially the same in the sense that all the elements of one offence are wholly included in the other ([23]). The Court considered Ashley v Marinov [2007] NTCA 1, and adopted the principles expressed by the High Court in Pearce v The Queen [1998] HCA 57 where it was held that no double prosecution arises if the offences with which the accused was charged required proof of a fact which the other did not ([33]).
Note: This case is relevant in terms of domestic and family violence matters in the NT as it considers the law surrounding double punishment.
Charges: Contravention of domestic violence order x 1; aggravated unlawful assault x 1.
Appeal type: Appeal against conviction.
Facts: The appellant and complainant were in a relationship for approximately 15 years. The offences occurred after the relationship ended ([10]). The appellant allegedly threatened to kill the complainant if she found another partner ([11]). At trial, the prosecutor did not particularise the words spoken by the appellant ([7]). The appellant denied threatening to kill her, but admitted to threatening to punch the complainant if she came near him, and telling her to stay away from him. The Magistrate accepted the defendant’s evidence, and convicted him of the charge on that basis ([32]).
Issues: Whether the verdict was unsafe and unsatisfactory.
Decision and Reasoning: The appeal was allowed. The Magistrate convicted the defendant based on his admissions, which evinced less serious conduct than the threats alleged by the prosecution ([49]). The charge required the complainant to have a ‘reasonable apprehension of violence’ ([50]). Since the prosecution did not specify the particular words used, held that the Magistrate did not accord the defendant procedural fairness by going outside the prosecution case ([49]).
Charge/s: Unlawfully causing serious harm or unlawfully causing harm.
Hearing: Voir dire hearing.
Facts: The accused was charged with the offence of unlawfully causing serious harm to his female partner, the complainant, or, in the alternative, unlawfully causing harm to the complainant. The Crown sought the admission of tendency evidence related to the following fact in issue: whether the accused applied physical violence to the complainant in the early morning of 26 January 2016 and/or caused injuries to the complainant. The tendency sought to be proved was the tendency of the accused:
If the evidence (detailed at [5]) was not admissible as tendency evidence, the Crown sought to have it admitted as relationship evidence.
Decision and Reasoning: The rulings on the voir dire hearing were –
Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible in the trial as tendency evidence (see [61]-[72]).
In order to be admitted for tendency purposes, the evidence had to satisfy the requirements in ss 97 and 101 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’). Two questions arose in determining the admissibility of the evidence: (1) did the evidence have significant probative value? The relevant test is whether ‘the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in question’: CEG v The Queen [2012] VSCA 55 (see [30]-[60]); (2) did the probative value of that evidence substantially outweigh any prejudicial effect it may have on the accused? As per the Court, ‘[t]he test of a danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of unfair prejudice by reason of the admission of the evidence’ R v Lisoff [1999] NSWCCA 364.
Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible as ‘relationship’ or ‘context evidence’ (see [73]-[82]).
Evidence may also be admitted for non-tendency purposes. One example of non-tendency purpose is ‘relationship’ or ‘context’ evidence that is not relied on for a tendency inference. The High Court in HML v The Queen is authority for the proposition that evidence of other conduct by an accused may, depending upon the circumstances, be admissible for non-tendency purposes, including the following purposes (see [75]):
Although HML was a case involving sexual offences, relationship evidence may also be admissible in cases involving violence, including assault-type offences (see examples at [76]).
The admissibility of relationship evidence is governed by the general test of relevance in s 55 of the ENULA and the directions and obligations contained in Part 3.11 (especially ss 135 and 137). The Crown contended that the evidence was relevant and admissible as relationship or context evidence because it was necessary to:
Charge: Breach of domestic violence order
Appeal type: Appeal against acquittal, validity of domestic violence order
Facts: The respondent was served with a police domestic violence order under s 41 of the Domestic and Family Violence Act 2007 (NT) (the Act). The order set out the reasons for making the order and conditions of full non-contact. However, it did not provide a specified period for which the order was in force. The Court of Summary Jurisdiction confirmed and varied the order to be in force for 12 months.
After being in contact with the protected person, the respondent was subsequently arrested for breaching the domestic violence order. However, at the time of arrest the respondent had not been served with the court confirmed and varied domestic violence order. The magistrate found the respondent was not guilty on the basis that the domestic violence order made by the police ceased to be in force once confirmed by the court and the respondent had not been served with the court order.
Issues:
Decision and Reasoning: The appeal was upheld.
Charge: Breach of domestic violence order
Appeal type: Appeal against sentence
Facts: The appellant was the subject of a domestic violence order restraining him from, among other conditions, approaching, contacting or remaining in the company of his wife (the victim) when consuming or under the influence of alcohol. On the day of offending, the appellant had been drinking and travelled in the car with the victim. His blood alcohol level was 0.05 per cent. The appellant claimed he was in the car with the victim to attend to matters in the administration of the estate of the victim’s father-in-law. He also denied knowing that the domestic violence order was still in force. In relation to this conduct the appellant was charged, pleaded guilty and convicted of breaching the domestic violence order.
The appellant had an extensive offending history, including 16 convictions for aggravated assault, one conviction for causing grievous bodily harm and eight convictions for breaching domestic violence orders. Of these, 22 of the offences were committed against the victim. The magistrate considered this history of domestic violence offending and the need for specific deterrence together with the mitigating factor that the victim suffered no harm. The appellant was sentenced to three months imprisonment, taking into account a discount of 25 per cent for the early guilty plea.
Issue: Whether the sentence was manifestly excessive in the circumstances.
Decision and reasoning: The appeal was dismissed.
While a starting point of four months imprisonment seemed high for a ‘situational breach’ in which no harm was caused, it was necessary to consider the preventative and protective role of domestic violence orders. Barr J noted that ‘Given the preventative purpose of DVO, the fact that the parties may have been drinking while sitting down ‘in a good way’, or that the offender has on the particular occasion not been aggressive or threatening or violent to the protected person, does not necessarily result in a lenient sentencing outcome for a recidivist offender’ ([28]). The appellant’s criminal history demonstrated that while no harm resulted from the breach, there was a real risk that physical or emotional injury could occur and protection was needed to prevent such harm. Further, it established that he had a ‘continuing attitude of disobedience of the law’ ([33]). Therefore, the magistrate’s starting point of four months imprisonment, while on the high end of the range for the nature of the breach, was not outside the bounds of sentencing discretion.
Charge: Murder (sentenced for manslaughter)
Proceeding: Sentencing
Facts: The defendant was charged with the murder of his wife (the victim) after hitting her with a crate twice, kicking her in the back, and subsequently bashing her for three hours then leaving her on the sidewalk. The next morning the defendant went to find the victim to discover she was dead. This occurred after the defendant and the victim had a fight over his drinking habits. He was intoxicated at the time the assaults occurred. A domestic violence order was previously made against the defendant in order to prevent him from being with, assaulting or threatening the victim. The Crown accepted the defendant’s guilty plea to manslaughter on the basis that intention to kill or cause serious harm could not be proved beyond reasonable doubt due to the defendant’s intoxication at the time of the violent assaults.
Issue: What sentence should the defendant receive?
Decision and Reasoning: The defendant was sentenced to 14 years imprisonment with a non-parole period of 8 years.
The defendant had a history of domestic violence assaults against his wife. He had previously been convicted of three aggravated assault offences and one breach of a domestic violence order offence. Kelly J noted that each assault followed a similar pattern, with an argument resulting in the defendant ‘savagely’ bashing his wife. These attacks always involved alcohol and usually involved a weapon. These convictions meant the defendant was not a person of good character and was not entitled to a lighter sentence for being a first offender.
The defendant is a Walpiri man who speaks Walpiri and some Gurindji. He left school in year 9 and speaks English but cannot read or write. The defendant has not worked since his first wife committed suicide in 2002. He began drinking as a teenager and was drinking heavily at the time of the offence.
In providing her reasoning for sentencing, Kelly J highlighted the prominence of alcohol related violence in the Northern Territory: ‘Drunken violence is far too common in our community. It is particularly common, unfortunately, in Aboriginal communities and vulnerable Aboriginal women, vulnerable people of all kinds, deserve the fullest protection that the law can give them.’ The need to punish and for specific deterrence to prevent the defendant from reoffending, as well as the need to protect the community and other women from being hurt by the defendant, were emphasised. There were also a number of aggravating factors that made the offending more serious. The defendant used several weapons when attacking his wife, rather than just losing his temper and lashing out. He also went looking for his wife, having pre-planned the attack, and did not stop bashing her even when she begged him to.
In the factually similar case of R v Wheeler [2005] NTSC – Sentencing Remarks 20505473 (Southwood J), the defendant (Mr Wheeler) received a sentence of 10 years and 6 months imprisonment. However, Kelly J found the defendant’s conduct in the present case was more serious. Unlike Mr Wheeler, he was not provoked by his wife, showed no remorse after he finished bashing her, and did nothing to help her. He also only pleaded guilty after a preliminary hearing had already occurred with 36 witnesses, whereas Mr Wheeler pleaded guilty immediately. These circumstances taken together resulted in Kelly J finding a proper sentence of 16 years imprisonment. A reduction of about 12 percent was given as a result of the guilty plea.
Charge: Aggravated assault
Appeal Type: Appeal against sentence
Facts: The appellant, who was intoxicated at the time, pushed and punched his pregnant wife (the victim) in the stomach and head. After handing himself into police, he pleaded guilty to unlawfully assaulting the victim with the aggravation of male-on-female assault (under s 188(2)(b) Criminal Code 1983 (NT)). When asked why he assaulted the victim he said it was because his wife told him to stop drinking. The appellant was initially convicted and sentenced to a term of 10 months imprisonment, to be served cumulatively upon a restored sentence of seven months for previous offending including assaulting the same victim. This earlier assault involved the appellant striking the victim with a sword, then punching and kicking her.
In sentencing, the magistrate emphasised that the victim was pregnant at the time the assault occurred: ‘Women of course deserve to be safe whether they are in Darwin, whether they are at home, and they do not deserve to be treated in this way, particularly – and it is an aggravating factor – when she was 28 weeks pregnant.’ (at [7]). A reduction to the sentence was given when considering the principle of totality and the presence of the appellant’s guilty plea.
Issues:
Decision and Reasoning: The appeal was dismissed.
Charges: Aggravated assault, breach of alcohol protection order
Appeal type: Appeal against sentence
Facts: The appellant, who was intoxicated at the time, had an argument with his wife (the victim). He subsequently dragged the victim outside, punched her in the face multiple times, shoved her into a shelf and punched her twice in the stomach. He was charged and pleaded guilty to one count of aggravated assault under s 188(2)(b) Criminal Code 1983 (NT) (victim suffered harm and male-on-female assault) and one count of breaching a police issued Alcohol Protection Order. The appellant had a number of previous convictions, including three counts of aggravated assault against the victim, four counts of breach of a domestic violence order and nine counts of breaching an Alcohol Protection Order. He resided in Oenpelli and had been an artist member of Injalak Arts for around 20 years. This job would continue on the appellant’s release. His counsel argued his prospects of rehabilitation would be improved if he participated in the Family Violence Program. At trial, the magistrate relied on the seriousness of the offending and his past history to conclude the appellant needed to be specifically deterred, despite any positive attributes, and the community needed to know such conduct is unacceptable. The appellant was sentenced to 12 months imprisonment after a reduction of four months for pleading guilty. A non-parole period was not fixed due to the seriousness of the offending and continued ongoing breaches of court orders.
Issues: Some issues on appeal were whether the magistrate:
Decision and Reasoning: The appeal was upheld on ground 3. Grounds 1 and 2 were dismissed.
Blokland J began by noting that ‘Offending of this kind, men assaulting their wives or partners, is an intractable problem in the Northern Territory. With few exceptions, imprisonment is often the appropriate punishment… In most cases, particularly with respect to repeat offenders, positive subjective features generally need to be very carefully balanced as rarely will they outweigh the significance of the gravity of offending of this kind.’ ([19])
Charge: Aggravated assault
Appeal type: Appeal against sentence
Facts: The appellant was the subject of a domestic violence order that restrained her from harming the victim. On the day of offending, the appellant and the victim got in an argument after the victim returned home from work for lunch against the appellant’s wishes. The appellant was upset that the victim woke up their daughter. She then forcefully struck the victim’s head. In relation to this conduct the appellant was charged, pleaded guilty and convicted of aggravated assault, with the circumstance of aggravation that the victim suffered harm. The victim had a prior conviction for aggravated assault (weapon-harm) in respect to the same victim. In his victim impact statement, the victim said he did not wish the appellant serve gaol time, as she was pregnant. A character reference was also provided by aboriginal community members that outlined the appellant’s positive characteristics as a mother who had suffered hardship throughout her life. The magistrate heard the appellant had previously been the victim of domestic violence in the relationship and grew up in a household with her parents who had domestic violence issues.
Section 78D of the Sentencing Act 1995 (NT) requires a mandatory minimum sentence of three months actual imprisonment for aggravated assault, unless exceptional circumstances exist under s 78DI. The appellant’s counsel submitted exceptional circumstances existed on the facts. These circumstances were constituted by a combination of factors including that the victim did not wish the victim to go to gaol; the appellant had sought counselling; she was suffering hardship having attempted suicide the previous year and losing a child two months prior to sentencing; she had previously been the victim of domestic violence herself; and she had ongoing employment within the community. After determining these factors did not amount to exceptional circumstances, the magistrate sentenced the appellant to three months imprisonment.
Issue: Whether the magistrate erred in finding the circumstances of the case were not exceptional for the purposes of s 78DI.
Decision and reasoning: The appeal was allowed and the appellant was resentenced.
Referring to the obiter comments made in R v Duncan [2015] NTCCA 2, Blokland J stated that exceptional circumstances do not exist unless the minimum term is greater than the term that would ordinarily be imposed ([37]). This was the case on the facts, as the magistrate noted he would have suspended the sentence but for the mandatory prescribed minimum. In determining whether exceptional circumstances exist, the court must consider the whole of the circumstances in the case. The individual factors do not need to be exceptional. Rather, the factors considered together must amount to exceptional circumstances.
The magistrate erred in his consideration of whether exceptional circumstances existed. The remarks were ‘unnecessarily constrained’ and the magistrate failed to consider a number of mitigating factors. In support of the magistrate’s reasoning, Blokland J emphasised the need for general and specific deterrence given the offence occurred in the vicinity of a young child. Further, the victim’s wish that the appellant not be imprisoned has little weight in domestic violence cases. The fact the victim was previously a victim of domestic violence herself without additional information about the duration and extent of the abuse also carried little weight towards exceptional circumstances existing. However, Blokland J concluded that the appellant’s personal circumstances of having just lost a child at the time of sentencing and attempting suicide the year prior made the case exceptional. These personal circumstances were such that being away from family and community support whilst grieving meant imprisonment would be more burdensome on the appellant than other offenders. The sentence was quashed, and the appellant was resentenced to three months imprisonment wholly suspended with an operational period of six months.
Procedure: Making of domestic violence order
Appeal type: Appeal against imposition of domestic violence order
Facts: The plaintiff, an Aboriginal Community Police Officer, was in a relationship with the victim. The victim made a number of allegations of domestic violence. As a result, a police domestic violence order was imposed against the plaintiff pursuant to s 41 of the Domestic and Family Violence Act 2007 (NT). In relation to this order, the plaintiff received a notice ordering him to appear before the court on 8 August 2014 to show cause as to why the order should not be confirmed. After the victim expressed an intention to leave Darwin, the plaintiff was informed that the order would stay in force to ‘keep the peace’ and would be revoked once the victim moved. The victim informed the plaintiff she would be leaving Darwin on 13 August 2014. As a result of this and advice given by the officer who made the police order, the plaintiff did not attend court on 8 August 2014 as required. The magistrate refused a short adjournment to enable the legal counsel to obtain further information to explain the absence of the plaintiff and confirmed the order for 12 months.
Issue: Was the plaintiff denied natural justice?
Decision and reasoning: Through the ‘unfortunate combination of events’ the plaintiff was denied natural justice. His superiors in the Police Force left him with the understanding that he was not required to attend court on 8 August 2014. As a result, the plaintiff was not given the opportunity to show cause as to why the order should not be confirmed. The magistrate confirmed the order without providing reasons for refusing the adjournment or confirming the order for 12 months. Additionally, the magistrate failed to provide the plaintiff the opportunity to make submissions, contrary to s 82(2) Domestic and Family Violence Act 2007 (NT). The decision was set aside and the matter was remitted to the Court of Summary Jurisdiction for determination.
Charge: Murder
Proceeding: Reasons for rulings given during trial as to admissibility of evidence, discharge of jury member
Facts: The accused was charged with murdering his ex-partner. He denied any involvement with her death and told police he believed another man or bikies associated with him likely murdered the victim. During the course of the trial, several witnesses were asked what they knew of the other man and his association with the victim and the accused. The prosecution sought to partially exclude evidence of three witnesses about what the accused had told them about people, including the other man, behaving suspiciously around him.
During the trial Blokland J received a note from a juror that alleged three of the other jurors considered the accused guilty until convinced otherwise (Ashley v R [2016] NTCCA 2, [10]). The accused’s Counsel requested the jury be discharged.
Issues:
Decision and reasoning:
NB: The ruling not to discharge the jury was held to be an error on appeal in Ashley v R [2016] NTCCA 2. The conviction was quashed and a retrial was ordered.
Charge: Murder
Proceeding: Pre-trial rulings on evidence
Facts: The accused was charged with murdering his ex-partner with whom he had two children. The prosecution sought to adduce evidence relating to the state of the accused and victim’s relationship from the time of separation until the victim’s death. The prosecution was attempting to argue that motive could be inferred from the nature of the relationship between the parties contained within such evidence. Some of this evidence comprised hearsay representations made by the victim to other witnesses.
Issue: Whether the evidence relating to the accused and victim’s relationship was admissible.
Decision and reasoning: Evidence as to the state of the relationship is admissible if it is relevant to the accused’s anger towards the victim by the use of controlling behaviours and frustration directed towards the victim. This kind of evidence is relevant at common law and within the meaning of s 55 of the Evidence (National Uniform Legislation) Act 2011 (NT) as evidence that could rationally affect the assessment of a fact in issue. However, hearsay evidence can only be admitted under s 67 if the representations made by the deceased occurred when or shortly after the asserted fact occurred in circumstances where it was unlikely to be fabricated (s 65(2)(b)), or if it is highly probable the representations were reliable (s 65(2)(c)).
Blokland J considered whether 31 pieces of hearsay evidence were admissible. The evidence included representations made by the victim to police officers prior to her murder, to the practitioner for the Department of Children and Families who was managing the case, and to her daughter. The representations related to the accused’s physical or emotional control over the victim and his history of assaulting her.
One item considered was a statement the victim made to the police describing an assault by the accused. Representations contained within this statement regarding the assault and the accused taking the victim’s car keys were admitted. Text messages and statements regarding the accused’s threat to kill himself were also admitted. However, a statement made by their son was not admitted, as it was not a representation made by the victim as required by s 65. The statement also contained representations about the accused visiting the victim’s brother’s house and allegations that the accused was violent towards his daughter. These representations were also not admitted as evidence as their probative value outweighed the danger of prejudice against the accused.
Some other representations that were not admitted included those made to the case management practitioner that the victim attempted to leave the accused but he would not let her; that the accused was not physically but emotionally abusive towards the victim; and that the accused was harassing the victim at her brother’s house.
Note: Subsequent to this ruling, the accused stood trial and was found guilty of murder. Blokland J provided additional reasoning on two procedural matters that arose during the trial in R v Ashley [2014] NTSC 26. The accused subsequently successfully appealed the conviction in Ashley v R [2016] NTCCA 2 on procedural grounds amounting to a miscarriage of justice. The conviction was quashed and a retrial ordered.
Charge: Breach of domestic violence order
Appeal type: Appeal against sentence
Facts: The appellant was the subject of a domestic violence order in favour of his wife (the protected person) that restrained him from ‘approaching, entering or remaining in the company of the protected person when consuming alcohol… or when under the influence of alcohol’. After attending the Gunbalunya Sports and Social Club and drinking 13 cans of beer, the appellant went to the protected person’s home. He was arrested and pleaded guilty to breaching the domestic violence order, which had been in force for nine months. The order had been complied with for the previous nine months, but the appellant had been in prison for five of them. The appellant had two prior convictions for breach of domestic violence orders. In considering this repeat offending and history of failing to comply with orders, the magistrate sentenced the appellant to 3 months imprisonment.
Issue: Whether the sentence imposed was manifestly excessive in all of the circumstances?
Decision and Reasoning: The appeal was allowed. Barr J observed: ‘Generally speaking, a breach where harm or fear of harm is caused to the protected person is worse than a merely ‘situational’ breach. The appellant’s breach was a low order ‘situational’ breach. No harm or fear of harm was caused’ ([16]). Barr J noted that in general, ‘the more egregious the conduct in terms of causing harm or fear of harm to the protected person, the greater the probable degree of contempt for the court’s order or orders’ ([17]). On the facts, the magistrate erred in assessing the appellant’s conduct as more than a ‘minor case’. While some actual imprisonment was justified for reasons of specific and general deterrence, the offending was at the low end of the scale of seriousness at [23]. The sentence of three months’ imprisonment was quashed, and a sentence of 15 days’ imprisonment was imposed.
Appeal type: Variation of domestic violence order
Facts: A domestic violence order was taken out by police in favour of the appellant and her daughter (the protected persons). The order restrained the respondent from approaching, contacting or remaining in the company of the appellant or any place she was living, working, staying, visiting or is located. All parties consented to vary this non-contact order to a non-violence order restraining the respondent from ‘causing harm or attempting or threatening to cause harm to the protected persons; causing or attempting to cause damage to the property of the protected persons; and intimidating or harassing or verbally abusing the protected persons’ ([3]). At hearing, the Court of Summary Jurisdiction refused to grant the variation.
The respondent subsequently presented fresh evidence in support of the variation from a non-contact to a non-violence domestic violence order. The appellant and her daughter briefly moved to a shelter after the domestic violence order was originally taken out. They then moved back into their home, leaving the respondent to move out in order to comply with the non-contact order. This was against the wishes of the appellant and their child, who wanted to continue living with the respondent. With nowhere else to stay, the respondent slept in his car while continuing to support the appellant and their child financially. He was unable to access tools needed for his work that were left in the house. The respondent suffered from a mental illness and had commenced treatment with the support of the appellant. In the circumstances, the police were satisfied a non-violence order was appropriate.
Issues: One relevant issue concerned whether the Court of Summary Jurisdiction failed to properly consider and give due weight to the matters to be considered in making a domestic violence order under s 19(2)(e) of the Domestic and Family Violence Act 2007 (NT).
Decision and reasoning: The appeal was allowed.
The appellant’s wish to remain in a relationship with the respondent is not in itself enough to grant a variation of the domestic violence order. Blokland J noted that ‘the desire to stay in the relationship may be an indication of ongoing dependence, violence or intimation’ ([9]). However, this factor had to be considered in combination with the fact the original order was made on incomplete information, the respondent had not been in breach of a domestic violence order for five years, and the fresh evidence established that the non-contact order placed the appellant, the respondent and their child in vulnerable situations. While this was a situation where there was a need for a domestic violence order, a non-violence order would be more effective than a non-contact order and would continue to provide protection for the appellant and their daughter. The non-violence order would likely result in the respondent continuing treatment for his mental illness and taking further responsibility, thereby supporting protection in the context of an ongoing family relationship.
Charges: Breach of domestic violence order (two counts), aggravated assault
Appeal type: Appeal against sentence
Facts: The appellant and the victim were in a relationship and resided together in the remote town of Maningrida. A domestic violence order was in place to protect the victim from the appellant harassing, threatening or verbally abusing her or assaulting or threatening to assault her. One afternoon the victim left their house when the appellant became angry and demanded she stay, saying ‘Don’t you move, I’m going to get a hammer and smash you in the arm’ (count 2). Several days later the appellant accused the victim of having an affair. He subsequently struck her in the arm with a metal cup, grabbed her hair and dragged her to their room where he threw her on the ground, punched her twice in the face and struck her with a steel mop handle (counts 4 and 6). In relation to this conduct, the appellant was charged and convicted of two counts of contravening a domestic violence order (counts 2 and 4) and one count of aggravated assault with the circumstances of aggravation under s 188(2)(b) Criminal Code 1983 (NT) that the victim suffered harm, it was a male-on-female offence and the victim was threatened with a weapon (count 6). The effective head sentence imposed by the magistrate was 11 months’ imprisonment to be suspended after the service of 6 months’ imprisonment, subject to the appellant completing the Indigenous Family Violence Offender Program (IFVOP). This head sentence comprised of:
The magistrate initially made the sentence on count 4 concurrent with count 6, making the effective sentence 8 months imprisonment. However, this was adjusted as a result of s 121(7) of the Domestic and Family Violence Act 2007 (NT) and the effective sentence was increased to 11 months.
Issues: Some grounds of appeal were whether the magistrate:
Decision and reasoning: The appeal was allowed on both grounds and the appellant was resentenced.
The appellant was resentenced to 14 days’ imprisonment on count 2 and 6 months’ imprisonment on count 6. The total effective term of imprisonment of 6 months and 14 days was suspended after the service of five months and one week imprisonment. The condition of the appellant completing the IFVOP was upheld.
Charge: Breach of domestic violence order
Appeal type: Appeal against sentence
Facts: The appellant and victim had previously been in a relationship. The appellant was the subject of a domestic violence order that restrained him from harassing or harming the victim and approaching, entering or remaining in her company or in her place of residence or work when under the influence of alcohol or another intoxicating substance. After consuming alcohol one day, the appellant went to the victim’s mother’s house where she was living at the time. The victim was not home. He returned later that afternoon after consuming more alcohol. When the victim arrived home, the appellant allegedly assaulted her. However, there was not enough evidence to conclude this beyond reasonable doubt. In relation to this conduct the appellant was charged, pleaded guilty and was convicted of breaching the domestic violence order. The magistrate sentenced the appellant to two months’ imprisonment, suspended immediately with an operation period of 12 months.
In sentencing, the magistrate noted that the appellant had breached the domestic violence order in three respects and considered the conduct as the upper end of offending. However, the appellant had no substantial offending history and entered his guilty plea early. The magistrate accepted that while the appellant had a problem with alcohol, he had work available and had good prospects of rehabilitation. He considered the starting point of six months’ imprisonment, reduced to two months’ imprisonment wholly suspended when considering the mitigating and aggravating factors.
Issues: Whether the sentence imposed was manifestly excessive.
Decision and reasoning: The appeal was allowed and the appellant was resentenced.
Olsson AJ considered the general approach adopted by the magistrate in order to promote general deterrence was reasonable. However, the magistrate’s starting point of six months’ imprisonment was very high for a first conviction when considering the victim suffered no physical or lasting emotional harm. It is not clear from the magistrate’s sentencing remarks how he arrived at the ultimate reduction from six to two months’ imprisonment. A reduction of 30 per cent was given for the timely plea. Beyond this, the magistrate only noted the appellant’s character and prospects for rehabilitation for the further reduction. Accordingly, the sentence was so excessive as to manifest error on the part of the magistrate. Olsson AJ resentenced the appellant to 21 days’ imprisonment, suspended immediately with an operation period of 12 months.
Charge: Breach of domestic violence order
Appeal type: Appeal against conviction
Facts: The appellant was the subject of a police domestic violence order that restrained him from approaching, contacting or remaining in the company of the protected person when consuming alcohol or under the influence of alcohol. Subsequently, the Court of Summary Jurisdiction made restraining orders against the appellant. These orders did not include any ‘non-intoxication conditions’. Four days after the restraining orders were made, the Court of Summary Jurisdiction allowed the police domestic violence order to lapse. The appellant was subsequently charged with breaching this order. He pleaded guilty to these offences and was convicted and fined.
Issue: Whether the police domestic violence order was in force and capable of being breached.
Decision and reasoning: The appeal was allowed and the conviction and sentence was quashed.
Under s 82 of the Domestic and Family Violence Act 2007 (NT) the court must either confirm or revoke a police domestic violence order. The magistrate’s order to allow the police domestic violence order to lapse was an effective revocation under s 82. As a result, the appellant was not restrained by a domestic violence order from being or remaining in the company of the protected person when consuming alcohol or being under the influence of alcohol. Therefore, he could not be in breach of the revoked police domestic violence order.
Charges: Breach of domestic violence order, aggravated assault
Appeal type: Appeal against sentence
Facts: The appellant and the victim were in an ‘on again off again’ relationship for approximately 18 years and had four children together. One evening the appellant went to the victim’s house where all four children were residing. The appellant threw the television over the balcony and forcibly took a ring off the victim’s finger. The appellant was charged with aggravated assault and a domestic violence order was made restraining him from contacting, approaching, intimidating or harassing the victim and exposing the children to domestic violence. Nine days later the appellant phoned the victim and visited her at the house. When she refused to let him in, the appellant unsuccessfully attempted to hang himself from the veranda. This was witnessed by his 14 year old son. In relation to this conduct the appellant was charged and pleaded guilty to breaching the domestic violence order.
The two charges were sentenced together. After stating the need for general and specific deterrence in the circumstances, the magistrate sentenced the appellant to eight months’ imprisonment for breaching the domestic violence order and two months’ imprisonment for the aggravated assault. The sentences were to be served cumulatively, suspended after six months on conditions including supervision, counselling and abstinence from alcohol and drugs.
Issues: Some of the grounds of appeal included:
Decision and reasoning: The appeal was allowed on grounds 1 and 3. The appellant was resentenced.
Charges: Breach of domestic violence order (two counts), aggravated assault (two counts), administration of a dangerous drug (cannabis)
Appeal type: Appeal against sentence
Facts: The appellant and the victim had been in a relationship for three to four years. After self-administering cannabis one afternoon (count 2), the appellant became abusive and called the victim a slut (count 4). Early the next morning the victim locked herself in the bathroom to get away from the appellant. In response, the appellant banged and kicked the door, demanding the victim come out (count 5). When she did the appellant threw the contents of a bong and a flour tin over her (count 1). Later that day the appellant shouted at the victim, grabbed her chin and squeezed her cheeks to force her to face him (count 3). In relation to this conduct, the appellant was charged and convicted of two counts of contravening a domestic violence order (counts 4 and 5), two counts of aggravated male-on-female assault (counts 1 and 3) and one count of administering a dangerous drug (count 2). The effective head sentence imposed by the magistrate was 15 months’ imprisonment with a non-parole period of 10 months. This head sentence comprised of:
Issues:
Decision and reasoning: The appeal was allowed on ground 2 and the appellant was resentenced.
The effective head sentence for all counts was therefore nine months’ imprisonment.
Charge: Breach of domestic violence order
Proceeding: Question of law under s 96 Domestic and Family Violence Act 2007 (NT)
Facts: The defendant was the subject of an interim violence restraining order made under the Restraining Orders Act 1997 (WA) (the WA Act). The interim order was registered as an external order in the Northern Territory pursuant to the procedures in Chapter 3 of the Domestic and Family Violence Act 2007 (NT) (the NT Act). Subsequently the interim order was made into a final order in Western Australia, however this was never registered in the Northern Territory. The defendant came into contact with the protected person in the Northern Territory, in breach of the external order. At trial, it was argued that there was no case to answer because the interim order made in Western Australia had ceased to be in force once the final order was made. Therefore, the interim order was also no longer registered in the Northern Territory as an external order under s 96 and could not be enforced.
Issue: Whether an interim order under the WA Act continues to be ‘in force’ within the meaning of s 96 of the NT Act after the interim order is made final.
Decision and reasoning: Kelly J answered the question in the negative.
Under the WA Act, an interim order remains in force until one of the specified events in s 16(4) occurs, including when a final order comes into force. Section 96 of the NT Act provides that an external order is registered ‘for the period during which it is in force’. Therefore, on the date of the alleged offence the interim order was not ‘in force’ in WA; accordingly, there was no external order enforceable under the NT Act.
Appeal type: Appeal against refusal to extend domestic violence order
Facts: The respondent, the appellant’s ex-partner, was the subject of a non-contact domestic violence order. The order was initially to be in force for 12 months, but the appellant applied for the order to be extended for a further two years. This application was dismissed. In deciding whether to grant the extension, the magistrate refused to consider the past history of domestic violence. The magistrate did not consider that a history of domestic violence is sufficient for the court to continue an order.
The magistrate also refused to have regard to events that occurred after the making of the original order. The appellant alleged the respondent had approached her daughter, asked for money and threatened to hit her. The magistrate concluded this threat was not relevant because it related to ‘a different adult, not in the company of the complainant, not living with the complainant’ ([22]). The respondent also told his and the appellant’s children to tell the appellant that it was dangerous staying in town, and that she was ‘looking for trouble by living in town’.
Issue: Some of the grounds of appeal included whether the magistrate erred in:
Decision and reasoning: The appeal was allowed and the domestic violence order was extended.
Charge: Resisting arrest, Assaulting police in the execution of duty
Appeal type: Appeal against conviction
Facts: After speaking with the victim, two police officers decided there were grounds to order a police domestic violence order against the appellant. When driving to the station, they saw the appellant outside his mother’s house. After failed attempts to communicate with the appellant, one of the police officers drew his taser, but did not point it at the appellant. After the appellant was notified of his arrest for the purposes of making a domestic violence order against him, he was handcuffed. He then became aggressive, screaming to his mother for help and alleging the police were assaulting him. The appellant attempted to kick one of the police officers. As a result, the officer put his foot on the appellant’s leg. The appellant screamed out in pain and his family started to approach the officers aggressively. One officer again drew his taser and pointed it at the family and the other officer took out his pepper spray. The appellant then kicked one officer in the shin, who then pepper sprayed the appellant.
In relation to this conduct, the appellant was convicted of resisting arrest and unlawfully assaulting a police officer in the execution of his duty with the circumstance of aggravation that the police officer suffered harm.
Issues:
Decision and reasoning: The appeal was allowed and the appellant was acquitted of both charges. In order for the police to remove and detain a person under s 84 of the Act there must be a reasonable belief that there are grounds for making a domestic violence order and it is necessary to remove the person to prevent an imminent risk of harm to another. There was no evidence before the magistrate of ‘domestic violence’ defined by s 5 of the Act. Therefore, the magistrate erred in finding the police officers had a reasonable belief that grounds existed for making a domestic violence order against the appellant. Further, there was no evidence that the appellant was likely to harm anyone as required by s 84(1)(a)(ii) of the Act. Therefore, the police officers did not have the power to arrest the appellant in order to impose the domestic violence order. The arrest was unlawful and the appellant was justified in resisting arrest and acted in self-defence when kicking the police officer.
Charges: Breach of domestic violence order
Appeal type: Appeal against sentence
Facts: The appellant was the subject of a domestic violence order to protect his former partner (the victim). While serving a sentence of imprisonment for previous offences committed against the victim, the appellant breached the domestic violence order by sending the victim a letter. The content of the letter included apologising for his actions and for harming the victim. When asked why he sent the letter, the appellant replied ‘Broken heart, saying sorry and all that’ and that he was not aware it was a contravention of the domestic violence order. The appellant was convicted and sentenced to three months’ imprisonment to commence at the end of his prior sentence.
The full no-contact domestic violence order was initially ordered after the appellant entered the victim’s house, removed all her clothes and burned them in the garden while she was not home. Following this, the appellant breached the order by texting the victim 17 times. The messages included threatening the victim, threatening self-harm and declaring his ‘undying love’. As a result of this conduct, the appellant was fined $750 and placed on a good behaviour bond. Sometime after recommencing their relationship, the appellant went to the victim’s workplace with two knives and a hammer and subsequently chased, punched and kicked the victim and threatened to kill her. The appellant was charged and convicted of aggravated assault, for which he was serving a term of imprisonment at the time of the current offending.
Issues:
Decision and reasoning: The appeal was dismissed.
Charges: Breach of domestic violence order, breach of good behaviour bond, resisting arrest
Appeal type: Appeal against sentence
Facts: The appellant and the victim were in a de facto relationship and resided together with their child and two children from the victim’s previous relationships. The appellant was the subject of a good behaviour bond with a condition that he not approach the victim when consuming or under the influence of alcohol. He was also the subject of a domestic violence order that restrained the appellant from approaching, contacting or remaining in the company of the victim or her three children (the protected persons) when consuming or under the influence of alcohol or another intoxicating drug or substance.
On the day of offending, the appellant consumed alcohol whilst in the presence of all four of the protected persons. The appellant resisted arrest and attempted to escape custody. After he was arrested the police determined his blood alcohol level was 0.172 per cent. When asked his reasons for breaching the domestic violence order, the appellant replied ‘it was her choice’. In relation to this conduct the appellant was charged, pleaded guilty and convicted of one count of breaching the good behaviour bond, one count of breaching the domestic violence order and one count of resisting arrest. The magistrate sentenced the appellant to 21 days’ imprisonment, 21 days’ imprisonment and seven days’ imprisonment, respectively. All sentences were ordered to be served concurrently, with the total effective sentence of 21 days’ imprisonment.
The appellant had previously breached the good behaviour bond and received a warning. He had also been convicted of breaching the domestic violence order, assault and aggravated assault.
Issue: Whether the sentences imposed were manifestly excessive in all the circumstances.
Decision and reasoning: The appeal was allowed and the appellant was resentenced.
The magistrate erred in imposing a term of imprisonment for the breach of the good behaviour bond. Although there had been two breaches of the bond, Blokland J held that without knowing additional information on the initial breach that received a warning, imprisonment could not be justified for the breach in question. The sentence of 21 days’ imprisonment was therefore manifestly excessive and ordered to be set aside.
The magistrate also erred in imposing a term of 21 days’ imprisonment for the breach of the domestic violence order. Blokland J recognised that this was the appellant’s second breach of the domestic violence order. However, although the protected persons were placed in fear, no harm resulted from the breach. Therefore, the sentence was manifestly excessive.
The appellant was re-sentenced to seven days’ imprisonment for the breach of the domestic violence order and seven days’ imprisonment for resisting arrest to be served concurrently. When considering the circumstances of the offence, a short term of imprisonment was justified under s 121 Domestic and Family Violence Act 2007 (NT). Blokland J emphasised the appellant’s blood alcohol reading was significant and whilst he pleaded guilty, it was not an immediate plea ([25]). Blokland J refused to suspend the sentence when considering the appellant’s history of offending and the need for personal deterrence. No further sentence was imposed for breach of the good behaviour bond, as the breach occurred out of the same conduct as the breach of domestic violence order.
Charges: Breach of domestic violence order (6 counts), threatening to kill with intent to cause fear, resisting arrest, unlawfully assault of a police officer in the execution of duty, behaving in a disorderly manner, unlawfully possessing cannabis
Appeal type: Appeal against sentence
Facts: The appellant was the subject of a domestic violence order in force to protect his daughter (the victim). The order restricted the appellant, among other conditions, from approaching, contacting or remaining in the company of the victim or at any place where the victim resided, worked or stayed while consuming or under the influence of alcohol or another intoxicating drug or substance. After consuming alcohol one day, the appellant sent a text to the victim (charge 1). He then resent this message four times before going to the victim’s home (charge 2). The victim was not home, but the appellant waited several hours for her to return (charge 3). After the victim left her home, the appellant rang the victim and swore at her (charge 4). The appellant eventually left the victim’s home after being asked several times only to return several hours later. The appellant then scratched the victim’s face (charge 5) and said ‘I love you, but I want to kill you’ (charge 6). He subsequently called her again and blamed the victim for his arrest (charge 8). Charge 7 was not referred to or specified.
In relation to this conduct the appellant was charged and convicted of (inter alia) 6 counts of breaching a domestic violence order (charges 1-5, 8) and threatening to kill with intent to cause fear (charge 6), resisting arrest, unlawfully assaulting a police officer in the execution of duty, behaving in a disorderly manner, and unlawfully possessing cannabis. The appellant was sentenced on charges 1 to 4, to a fine of $1000; on charges 5 and 8, to 12 weeks’ imprisonment; and on charge 6, to 12 weeks’ imprisonment, each to be served concurrently with the aggregate sentence on charges 5 and 8.
In the victim impact statement, the victim explained the physical and emotional injuries she suffered as a result of her father’s domestic violence ([27]). However, the victim expressed her wish that the appellant be ordered into rehabilitation rather than sentenced to imprisonment. The magistrate did not mention this wish of the victim in his sentencing remarks.
Issues:
Decision and reasoning: The appeal was dismissed.
Charges: Aggravated assault, unlawfully causing serious harm, rape
Appeal type: Appeal against amount of compensation ordered for victim
Facts: The appellant and the offender were living together in a domestic relationship. On the first occasion, the offender assaulted the appellant with a curtain rod, causing severe lacerations to her head, arms and body, substantial blood loss, broken teeth, and swelling and bruising to her face and lower back. In relation to this conduct, the offender was charged with aggravated assault. The appellant was again assaulted by the offender several weeks later, resulting in a fractured clavicle. The pattern of assaults continued when approximately three months later the offender followed the victim home, dragged her outside, bashed her with a stick and fists, verbally abused her and raped her twice. As a result, the victim suffered extensive injuries to her face and scalp, a fractured jaw and bruises all over her body. The offender was found guilty of unlawfully causing serious harm to the victim and two counts of sexual intercourse without consent.
The victim made an application for compensation under the Victims of Crime Assistance Act 2006 (NT) (the Act) and was awarded $35,000 for the compensable violent act, as determined by an assessor. She subsequently appealed to the Local Court on the basis that the compensation awarded was inadequate when considering the injuries suffered. It was argued that the respondent erred in considering the three incidents constituted a single violent act and in failing to assess her psychological injuries. Alternatively, it was argued that the respondent erred in determining the award quantum under Schedule 3, Part 1(c) of the Act.
Issue: Several questions of law were reserved for the Supreme Court including:
Decision and reasoning: Kelly J first detailed the operation of the Act and its application to victims of domestic violence ([9]-[44]).
Charge: Breach of domestic violence order
Appeal type: Appeal against sentence
Facts: The appellant was the subject of a domestic violence order that restrained her from contacting or approaching her former partner (the victim) directly or indirectly while intoxicated, among other restrictions. On the day of offending, the appellant went to the victim’s home while intoxicated, verbally abused him and threatened to arrange for the victim to be harmed and killed. Approximately two hours later, the appellant returned and threatened that her family would kill the victim. She then picked up a large rock causing the victim to retreat back inside his home. In relation to this conduct the appellant was charged, pleaded guilty and convicted of two counts of breaching a domestic violence order. She was sentenced to seven days’ imprisonment on each charge, to be served concurrently.
The appellant had previously been convicted of breaching a domestic violence order, possession of cannabis, and two offences involving being armed with an offensive weapon. In support of the appellant, it was submitted she occasionally cared for the victim who was suffering from cancer, she entered an early plea of guilty and she had shown remorse.
Issues: The grounds of appeal were:
Decision and reasoning: The appeal was dismissed.
Charges: Unlawful damage, breach of domestic violence order
Appeal type: Appeal against sentence
Facts: The appellant was the subject of a domestic violence order to protect his girlfriend (the victim) made under the repealed Domestic Violence Act 1992 (NT). He had a history of repeatedly breaching domestic violence orders both in relation to the victim and a previous girlfriend. The offending subject to the appeal was constituted by a series of events. On the first occasion the appellant went to visit the victim. In an attempt to prevent him from entering, the victim locked the door. As a result, the appellant punched the front window causing it to shatter and kicked the security door (count 1). A few days later the appellant telephoned the victim and then approached her at a nightclub (counts 2 and 3). He was subsequently arrested and granted bail. While on bail he again breached the domestic violence order by driving with the victim (count 4). He was arrested and remanded in custody only to be released on bail again. One month later he drove to the victim’s house, entered her front yard and yelled and swore at the victim (count 5). In relation to this conduct, the appellant was charged and convicted of one count of unlawful damage (count 1) and four counts of breaching a domestic violence order (counts 2-5). The effective sentence imposed by the magistrate was 140 days’ imprisonment, of which 70 days’ were suspended upon conditions providing for supervision. This comprised of:
Issue: Whether the sentence was manifestly excessive.
Decision and reasoning: The appeal was dismissed. The magistrate did not err in his considerations and the sentence imposed was open to him to make.
The offending in relation to count 1 was made more serious when considering the surrounding circumstances of the offending. The appellant’s response to being locked out by the victim was an ‘immediate, frightening and explosive outburst of violence’ ([19]). While the appellant did not have any prior convictions for unlawful damage, he had several convictions for offences of violence and it was the violent nature of this conduct that made the offending so serious in the circumstances.
In relation to the breaches of the domestic violence order, the submission that the magistrate placed too much weight on the appellant’s criminal history was rejected. The prior convictions provided context for the offending and highlighted the culpability of the appellant. The appellant’s counsel also submitted the appellant had good prospects of rehabilitating when considering, amongst other factors, his youth, willingness to undertake counselling, good employment record and the ongoing support of the victim. While the magistrate regarded the appellant’s chances of rehabilitation with caution, he nonetheless considered these relevant factors and did not err in doing so.
The sentence was not manifestly excessive. The appellant had a total of 11 prior convictions for failing to comply with a domestic violence order and one prior conviction of aggravated assault. Despite this history, he continued to act in defiance of the orders with full awareness of the consequences. This conflicts with the objective that victims ‘have confidence that restraining orders made are backed by penalties that will be applied in the event of a breach’ ([33]). In the circumstances of this prior offending, a period of imprisonment was reasonable to deter the appellant and others from committing such offences.
Charge: Aggravated assault
Appeal type: Crown appeal against sentence
Facts: The respondent and the victim had previously been in a relationship. After the relationship ended, the respondent visited the victim’s home where he punched her in the head 10 times, kicked her in the ribs and chest several times and pushed her head into the floor. After the victim temporarily escaped to another room, the respondent struck her again several times and subsequently attempted to strangle her, placing one hand around her throat and the other over her mouth and nose. The attack lasted for approximately 20 minutes and involved about 30 punches. At the time of the offending, the respondent was on bail. In relation to this conduct the respondent was convicted of aggravated assault under s 188(2)(b) Criminal Code 1983 (NT), with the circumstances of aggravation that the victim suffered harm, the assault was of male-on-female, and the victim was under the age of 16 years old.
The magistrate, in taking a ‘rehabilitative course’ ([5]), sentenced the respondent to 12 months’ imprisonment suspended the day after imprisonment commenced for 3 years. The release of the respondent was subject to conditions including that he obey the directions of the Director of Correctional Services for 12 months, that he reside at the Council for Aboriginal Alcohol Program Services and complete the Indigenous Family Violence Program, that he then live with the Salvation Army in Darwin and complete the Bridge program, and that for a period of 12 months he supply urine or blood samples to be tested for drugs.
Issue: Whether the sentence was manifestly inadequate.
Decision and reasoning: The appeal was allowed and the appellant was resentenced.
The circumstances of the offence were very serious and resulted in severe physical and psychological harm to the victim. This was further aggravated by the fact the offending occurred while the respondent was on bail in relation to another assault.
The magistrate’s consideration of the respondent’s chances of rehabilitation and personal hardships was appropriate in the circumstances. The respondent had been attending alcohol and drug education programs and had enrolled in the Indigenous Family Violence Program. According to the magistrate, this was the first step along the road to rehabilitation.
However, the magistrate did not expressly address the issue of deterrence that ought to have been afforded significant weight in sentencing. Despite the guilty plea, there was no indication of remorse with the respondent telling his psychologist he believed he ‘had a degree of legitimacy’ ([22]) for his actions. Therefore, Riley J considered there was a need for specific deterrence. In addition there was a need for general deterrence: ‘Men in the position of the respondent should be aware that if they resort to violence upon another… in all but the most exceptional case that will be met with a period of actual imprisonment ([24]).’ While the magistrate impliedly considered specific deterrence with rehabilitation, there was no consideration of general deterrence during sentencing. The magistrate’s main focus was to provide the respondent every opportunity to be rehabilitated. Riley J concluded that the magistrate erred in neglecting to consider the need for general deterrence and the respondent’s lack of remorse.
The sentence of 12 months’ imprisonment was not in itself manifestly inadequate. However, it was manifestly inadequate to suspend the sentence from one day after commencing imprisonment. In the circumstance, a term of actual imprisonment was required. Riley J resentenced the respondent to 12 months’ imprisonment to be suspended after 3 months. The respondent’s release was subject to several conditions, including accepting supervision and obeying reasonable directions of the Director of Correctional Services as to reporting, residence, employment and counselling for a period of 12 months and completing the Bridge program with the Salvation Army.
Charges: Assault occasioning bodily harm whilst armed x 1; common assault x 1; choking in a domestic setting x 1
Case type:Appeal against conviction, application to adduce evidence on appeal
Facts: The appellant man was charged on indictment with one count of assault occasioning bodily harm whilst armed (Count 1), one count of common assault (Count 2) and one count of choking in a domestic setting (Count 3). The Crown entered a nolle prosequi in respect of Count 1. All counts were domestic violence offences against the appellant’s female domestic partner. The complainant’s evidence at trial was that it was a mutually abusive relationship against a background of excessive drinking. A temporary protection order was made against the appellant in favour of the complainant in 2017. In relation to Count 2, it was alleged that the appellant kicked the complainant on the legs, causing her to fall. With respect to Count 3, it was argued that he grabbed the complainant around the throat. A jury found the appellant not guilty of Count 2, but guilty of Count 3. He was sentenced to 2 years’ imprisonment, with the conviction recorded as a domestic violence offence.
Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.
Held: The application for leave to adduce further evidence was refused, and the appeal against conviction was dismissed. The Court found that the jury was undoubtedly fully aware of the inconsistencies in the evidence ([99]). Taking into account all of the appellant’s arguments, there was nothing which led the Court to doubt the appellant’s guilt. It was open to the jury, on the whole of the evidence, to be satisfied of his guilt beyond reasonable doubt. The complainant’s account of the choking after a sustained argument in the kitchen was compelling ([102]). That account of the attack and the pressure she felt was substantiated by the medical evidence, which also indicated that the injuries were consistent with choking ([103]). Further, the evidence of witnesses was substantially consistent with the complainant’s account. Whilst there is "no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it" (Pell v The Queen [2020] HCA 12 (7 April 2020), there was in fact strong corroborative evidence here. Despite some inconsistencies, particularly in relation to the time of the choking, the Court was satisfied that the jury acting rationally would not have entertained a reasonable doubt as to proof of guilt. Given the complainant’s level of distress at the time and her acceptance during the course of her evidence that her memory of some events of that day were unclear, a mistake as to the time the choking event occurred was understandable ([104]-[105]).
Offences: Manslaughter (domestic violence offence)
Proceedings: Application for leave to appeal against sentence
Issue: Whether the sentence was manifestly excessive.
Facts: The woman applicant and her husband and victim had been married since 2010. Throughout this time, they argued occasionally, particularly about the husband arriving home from work after 6pm. On the day of the offending, the husband arrived home after 8pm and an argument developed while the couple were in the kitchen. The applicant threw the husband’s laptop at him, then picked up a 20.5cm long kitchen knife and threw it at him from 2-3m away. It landed in his chest region and either he pulled it out or it fell out. The applicant immediately said she was sorry, used a towel to cover the wound and called 000. Despite medical intervention, the husband died. The applicant was sentenced to nine years’ imprisonment, with no fixed date for parole eligibility. She appealed against her sentence.
Judgment: The majority (Sofronoff P and Mullins JA) held that the head sentence of nine years’ imprisonment was not inappropriate, but that failing to fix an eligibility date for parole was "unreasonable or plainly unjust" and was manifestly excessive [38]. They emphasised that the applicant had no criminal history, showed immediate remorse for her conduct, entered an early plea of guilty and was not at high risk of reoffending, and therefore ordered that her sentence be mitigated by including a date for eligibility for parole that was one-third of the sentence in custody [38].
Mullins JA (with whom Sofranoff P agreed) further provided that "section 9(10A) of the [Penalties and Sentences Act 1992 (Qld)] is a legislatively prescribed aggravating factor that must be taken into account in arriving at the appropriate sentence for the offence of manslaughter that is a domestic violence offence, unless the exception within the provision due to the exceptional circumstances of the case applies" [35]. Section 9(10A) refers to offenders convicted of domestic violence offences. In such cases, the fact that the offence is a domestic violence offence is an aggravating factor that is added to the other aggravating factors and balanced with any mitigating factors [35].
Boddice J (dissenting) dismissed the appeal, holding that the applicant’s offending was "an extraordinary act of violence" and was a "very dangerous action" [42] that occurred in circumstances where the applicant was sober, sane, not provoked and not acting in self-defence [43]. He considered the applicant’s offending to be a very serious example of a domestic violence offence, making the circumstance of aggravation a very relevant factor in sentencing [44]. He contended that the aggravating factors outweighed any mitigating features [45] and that the sentence "fell within a sound exercise of the sentencing discretion" [46].
Facts: The appellant man was convicted of choking the female complainant in a domestic setting (domestic violence offence) (count 1) and common assault (domestic violence offence) (count 2) after trial before a jury in the District Court. He was sentenced to imprisonment for two years and six months on count 1 to be suspended after serving 15 months’ imprisonment for an operational period of three years. He was sentenced to three months’ imprisonment for count 2.
The appellant often stayed at the complainant’s home where she lived with her five children; the appellant was the father of the youngest child. The appellant and his dog were staying at the complainant’s home when the appellant’s dog urinated on the floor and the complainant asked her son to tell the appellant.
The complainant’s evidence in chief was that:
Medical records included a note: "the patient states her partner pushed her onto the bed and strangled her with both hand pushing downwards then made multiple blows with fists to the shoulder and head. Patient unsure if knocked out."
In the complainant’s video record of interview he said there was a struggle for the phone. "He then sat down, gave her a big hug and got her to calm down. He denied choking her or trying to do that. He thought his thumb may have made contact with her during the struggle for the phone."[20]
Against the objection of defence counsel [21] the jury were given both a handout and direction in the terms: "‘Choked’ is an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’."[20] Defence counsel argued there was only one definition given to the jury whereas dictionaries gave various definitions. [23]
Grounds: The grounds of appeal against conviction were:
Held:
1. Appeal against conviction dismissed.
Ground 1: Mullins JA considered the construction of s 315A Criminal Code (Qld) in light of s14A Acts Interpretation Act 1954 (Qld) and the purpose given for the introduction of the offence in the relevant Bill Explanatory Notes referring to recommendation 120 of the Special Taskforce on Domestic and Family Violence (Queensland) in its Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland.
"In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as a result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing was not a separate element of the offence, but the evidence required to prove the act of choking."
The direction given by the trial judge on the meaning of "choked" was correct. It was a direction on the law. The meaning of the word "choked" for the purpose of count 1 was a matter of legal interpretation and it was appropriate that the judge directed the jury to apply the meaning "to hinder or stop the breathing of a person"." [58]-[59]
Ground 2: The appellant’s argument was that as the particulars specified alternative conduct for each count they failed to sufficiently inform him of the case against him (Count 1: "stopped and/or hindered [the complainant’s] breathing and, in doing so, choked her"; Count 2: "shook and/or applied force to [the complainant’s] shoulders and, in doing so, he unlawfully assaulted her" [60]). The complaint re Count 1 was resolved by the conclusion as to meaning of "choke" re ground 1; it was sufficient that the jury be satisfied the complainant putting his hand around her neck hindered her breathing [62]. There was no substance to the complaint re Count 2 [63].
Ground 3: The jury were given extensive and appropriate directions that they could not convict unless satisfied beyond reasonable doubt that the complainant was "a reliable and truthful witness"... "that she was choked by the [appellant] by him placing his right hand around her throat and squeezed in the way that she described" and similar directions were given re Count 2 [65]. The jury’s verdicts were not unreasonable [66].
2. Application for leave to appeal against sentence granted.
3. Appeal against sentence allowed.
The trial judge considered the sentencing decisions in R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283. Mullins JA said: "Objectively, the appellant’s offending was less serious than the offending in MCW and MDB. The appellant also was younger than those offenders and without the relevant prior criminal history. It was therefore surprising that the prosecutor at the trial submitted to the trial judge that a sentence in the order of three years and six months or four years’ imprisonment was appropriate. It does not assist a sentencing judge, when the prosecutor’s submissions propose a sentence that is outside the proper exercise of the sentencing discretion for the offending committed by the particular offender." [71]
4. Set aside the sentence imposed at first instance for count 1 and, in lieu, the appellant is sentenced to imprisonment for a period of two years with the parole release date fixed at 5 June 2020.
5. The declaration as to pre-sentence custody and other orders made at first instance are confirmed.
Charges: Attempted murder x 1 (aggravating circumstance of being a domestic violence offence).
Case type: Appeal against conviction
Facts: The appellant man was convicted of one count of attempted murder (domestic violence offence) and was sentenced to 10 years’ imprisonment with a non-parole period of 8 years. The appellant, an electronics engineer, was alleged to have attempted to murder his wife (the victim) by connecting a garden hose to a nitrogen gas cylinder which was then attached to the inside of the caravan where the victim slept. There was evidence that the appellant had motive to kill the victim because she was taking preliminary steps to divorce him and had demanded that he leave the matrimonial home. She had also left a will making him her beneficiary. In his police interview, the appellant denied knowledge of the contraption. At trial, however, he admitted that he constructed the contraption as a drainage system ([74]). Further, the appellant acknowledged his relationship difficulties with the victim and told police that they had an argument concerning their daughter. According to the victim, that argument led to the appellant pushing her against a wall while threatening to punch her. As a result, she called the Domestic Violence Hotline.
In summary, the appellant’s case was that the Crown had failed to exclude the hypothesis that the victim had constructed the apparatus, because there was evidence that:
Issue: The appellant appealed against conviction. He submitted that the guilty verdict could not be supported by the evidence or was unreasonable ([52]) (Ground 1). He also claimed that the trial judge failed to direct the jury that an essential step in the chain of reasoning was that the appellant believed that introducing nitrogen into the caravan would kill his wife ([97]) (Ground 2), and complained about the trial judge directions as to the use of post-offence conduct as proof of his intention ([107]) (Ground 3). His appeal also included the claim that there was a failure to distinguish attempted murder from other offending based on the same physical acts, but with different mental elements, which might have explained the post-offence conduct ([114]) (Ground 4).
Held: All four grounds of appeal were dismissed. Sofronoff P (with Philippides JA and Flanagan J agreeing) noted that it was open to the jury to reject the appellant’s explanation for constructing the contraption. His credit was impaired by his failure to offer this explanation when first interviewed by police. Further, the verisimilitude of his explanation was reduced by the uselessness of the contraption as a drainage system, and the inconsistencies in his reasons for erecting the drainage system. The jury was therefore entitled to accept the victim’s evidence and be satisfied beyond reasonable doubt that the appellant constructed the apparatus to deliver gas into the caravan in which his wife was sleeping ([81]-[82]). The evidence that the victim had informed the appellant that she wanted a divorce, together with the evidence of lies to police, supported a conclusion that the appellant believed that he had built a system that would be effective to kill ([88]). His Honour therefore held that the jury could be satisfied beyond reasonable doubt of the appellant’s guilt.
As to the second ground of appeal, the appellant was unable to establish a miscarriage of justice by merely asserting that the trial judge miscarried through a lack of proper directions about proof of the appellant’s intention ([106]). A redirection was not sought ([101]). Whilst the trial judge did not identify the series of evidentiary steps that the jury could take to find guilty intent, doing so would have assisted the prosecution, not the defence ([106]).
Further, the appellant submitted that there was an alternative hypothesis that he had set up the apparatus to harass his wife, and therefore, his post-offence conduct was indicative of his sense of guilt for trying to harass her ([109]). This submission failed because harassment by the use of nitrogen, as an alternative hypothesis, did not arise as an issue in the case ([110]).
Ground 4 was also rejected. Citing R v Baden-Clay, the Court stated that "it is not necessary for a jury to consider a hypothesis which was not put to it for tactical reasons, which is directly contrary to the evidence that the accused gave at the trial and which is directly contrary to the way in which the accused’s counsel conducted the defence". Any intention on the appellant’s part to do anything other than kill his wife or drain water did not arise on the evidence and did not have to be considered ([120]).
Charges: 1 x unlawful strangulation; 1 x unlawful assault
Case type: Appeal against conviction
Facts: The appellant was charged with 2 offences, committed on the same day against a woman (the complainant) with whom he was in a domestic relationship and had a child. Count 1 involved the appellant strangling the complainant ‘really tight’ for a period of about 15 seconds, stopping only when their son fell from a couch. Count 2 occurred shortly afterwards. The appellant grabbed the complainant’s hair and repeatedly said ‘bitch’ while she held their son. The appellant then destroyed her phone ([4]-[5]). The complainant also gave evidence of 5 previous incidents of domestic violence ([11]-[17]); however, the appellant did not give or call evidence ([18]). The jury convicted the appellant on both counts.
Issue: The issue for the Court was whether the appeal against the convictions should be allowed. The appellant appealed against each conviction on the ground that the trial judge wrongly admitted evidence of prior acts of domestic violence by him against the complainant. He also appealed against the conviction on the strangulation charge on the ground that the verdict was unreasonable.
Held: The Court dismissed the appeal. The evidence summarised at [4]-[18] was admitted under s 132B(2) of the Evidence Act 1977 (Qld). The question for the Court was whether the admission of the evidence resulted in a miscarriage of justice ([34]). The Court held that the evidence of prior events was relevant to establish that the alleged offending did not occur randomly and to demonstrate the nature of the relationship between the appellant and complainant. To minimise any risk of the jury engaging in propensity reasoning, the trial judge warned them that they were not to use the evidence as demonstrating the appellant’s propensity to commit similar offences ([37]-[38]). Overall, the jury directions avoided the misuse of the evidence, and no miscarriage of justice was caused by its admission ([40]).
Charges: Murder x 1; assault occasioning bodily harm while armed and in company x 1; burglary at night x 1; common assault x 1; and robbery with personal violence as a domestic violence offence x 1.
Proceedings: Appeal against refusal to grant bail.
Facts: The accused was a 19-year-old male with no prior criminal history. He was in an abusive relationship with the daughter of a man he was charged with murdering at the time of offending.
On the day of the offending, the daughter told the accused their relationship was over. That night, the appellant was in the daughter’s bedroom when she came home but was asked to leave by her flatmate. After leaving the apartment he began to make a nuisance of himself, causing the flatmate to call the daughter’s father (the victim) who soon arrived with another man. The appellant fled by car with his companion and was followed by the victim and the other man. The appellant eventually stopped the car and his companion went onto the road and took out a pistol which he pointed at the victim’s car. The victim’s companion approached the appellant, who was still in the car, and began to punch the window.
The appellant’s companion hit the victim with his pistol and knocked him unconscious. This blow ultimately killed the victim. The appellant and his companion then took off, briefly returning to the daughter’s home and punching her two or three times in the face before fleeing again.
The appellant submitted that the judge who refused his bail application ‘must not have given consideration to the appellant’s youth, his lack of criminal history and, as the appellant asserts, the weakness of the Crown case against him, the weight that these matters deserved’. He submits that it should be inferred that Justice Davis made an error, and in oral argument, he has also submitted, that Justice Davis must have overlooked the extraordinary delay of about 18 months until there can be a trial in this matter. (per Soffronoff P at [7-8]).
Issue: Whether to grant leave to appeal.
Decision and reasoning:: Sofronoff P stated that ‘in an appeal against a discretionary decision, it is not a valid ground of appeal to contend that the judge did not give sufficient weight to a relevant factor or gave too much weight to a factor. Weight is a matter for the decision-maker alone’ [7]. His Honour thus dismissed the appellant’s related claims.
The submission that the judge must have overlooked the delay was not accepted as a delay of that order was to be expected [12]. Furthermore, regarding the appellant’s claim of error, Sofronoff P concluded that ‘[i]n an application for bail, the appellant’s actions after he returned to Jane’s house could, on their own, justify a refusal of bail. When they are taken into account in a case in which the applicant is also awaiting trial for murder, refusal of bail can hardly be regarded as so unreasonable that an error of some kind in the judge’s reasoning has to be inferred. Yet that is what the appellant must show in order to persuade this Curt to disturb the decision of Justice Davis. In my view, he has failed to do so, and the appeal should be dismissed’ [13].
Charges: 1 x manslaughter
Case type: Appeal against sentence
Facts: The applicant pleaded guilty to manslaughter by unlawfully killing the deceased, with whom he was in a domestic relationship for some 18 months. The applicant was sentenced to 11 years’ imprisonment. The conviction was declared to be a domestic violence offence and a serious violent offence.
The applicant told ambulance offices that the deceased fell off the toilet shortly before he had called them, and that she had also fallen in the shower the night before ([11]). However, a post-mortem of the deceased’s body revealed that the most likely cause of death was multiple injuries, including multiple rib fractures and liver lacerations. Such injuries were inconsistent with a fall in a shower, and were most likely to have resulted from a ‘focused and severe force, such as kicking or stomping’ ([14]). Although the applicant disagreed with the pathology report ([21]), his mobile phone records demonstrated that he knew the deceased had broken ribs ([22]). The agreed statement of facts recorded that the applicant was to be sentenced on the basis that he (1) unlawfully assaulted the deceased causing the injuries which led to her death; (2) kneed her to the stomach and to the back; (3) caused head and facial injuries; and (4) assaulted her in the past as evidenced by the facial bruising previously observed by witnesses and the healing fractures, which demonstrate that this was not an isolated violent incident ([24]).
Issue: The applicant filed an application for leave to appeal against his sentence on the ground that it was manifestly excessive, and wished to add an additional ground of appeal, namely, ‘that the learned sentencing judge erred in finding that his post-offence conduct demonstrated a complete disregard for the deceased and did not demonstrate remorse or concern for the deceased’ ([48]).
Held:: The applicant’s antecedents and criminal history is discussed at [25]-[36]). The applicant has Aboriginal heritage. He also had a history of criminal offending, including convictions for breaking and entering, and property damage, and, most importantly, for offences against his former partner for property damage, common assault, contravention of a prohibition or restriction in an apprehended violence order, and use of a carriage service to menace, harass or offend. He claimed to have had a ‘socially deprived upbringing’ - his father was a ‘professional and serial criminal’ and his step-mother was emotionally abusive. His biological mother was not involved in his care due to very heavy alcohol dependency and abuse. He also claimed to have been sexually abused when he was 11 years old. Psychological testing suggested that the applicant’s intellectual level likely fell in the intellectually disabled range. A psychologist observed that his dysfunctional and abusive upbringing likely significantly influenced his offending behaviour.
The Court distinguished the present case from DeSalvo, Murray, West and Heazlewood where the courts did not consider a domestic violence offence ([89]). The applicant had a relevant prior criminal history, including convictions for prior domestic violence episodes, which distinguished him from the offenders in Sebo, Baggott, Pringle and Hutchinson ([91]). Given the ‘seriousness of the offending manifested by the brutality of the applicant’s assault and the relative defencelessness of the deceased, the applicant’s remorse after the assault, his timely plea of guilty, his antecedents, his deprived social upbringing, his intellectual disability and the state of his mental health, and bearing in mind the need for some personal deterrence due to his past domestic violence offences and his moderate risk of reoffending, the related need for community protection, and the importance of denunciation of domestic violence offences causing death’, the sentence imposed by the trial judge was just in all the circumstances, and thus stood as ‘the appropriate sentence for the offender and the offence’ ([95]-[96]). Consequently, leave to appeal against sentence was dismissed on both grounds.
Charges: Attempted murder x 2.
Case type: Appeal against sentence.
Facts: The respondent and his partner had an argument after the respondent came home from the pub. The respondent later walked to his mother’s house, where his mother lived with her partner, and violently assaulted them. The respondent’s mother suffered multiple injuries, including a fracture to her eye socket, while her partner suffered fractures, 2 broken ribs and an injured liver. The respondent pleaded guilty to 2 counts of attempted murder. Crow J, the sentencing judge, sentenced the respondent to 2 concurrent sentences of 9 and a half years imprisonment.
Issue: The Attorney-General appealed against the 2 sentences on the ground of manifest inadequacy. Key questions included whether Crow J gave appropriate weight to the mitigating and aggravating factors of the offence and the respondent’s personal circumstances, and whether a sentence below 10 years imprisonment for 2 counts of attempted murder was manifestly inadequate.
Held: The Court dismissed the appeal. Appellate intervention is not justified simply because the result is markedly different from other sentences that have been imposed in other cases ([15]). Rather, the Attorney-General was required to demonstrate actual error with Crow J’s reasoning.
The Attorney-General’s submissions included that the attacks were premeditated, that the respondent lacked remorse, that his guilty pleas were late, and that he carried out the offending while he was subject to a Domestic Violence Order ([20]). The respondent had previously assaulted his mother. It was submitted that the Crow J did not give these matters appropriate weight ([21]).
The Court noted that the case involved substantial mitigating factors that were personal to the respondent ([23]). The respondent’s current state of health was partly caused by his mother’s lifelong neglect of him, and was significantly exacerbated by both of his victims’ irresponsibility over the respondent’s son’s death, and by their callousness afterwards ([40]).
It was in these circumstances that Crow J viewed the respondent’s case as ‘far from general.’ The most relevant circumstance was the killing of the respondent’s son by the victims’ dog ([37]). The offending was motivated by the son’s death ‘in a most violent fashion’ ([35]). The Court held that it was open for Crow J to give substantial weight to the mitigating factors and, subsequently, impose a somewhat ‘lenient’ sentence. It was not for the Court of Appeal to substitute its own views about these matters ([41]).
Charges: Assaults occasioning bodily harm x 3; Rape x 1.
Case type: Appeal against conviction.
Facts: The appellant was found guilty of 2 counts of assault occasioning bodily harm and one count of rape. He was acquitted of another charge of assault. For the offence of rape, the appellant was sentenced to 5 years’ imprisonment, suspended after 27 months with an operational period of 5 years. He was sentenced to concurrent terms of 12 months’ imprisonment on the other counts.
The appellant and complainant were married and had 2 children when the offending allegedly occurred. They separated around one year later. The first count of assault occasioning bodily harm involved allegations that the appellant pushed the complainant against a staircase, verbally abused her, ripped off her clothes and grabbed her breasts. The complainant said that she suffered bruising as a result of this event. The second count involved allegations that the appellant unlawfully assaulted and caused bodily harm to the complainant by slamming a door closed, hitting her fingers. The appellant also allegedly raped the complainant. It was alleged that the appellant and complainant were on good terms for many years after the couple had divorced. The complaint was made to the police over 8 years after the alleged events occurred and at a time when the complainant and the appellant were in litigation about their children.
Issue: The appellant appealed against the convictions on the ground that the jury’s verdict was unreasonable having regard to the evidence.
Held: The appellant submitted that the complainant’s attitude towards the appellant after separation was not that which would be expected of someone who had suffered the conduct alleged ([24]). The Court held that the cordial relationship between the parties provided a substantial basis for challenging her testimony, and may have justified a reasonable doubt in the minds of the jury in relation to the count of rape ([35]).
However the question for the Court was whether it was open, on the whole of the evidence, for the jury to be satisfied of the appellant’s guilt, having regard to the advantage enjoyed by the jury over the Court, which had not seen or heard the complainant’s evidence being given ([36]).
Their Honours noted the importance of the timing of the complaint to police. While it strongly indicated that it was affected by the litigation between the couple about their children, it did not require the jury to have a doubt about the credibility of the complainant’s complaints. It was open to the jury to accept the complainant’s evidence, and the Court ordered the appeals against conviction to be dismissed ([37]-[38]).
Charges: Stalking x 1 (Count 1); malicious act with intent x 1 (Count 2); grievous bodily harm x 1 (Count 3).
Case type: Sentence application and appeal.
Facts: The applicant experienced domestic violence from her husband (the complainant) from 2005. Cross-protection orders prohibited them from living together. The applicant arrived at the matrimonial residence with two children of the marriage. Her husband was residing at that residence. That night, the complainant sustained 4 stab wounds at the hands of the applicant. He also suffered 2 lacerations to the right hand that caused tendon and nerve damage. These events constituted Counts 2 and 3. The applicant and complainant were separated, and their severely disabled daughter, AA, was in hospital at the time of the offending. The applicant is her primary carer. The complainant for Count 1 was a family friend who was having an affair with the complainant.
The applicant pleaded guilty to the charges. She was sentenced to four months’ imprisonment for Count 1, and six years’ imprisonment with a parole eligibility date fixed after serving 15 months in custody for each of the other counts.
As the sentence for the stalking was already served, the purpose of the application was to review the sentence imposed for the other counts. The applicant applied for leave to appeal against her sentence on the basis that it was manifestly excessive and that the sentencing judge erred in failing to find that the circumstances of AA were exceptional and therefore justified a non-custodial sentence. The applicant also applied for leave to adduce further evidence, namely an affidavit from her adult daughter which detailed the care arrangements for AA since the applicant went into custody.
Issue: Whether the sentence was manifestly excessive; Whether the sentencing judge erred in failing to take into account the applicant’s disabled daughter’s needs.
Held: The appeal against the sentence was allowed, and the sentence was varied. Mullins J noted that the offences were committed in circumstances where the applicant was AA’s primary carer. When imposing an appropriate sentence, a balancing exercise needs to be undertaken which fulfils the purposes of ‘sentencing for serious offending involving premeditated use of a weapon to inflict injury in a domestic setting, but also [to] allow for the mitigating circumstances and particularly the applicant’s role in relation to the special needs of AA’. The period served in custody should be sufficiently long to reflect appropriate punishment for the crime, without separating the applicant from AA for any longer than is necessary ([47]). Her Honour held that, in light of AA’s needs, the custodial component of the sentence should have been reduced by a further period of 6 months. Therefore, the sentence was manifestly excessive to the extent of fixing the parole eligibility date after 15 months in custody rather than after a period of 9 months ([48]). Davis J and Sofronoff P agreed with the reasons of Mullins J. Citing R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22, Davis J noted that although hardship to an offender’s family resulting from the offender’s imprisonment cannot override all other sentencing considerations, there will be some cases where family hardship results in a substantial reduction either in the sentence, or the period to be served before parole eligibility even where the offending is serious ([52]).
The Court also refused the application for leave to adduce further evidence because it was neither necessary nor expedient, in the interests of justice, to receive further affidavits of the adult daughter ([37]).
Charges: 1 x attempted murder
Case type: Appeal against sentence
Facts: The applicant was convicted on his plea of guilty of attempted murder (domestic violence offence) and sentenced to 9 years’ imprisonment with no further order ([1]). The applicant and complainant were involved in a relationship for approximately one year prior to separating, but remained friends. The offending conduct took place when the applicant attended the complainant’s unit. He made unwanted advances towards her, punched her and threatened to kill her. The complainant lost consciousness for a period and, upon regaining consciousness, saw the applicant standing over her with his pants and underwear down. He also strangled the complainant. The applicant later provided self-serving statements to the police which sought to blame the complainant for violent behaviour towards him ([3]-[13]).
Issue: The applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive.
Held:: The applicant made a number of written submissions in support of his application ([22]). He maintained that she had burned his face with a lighter ([23]), which was not part of the agreed statement of facts. He also asserted that the complainant suffered from a mental illness ([24]), and sought to minimise the seriousness of his conduct, which demonstrated a lack of remorse or insight ([25]).
The application for leave to appeal against the sentence for attempted murder was refused. Philippides and McMurdo JJA and Mullins J found that the applicant’s assertions conflicted with the agreed facts and partly reiterated the self-serving statements he made to police ([26]). Their Honours agreed with the respondent’s submissions that the sentence imposed was within the sentencing discretion and supported by authorities such as R v Sauvao, R v Ali, R v Seijbel-Chocmingkwan and R v Kerwin. After analysing these authorities at [28]-[31], their Honours found that they demonstrated that the 9 year sentence was within the sound exercise of the sentencing discretion ([32]).
Charges: 2 x rape (domestic violence offence)
Case type: Appeal against conviction
Facts: The appellant was charged with 4 counts of rape, and convicted on 2 counts as a domestic violence offence. He was sentenced to 5 years’ imprisonment, suspended after 2 and a half years in custody. The complainant was the appellant’s wife. Counts 1 and 3 (subjects of the guilty verdicts) were particularised as vaginal rapes, while Counts 2 and 4 (subjects of the not guilty verdicts) were alleged anal rapes ([4]).
Issue: The appellant appealed against his conviction on 2 grounds ([5]):
Held:: To succeed on the first appeal ground, the appellant must prove the verdicts were inconsistent as a matter of logic and reasonableness. The test is that ‘no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’ ([6]). There were 3 differences in the quality of the evidence considered by the jury ([9]), namely, the difference in what the complainant told her confidantes before she reported to the police ([10]), the difference in her report to the police ([11]), and a recording of a conversation between the complainant and appellant in which she made no mention to anal penetration ([12]). There was also evidence that might have corroborated Counts 1 and 3 ([15]), but there was no such evidence about Count 2 or 4 ([20]). The Court held that it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on Counts 1 and 3. The differences in the quality of the complainant’s evidence and appellant’s corroborative evidence provided a logical and reasonable basis for the jury to arrive at different conclusions and return different verdicts for Counts 1 and 3 and Counts 2 and 4 ([23]).
The second appeal ground argued that the jury ought to have been directed to consider whether the Crown had satisfied them beyond reasonable doubt that the appellant had not acted under an honest and reasonable, but mistaken, belief that the complainant had consented to the vaginal penetrations. To succeed on this proposed ground, the appellant must demonstrate that the trial judge should have given a mistake direction and that it is reasonably possible that the failure to do so may have affected the verdict ([24]). In light of the evidence, there was a negligible prospect of the jury, having accepted the occurrence of the vaginal penetrations, having a reasonable doubt whether the appellant acted under an honest and reasonable, but mistaken, belief as to the complainant’s consent. In the circumstances, the trial judge was under no duty to give such a direction ([39]). The appellant was therefore not deprived of a real chance of an acquittal by the failure of the trial judge to give a mistake direction to the jury.
Consequently, the appeal was dismissed.
Charges: Assault, constituting a domestic offence x 4.
Case type: Appeal against conviction. Application for extension of time.
Facts: The applicant was convicted on four counts of assault, each of which constituted a domestic offence. All four counts were committed against the applicant’s wife on the same day. The applicant grabbed the complainant’s hair and pulled her to the ground, put his hands around her throat and choked her, and punched her on the jaw with both fists, which resulted in a fracture and required her teeth to be wired together and the fracture closed with a plate and screws ([4]). At the trial, Dr Webster gave evidence, based on the complainant’s medical records, that the injury had been caused by a blunt force trauma to a significant extent ([30]). The applicant lodged a notice of appeal against his conviction when the time for lodging an appeal had expired over three weeks prior. As a result, the applicant also filed an application for extension of time within which to appeal.
The applicant appealed on the ground that the verdicts were unsafe and unsatisfactory ([32]). He also raised a number of specific grounds, including that
Issues: Whether the grounds of the applicant’s proposed appeal had reasonable prospects of success to justify granting an extension of time.
Decision and reasoning: When considering an application for extension of time, the court will examine whether there is good reason for the delay and whether it is in the interests of justice to grant the extension. Length of delay is also a relevant consideration ([7]). Although the length of the delay was not significant, the applicant was well aware of the time limit for filing and allowed the time to pass without taking steps to file a notice of appeal. The Court was inclined to grant the extension of time if the matter had been confined to these considerations; however as the merits of the proposed appeal could not be substantiated, the court refused the application ([22]-[23]).
The applicant’s grounds of appeal failed for several reasons. First, the jury was expressly directed that the evidence was not led as propensity evidence and therefore the trial did not miscarry on the basis that the prosecution led such evidence ([36]). Second, the applicant’s contention that Dr Webster’s alteration of his opinion constituted some sort of fabrication of his evidence, causing a miscarriage of justice, was misconceived ([37]). Third, any suggestion that the complainant was able to rehearse or practice her evidence at the first trial was simply the result of the fact that the first trial was aborted. Whatever benefit she got from giving evidence on that occasion was balanced by the fact that the defence counsel had the opportunity to cross-examine her more than once, and so no prejudice was caused ([45]). Fourth, the Court found that an answer by the complainant, which the applicant argued caused him prejudice as it revealed his infidelity, was unlikely to have carried much weight with the jury and did not deprive the applicant of a fair chance of acquittal ([51]). Fifth, the applicant contended that there were discrepancies in the complainant’s evidence because in her evidence in chief, she said that she was punched after she fell; however in cross-examination, she said she did not scream when she was punched, but when she fell. The Court held that there was no real inconsistency as the first piece of evidence related to when she was punched and the second to when she screamed ([52])-([53]). Sixth, it was admitted at the trial that the injury constituted grievous bodily harm. The fact that Dr Webster was a trainee did not mean that he was not a relevant expert ([54]-[58]).
In reviewing the evidence ([94]-[107]), the Court held that it was open to the jury to be satisfied of the applicant’s guilt. As all the grounds of the applicant’s appeal lacked merit, the appeal had no reasonable prospect of succeeding and the application for an extension of time was refused ([108]). The Court also took into account the fact that the applicant was self-represented ([59]).
Charges: Assault occasioning bodily harm x 2; contravention of a domestic violence order; rape.
Case type: Appeal against conviction. Application for an extension of time.
Facts: The appellant was charged with a number of offences against the complainant, his then de facto partner. The complainant’s daughter and son gave evidence of the events ([33]-[40]). The complainant herself gave evidence asserting that she was in a ‘domestic violence cycle’ ([23]). After a trial, the appellant was convicted of two counts of assault occasioning bodily harm (domestic violence offence) and contravention of a domestic violence order. The jury acquitted the appellant of a charge of torture and was unable to reach a verdict in relation to a charge of rape. After a retrial on the charge of rape, the appellant was convicted and sentenced to seven years’ imprisonment ([1]-[4]). The appellant submitted that consent was given by the complainant and that sexual intercourse in the context of the violent circumstances was not a departure from the usual dynamics of the relationship. The Crown contended that if there was any ostensible consent by the complainant, it was induced by force and invalid at law, and that the appellant could not have held a mistake of fact as to consent ([46]). The appellant appealed against his conviction of rape on the grounds that the jury’s verdict was unreasonable and unsafe, and there was a miscarriage of justice, resulting from the trial judge’s misdirection of the jury on the defence of mistake of fact ([5]).
Further, the appellant sought an extension of time in which to appeal his sentence ([6]). The applicant’s explanation for delay in filing the application for leave to appeal against sentence was that his lawyer did not provide him with any information about appealing his sentence and that he thought he would be able to get more time ([69]).
Issues: Whether the verdict was unreasonable or insupportable. Whether the appeal should be allowed. The predominant issue at trial was the issue of consent, including a mistake of fact as to the complainant’s consent.
Decision and reasoning: The appeal against conviction was dismissed and the application for an extension of time was refused.
Appeal against conviction:
In relation to the appellant’s contention that the jury’s verdict was unreasonable or cannot be supported by the evidence, the Court considered whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty based on the whole of the evidence. In determining this question, the Court undertook its own independent assessment of the evidence, assessing its sufficiency and quality ([45]). As to the issue of consent, the Court held that it was entirely open to a jury to find that the complainant gave an honest and reliable account, and it was not surprising that the jury were satisfied that the prosecution had negatived any mistake of fact as to consent on the part of the appellant. There was no evidence from the appellant that he held an honest but mistaken belief as to voluntary consent. Moreover, the appellant’s conduct immediately following the offence and his admission to the complainant’s daughter undermined any assertion that the appellant honestly and reasonably believed that the complainant consented ([51]-[52]). It was also appropriate for the jury to have regard to the ‘ongoing domestic violence in the relationship’ and the complainant’s continuation of the relationship in considering the issues raised by the case ([53]).
The appellant also made a number of complaints about the trial judge’s directions, such as the fact that his Honour used a number of terms interchangeably regarding consent ([58]) and, in giving his final direction on mistake of fact, failed to give a repeat direction on the standard of proof required of the prosecution to negate the defence of mistake of fact beyond reasonable doubt ([64]). The trial judge’s use of the words other than ‘consent’ was not found to constitute a miscarriage of justice ([60]). Further, there was no error in failing to specifically mention the standard of proof in the final redirection, as it was given in conjunction with the aide memoire, which itself identified the requisite standard of proof ([66]).
Extension of time:
In considering whether an extension of time should be granted, the court examined whether there was any good reason to account for the delay and considered whether it was in the interests of justice to grant the extension ([68]). The Court was not persuaded that there was any good reason for the delay to grant an extension ([69]). Moreover, the applicant was 43 years old at the time of the sentence and had repeatedly been convicted of offences of violence, particularly in a domestic setting. These factors supported the sentence imposed and indicated that the sentence was not manifestly excessive ([70]).
Charges: 1x common assault, 1x threatening violence, 1x assault occasioning bodily harm, 1x choking in a domestic setting, and 1x wilful damage.
Appeal type: application for leave to appeal against sentence.
Facts: The applicant was in a relationship with the complainant from August 2016. On 22 December 2016, a protection order requiring that the applicant be of good behaviour and not commit acts of domestic violence against the complainant was issued pursuant to the Domestic and Family Protection Act 2012 (Qld) (DFVPA). On 17 February 2017, the applicant attacked the complainant. Consequently, the applicant was charged with five offences (common assault, threatening violence, assault occasioning actual bodily harm, choking in a domestic setting, wilful damage) and three summary offences (deprivation of liberty, breach protection order, unlawful possession of a weapon). On 15 February 2018, the applicant was convicted and sentenced on the five indicted offences and convicted of the three summary offences without any further punishment.
Issues: there were four grounds of the applicant’s appeal:
Decision and reasoning: application for leave to appeal against the sentence refused.
Whether the sentence was manifestly excessive was determined by Gotterson JA through a consideration of relevant authority, the nature and purpose of the offence of choking, and the circumstances of the case at hand. Both R v MCW [2018] QCA 241 and Bennet were referred to by his Honour to illustrate the seriousness of the offence and the factors relevant to sentencing offenders under the offence (see [44]-[50]). His Honour then noted there were five material facts that warranted the severity of the punishment; these factors included, among others, the disturbing circumstances of the offending, the physical, emotional and financial impact it had on the complainant, and the applicant’s concerning criminal history (see [52]).
As to the second ground of appeal, his Honour initially notes that the order was part of the agreed facts which formed the basis of the sentence proceedings. Gotterson JA then refers to s 9(3)(g) and s 9(10A) of the Penalties and Sentences Act 1992 in asserting that the existence and contravention of an order is a key consideration for the sentencing judge and forms an aggravating feature respectively. In doing so, his Honour dismisses the foundation of this contention that the order cannot be referred to as evidence. In addressing the applicant’s specific contention, his Honour observes that orders are only made on the basis of evidence of previous difficulties in a relationship and that accordingly, the sentencing judge’s inference that the order was a result of previous relationship difficulties was a reasonable one. Taking this into account, his Honour then affirms that it was correct for the sentencing judge to state that the offences committed on 17 February 2017 were not “an isolated and exceptional incident” (see [26]).
Gotterson JA rejected the third ground of appeal on the basis that the applicant’s contention mis-interpreted the sentencing judge’s remarks in coming to the finding that the applicant threatened to kill her (see [27]). Having regard to the seriousness and criminality of the applicant’s conduct, his Honour perceives the sentencing judge’s finding as reflecting no error at all (see [28]).
Similarly, his Honour also rejected the fourth ground of appeal on the basis that it was a misconstruction of the sentencing judge’s comments. Gotterson JA was of the view the judge made no error in his assessment of the reliability of the matters at hand on the basis of the applicant’s instructions (see [33]).
Charges: Assault occasioning bodily harm x 2; Choking, suffocation or strangulation in a domestic setting x 1; Contravention of domestic violence order x 1
Appeal type: Appeal against sentence
Facts: The applicant pleaded guilty to two counts of assault occasioning bodily harm, one count of choking, suffocation or strangulation in a domestic setting and one summary charge of contravention of domestic violence order ([4]). The prosecutor, relying on R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228, submitted to the sentencing judge that three years’ imprisonment was appropriate. A variation of the protection order was also sought so as to extend its operation and add a further ‘no contact’ condition.
The sentencing judge held that the offences were ‘cowardly, prolonged and particularly violent’ ([23]) and that the offender posed a genuine threat to the community and particularly, to the complainant ([25]). In respect of each of the assault occasioning bodily harm counts, the applicant was sentenced to imprisonment for two years and six months. Sentences of imprisonment for three years and six months was imposed for the offence of choking, suffocation or strangulation in a domestic setting, and three months for the summary charge. All sentences were concurrent. No date for eligibility for parole was specified. The applicant was therefore ineligible to apply for parole prior to having served half of the effective sentence of imprisonment of three and a half years ([4]).
The applicant appealed on the basis that the sentencing judge had denied him procedural fairness by failing to forewarn the parties of his intention to reduce the head sentence slightly to reflect the guilty plea, and to provide him with an opportunity for a parole at earlier than half the sentence. He also appealed on the basis that the sentence was manifestly excessive.
Issues: Whether the sentence was manifestly excessive; Whether there was a denial of procedural fairness.
Decision and reasoning: Application was refused on the basis that no procedural unfairness arose on the facts and the sentence was not manifestly excessive.
The applicant submitted that the sentence imposed was manifestly excessive and that the notional starting point of four years’ imprisonment for the offence against s 315A of the Criminal Code 1899 (Qld) (the ‘Code’) was too high ([33]). Conversely, the respondent contended that consideration must not only be given to the particular circumstances of the applicant’s case, but also to the legislative intention for enacting s 315A to provide for specific liability, and a potentially increased maximum penalty, for offences involving choking (and similar conduct) committed in a domestic setting ([34]). Prior to the sentencing, the Code was amended to create a specific offence of strangulation in a domestic setting (see s 315A). That section prescribes a maximum penalty of seven years to deter the increasing frequency of such behaviour. The Court referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 at [39] –
‘The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide…’
The Court was cautious to apply authorities for sentences for offences constituted by conduct comparable to choking, suffocation or strangulation in a domestic setting, prior to the enactment of s 315A. R v West [2006] QCA 252, R v King [2006] QCA 466 and R v RAP [2014] QCA 228 involved assaults occasioning bodily harm, the maximum penalty for which was seven years’ imprisonment. The Court found that it was not useful to consider the sentences in those cases as comparable authorities for an offence of strangulation in a domestic setting, having regard to the legislature’s intention for enacting s 315A and the seriousness of that offence.
The test of manifest excessiveness depends on whether the sentence is unreasonable or unjust, in light of all the factors relevant to the sentence (see Hili v The Queen [2010] HCA 45). The fact that the complainant lost consciousness, and that the offending occurred only 18 days after his release from custody for breach of a previous domestic violence order, increased the severity of the offence. The applicant’s criminality was also increased by the fact that the choking incident was preceded, and then followed, by an assault occasioning bodily harm. Further, the applicant showed no remorse for the offending and refused to undergo counselling. Boddice J concluded that the circumstances indicated that the applicant’s offending amounted to ‘an episode of sustained violence undertaken by a recidivist who expressed no remorse’ ([47]). Therefore, the Court found that the sentencing judge did not err in sentencing the offender to three years and six months without any further mitigation, and that the sentence was not manifestly excessive in the circumstances ([44]).
Charges: Torture x 1; Assault occasioning bodily harm x 1; Malicious act with intent x 1.
Appeal type: Appeal against sentence.
Facts: The complainant and the applicant had been in a relationship for two months ([4]). The complainant ended the relationship. The next day, the applicant attended at her home and she let him inside. He accused her of being unfaithful to him ([4]). Over the next four hours, the applicant did the following acts to the complainant: slapped her; ripped an earring from her ear; punched her; struck her with a garden trowel; locked her in a cupboard; heated the trowel and a butter knife over the flame of a gas stove and struck her on the legs and near her vulva, causing burns; and forced her to shower, exacerbating the burns ([5]).
The applicant was sentenced to six and a half years’ imprisonment for the torture charge, 18 months’ imprisonment for the assault occasioning bodily harm charge, and 6 years’ imprisonment for the malicious act with intent charge. A serious violent offence declaration was made in respect of the torture charge.
Issues: Whether the sentence of six and a half years’ imprisonment for the torture charge was manifestly excessive.
Decision and Reasoning: The application for leave to appeal against the sentence was refused. It was within the trial judge’s discretion to sentence the applicant and also make a serious violent offence declaration ([19]). The trial judge appropriately balanced the applicant’s personal circumstances, including the fact that he was subject to domestic violence as a child, with the fact that he had a criminal history including domestic violence ([12]).
Charges: Contravention of temporary protection order x 9; Public nuisance x 1; Using a carriage service to menace, harass or cause offence x 1; Failure to surrender into custody in accordance with an undertaking x 1.
Appeal type: Application for leave to appeal against refusal to grant extension of time to appeal against conviction.
Facts: The applicant had been in a parenting dispute with the mother of his son. There were 5 proceedings in which the applicant sought extensions of time to appeal against his conviction:
The applicant sought to justify the breaches of domestic violence orders on the basis that they were justified under an order of the Family Court (which allowed the applicant to contact the aggrieved for the purpose of communicating in relation to contact with the child of the relationship) ([11]).
Issues: Whether the appeal should be allowed. The applicant sought leave to appeal on the basis that the District Court Judge erred in:
Decision and Reasoning: The application for leave was dismissed. Sofronoff JA held that none of the grounds were supported by evidence or could justify granted leave to appeal ([26]-[29]).
Charges: Murder x 1; Fraud x 1;
Appeal type: Appeal against sentence.
Facts: The deceased and the appellant had been married for a lengthy period. The fraud charge occurred when the appellant mortgaged the family home by using a third party to pretend to be the deceased ([5]). The deceased disappeared, and the appellant was charged with her murder. The appellant deceived the deceased’s family and friends in the days after she disappeared and never revealed how she died or the whereabouts of her body ([6]-[12]). At trial, the appellant was acquitted of murder, but convicted of manslaughter. He pleaded guilty to the fraud charge on the first day of the trial ([3]). The appellant was sentenced to 15 years and six months, and the manslaughter offence was declared a serious violence offence and a domestic violence offence under s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (‘the Act’).
Issues: Whether the sentencing judge erred in retrospectively applying s 9(10A) of the Act or whether the sentence was otherwise manifestly excessive.
Decision and Reasoning: The appellant argued that s 9(10A) of the Act, which has the effect that a context of domestic violence is an aggravating factor in sentencing, should not apply because it should not have retrospective operation ([24]). The Court held that the section is a procedural provision and does not attract the common law presumption against retrospectivity. Therefore, the section applies to all sentencing from its commencement ([43]).
Justice Mullins, Fraser and Morrison JJA agreeing, stated that the sentence was not manifestly excessive, taking into account the context of domestic violence, the appellant’s deceit in impersonating the deceased and failing to disclose the whereabouts of the deceased’s body, his lack of plea of guilty, his lack of remorse and the unchallenged finding that the deceased died a violent death ([53]).
Charges: Stalking x 1; Attempting to pervert the course of justice x 1.
Appeal type: Appeal against conviction and sentence.
Facts: The applicant and the complainant had been in a relationship for 18 months. There were 2 instances of violence ([2]). After the relationship ended, the applicant followed the complainant and sent her a total of 77 text messages, 5 emails and phone calls by which the complainant felt threatened and harassed ([7]). After the complainant made a complaint to the police, the applicant sent further emails to her threatening to release recordings and videos of them having sex if she did not withdraw the charge ([9]).
The appellant was sentenced to a head sentence of 18 months’ imprisonment, with a parole release date after 3 months ([12]).
Issues: Whether the conviction should be set aside and whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed.
In relation to the appeal against conviction, the appellant had argued that he was not provided with proper legal advice ([30]). Justice Morrison (Sofronoff P and Phillip McMurdo JA agreeing) dismissed this argument as having ‘no merit’ ([44]).
In relation to the appeal against sentence, the appellant relied on the impact of the sentence on his ability to obtain licences to work in the financial services industry ([45]). Justice Morrison dismissed this argument because it could only be relevant to whether a conviction is recorded ([48]).
Charges: Attempted murder x 1.
Appeal type: Application for leave to appeal against sentence.
Facts: The applicant and complainant were separated ([6]). After they separated, the complainant obtained a domestic violence order against the applicant because he had sent her text messages threatening to kill her. On the date of the offence, the applicant followed the complainant and her children to a shopping centre, armed with a rifle and 13 rounds of ammunition ([7]). He shot her in the temple at close range, then attempted to strangle her. The four children in the car saw every detail of what had occurred ([8]-[9]). He was sentenced to 15 years’ imprisonment.
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed.
Justice Douglas, Holmes CJ and Gotterson J agreeing, found that the sentencing judge properly weighed the relevant factors. The applicant’s mental health disorders did not bear on his moral culpability ([43]). This was a ‘horrific example of the crime of attempted murder’. The victim continues to suffer severely. There was a strong need for protection and general and specific deterrence. The appropriate range would have been 13 to 17 years ([44]).
Charges: Contravening domestic violence order x 2; Choking, suffocation or strangulation in a domestic relationship x 1.
Case type: Renewed application for bail.
Facts: The applicant and complainant had been in a domestic relationship. A domestic violence order had been granted ([7]). The complainant made the following allegations: the applicant went to the complainant’s house and punched her in the leg ([7]); he threw a pillow at the complainant; and put her in a choke hold ([8]). Bail was originally refused ([9]). Since then, new evidence of a demonstrated that a trial in the District Court would be more than a year away ([10]).
Issues: Whether the evidence of a new trial date justified a grant of bail.
Decision and Reasoning: Bail was granted with conditions that he not have contact with the complainant, that he reside at a specified address, and that he report to the police daily.
Under s 16(3)(g) Bail Act 1980 (Qld), for which the new offence of strangulation is a ‘relevant offence’, the onus was on the applicant to show cause why bail should be granted ([13]). The Court explained that on one hand, there was a real risk that he would reoffend because the applicant and complainant lived in the same town, and they may contact each other ([14]). On the other hand, he had accommodation with family members available, an offer of employment ([15]), and there was a real prospect that he would spend longer on remand than he would serve in custody ([16]). On balance, the risk of reoffending was not unacceptable (s 16).
Charges: 1 x Assault occasioning bodily harm; 1 x Choking.
Appeal type: Defendant’s appeal against denial of bail application.
Facts: The victim alleged that, during an argument, the appellant: threatened to knock her out; grabbed her by the throat; punched her in the face; and, when she indicated that she was going to call the police, destroyed photographs in the house (see [8]-[10]).
The trial judge refused bail on the basis that:
His Honour referred to, but did not place weight on, a handwritten note from the victim indicating that she wanted to withdraw the charges (see [15]-[16]).
Issues: Whether the trial judge erred in denying bail to the defendant.
Decision and Reasoning: The appeal was dismissed.
Atkinson J, with whom Morrison JA and Douglas J agreed, considered that the trial judge’s discretion had not been improperly exercised (see [27]). The appellant had submitted that the trial judge based the risk of re-offending on an irrelevant ground, namely a generalised risk to victims of repeated offences. However, Atkinson J considered that the trial judge properly considered the particular risk to the victim, evidenced by two assaults being committed 10 hours apart, the victim’s concern, and the previous breach of domestic violence order (see [28]-[29])
At the time of the bail application, amendments to the Bail Act which reversed the presumption of bail for domestic violence offences had not come into effect (see [30]). By the time of the appeal against bail, the amendments had come into effect. Giving effect to the reversed onus, Atkinson J considered that the appellant had not satisfied the court that he did not represent an unacceptable risk of re-offending (particularly against the victim) while on bail (see [35]).
Charges: Rape x 1.
Appeal type: Appeal against conviction.
Facts: The accused and the complainant were married, but separated. The accused went to the home of the deceased, and sexual intercourse took place. The complainant said that the accused had held her down and threatened her, but the accused said that the intercourse was consensual ([1]).
Issues: Whether the conviction should be overturned on the grounds that expert evidence about the frequency of visible injury in sexual assault cases should not have been adduced, and the jury should have been given directions as to how to use that evidence ([2]-[3]).
Decision and Reasoning: The expert witness gave evidence that, according to cohort studies and his own personal experience, the absence of visible injury to genitalia is not determinative of whether sexual assault has occurred ([22]-[29]). Morrison JA (with whom Philip McMurdo JA and Mullins J agreed) held that the evidence:
Appeal Type: Appeal against domestic violence protection order.
Facts: The applicant was named as the respondent in a domestic violence protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). He filed an appeal to the District Court under s 164 of the Act. The appeal was dismissed. The applicant then attended the Supreme Court registry to file an application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld). Despite being told that there was no right of appeal, the applicant persisted until the registry acceded to his demands.
Issue/s: Whether the Court of Appeal had jurisdiction under s 169(2) of the Domestic and Family Violence Protection Act 2012 (Qld) to hear the appeal?
Decision and Reasoning: The appeal was dismissed. Under s 169(2) of the Act, the decision from which the applicant seeks leave to appeal ‘shall be final and conclusive’. While s 118(3) of the District Court of Queensland Act allows a party to appeal, it does not apply to a decision of the District Court in its appellate jurisdiction under s 169(1): see CAO v HAT & Ors [2014] QCA 61 [25] – [27]. The President concluded:
‘The scheme under the Act contemplates that domestic violence protection orders can be made by a wide variety of courts with a right of appeal from such orders…The scheme does, however, clearly contemplate only one level of appeal. The plain words of s 169(2) that such an appeal is “final and conclusive” indicate that the legislature intended that there be no further appeal. The applicant has exhausted his single right of appeal from the Magistrates Court to the District Court. He can, of course, apply to vary the domestic violence protection order under s 86 of the Act, including to vary the duration of the order: see s 86(3)(b) of the Act’.
Charge/s: Attempted murder, burglary.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant had separated from his wife, and had recently found out that she was in a new relationship. He broke into her home, stabbed her while she was sleeping on her back next to her two year old daughter and then ran off. She immediately awoke to find a knife sticking out of her chest, which she removed, at which point she collapsed. He was sentenced to 15 years imprisonment and declared to be a serious violent offender.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: Leave to appeal was refused. The applicant submitted that the trend of sentences for attempted murder cases shows that the appropriate range is 10 to 17 years, and that 15 years is excessive compared with analogous cases. This argument was rejected. Bond J (with whom Jackson J and Philip McMurdo JA agreed) at [17]-[30] provided a useful summary of previous attempted murder cases involving domestic violence. The Court acknowledged that the offence of attempted murder attracts a wide variety of punishments. However, consistent with the approach articulated by the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where comparable sentences can provide assistance, but do not set a range of permissible sentences, the Court held that the original sentence was within the discretion open to the trial judge.
Charge/s: Rape.
Appeal Type: Appeal against conviction.
Facts: The appellant met the complainant on Facebook and was in a relationship with her for seven weeks. During sexual intercourse, the complainant withdrew her consent and alleged she was then raped by the appellant. The appellant was convicted of rape following a trial.
Issue/s: One issue concerned whether the verdict was unreasonable and unsupportable having regard to the evidence.
Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Philippides JA agreed) held that it was open to the jury to be satisfied beyond reasonable doubt that by the complainant saying ‘no’ and ‘stop’ multiple times, he was not under any mistake as to whether she had consented to sex.
Charge/s: Rape, deprivation of liberty, torture.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted of eight offences including rape, deprivation of liberty and torture. The appellant had been in an ‘off and on’ romantic relationship with the complainant. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of the complainant or other parties. There was no history of violence in the relationship. The offending arose after the appellant asked the complainant to visit his house to have sex. Consensual sex then occurred. However, following the appellant seeing a message from his brother on the complainant’s phone, he became angry, proceeded to become extremely violent, and raped the complainant multiple times across the night. He did not let her out of the house, and tortured her. The complainant was deemed a ‘special witness’, and gave pre-recorded evidence two days before trial, with her mother present as a support person (pursuant to s 21AK of the Evidence Act 1977). Her mother was made aware by the judge during the recording that she was not to have any participation in the proceedings other than as a support person. The mother then made comments to the complainant which reminded her about the details of one of the rape offences. It was accepted at [55] that her mother’s conduct was ‘inappropriate’. However, the trial judge, in response to defence counsel’s application for a mistrial, made detailed warnings to the jury about the caution they needed to apply when considering the complainant’s evidence.
Issue/s: One ground of appeal concerned whether the trial judge erred by failing to discharge the jury after the complainant’s mother suggested to the complainant what she might say in her evidence.
Decision and Reasoning: The appeal was dismissed. The Court held that these directions were sufficient to warn the jury that the reliability of the complainant’s evidence may have been undermined by her mother’s reminder of the details of the appellant’s offending. Furthermore, at trial, the judge offered to order a further pre-recording of the complainant’s evidence, which was declined by the appellant.
Charge/s: Murder.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted by a jury of the murder of his wife. His version of events included, (among other things) the contention that the deceased had injured him with a fork and he was placed in fear of his life. (See at [4]-[113]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.
Issue/s: The appellant admitted that he had caused his wife’s death, but maintained that he did not have the requisite intention to prove murder. As such, the question for the Court was whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. More specifically, the issue was whether the accused had the requisite intention to prove murder. Also at issue was whether he had killed his wife by accident or in self-defence.
Decision and Reasoning:
The appeal was dismissed, with the Court finding that a guilty verdict was open to the jury on the evidence. Boddice J, (with whom Morrison JA and Carmody J agreed), found that the only evidence to support the conclusion that the death occurred by accident or in self-defence was the appellant’s own evidence, which lacked probative force. This was because, among other things, the appellant admitted he had deliberately lied and changed his story, and he had dissolved the deceased’s body in acid, which made it difficult to determine the cause of death. While the case was wholly circumstantial, it was noted that intent can be proved by inference, by considering the probative value of the evidence as a whole.
Charge/s: Murder.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted for the murder of his mother. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim or other parties. The issues at trial related substantially to self-defence and provocation. Evidence of the history of the relationship was admitted in the context of the defence under s 304B of the Queensland Criminal Code of killing in an abusive domestic relationship (See further at [3]-[13]).
Issue/s: Whether the trial judge erred by not admitting expert psychiatric evidence.
Decision and Reasoning: The appeal was dismissed. North J (with whom Holmes JA and Henry J agreed) held firstly that this evidence was not admissible under s 132B of the Evidence Act 1977. It was not relationship evidence. The Court also held that the matters that the psychiatrist spoke of were not complex in a scientific sense, and the jury, properly instructed, were able to understand them without needing to hear the expert evidence itself. The psychiatrist did not identify that the appellant was suffering from any recognised psychiatric illness. Rather, he only spoke generally that the appellant had developed coping strategies in response to his mother’s violent and difficult behaviour. The jury, in applying common sense, would have been able to reach this conclusion themselves. North J, comparing the ‘battered wife defence’, noted that there is no ‘battered child defence’ in law. That is, there is no defence where, ‘insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent’ (See at [19]).
Charge/s: Murder.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted of the murder of his wife (See further at [2]-[5]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife. The issues at trial concerned whether he had the requisite intent to kill or do grievous bodily harm, and whether the defence of provocation arose.
Issue/s: One issue on appeal was whether the trial judge misdirected the jury in regards to the relevance of evidence of prior acts of domestic violence and discreditable conduct. In particular, the appellant submitted that the jury were misdirected about how they could use the evidence when deciding whether the appellant had the requisite intent for murder.
Decision and Reasoning: The appeal was dismissed. At trial, the jury was directed to the effect that the evidence was relevant to explain the nature and animosity of the relationship between the appellant and the deceased. They were specifically directed that if they were to use that evidence to assist in determining the appellant’s state of mind at the time of the offence, they must be satisfied beyond reasonable doubt that the past acts occurred. Holmes JA (Morrison JA and Henry J agreeing) held that s 132B of the Evidence Act 1977 can be used to show a particular propensity of the accused to commit acts of a similar nature, as well for specific issues like intent. Her Honour, applying the approach of the High Court in Roach v The Queen [2011] HCA 12, noted that these two uses are distinct. In this case, the domestic violence evidence was only relevant as relationship evidence to prove intent. Propensity was not relevant because it was not in dispute that the appellant had caused the death of his wife. The jury were directed to this effect. A general propensity warning was not needed for the same reasons.
Charge/s: Grievous bodily harm with intent, breach of domestic violence order.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant’s wife attended a hotel with a male friend. He falsely believed his wife to be in a romantic relationship with the friend. In an unprovoked attack, he stabbed the friend forcefully multiple times. The victim sustained six stab wounds, including one to his neck. The victim suffers lasting psychological difficulties as a result of the attack. There was a domestic violence order in place which prevented the applicant from coming within five metres of his wife. The attack breached this order, which became an aggravating feature in sentencing. He had no criminal history. He was sentenced to seven years’ imprisonment, becoming eligible for parole after three years.
Issue/s: One issue concerned whether the sentence was manifestly excessive.
Decision and Reasoning: Leave to appeal was granted. The offending was very serious. It was ‘a sustained, severe and premeditated attack, whilst armed with a knife, on a victim who had done nothing by way of provocation’ (See at [36]). It was committed in the context of a domestic violence order being in place. As such, the head sentence, whilst at the upper end of the scale, was within range, taking into account his lack of criminal history and plea of guilty. However, the Court concluded that the parole eligibility date should be brought forward. The applicant’s guilty plea, while late, ensured that witnesses did not have to give evidence, which was particularly important for the victim. The parole eligibility date was close to the ‘half-way mark’ in the sentence. This did not reflect the significance of his guilty plea, remorse and cooperation and lack of criminal history. As such, the parole eligibility date was changed and set at the one-third mark in the sentence.
Charge/s: Six counts of fraud.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant pleaded guilty at trial to six counts of fraud. See at [3]-[11]. It is unclear whether at the time of the offences, there was a current or lapsed protection order in place against the applicant’s ex-husband in favour of the applicant or other parties.
Issue/s: Whether the applicant could adduce fresh evidence not led at the original sentencing hearing.
Decision and Reasoning: The fresh evidence involved long term domestic violence that the applicant suffered from her ex-husband, including controlling behaviour such as taking the applicant’s phone and keys to prevent her from seeking help, threatening her children, stealing money from her business, and severe physical violence. It also included evidence from a psychiatrist detailing the effect of the abuse on her, to the extent that she did not fully understand the repercussions of her offending. This was found to be consistent with what has come to be known as the ‘battered person’s syndrome’. The appeal was allowed and the evidence was admitted. The head sentence was reduced by one year.
McMurdo P, (with whom Gotterson JA and Douglas J agreed) noted that lawyers acting for clients charged with criminal offences who claim to be the victim of domestic violence should take such claims very seriously to determine the relevance to their client’s alleged offending. They should then put such evidence before the primary court either as a defence, or in sentence mitigation.
See in particular the following remarks of McMurdo P at [37] -
'… The further evidence led in this application established that at the time of the offending the applicant was in an abusive, exploitive relationship which impaired her capacity to realise the full repercussions of her fraudulent behaviour and her ability to formulate a mature response to her financial and personal difficulties as she continued to take more and more money from the nursing home in the impossible hope that she would eventually repay it. As Dr Schramm (a psychiatrist) explained, she was not acting completely rationally. She was exhibiting behavioural disturbances following her prolonged and significant physical and emotional abuse, commonly known as “battered persons syndrome.” This took her offending behaviour out of the worst category of fraudulent offending in which the sentencing judge placed it. The further evidence raises the possibility that some other sentence than that imposed may be warranted; if so, its exclusion would result in a miscarriage of justice. '
Charge/s: Assault occasioning bodily harm, grievous bodily harm.
Appeal Type: Appeal against conviction and sentence.
Facts: The offending involved an incident where the appellant asked the complainant to perform a sexual act on his male friend. The appellant also engaged in sexual activity with the friend. The case at trial was based on the complainant’s version of events, which included that the appellant kicked and punched the complainant (the appellant’s partner) for a long period. There was a history of domestic violence in the relationship. A domestic violence order was made some six years prior. The appellant had a long criminal history of similar offences, including a breach of a domestic violence order. However, there was no associated breach of a domestic violence order in this matter. The appellant was sentenced to five years imprisonment with parole eligibility set at 2.5 years.
Issue/s: Whether the failure to call new evidence from witnesses who challenged the complainant’s credibility established a miscarriage of justice.
Decision and Reasoning: The appeal was dismissed. The appellant contended specifically that the failure to call a particular witness established a miscarriage of justice and noted that his defence counsel did not explore the detail of the evidence in cross-examination. The Court rejected that argument – the failure of counsel to adduce this new evidence was justifiable as a strategic decision in the trial context to not risk other unfavourable evidence being admitted. The appeal against sentence was also dismissed.
Charge/s: Grievous Bodily Harm.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant, an Aboriginal and Torres Strait Islander man, caused catastrophic harm to the 21 year old complainant, with whom he had recently commenced a relationship. She was in a ‘vegetative state’ at the time of trial. He made full admissions to police. He sought to have evidence of these admissions excluded, which was refused. He then pleaded guilty. The applicant had a long history of domestic violence including multiple breaches of domestic violence orders. The sentencing judge mentioned the need to have regard to this history, as well as the extent of the injuries and the need for deterrence (see at [12]). He was sentenced to 9 years’ imprisonment and a ‘serious violent offence’ declaration was made.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The applicant submitted that various mitigating factors applied including that no weapon was involved, there was no premeditation, he attempted to administer aid, requested that an ambulance be called and there was a degree of provocation. He also submitted that the sentencing judge was in error in using a 10 year head sentence as a starting point. Fraser JA (with whom McMurdo P and Morrison JA agreed) held that there was nothing to indicate the primary judge overlooked these factors or the applicant’s disadvantaged background. Indeed, given the ‘seriousness of the offence, the catastrophic consequences for the complainant, and the applicant’s bad history of violent offending in broadly similar circumstances’ (See at [16]), it was open to the primary judge to attach relatively light weight to the mitigating factors. Furthermore, the trial judge was correct in using a previous decision with a head sentence of 10 years for ‘guidance’. While the Court acknowledged that this sentence was severe given the maximum penalty, the guilty plea, the offender’s age and other mitigating circumstances, it was justified for this ‘extreme example of domestic violence by a repeat offender’,([26]) where general deterrence and community protection were very relevant.
Charge/s: Murder.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted of the murder of his girlfriend. (See further at [3]-[7]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim. At trial, evidence relating to conversations with the deceased’s niece and mother which detailed instances of prior violence committed by the appellant was admitted. No warning was given by the trial judge as to the potential unreliability of this evidence as hearsay.
Issue/s: Whether the trial judge erred by not giving adequate warnings with respect to evidence admitted under section 93B of the Evidence Act 1977.
Decision and Reasoning: The appeal was dismissed. Holmes JA stated (at [8]) that section 93B operates to, ‘(render) the hearsay rule inapplicable to evidence of a representation of fact made by a person who is dead, if the representation was made shortly after the asserted fact happened and in circumstances making it unlikely to be a fabrication, or was made in circumstances making it highly probable it was reliable.’ It was held that a direction from the trial judge about the unreliability of the evidence as hearsay would not have been particularly helpful, and may have even been disadvantageous to the appellant. Also, the evidence was admissible under s 132B of the Evidence Act 1977 as evidence of the history of a domestic relationship.
Charge/s: Unlawful assault causing bodily harm, unlawfully damaging property.
Appeal Type: Appeal against sentence.
Facts: The appellant pleaded guilty to unlawfully assaulting his wife, causing her bodily harm and unlawfully damaging property. The appellant had a relevant criminal history involving a breach of a domestic violence order. However, this was effectively ignored by the sentencing judge. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of his wife. In mitigation, the sentencing judge considered a psychiatrist’s report indicating that at the time of the incident, the appellant was likely suffering from, ‘a major depressive episode and, probably, a form of alcohol dependence’. There was also a report from a psychologist who had treated the appellant before the offences and diagnosed him with, ‘an acute, moderate to severe adjustment disorder with mixed anxiety depressed moods at that time.’ A later review by that psychologist indicated he suffered a ‘chronic and mild adjustment disorder with anxiety’ and a year later ‘a mild borderline adjustment disorder’ was diagnosed. He was sentenced for the assault charge to two years imprisonment, suspended after eight months with an operational period of 2.5 years. He was sentenced to two months imprisonment for the property damage charge to be served concurrently.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The couple had previously separated, and the incident arose when the appellant returned to the matrimonial home. The complainant’s injuries were significant and she was in fear of her life during the attack. Wilson J (with whom McMurdo P and Fraser JA agreed) at [39] – [46] provided a useful summary of comparable cases. The Court held that a serious assault in the domestic context warrants imprisonment for two years or more. The suspension imposed was a correct application of the mitigating factors, and the serious nature of the violence.
Charge/s: Rape, Assault occasioning bodily harm, deprivation of liberty.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted at trial of two counts of the rape of his partner, after he was found to have penetrated the complainant with a hairbrush, an aerosol can and a water bottle. He pleaded guilty to other charges including assault occasioning bodily harm and deprivation of liberty. There was no domestic violence order in place.
Issue/s: Whether evidence of the complainant’s response in a state of distress, to the question of ‘Had you been raped?’ amounted to an admissible preliminary complaint of rape. The complainant had not directly answered the question but ‘looked sad’ and ‘slumped her shoulders, to look as if she was about to burst into tears and to look beaten’. (See at [33]).
Decision and Reasoning: The Court found that this amounted to a complaint, within the meaning of Section 4A of the Criminal Law (Sexual Offences) Act 1978. Importantly, Gotterson JA (with whom McMurdo P Morrison JA agreed) noted that an admissible complaint need not require a verbal response. In particular, ‘A meaningful response may be signalled by conduct other than speech. That conduct may include the absence of a verbal rejection of the proposition’. However, Gotterson JA noted that the acceptance could have been clearer, and this was a ‘borderline’ example of a complaint. Furthermore, it is not necessary for a preliminary complaint of rape to refer to any specific incidence of penetration. Simply stating, ‘I was raped’ is sufficient to amount to a preliminary complaint.
Charges: Assault occasioning bodily harm, murder.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted of the assault occasioning bodily harm and murder of his partner’s 16 month old child. See further at [6]-[17].
Issue: Whether the trial judge erred in admitting evidence of prior facial grazing injuries suffered by the child.
Decision and Reasoning: Henry J (with whom Gotterson JA and McMurdo P agreed) firstly held that this evidence was not inadmissible purely because of a possible innocent explanation for the injuries. His Honour considered all the non-fatal injuries on the child in their totality, and found that the probability that they occurred accidentally became too remote. The evidence was capable of supporting an inference (in combination with the other evidence) that the non-fatal injuries were the result of deliberate violence by the appellant. This evidence, of itself, was not indispensable to a finding of guilt – it assisted as ‘strands of a cable rather than as indispensable links in a chain’ (See at [39]). The evidence was also relevant to the proof of the charges as relationship evidence pursuant to 132B of the Evidence Act 1977. The trial judge correctly found that injuries can be probative of the history of a domestic relationship. It also potentially showed a propensity of the appellant to commit similar violence. However, the trial judge did not rule on this and in fact gave a warning against propensity reasoning. Notwithstanding, the trial judge did make an error of law in failing to sufficiently instruct the jury about the purpose of the evidence of the uncharged injuries, applying the High Court decision in Roach v The Queen [2011] HCA 12. The trial judge did tell the jury that the evidence could be used to show that the nature of the relationship was violent, but he did not go further to explain that the purpose of putting this history of violence before the jury was to provide an ‘informed context’ (See at [69] – [70]) for the jury’s consideration of the charges. Notwithstanding, the appeal was dismissed pursuant to the proviso.
Charge/s: Abduction, breach of domestic violence order.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant was in a long-term, intermittent relationship and had one child. His partner sought and obtained a domestic violence order (DVO) in 2011. In 2012, an order in the Federal Magistrates’ Court was made that the child was to live with the mother. Limited contact was allowed with the mother’s consent. The mother left the child at a friend’s house, whereupon the applicant arrived unannounced and took the child, drove away, and held the child for a period of time, in breach of the DVO. He made repeated calls stating he would not return the child if the child was to be handed back to the mother or her friend. The applicant had a long criminal history of over fourteen court appearances, including a previous breach of a child protection order (albeit towards the lower end of seriousness). The applicant pleaded guilty to the abduction and breach offences and was sentenced in the District Court to 4 years’ imprisonment for abduction. He was convicted but not further punished for the breach. The primary judge implicitly accepted the Crown’s submission that this conduct was in the worst category of offending.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed. While the applicant had a long criminal history, Fraser JA (with whom Mullins J and Gotterson JA agreed), compared analogous decisions and highlighted factors which made them distinguishable. His Honour noted that the child was not unrelated or unknown, there was no sexual motivation and the taking was non-violent. As such, the Court held that this was not within the worst category of offending. Notwithstanding, the Court noted that such conduct (including the fact that the appellant was motivated to be with his son and breaching court orders) cannot be condoned and deterrence is important. As such, a custodial sentence was imposed but was reduced to 18 months’ imprisonment with immediate parole eligibility.
Charge/s: Arson.
Appeal Type: Appeal against conviction and sentence.
Facts: The arson was targeted at the appellant’s ex-wife’s new partner’s mother’s car. The offence constituted a breach of a domestic violence order (See further at [3]-[18]).
Issue/s: Appeal against conviction: Whether the verdict was unreasonable and not supported by the evidence, and whether the appellant could adduce further evidence not led at trial.
Appeal against sentence: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal against conviction was dismissed. McMurdo P noted that while the case was circumstantial, it was strong, and a guilty verdict was open to the jury. The application to adduce further evidence was also dismissed. The court held that while an affidavit from the appellant’s former partner was somewhat inconsistent with her evidence at trial, there was no significant possibility that the jury would have acquitted him on this basis. However, the appeal against sentence was allowed, reducing the head sentence from 4.5 to 4 years. Defence counsel submitted that the sentence was excessive for arson of a car rather than a house, while the prosecution submitted that it was a flagrant breach of a domestic violence order and general deterrence was necessary for an arson committed as a jealous rage due to a relationship breakdown. McMurdo P held that the sentence was manifestly excessive. The trial judge did not take into account pre-sentence custody, and the appellant only had a minor criminal history prior to this offending.
Charge/s: Grievous bodily harm.
Appeal Type: Application for an extension of time to appeal against conviction.
Facts: The applicant, an aboriginal man with a dysfunctional background, pleaded guilty to the grievous bodily harm of his girlfriend. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. He ripped off a door handle with which he struck her on the head, then punched her and struck her with a frying pan, causing severe injuries.
Issue/s: Whether an extension of time should be granted on the basis that the applicant only pleaded guilty due to the strong urging of his lawyers, and that he was denied the right to present his defence.
Decision and Reasoning: The application was refused - the applicant was an adult, of sound mind who understood the charge and entered a guilty plea after obtaining legal advice. An application for leave to appeal against sentence was also refused. McMurdo P (Fraser JA and Morrison JA agreeing) held that notwithstanding that he told the complainant to go to hospital, he had failed to demonstrate compassion or insight into the injury that he had caused. He had a substantial history of domestic violence and this recidivism made the protection of future intimate partners important. This was a serious example of grievous bodily harm in the context of domestic violence. General deterrence and denunciation were key considerations. McMurdo P described his girlfriend as a ‘reluctant complainant’. However, this was not a mitigating factor. The only mitigating factors were his guilty plea and dysfunctional background.
Charge/s: Attempted murder, dangerous operation of a motor vehicle.
Appeal Type: Appeal against sentence.
Facts: While on parole for assault offences committed against her daughter, the applicant drove into her former husband’s car twice. She then stabbed her husband’s new partner in the shoulder and attempted to strangle her. There was no domestic violence order in place. She pleaded guilty to attempted murder and dangerous operation of a motor vehicle, for which she was sentenced to ten years’ and 12 months’ imprisonment respectively.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Martin J agreed) at [41] – [79] provided a useful summary of past Court of Appeal authority regarding sentencing of attempted murder offences which have an element of domestic violence. The Court considered factors such as premeditation, cooperation with authorities, remorse, the gravity of the attack and prior convictions. (See full list at [79]). The applicant was also suffering from a mental disorder, namely an ‘adjustment disorder with anxious and depressed mood’. While this was a mitigating factor, the Court held that the original sentence did adequately recognise this and other mitigating features such as her efforts at rehabilitation by enrolling in study and other courses, which were correctly balanced with the need for denunciation and general deterrence.
Charge/s: 41 offences, including stalking, 26 counts of breaches of domestic violence orders, two counts of assault occasioning bodily harm, five counts of using a carriage service to make a threat to kill and six counts of using a carriage service to menace or harass.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant pleaded guilty in the Magistrates’ Court to all offences. The stalking was committed against the applicant’s ex-partner. A head sentence of two years imprisonment was imposed in the Magistrates’ Court, with all sentences to be served concurrently. The applicant was also placed on a domestic violence order in favour of his ex-partner for 5 years. The Magistrate made adverse findings in relation to the applicant’s offending, his lack of remorse and the real risk of him re-offending. Mitigating factors included pleas of guilty and completion of a domestic abuse program while in custody. His parole release date was set after he had served one third of the head sentence, taking into account pre-sentence custody.
Issue/s: Whether the remaining period on parole should be substituted with a suspended sentence, due to the comparative administrative ease of a suspended sentence in obtaining permission to leave the state.
Decision and Reasoning: Leave to appeal was refused. A previous appeal to the District Court was struck out due to the applicant’s uncooperative nature, and the many opportunities that were given to him through adjournments to allow him to appear personally in Court, as well as the primary judge’s finding of fact that he had misled the Court. The Court found that the primary judge acted appropriately.
Charge/s: Rape, maintaining a sexual relationship with a child under 16.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant, an Aboriginal man committed the offences against his daughter. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the applicant in favour of the victim or other parties. (See further at [6]-[20]).
Issue/s: Whether the primary judge failed to give appropriate weight to circumstances of deprivation in his upbringing, including the social and economic disadvantage associated with his Aboriginality and the physical, sexual and emotional abuse that he had suffered as a child. Another issue was whether the primary judge failed to have regard to the applicant’s rehabilitative prospects.
Decision and Reasoning: In dismissing the appeal, Morrison JA (Muir JA and Daubney J agreeing) discussed the relevance of the applicant’s Aboriginality in sentencing. See in particular at [60]-[73] where his Honour provides a detailed summary of relevant authority including the High Court decision of Munda v Western Australia [2013] HCA 38. Essentially, his Honour accepted that social, economic and other disadvantages (including alcohol and drug abuse) which may be related to an offender’s Aboriginality, should be taken into account as a mitigating factor in sentencing. Indeed, there is authority to suggest that when an Aboriginal offender is being sentenced, the Court should, ‘sentence (the offender) as leniently as the circumstances of his offence admitted’. (See R v Bell [1994] QCA 220). However, this cannot undermine individualised justice. That is, the deprived background of an Aboriginal and Torres Strait Islander offender may be given appropriate weight in sentence mitigation, but it cannot be given undue primacy. It cannot result in a punishment being imposed that does not reflect the gravity of the offending, or which does not pay sufficient regard to considerations such as specific and general deterrence, which are particularly important in domestic violence cases. The second ground of appeal, that the applicant’s rehabilitative prospects were not given enough weight was also dismissed.
Charge/s: Grievous bodily harm.
Appeal Type: Appeal against a permanent stay of proceedings.
Facts: This decision was not directly related to domestic violence. However, it is relevant to situations where the Court is dealing with a breach of a domestic violence order and another criminal offence concurrently. The respondent was originally charged with public nuisance, which was dealt with summarily. However, following a formal statement made by the complainant to police and a medical opinion received, he was charged with grievous bodily harm (GBH). At trial, an application was made for a permanent stay on the basis of Section 16 of the Queensland Criminal Code, which provides that a person cannot be punished twice for the same act or omission. The application was granted, with the primary judge holding that the act which formed the basis of the GBH charge was the same act which formed the basis of the public nuisance charge.
Issue/s: Whether the trial judge was correct in granting the permanent stay based on the rule against double punishment.
Decision and Reasoning: The appeal was dismissed, with the Court applying the approach previously articulated in R v Gordon where Hanger CJ stated - “Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences. It is to these cases that the section is directed.” Hanger CJ held that a punishable act of being in charge of a motor vehicle while under the influence of a substance was not the same as the punishable act of dangerous driving causing GBH with which the offender in that case was subsequently charged. In the present matter, the Court held that the punishable acts for which the respondent was convicted in the Magistrates Court included punches which landed on the complainant, causing harm. It therefore followed that s 16 would be violated if the respondent was to be punished a second time for those acts.
Prima facie, the same test would apply when considering whether a breach of a DVO constitutes the same act for which another criminal charge is based. However, it should be noted that there is uncertainty about the application of Section 138 of the Domestic and Family Violence Protection Act 2012 (Qld) in this context, particularly as to whether Section 138 allows double punishment. For further information, see pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book, which considers various District and Magistrates’ Court decisions and the summary of R v MKW [2014] QDC 300 (18 June 2014).
Charge/s: Unlawful wounding.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted for unlawful wounding. The offence was committed in the following circumstances: the appellant had obtained a domestic violence order against the complainant; the complainant had previously been convicted for breaches of that order; according to evidence at trial, the complainant kicked down a door in breach of the DVO and, on the appellant’s evidence, the complainant had threatened violence towards her on the previous evening. The jury was directed about self-defence, but was not directed about the possibility of the ‘defence of a dwelling defence’ under s 267 of the Queensland Criminal Code.
Issue/s: Whether the appellant was denied the possibility of an acquittal under 267 of the Queensland Criminal Code.
Decision and Reasoning: The appeal was upheld – Muir JA (with whom Gotterson JA and Daubney J agreed) held that there was ‘ample evidence’ that the complainant unlawfully entered and remained in the dwelling, which could support the elements of the defence. The offending occurred under the house, but his Honour held that the definition of ‘dwelling’ in s 1 of the Code was broad enough to encompass underneath the house. As such, a retrial was ordered.
Charge/s: Murder (two counts).
Appeal Type: Application for leave to appeal against sentence and appeal against conviction.
Facts: The appellant was convicted of murdering his estranged wife and her daughter in their home. Prior to the killings, the appellant made threats to his wife and to witnesses. These threats occurred in person and over the phone, resulting in a domestic violence order being served and two charges of using a carriage service to make threats. Several witnesses testified that the appellant made threatening remarks to his wife at the hearing for these charges. He was sentenced to life imprisonment on both counts of murder, with a 22 year non-parole period ordered, which was two years above the statutory minimum. The crime was also in breach of a domestic violence order in place to safeguard his wife.
Issue/s: Whether the circumstances of the killings warranted the non-parole period to be extended beyond the 20 year statutory minimum, so as to make the sentence manifestly excessive.
Decision and Reasoning: Leave to appeal was refused. In the appellant’s favour, the killing was not drawn out, there was no prolonged suffering and there was minimal planning involved. On the other hand, he killed not only his estranged wife, but a defenceless 14 year old girl in defiance of a domestic violence order which was intended for his wife’s protection. Also, the appellant displayed no remorse and pleaded not guilty which had made the process agonising for those affected. These factors warranted a strong element of denunciation and vindication for the victims in the sentence. The appeal against conviction was also dismissed.
Charge/s: Rape
Appeal Type: Appeal against sentence.
Facts: The applicant was convicted of the rape of his girlfriend and was sentenced to six years’ imprisonment. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. The applicant had an extensive criminal history, consisting of street and property offences, as well as a previous conviction for carnal knowledge of a 13 year old girl. He had previously breached a reporting condition associated with this conviction. He committed the rape while on parole for unrelated offending. The primary judge described the rape as a ‘brutal act’, and that the applicant had treated his girlfriend as, ‘an object for his own sexual gratification and had had no regard for her feelings’ (See at [15]).
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed by majority. The Chief Justice, (with whom Gotterson JA agreed) held that the sentence was appropriate, and upheld the trial judge’s findings in relation to the brutality of the act.
However, Holmes JA dissented and was of the view that the sentence should be reduced to 5 years with the non-parole period shortened. Her Honour’s judgment contains very useful summaries of all comparable cases, (see [17]-[32]). Holmes JA noted factors including that this was a single incident of a short duration, and was not a ‘protracted exercise in humiliation’ (at [33]). There was no forced entry or weapons used. Her Honour also noted that the, ‘offence did not occur in a context of fear or intimidation’, as the relationship was still on foot. Holmes JA was of the view that the nature of the relationship made these circumstances distinguishable from rapes performed by strangers (See at [34]). It was also noted that the victim was, ‘a strong minded young woman who was left humiliated and angry by what occurred, but not terrified’ and, ‘There was no evidence of lasting psychological harm’.
Charge/s: Murder.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted by a jury for the murder of his wife, and sentenced to life imprisonment (see further at [5]-[25]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.
Issue/s:
Decision and Reasoning:
Charge/s: Breach of domestic violence order.
Appeal Type: Application for leave to appeal against sentence.
Facts: The complainant (the appellant’s de facto partner) was receiving treatment at a hospital necessitated by an earlier assault by the appellant. The appellant then waited outside a toilet door at the hospital and punched her in the face which caused pain, discomfort and swelling. He was sentenced to 9 months imprisonment for contravening a domestic violence order. He had a long criminal history including six prior breaches of domestic violence orders and convictions for other offences.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: Leave to appeal was refused, with the Court upholding the 9 month sentence. The maximum penalty for breaching a domestic violence order applicable at the time was 12 months imprisonment. This was later increased to two years (three years if the accused has prior convictions). Also, Henry J observed that there ought not exist an expectation that a one third discount to the head sentence will be applied where there is a plea of guilty, although such an outcome may be common (Holmes JA and McMurdo P agreed). McMurdo P (Holmes JA agreed) found that a further exacerbating feature was that the offence occurred in a hospital where the victim and other patients should be entitled to freedom from exposure to such violence.
Charge/s: Grievous bodily harm, breach of domestic violence order.
Appeal Type: Appeal against sentence.
Facts: The applicant pleaded guilty to doing grievous bodily harm (GBH) to his de facto partner and breaching a domestic violence order. The offending was committed during the operational period of six suspended sentences. It involved the applicant throwing a knife at his partner who was pregnant. The knife became embedded in her skull. He was sentenced to three years’ imprisonment for the GBH offence and was convicted but not further punished for the breach offence.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: McMurdo P (Holmes JA and Henry J agreeing) dismissed the appeal and held that the sentence was appropriate. Mitigating factors included his remorse and corporation with police, his lack of similar criminal history, good rehabilitation prospects and his good standing in the community. The complainant also tendered a letter stating that: she wanted their child to grow up knowing their father; they planned to reconcile and that she found it hard to cope as a single parent. Notwithstanding, the sentencing judge correctly imposed a deterrent sentence. The primary judge noted that ‘the use of knives in domestic disputes on Palm Island was all too common’, which required a deterrent sentence. Other relevant factors included the fact the offence constituted a breach of a DVO and occurred while the applicant was subject to suspended prison sentences.
Charge/s: Manslaughter.
Appeal type: Appeal against sentence.
Facts: The respondent pleaded guilty to the manslaughter of his partner. He was in a long term relationship with the deceased, with whom he had three young children. He was a heavy cannabis user. In the weeks leading up to the killing, the deceased had confided to others about problems in the relationship. The respondent believed the deceased was having an affair and was upset as the deceased’s sister owed him $15 000. He was concerned the deceased was preparing to leave him and take his children – he claimed that she was ‘messing with my head’ (See at [10]). On the day of the killing, the respondent spoke to his parents who both encouraged him to seek help from a counsellor or psychiatrist. He then strangled the deceased until she was unconscious in the presence of the children. After moving the children to another room, he stabbed the deceased twice in the chest, killing her. He also stabbed himself but the injuries were not life threatening. After being declared fit to stand trial, but of diminished responsibility (under section 304A of the Queensland Criminal Code) by the Mental Health Court, he pleaded guilty to manslaughter. The psychiatrist stated that the respondent, ‘suffered from a personality disorder with paranoid traits.’ This, as well as his drug abuse and the viciousness of the killing suggested that his condition was likely to endure after being released from custody (see at [29]). However, gradual improvement may be expected with regular treatment (See at [15]). He had no relevant criminal history. He was sentenced to nine years’ imprisonment. Parole release would depend on his illness and progress of rehabilitation while in prison.
Issue/s: Whether the sentence was manifestly inadequate and whether the sentencing judge should have made a ‘serious violent offence’ declaration.
Decision and Reasoning: The appeal was dismissed. McMurdo P (with whom Muir JA and Gotterson JA agreed) held that as deterrence and denunciation were of less importance in this case due to the limited moral culpability of the respondent (because of his mental illness), the primary purposes of sentencing were the protection of the Queensland community and punishment of the offender. However, the Court found that a nine year sentence with no serious violent offence declaration and no parole eligibility date was within range for a spousal manslaughter based on diminished responsibility. There was a plea of guilty, no evidence of further danger to the community and evidence of remorse. A recovery was not certain, but the respondent was responding positively to medication and treatment. Also, the fact that he strangled the deceased in front of the children was an aggravating feature, but this had to be considered in the context of diminished responsibility which reduced his moral culpability for the crime.
Charge/s: Murder.
Appeal Type: Appeal against conviction.
Facts: The appellant was convicted by a jury of murdering her de facto partner. There was a history of domestic violence between the appellant and the deceased and multiple domestic violence orders were taken out against each other on separate occasions. (See further at [5]-[49]).
Issue/s: Whether the primary judge erred by admitting evidence of statements made by the deceased to various witnesses that he suspected the appellant had drugged him and whether the verdict was unreasonable having regard to the evidence.
Decision and Reasoning: Both grounds of appeal were dismissed. The appellant submitted that the statements made by the deceased were not admissible because no relevant inference could be drawn from them, so they were hearsay statements and therefore inadmissible. This submission was rejected – the Court held that unlike in R v Lester [2008] QCA 354, the statements were not ‘reports of statements made to (the deceased) by others’. Instead, they were statements about the deceased’s own physical sensations after falling asleep in an unusual manner, and came after an episode of domestic violence between the appellant and the deceased. Such evidence was relevant to the ‘deceased’s relationship with the appellant, their mutual dealings and their attitudes for each other’, and to whether the appellant drugged the deceased (See at [64]). As such, it was admissible under section 93B of the Evidence Act 1977 as an exception to the hearsay rule. The other ground of appeal that the verdict was unreasonable having regard to the evidence was also dismissed.
Charge/s: Malicious act with intent.
Appeal Type: Appeal against sentence.
Facts: In breach of a domestic violence order made that morning, the appellant returned to his de facto partner’s house and hit her head twice with a sledgehammer while she was sleeping, causing substantial injuries. The applicant pleaded guilty to a malicious act with intent and was sentenced to 8 years’ imprisonment, with no parole eligibility date set. No adjustment of the sentence was made for time already served in pre-sentence custody.
Issue: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The Court noted that the head sentence was not outside the permissible range. The offending was very serious, was not a spontaneous response, and was committed in breach of the DVO. Also, he had a serious criminal history, including a similar breach of a domestic violence order. However, the trial judge erred in not adjusting the sentence for pre-sentence custody and not imposing a parole eligibility date. As such, also taking into account the (albeit late) plea of guilty, the sentence was reduced to seven years, seven months’ imprisonment, with the appellant becoming eligible for parole after three years.
Charge/s: Stalking with violence, burglary with violence, assault occasioning bodily harm, common assault and wilful damage.
Appeal Type: Application for leave to appeal against sentence.
Facts: The appellant had been in a relationship with the complainant for 6 years and had one child. The relationship ended, at which point the stalking began via telephone and text messages. There had been some conflict in the relationship about the care of the child. He broke into her home, demanded to see her phone and punched her on the head multiple times. He pushed a lighted cigarette on her leg, causing burns. He threatened to kill her. He tackled her to the ground to prevent her from seeking help and punched her again multiple times. He drove her to the hospital after she had cleaned up at his request. He yelled and threatened her while in the car, drove dangerously, and backhanded her to the side of her face. All of this occurred in front of their two year old child. Once the complainant was released from hospital he attended her workplace and caused significant damage to her car. He had a criminal history, including previous break and enter and assault occasioning bodily harm offences. The sentencing judge noted that the stalking was not prolonged, but it was very intense and violent. It was also noted that the child and the complainant must have been terrified.
The applicant pleaded guilty to the above offences, and was sentenced to three years’ imprisonment for stalking with violence, two years’ imprisonment for burglary with violence and assault occasioning bodily harm and 12 months’ imprisonment for common assault and wilful damage. The sentences were to be served concurrently. He was on parole at the time for a prior violent offence. This resulted in a head sentence of three years which was cumulative on an existing term of three years imprisonment, with parole eligibility set at one year after the cumulative term had been served.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: Leave to appeal was refused. The applicant submitted that as the head sentence was reduced for the totality principle, the sentencing judge must have used a starting point of over three years which was not consistent with the comparable authorities. This was rejected. While the offending was short, it was intense, and was accompanied by actual and threatened violence, in the presence of a terrified child. The applicant’s stalking was more serious than in any of the relevant comparable authorities, and a head sentence of three years was appropriate given the circumstances of the offending and the appellant’s history, including that he was on parole for prior offences. The parole eligibility date was also found to be appropriate, given the offender was already subject to an existing term of imprisonment.
Charge/s: Seven counts of assault occasioning bodily harm, threatening violence at night, wounding, assault occasioning bodily harm while armed and various summary offences.
Appeal Type: Appeal against sentence.
Facts: The respondent pleaded guilty to the above charges. The offending included 8 episodes of domestic violence over a three year period, involving severe physical abuse such as punching, cutting off the tip of the victim’s finger, choking, wrestling, smashing objects on the victim’s head and verbal abuse. There were lasting physical impacts on the victim including nerve injuries, loss of sensation to her finger-tip and depression and anxiety. He was sentenced for the unlawful wounding offence to 3 years’ imprisonment, suspended after 741 days (the period already served) with an operational period of 5 years. He was sentenced to 2 years imprisonment for the remaining counts.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld, with the Court holding that the original sentence was manifestly inadequate. The Court noted that when concurrent sentences are imposed, it is important to ensure that the primary term adequately reflects the nature of each individual feature of the offending. This was not reflected in the trial judge’s sentence. The mitigating factors were not particularly powerful. For example, the absence of any prior history of violence was outweighed by the prolonged duration of the offences. The fact that the respondent was not subject to a domestic violence order was not a mitigating factor but merely a distinguishing feature from analogous cases. The Court noted that the original sentence should have been in the range of six to eight years. However, given that the defendant had commenced rehabilitation, it was deemed that imposing such a sentence on appeal would be inappropriate. Also, the respondent had no prior history of violence, and was not subject to any court order at the time of the offending. Nevertheless, the sentence was increased to 5 years with the same suspension period. Probation was added for another count.
See in particular the useful remarks of McMurdo P at [53], regarding the considerations the courts should take into account for sentencing domestic violence offences – ‘The dreadful effects of prolonged episodes of domestic violence are notorious…Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.’
Charge/s: Assault occasioning bodily harm, deprivation of liberty, rape and threatening violence.
Appeal Type: Appeal against conviction.
Facts: The offences were committed against the appellant’s de facto partner. There was a current domestic violence order in place. The complainant alleged the appellant breached that order the night before he raped her.
Issue/s: Whether the primary judge erred in admitting evidence of the appellant’s previous history of domestic violence and drug use, as well as other discreditable conduct.
Decision and Reasoning: McMurdo P (with whom Cullinane J and Jones J agreed) held that the evidence of prior domestic violence was admissible to assist the jury in understanding the nature of their relationship, and was particularly relevant to the rape charges, where the lack of consent was the critical issue. However, her Honour noted that its admissibility remained ‘extraordinary and exceptional’ (at [83]) and warranted careful directions from the trial judge to warn the jury against propensity reasoning, applying the High Court decision of Roach v The Queen [2011] HCA 12. See in particular at [84], where her Honour referenced a model direction from the Queensland Supreme and District Court Bench Book. In this case, while the trial judge went ‘part way’ in warning the jury about the limits of the use of the evidence, he did not specifically give a warning against propensity reasoning. This amounted to an error of law. However, the appeal was dismissed pursuant to the proviso, with McMurdo P taking into account the ‘discerning’ verdicts of the jury on each count and the fact that defence counsel did not ask for a redirection during the trial.
Charge/s: Manslaughter, assault occasioning bodily harm, various summary offences.
Appeal Type: Application for leave to appeal against sentence.
Facts: The circumstances of the offending included the applicant stabbing his de facto partner multiple times and striking her with a cricket bat (See further at [3]-[9]). The applicant had a substantial and relevant criminal history of violence against the deceased committed over a 10 year period. He was convicted a number of times for severe assaults (both common assaults and assaults occasioning bodily harm) on the deceased, including punching her and hitting her over the head with an iron bar. He had previously been the subject of multiple domestic violence orders in her favour, which he had often breached. The applicant was convicted for the manslaughter of the deceased and was sentenced to 14 years’ imprisonment, including 12 years for manslaughter. The extra two years took into account 9 summary offences and two counts of assault occasioning bodily harm to which he had pleaded guilty.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Martin J (with whom Chesterman JA and White JA agreed) held that the sentencing judge correctly made the 2 year sentence for the two charges of assault occasioning bodily harm cumulative because they were separate offences committed at different times, even though they were committed in a 10 year course of conduct. The total effective sentence was appropriate and within range. The sentencing judge observed this was a repetitive and prolonged attack with a knife making it a serious case of manslaughter.
Charge/s: Aggravated stalking (two counts), assault occasioning bodily harm, stealing, grievous bodily harm with intent, breach of domestic violence order (two counts).
Appeal Type: Application for leave to appeal against sentence.
Facts: The offending involved continued harassment of the complainant (the former partner of the applicant), culminating in the charge of grievous bodily harm with intent. The applicant broke into the complainant’s home which she shared with her new partner and children. He hit her on the head with a frying pan, causing her to fall to the ground. He held a knife against her throat, tied her wrists and ankles and dragged her into the car. She then threw herself out of the car, at which point the applicant stabbed her in the left side then on her right side. He had a relevant criminal history, including prior offences of violence as well as a breach of a domestic violence order. Two of these offences involved violence against his mother as well as a former partner. Two psychiatric reports detailing the mental issues suffered by the applicant were put before the sentencing judge. The total effective sentence imposed at trial was 8 years’ imprisonment. A ‘serious violent offence’ declaration was made.
Issue/s:
Decision and Reasoning: Leave to appeal was refused.
Charge/s: Attempted Murder.
Appeal Type: Appeal against conviction and sentence.
Facts: The appellant was convicted for the attempted murder of his former wife. There were cross domestic violence orders in place against each other. He was sentenced at trial to 16 years’ imprisonment. The case turned on purely circumstantial evidence. See further at [3]-[38].
Issue/s: Whether the trial judge made errors by -
The other issue was whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal against conviction was dismissed. The Court noted that in a case turning on circumstantial evidence alone, it is not necessary that every intermediate conclusion of fact made by the jury be proven beyond reasonable doubt. There may be some instances, as McMurdo P observed (at [40]) if it is necessary to ‘reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt’. However, generally, only the offence as a whole needs to be proven beyond reasonable doubt. In regards to the relationship evidence, the primary judge directed the jury to the effect that such evidence was not directly relevant to the alleged offence, but only to put the relationship between the parties in context. The Court held that this direction was adequate. The Court also refused leave to appeal against sentence, finding that the premediated nature of the offending and the lack of mitigating factors meant that this was at the highest end of the scale of attempted murders.
Charge/s: Unlawful wounding, breach of intensive correction order.
Appeal Type: Appeal against sentence.
Facts: The complainant was the respondent’s mother. They lived on the Aboriginal and Torres Strait Islander community of Mornington Island. Following an argument, the respondent stabbed the complainant three times, causing no lasting injuries. The respondent was sentenced to two and a half years’ imprisonment with immediate court ordered parole for the wounding offence.
Issue/s: Whether the sentence was manifestly inadequate, particularly in relation to the order of immediate parole.
Decision and Reasoning: The appeal was dismissed. The respondent had a substantial and relevant criminal history. In mitigation, the respondent had performed well on the intensive correction order, had pleaded guilty and was committed to looking after her seven children, including breastfeeding a baby and ensuring that those of school age attend school. She was an Aboriginal and Torres Strait Islander woman who had suffered abuse as a child. Atkinson J (with whom Keane JA and Fraser JA agreed) held that the head sentence was not manifestly inadequate. In considering whether the immediate parole order was appropriate, her Honour considered various factors, including the respondent’s disadvantage associated with her Aboriginality. Her Honour observed that, ‘The fact that the respondent is an Aboriginal and Torres Strait Islander woman living on Mornington Island is relevant to the question of the effect on her family’. (See at [36]). While the Court noted that the effect on an offender’s children can only be one relevant circumstance in determining sentence, the Court considered that exceptional circumstances were present. The respondent was a breastfeeding mother. Imprisonment would necessitate moving to the mainland, which would remove any practical means of maintaining the breastfeeding of the baby and personal contact with her other children. Her Honour quoted various secondary sources which discuss the substantial effect of incarceration on families, particularly on Aboriginal and Torres Strait Islander families. (See at [37] – [42]). The original sentence sufficiently incorporated deterrent and punitive elements, while the immediate parole allowed for rehabilitation.
Charge/s: Attempted murder, breach of domestic violence order.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant pleaded guilty to the attempted murder of his de facto wife and to a breach of a domestic violence order. The couple had separated. The complainant initially obtained an apprehended violence order in 2003 in New South Wales, which was then registered in Queensland upon moving to that state. In May 2005, at a railway station, the applicant attempted to stab the complainant with a small knife. The knife snapped on the complainant’s jacket, causing her no harm. He continued to punch and kick her, and hit her head into a chair and a pole. He was then stopped by bystanders. He admitted that if they had not intervened he would have persevered. He surrendered to police and made full admissions. He gave a full account and added details to his disadvantage. It is unlikely without his interview that anyone would have known about the use of the knife (the complainant herself was not aware of it), or about the applicant’s intention to kill as opposed to assault the complainant. The applicant’s only relevant criminal history was a breach of the domestic violence order in the preceding year, when he attended the house of the complainant. The applicant was sentenced to nine years’ imprisonment. A ‘serious violent offence’ (SVO) declaration was made.
Issue/s: Whether the ‘serious violent offence’ declaration should have been made.
Decision and Reasoning: Firstly, the Court held that the head sentence was ‘unremarkable’. However, Holmes JA (with whom McPherson JA and Douglas J agreed) upheld the appeal. The applicant showed profound and sincere remorse and the case involved ‘unusual’ mitigating factors. The Court found the SVO declaration should not have been made for two reasons. Firstly, there was nothing in the offence itself in terms of, ‘duration, its force or its consequences which took it out of the ordinary run of cases’. The offender had almost no criminal history. There was no element of community protection as the likelihood of repetition was remote. Secondly, he had cooperated utterly. However, the only sentence reduction he received for this cooperation and remorse was 9 and a half months (the difference between the nine year sentence with an SVO declaration, and a 10 year sentence). This was a minor reduction in the circumstances and made the SVO declaration manifestly excessive.
Charge/s: Torture, assault occasioning bodily harm, rape.
Appeal Type: Appeal against conviction.
Facts: The appellant held a longstanding belief in his wife’s infidelity. The acts relied on to constitute the offence of torture included abusive and humiliating acts such as: insisting that the children refer to the complainant as a slut or a whore rather than Mum, not allowing the children to show physical or verbal affection to her; forcing her to chew and swallow chillies in the appellant’s presence and forcing her to lick her vomit up; insisting that she perform sexual acts on his friends for money; insisting that she sleep outside the house without amenities; demanding that she drink his urine and attempting to persuade her to engage in a sexual act with a dog. The assault occasioning bodily harm conviction occurred when the appellant broke the complainant’s arm after she denied having sexual dealings with a neighbour. The rape conviction involved the appellant inserting the wooden handle of a ‘gaff hook’ into the complainant’s vagina. He was sentenced to 10 years’ imprisonment for torture, two years’ imprisonment for assault occasioning bodily harm and five years’ imprisonment for rape. A ‘serious violent offence’ declaration was made.
Issue/s:
Decision and Reasoning: The appeal was dismissed in respect of issue 2.
Charge/s: Wounding.
Appeal Type: Appeal against sentence.
Facts: The applicant and the complainant were in a de facto relationship. While intoxicated early in the morning, an argument started after the applicant alleged that she was seeing other men. The applicant got off the bed then stabbed her through the upper arm and side of the chest. The wound did not damage internal organs, but required deep and superficial stiches. He had a criminal history, consisting of various violent offences, and one offence of breaking and entering and committing an indictable offence. He pleaded guilty to wounding and was sentenced to three years’ imprisonment with no recommendation for post-prison community based released. This sentence was made cumulative upon an existing six month sentence that he was already serving. The sentencing judge referred to the need to deter others from obtaining a knife and stabbing someone just because of an argument. This conduct was prevalent on Palm Island, where the offence occurred. He was also sentenced for breaches of an intensive correction order and a domestic violence order.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The applicant submitted that if the sentencing judge had moderated the sentence for the mitigating factors (such as the guilty plea, the applicant’s age and an apology made to the complainant), then the starting point must have been four years, which is outside the permissible range of sentences for this type of offence. The Court agreed and suspended the three year sentence after nine months, with an operational period of three years.
Charge/s: Grievous bodily harm.
Appeal type: Application for leave to appeal against sentence and appeal against conviction.
Facts: The applicant was convicted by a jury for the grievous bodily harm of his then partner. The applicant beat his then partner so severely that she suffered a ‘life-threatening subdural haematoma’ (See further at [2]). He was severely intoxicated at the time of the offence. The offence was committed in breach of a domestic violence order. The appellant also pleaded guilty to several other violent offences. These offences demonstrated a history of domestic violence committed against his then partner. He was sentenced to four years’ imprisonment, suspended after two years with an operational period of five years. This sentence for grievous bodily harm was ‘intended to reflect the applicant's criminality for all the offences to which he had pleaded guilty’ (See at [27]).
Issue/s:
Decision and reasoning:
Leave to appeal was refused. The applicant did not take his partner to hospital for treatment until one day after the injuries were sustained, which showed a complete disregard for her welfare. The fact that the offence was committed in breach of a domestic violence order was described as a ‘matter of concern’ (see at [31]). The applicant showed no remorse for the life-threatening injuries he inflicted on his partner, who is the mother of at least one of his children. Even though he had no memory of inflicting the injuries as a result of his intoxication, the Court stated that with ‘sober hindsight’ he ought to have been shocked at the injuries he caused (See at [31]). Deterrence was an important factor for the safety of the complainant as well as the interests of the community. The Court held at [37] that the applicant’s small prospects of rehabilitation were not such as to warrant a more lenient approach. The sentence for grievous bodily harm, when considered in isolation was not excessive. Therefore, considering the fact that it was a sentence intended to take into account all of the offending behaviour, it was actually at the lower end of the range of appropriate sentences.
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against sentence.
Facts: Following being released from police custody subject to conditions imposed under the then Domestic Violence (Family Protection) Act 1989 that the respondent not have contact with the complainant (his domestic partner) and that he not go to her residence , the respondent returned to her home and threw boiling water onto her twice. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. He pleaded guilty on the second day of trial and was sentenced to 2.5 years imprisonment for assault occasioning bodily harm, wholly suspended with an operational period of four years.
Issue/s: Whether the full suspension of the sentence made it manifestly inadequate.
Decision and Reasoning: The appeal was dismissed. The injuries caused the complainant severe pain over a long period and also caused some mental health issues. The respondent had some history of domestic violence. This was a ‘reasonably bad’ (at [21]) example of the offence which occurred hours after the appellant had been removed from the complainant’s home by police. However, mitigating factors included his guilty plea, his good work history and his efforts at rehabilitation. Furthermore, the respondent was not sentenced at trial for deliberately pouring boiling water on the complainant. If it had been deliberate, he would have been sentenced to actual imprisonment of at least 12 months before suspension. This was nevertheless a ‘serious example of domestic violence’ with the sentence imposed at trial being a correspondingly ‘substantial penalty’ (See at [24]).
See in particular McMurdo P’s (Jerrard JA and Cullinane J agreeing) comments on the impacts of domestic violence and the approach to sentencing at [23] –
‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.’
Charge/s: Aggravated stalking, attempted rape.
Appeal Type: Appeal against sentence.
Facts: The respondent pleaded guilty to aggravated stalking and attempted rape and was sentenced to two years and three years’ imprisonment respectively, to be served concurrently. There was no domestic violence order in place at the time of the offence. The Court recommended consideration of post-prison community based release after 12 months (See further at [2]-[3]).
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was dismissed by majority. Holmes J (with whom Davies JA agreed) discussed R v Stephens [1994] QCA 507 and noted that it is not correct to approach rapes occurring in an existing relationship more leniently. However, this is not to say that that in the circumstances of a particular case, a sexual assault committed by a current or former partner will necessarily be equivalent to a sexual assault committed by a stranger. In comparing this case to R v McNamara, her Honour stated at [16], ‘I do not think that the traumatic effect of sexual assault in a case such as this, where the complainant had, albeit without enthusiasm, admitted the respondent to the house and gone to sleep with him present, is readily equated with the likely shock and fear of a woman sleeping in her home who without warning is assaulted by an intruder; as happened in McNamara.’ As such, also taking into account the respondent’s plea of guilty and comparable cases, her Honour held that the sentence, while ‘lenient’ ([21]), was adequate. However, de Jersey CJ dissented. His Honour also discussed Stephens. His view was that the statement in Stephens about an ‘honest but unreasonable’ mistake as to consent in the relationship context as a mitigating factor did not apply. The complainant had made her lack of consent clearly known and had previously shown reluctance to let the respondent into the house. His Honour stated, ‘This is a case where the circumstance of the prior relationship should in no degree have led to more lenient treatment than would otherwise be accorded’ (See at [5]). His Honour then went onto consider the respondent’s serious and relevant criminal history, including stalking offences as well as breaches of domestic violence orders (on four occasions over an eight year period with other partners). As such, having regard to this context, his view was that the sentence for attempted rape should be increased to four and a half years and that the order for community release should be removed. Nevertheless, he was in dissent and the appeal was dismissed.
Charge/s: Stalking with circumstances of aggravation.
Appeal Type: Appeal against sentence.
Facts: The applicant met the complainant while on remand and they lived together for a short period until the relationship broke down. The stalking occurred over the phone and included death threats and threats to the complainant’s children. There was a psychologist’s report before the trial judge, indicating that the applicant presented with a borderline personality disorder and would not be able to alter his behaviour without counselling. The applicant had a long criminal history of stalking, stealing, breaches of domestic violence orders and other offences. The applicant pleaded guilty to the stalking of the complainant with circumstances of aggravation and was sentenced to three years’ imprisonment.
Issue/s: Whether the three year sentence offended the totality principle and was therefore manifestly excessive.
Decision and Reasoning: The Court allowed the appeal, reducing the sentence to two years. The effect of the conviction was that an existing suspended sentence for other offences was activated. The applicant had also been sentenced previously for common assault and wilful damage charges. The effect of this was that the applicant was liable to four years and two months imprisonment, becoming eligible for parole at eighteen months. There was no error in the cumulative term being imposed. However, the Court did conclude that the three year term offended the totality principle. In citing comparable cases, the Court found that a three year sentence is at the top of the range for offending of this nature. Lesser sentences were imposed in comparable cases which involved more serious stalking in the domestic context, such as surveillance, letters and attempts to run the victim off the road. Such conduct was not present in this case.
Charge/s: Stalking with circumstance of aggravation (violence), wilful damage.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant separated from his wife after an eight year marriage and fourteen year relationship. Temporary protection orders were in place against the applicant in favour of his ex-wife. In breach of those orders, he stalked her on a number of separate occasions by assaulting her, driving his car at her, making threats against her and their children and following her car. His criminal history involved drug offences committed a considerable time ago. He pleaded guilty. The sentencing judge noted that the applicant showed no remorse and his conduct was of such seriousness that a deterrent sentence was more important than is normally the case. He was sentenced to 12 and a half months imprisonment, suspended for five years.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: Leave was refused. Jerrard JA (with whom Davies JA and Helman J agreed) stated at [11] that, ‘The applicant's behaviour towards Jennifer Foodey in the two and a half months between their separation and his incarceration was persistently cruel and aggressive. At different times he insulted, degraded, and terrified her. His conduct throughout was in breach of court orders intended to give her protection. Considered in isolation, the sentence imposed by the learned judge does not appear manifestly excessive, and indeed far from it. The same result occurs if regard is had to other sentences for unlawful stalking imposed or approved by this court.’ The sentence was upheld.
Charge/s: Stalking with a circumstance of aggravation (threats of violence).
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant was convicted of stalking his former fiancee with the aggravating circumstance that he threatened to use violence against her. A previous domestic violence order was obtained by the complainant and the relationship deteriorated about a year after this. The stalking occurred over a period of less than one year. It occurred over the telephone, as well as by following and loitering outside of her place of employment. He was sentenced to two years imprisonment.
Issue/s: Whether the trial judge should have exercised the option of suspending the sentence after twelve months, on the basis of several factors including the applicant’s youth, lack of criminal history and a strong support network.
Decision and Reasoning: Davies JA (with whom McPherson JA and Mullins J agreed), refused the application, holding that while the trial judge could have imposed the lesser sentence, it was not argued for at trial, and the sentence that was imposed did not demonstrate any error. Davies JA also noted the applicant’s lack of remorse as a relevant factor.
Charge/s: Stalking with circumstances of aggravation, common assault, and dangerous operation of a motor vehicle.
Appeal type: Application for leave to appeal against sentence.
Facts: The applicant was in a relationship with the complainant for nine months. They then lived together as a married couple for two weeks until the complainant moved out due to physical and verbal abuse by the applicant. The complainant indicated that she wished to cease all contact with the applicant. There was a domestic violence order in place, which was subsequently breached by the applicant. The stalking (committed when the order was in place) ‘involved menacing telephone calls, banging on her door, threats and letters and other items left at her residence culminating in the applicant's attempting to run the complainant off the road during the day’. This caused the complainant to veer to the wrong side of a busy rode. He then drove his car into hers and assaulted an off duty police officer who was trying to help the complainant. The applicant’s criminal history was comprised of dishonesty offences which had resulted in prison terms. Concurrent sentences of two years imprisonment (with the full activation of an unrelated nine month suspended sentence) were imposed. The complainant indicated that she was still in fear for her safety.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: Leave was refused. The applicant submitted, inter alia that his criminal history was confined to dishonesty offences, he was young and a psychological report indicated he was remorseful. He stressed that the comparable decisions before the Court concerned situations where there was no emotional relationship between the complainant and the offender, so that in his case, a more lenient penalty should have been imposed. This argument was rejected. de Jersey CJ (with whom Helman J and Jones J agreed) held – ‘I would say for my part that that (the presence of an emotional relationship between the offender and the victim) is not a feature which should necessarily lead to a lower penalty being imposed, where the stalking follows the break-up of an emotional relationship.’
Charge/s: Burglary, rape, assault occasioning bodily harm, deprivation of liberty, two counts of aggravated indecent assault and assault.
Appeal Type: Appeal against conviction and sentence.
Facts: One week prior to the offences the victim had removed her former partner’s name from their joint lease, terminating his right to enter. He (the appellant) then broke into the victim’s house, after cutting the telephone wires. He then pulled her into the bedroom, punched her, tied her up and forced her to perform oral sex on him at knife point on two separate occasions. He waved his knife at her and said that if the police were called, he would cut off her breasts and have anal sex with her. He then raped her. The appellant was the subject of a domestic violence order obtained by the complainant a month before the offences were committed. He was sentenced to 9 years’ imprisonment.
Issue/s:
Decision and Reasoning:
Charge/s: Unlawful assault, unlawful assault causing bodily harm while armed, going armed in public in such a manner as to cause fear.
Appeal Type: Appeal against sentence.
Facts: The respondent became involved in an argument with the complainant, with whom he was in a de facto relationship. The respondent smashed a stubby of beer on his forehead which broke. He then pushed the complainant onto the bonnet of a car and held the broken bottle on her throat and threatened to slice her with it. Another argument ensued, at which point the respondent swung an axe at the complainant. He hit her on the back of the head with the handle while yelling abuse at her. She was knocked to the ground. Then, he swung the axe to the ground so that the axe head became stuck in the ground next to the complainant’s head. After a struggle, he winded the complainant and held the axe to her throat, while threatening to kill her. He was severely intoxicated. The relationship ended after the offences. The complainant experienced severe pain, but suffered no permanent physical injury. However, she suffered lasting psychological injuries. The respondent’s criminal history consisted of drug and traffic offences, as well as one offence of behaving in a threatening manner. He was sentenced to a total effective sentence of 18 months’ imprisonment, wholly suspended with an operational period of two and a half years. A $1000 fine and $1000 compensation was also ordered.
Issue/s: Whether the sentence was manifestly inadequate. In particular, whether a custodial sentence was required.
Decision and Reasoning: The appeal was upheld. Pincus JA (with whom Thomas JA and de Jersey CJ agreed) held that the degree of violence was such as to warrant a term of actual imprisonment. A deterrent sentence was needed. His conduct was prolonged. The axe could quite easily have gone through someone’s head. It involved other people as well as his partner. The sentence was increased on the principal charge of assault occasioning bodily harm to 18 months’ imprisonment with a recommendation for parole after six months. It was recommended that the respondent receive counselling for his alcohol problems.
Charge/s: Manslaughter.
Appeal Type: Appeal against conviction and sentence.
Facts: The applicant was married to her husband for 39 years and was subjected to severe domestic violence during that time. She pleaded guilty to the manslaughter of her husband. She was sentenced to 8 years imprisonment with a non-parole period of 3 years. (See further at [26]-[30]).
Issue/s:
Decision and Reasoning:
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against the recording of a conviction.
Facts: The applicant was convicted of assault occasioning bodily harm. She was released and placed on a good behaviour bond for two years. For a number of years, the applicant had been the subject of severe physical and emotional abuse by her de facto partner. It is unclear whether at the time of the offence, there was a current or lapsed protection order in place between the applicant and her de facto partner. The incident involved the applicant hitting her de facto partner on the head with a heavy mortar bowl when he was sleeping. She later shot him, after a struggle for the gun. She was acquitted of the shooting charges on the basis that the jury found there was a reasonable doubt as to whether self-defence was available due to a reasonable fear of serious attack. However, she was convicted for the striking incident, with self-defence being excluded beyond reasonable doubt. The sentencing judge commented on the need for a ‘deterrent aspect in the element of sentencing in a case such as this’ (and noted) ‘Little point…would be served at this stage by not recording a conviction’ (See at page 6).
Issue/s: Whether the conviction should have been recorded.
Decision and Reasoning: The application was refused. Derrington J noted at [4] that the ‘(trial judge) made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.’
Charge/s: Rape, indecent assault.
Appeal Type: Appeal against sentence.
Facts: The respondent was convicted of two counts of rape and one count of indecent assault of his de facto partner. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the respondent in favour of the victim. He was sentenced to three years imprisonment with a recommendation for parole eligibility after six months. The context of the relationship was one of intimidation and fear.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The Court upheld the appeal, holding that while the trial judge was correct to take into account the respondent’s youth, irrelevant considerations were taken into account. The sentence was increased to five years imprisonment with a recommendation for parole eligibility after two years. The Court found that the primary judge erred by approaching rapes occurring within an existing relationship in a more lenient way. The Court stated that generally, it is not correct to approach rapes occurring in existing relationships more leniently. There may be circumstances where the existence of such a relationship may be relevant to the sentence imposed due to the offender’s state of mind, in that, ‘there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender.’ (Note: This statement has been both distinguished and applied in subsequent Court of Appeal decisions - In R v Conway [2012] QCA 142 , Henry J (with whom Muir JA and McMurdo P agreed) stated in obiter that Stephens is ‘of limited utility given its age'. However, the case has been discussed after Conway such as in R v Postchild [2013] QCA 227.) In Stephens itself, the Court of Appeal found that the circumstances of the relationship in that case did not give reason to distinguish it from a rape between strangers. There was a high degree of violence and the complainant made it clear through her protests and tears that she was not consenting.
Charge/s: Unlawful Wounding.
Appeal Type: Appeal against sentence.
Facts: The respondent, an Aboriginal man, was intoxicated and following an argument with the complainant (his de facto partner), stabbed her in the thigh, punched her in the mouth twice and continued to shout and threaten her. He pleaded guilty to unlawful wounding and was sentenced to two years’ probation and ordered to perform 120 hours of community service, with no conviction recorded. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. The complainant was supportive of the respondent, but did not wish to see him in prison.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld. The respondent was re-sentenced to a suspended period of imprisonment for one year, with an operational period of two years. A conviction was recorded. The Court of Appeal imposed a sentence of imprisonment of 1 year despite the wishes of the complainant, the fact that the relationship had resumed and the fact the respondent had returned to his community and returned to work. However, the operational period of the sentence was suspended. Fitzgerald P (at 6) made the following comments relating to how social and economic disadvantage (both generally and in remote Aboriginal and Torres Strait Islander communities) is relevant when sentencing domestic violence offenders –
“It was right for (the trial judge) to have regard to the respondent’s disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.”
Charge/s: Murder.
Appeal Type: Appeal against conviction.
Facts: In September 1988, after a trial which lasted less than a day, the female appellant, an Aboriginal woman, was convicted of murder for killing her abusive male partner of three years and was sentenced to life imprisonment. The appellant did not give or call evidence at her trial. It was only five years later, after the appellant had spent years speaking to a particular social worker (Mr Berry) in prison, that evidence of the abuse she suffered emerged. Kina applied to the Governor in Council for the exercise in her favour of the royal prerogative of mercy. Section 672A of the Criminal Code preserves the pardoning power of the Governor, adding in para. (a) ‘that the Crown Law Officer may refer the whole case to the Court of Appeal, to be heard and determined as in the case of an appeal by a person convicted.’ Under this provision on 24 May 1993 the Attorney General referred to the Court of Appeal ‘the whole case with respect to the conviction of … Robyn Bella Kina on the charge of murder …’ of Anthony David Black.
Issue/s:
Decision and Reasoning: The appeal was allowed, the conviction and verdict set aside and a new trial ordered. Evidence of Mr Berry, the social worker, was important in this case. Mr Berry first saw the appellant before her trial in April 1988. Over the following months, the appellant slowly disclosed her story to Mr Berry – that the deceased had continually beaten her up, forced her to have anal sex with him and that he tied her up. Mr Berry tried to communicate with the appellant’s lawyers before the trial but was advised that her legal representatives wished that he ‘would not interfere with proceedings’. After the trial, the social worker saw the appellant in a counselling capacity. The appellant’s self-esteem improved and in 1991 she was able to give evidence about the deceased’s threat to anally rape her 14 year old niece.
In finding there was a miscarriage of justice, Fitzgerald P and Davis JA held that:
“In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”.
Offences: Murder x 4; Attempted murder x 1; Rape x 1
Proceedings: Application for judicial review
Issue: Whether parole should be granted.
Facts: The male applicant plead guilty to murdering his female partner and three of her four children from her earlier marriage. He also plead guilty to the attempted murder and the rape of the fourth child of that marriage. The applicant had used a hammer to inflict head injuries on the victims, and scalded the fourth child with boiling water. The fourth child was not found for five days and suffered permanent injuries. The applicant was convicted on all counts and sentenced to life imprisonment for the murder charges and 14 years’ imprisonment for the rape charge.
After serving 13 years in custody, the applicant became eligible for parole. He made several applications for a parole order, but all were refused. The applicant applied for judicial review of the latest decision refusing parole, contending that the decision was affected by an improper exercise of power because: the refusal was unreasonable, the Parole Board failed to take relevant considerations into account, and the Board applied a rule or policy without regard to the merits of the case. The applicant also contended that there was a breach of the rules of natural justice.
Held:: The judge dismissed the applicant’s application for judicial review of the Parole Board’s decision. His Honour held that the Board’s decision, as evidenced by its statement of reasons, did not lack an evident and intelligible justification when all the relevant matters were considered, and therefore the decision was not unreasonable [35]. His Honour noted that "the Board is not compelled to grant parole to a prisoner who has served any particular length of timer in custody or in residential accommodation, who has completed any particular number (or all) of the available recommended rehabilitation programs or who has been of good behaviour for any particular length of time" [32] – what is important is whether the offender shows "internal change, in the sense of the development of an understanding by the offender of the pathways to offending, the triggers that lead along that path and the steps the offender can take ..." [33]. In this case, the applicant had not, and still posed a risk to the community.
His Honour also held that the Board did not fail to take a relevant consideration into account, namely a program completion report, as the Board expressly referred to extracts from this report in its statement of reasons [39]-[40]. Nor did the Board apply the policy asserted by the applicant (that the Board followed the commissioned psychiatric opinion without considering alternate views by other experts) inflexibly as the Board’s statement of reasons demonstrated that it considered alternate views of a range of other experts [42], [48].
The judge further held that the Board’s decision was not affected by any breach of the rules of natural justice [55]. The applicant was invited to make submissions to the Board on multiple occasions, and no complaint was made that the applicant had inadequate time to effectively prepare [54].
Offences: Manslaughter x 1; Dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance x 1.
Case type: Judge only trial
Facts: The female accused pleaded not guilty to manslaughter and the dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance. The victim, her male fiancè, died of traumatic asphyxiation after the accused drove her motor vehicle over him as he lay on the ground. It was uncontroversial that the incident was preceded by an alcohol-fueled argument between the two parties. The accused felt threatened and decided to remove herself from what she believed to be a position of danger by attempting to drive away to a place of safety ([11]). The Crown alleged that the accused knew that the deceased was on the ground and deliberately drove her motor vehicle over the deceased, albeit without any intention to cause death or grievous bodily harm.
At the close of the Crown case, the accused’s counsel made a no case submission with respect to the count of manslaughter. In particular, it was submitted that there was no evidence from which an inference of knowledge or intention could be made. Given the fact that there had been an unexplained deviation of the accused’s car from the driveway to the position where the victim’s body was found, the no case submission was unsuccessful. The accused then elected to give evidence, and claimed that the victim ran into her car as she was driving away from the house. Two defences were raised, namely, unforeseen consequence and one of extraordinary emergency or compulsion.
Issue: Whether the accused was guilty of the offences charged.
Held:: Burns J considered the significant body of evidence regarding the victim’s relationship with his former wife, his subsequent partner and the accused. The accused and victim lived in a semi-rural town and had been in a relationship for approximately 2 years. Like the victim’s prior relationships, his relationship with the accused was marred by frequent and excessive alcohol consumption. As a result of his "chronic drinking problem", there were regular outbursts of anger, emotional abuse (including belittling accusations, vile language and intimidation), and, on occasion, actual violence ([18]).
The accused was acquitted on the count of manslaughter. His Honour accepted the accused’s evidence as it was entirely consistent with the physical evidence found at the scene, as well as the nature and extent of the victim’s injuries ([36]), and found that she did not deliberately drive over the victim’s body ([52]). His Honour was also not satisfied beyond reasonable doubt that the accused substantially or significantly caused the victim’s death. The real and effective cause of his death was his decision to place himself in front of the accused’s moving car ([54]). The accused was also acquitted on the alternative count of dangerous operation of a vehicle ([65]).
Charges: Murder x 1
Facts: The offender met the victim, a Singaporean national living in Australia, through an arranged marriage website. The victim had reservations and formed another relationship. The offender threatened to kill himself if she did not marry him. The offender travelled to Australia from South Africa with the intention of killing the victim if she did not proceed with the arranged marriage. This was evidenced by a statement he made in South Africa to that effect. The offender stabbed the victim 32 times in a hotel room, and claimed that she asked him to kill her. The offender pleaded guilty to the charges. By doing so, he cooperated with the administration of justice because he saved the deceased’s family the trauma of a trial, as well as substantial court time and resources.
Issues: Sentencing
Decision and Reasoning: The offender was convicted of one count of murder, being a domestic violence offence, and was sentenced to life imprisonment. His Honour found that his conduct was planned and persistent ([20]), and involved a high degree of brutality and ferocity. Following his arrest, medical examinations found that, during his incarceration, he experienced periods of active psychosis, auditory hallucinations and paranoid and grandiose beliefs. Although the offender was diagnosed with schizotypal personality disorder, narcissistic personality disorder and borderline personality disorder, his Honour held that he was neither deprived nor impaired of full capacity at the relevant time.
Charges: Murder x 1; Burglary by breaking, in the night, whilst armed x 1; Entering premises, doing wilful damage x 1
Facts: In the early hours of the morning, the offender drove to his ex-partner’s house. No one was home. He broke into the garage, slashed the front tyres of her car, stole a child’s bicycle and returned home. He later returned, entered her house and sliced her throat with a knife.
Issues: Sentencing
Decision and Reasoning: The offender was found guilty of ‘premeditated conduct of the very worst kind’ by taking the life of his former partner in a ‘brutal’ manner in circumstances where he was subject to a protection order ([4]). Eleven years prior he had been convicted of breaching a protection order that the victim had taken out. Premeditation was evidenced by numerous statements to the effect that his ex-partner would be ‘a dead woman’ and that the protection order would not stop him. The offender took active steps to dispose of the evidence of the murder, however later made admissions of his involvement in the victim’s death. Boddice J found that, by pleading guilty, he cooperated with the administration of justice because he saved the community the cost of a lengthy trial. He also facilitated the administration of justice by making extensive admissions to police after the discovery of the deceased’s body, which preserved police resources. He was convicted and sentenced to six years’ imprisonment for entering the premises and doing wilful damage, and to 10 years’ imprisonment for burglary by breaking, in the night, whilst armed.
Charge: Manslaughter
Proceeding: Sentencing
Facts: Ney killed her partner, Haynes, striking him in the head and face with an axe. Haynes was hospitalised and died two days later. Initially charged with murder she pleaded guilty to manslaughter. She was sentenced to nine years imprisonment - eligible for release on parole after serving three years. In sentencing Ney, Dick AJ referred to the reports of a psychologist (Dr Sundin) and a psychiatrist (Associate Professor Carolyn Quadrio):
‘As you know, I have been given a number of psychiatric and psychological reports. The prosecution tendered the report of Dr Josephine Sundin. Dr Sundin has come to the opinion that as a result of the multiple traumas you have suffered in your life since your young teenage years and the series of violent intimate relationships that you have endured since that time, and the fact that you have suffered physical, sexual and psychological abuse over a long period of time, you suffer chronic post-traumatic stress disorder and borderline personality disorder.
The connection between those two matters is explained in her report and in other reports. Associate Professor Carolyn Quadrio, spells it out in her addendum report. She said, "Trauma and abuse have profound effects on mental processes and on psycho-social and psychological functions so that a disorganisation of personality occurs and leads to lasting disorder. Similarly, substance abuse which commonly develops in the context of adolescent trauma, also has a profound effect on mental and psycho-social processes and secondly, incapacitates the person so they are rendered highly vulnerable to further traumas and abuse thus creating a vicious cycle…
I have been assisted by the addendum report of Associate Professor Quadrio where she says that, "At times, however, she returned when she may have been able to escape because she experienced him as someone who loved her. This is explained as traumatic attachment relationship. Further it is also the case that in chronic or complex post-traumatic stress disorder there is both paralysis of initiative whereby the person is greatly compromised in her capacity to take action and there are alterations in perception so they have difficulty perceiving themselves accurately or others and thus in perceiving the true nature of the relationship with an abuser."
Later on she says, "If this psycho physiological disturbance is sustained over time and especially when it occurs in the crucial development years of childhood and adolescence, it eventually leads to disorganisation of personality, sustained hyper vigilance and hyper reactivity become chronic and irreversible."
Further on, "The inability to leave can be explained, partly, as a manifestation of personality disturbance but it is also the case that in domestic violence a woman feels trapped and unable to leave and knows it is not safe to leave so she remains captive and experiences more abuse and trauma and undergoes more personality disorganisation."
I have also noted from the report of Associate Professor Quadrio that those matters which are described as chronic or complex PTSD personality disorder with poly substance dependence or abuse, she says, "These disturbances reflected a lifetime of trauma, a highly chaotic and unsustainable lifestyle and both past and present intimate partner violence."
Charge: Murder.
Result: Acquitted.
Facts: In May 2006, the accused, Susan Falls, shot and killed her husband, Rodney Falls. Throughout their relationship, Susan Falls was subject to significant physical and emotional abuse. This included: numerous incidents of physical violence, beating one of the family’s dogs to death; numerous incidents of sexual violence and rape; threatening to kill her or harm the couple’s children. Susan Falls drugged the deceased and shot him twice as he dozed in a chair. She was charged with murder. Both self-defence, ss 271(2), 273 Criminal Code 1899 (Qld) and the defence of killing for preservation in an abusive domestic relationship, s 304B Criminal Code 1899 (Qld) were raised at trial. Two forensic psychiatrists (Dr Lawrence and Associate Professor Quadrio) were called by the defence and gave evidence about the history of violence and its effect on the offender. (Note Coupe, Cumming-Creed and Hoare were charged with being accessories to the murder but were also acquitted).
Applegarth J, summing up (3 June 2010):
‘Evidence of what, for want of a better expression, is referred to as "battered woman syndrome", is admitted, not because battered woman syndrome is a disorder, or because battered woman syndrome is a defence. Battered woman syndrome isn't a defence. The fact that someone is battered for years doesn't automatically give them a defence. Whether they have a defence depends on whether they acted as they did in circumstances that the law provides is a defence.
However, what is conveniently, and perhaps somewhat inaccurately, described as "battered woman syndrome" is relevant to legal defences.
It doesn't have to be a psychological disorder to be relevant to behaviour and to the defences in this case. It's relevant to the mental state of Ms Falls, and whether she exhibited hyperarousal and other symptoms that are recognised in such cases.
I won't repeat it. You will remember the evidence of Dr Lawrence and Associate Professor Quadrio about the mental state of persons who are subjected to prolonged abuse, their vigilance and so on. Associate Professor Quadrio summed it up pretty simply in saying they're “revved up all the time”.
The behaviour of people, be they soldiers or civilians who are subjected to trauma, has been the subject of organised study. It's not every form of behaviour that is or needs to be the subject of expert evidence. Someone's grief reaction when a loved one dies, or the anxiety that most of us feel when we talk in public, or the anxiety that most people experience when they sit exams, these are things that are familiar to us because we might remember sitting exams or we've had children who sit exams. So we don't need expert evidence to tell us about how people become anxious in certain circumstances, when they're going for an exam or a driver's licence or something of that kind, that we all know about or most of us know about. But because battered wife syndrome is relatively rare it is a legitimate matter for expert evidence and it is the proper subject for expert evidence because, without the assistance of expert evidence, ordinary people who don't know or study these things, might find the behaviour perplexing, counterintuitive or unreasonable.
It might seem odd why there would be a bond between the abuser and the abused. Why there might be, what Dr Lawrence referred to as, an ambivalent relationship, or what Associate Professor Quadrio referred to as a traumatic attachment. The behaviour of someone with a vulnerability because of past abuse who remains with their abuser.
Dr Lawrence and Associate Professor Quadrio, who are experts in their field, were able to address what was described as the "cycle of violence". How, over time the situation worsens. How often it's the case that the abuser isolates the partner. The common symptoms of a variation in mental state. The loss of self-esteem. The belief that the person who is being abused is somehow at fault. The shame they feel when they return, contrary to the advice of police. The belief that in those circumstances the police won't help them again. The reasons they don't leave: children; lack of support; lack of financial support; threats to the woman; threats to people they love; threats over the custody of children.
And apart from giving you evidence about those characteristics and observed behaviours, Dr Lawrence and Associate Professor Quadrio gave you evidence about the fact that victims of prolonged abuse can have quite correct perceptions as to the risks that are posed to them if they try to leave….
Battered wife syndrome isn't a psychological disorder. As Dr Lawrence and Dr Quadrio explained it's a pattern of behaviours. It's been the subject of research, and it's a field of study by practitioners and scholars whose research and reports are open to contest, as you'd expect scientific inquiry and research to be in a proper field of scientific study.
Dr Quadrio described how there is what she described as a "learned helplessness". How abused women are afraid to leave because they correctly assess that they're at risk. That there may have been past attempts to leave. She referred to the triggers that occur for a violent response. That the level of risk is perceived to increase or has in fact increased. Often there are threats to harm children, and the threats become specific in terms of how, when and where they will be carried out.
Proceedings: Second respondent’s application to set aside interlocutory order that the appellant’s appeal be heard afresh in whole.
Facts: The male appellant and female first respondent (LAP) were in a domestic relationship. The second respondent (WBI), a police officer, issued a protection notice to the appellant in favour of LAP and a protection order was subsequently issued by a Magistrate. The appellant filed a notice of appeal and also applied for an order that the appeal be heard afresh in whole, contending that certain documents were not available at trial that showed that statements made by LAP regarding her financial position were not true (a matter going to her credit). The appellate judge allowed the application. WBI subsequently applied to the Court of Appeal for leave to appeal that order, contending that the documents were in the possession of the appellant at the time of the trial, could have been obtained with reasonable diligence or would not have had an important influence on the rest of the case. The Court of Appeal struck out the application for want of jurisdiction (WBI v HBY and Anor [2020] QCA 24). WBI then made an application for an order that the order that the appeal be heard afresh in whole be discharged and in substitution thereof it be ordered that the appeal be decided on the evidence and proceedings before the court that made the decision being appealed.
Held:: Moynihan QC DCJ allowed the application, setting aside the interlocutory order that the appellant’s appeal be heard afresh in whole with the result that the appeal has to be decided on the evidence and proceedings before the court that made the decision. His Honour held that he had jurisdiction to review and set aside an interlocutory order concerning a procedural matter where there was a mistake or irregularity and it would be unjust not to set it aside [12]. In this case, the exercise of the Judge’s discretion (to issue the interlocutory order) miscarried because he took into account facts which were in part erroneous (that is, the Judge was mistaken as to the availability of the documents at trial and the appellant’s opportunity to obtain disclosure of them) [12]. It would be unjust not to set aside the order where the mistake was material and led to such an extraordinary order [12].
His Honour further held that there was "no good reason" (see R v A2 (2019) 373 ALR 214) to order that the appeal be heard afresh in part [21]. The documents would have been available to the appellant at the time of the trial with reasonable diligence, or he was in fact in possession of the documents at the time of the trial [22]-[23].
Proceedings: Appeal of a decision to order a permanent stay of an application to vary a protection order.
Issues:
Facts:: The male appellant respondent (appellant) and female respondent aggrieved (respondent) were married for 23 years and had two children together. They separated after an alleged incident of choking, the respondent applying for a Protection Order under the DFVP Act. A Temporary Protection Order, including the children as named persons, was granted and the matter was set down for a hearing. The respondent then applied to vary its terms, seeking an order ousting the appellant from the former matrimonial home (this was later dismissed). The appellant then filed a cross application seeking a Protection Order against the respondent, but this was later withdrawn. At the hearing, the Magistrate accepted the respondent’s evidence and rejected the applicant’s version of events regarding the choking incident, making a two-year Final Protection Order. Two applications were then made to vary the Final Order, one by the appellant (to set aside the Order) and one by the respondent after the appellant breached the Order, in response to which a Magistrate made a Second Temporary Order against the appellant. The appellant then made a second application for a Protection Order against the respondent.
At the hearing of these last three applications, the Magistrate ordered that: the appellant was guilty of breaching the Final Order, the appellant’s application to vary be dismissed, the Second Temporary Order be revoked and replaced with a Varied Order, and the appellant’s Second Application for a Protection Order be adjourned. The appellant appealed these orders. At the hearing for the appellant’s Second Application for a Protection Order, the respondent sought that the application be estopped or stayed for abuse of process. The Magistrate agreed that the application constituted an abuse of process and it was permanently stayed.
The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oral application to permanently stay the application to vary on the basis it was an abuse of process, and b) not allowing the application to vary to proceed to full hearing.
Judgment: The judge held that the Magistrate had no jurisdiction to order a permanent stay and therefore that the order to stay had to be set aside as a nullity. Her Honour found that the DFVP Act and Rules provide expressly or by implication for applications that are an abuse of its process to be summarily dismissed by the Magistrates Court, but there is no express reference to a power to stay such proceedings on these bases [75], [77], [83]. After examining several pieces of legislation, Her Honour also found that there was no explicit power to order a stay of an application under the DFVP Act [91], and that such a power did not need to be implied for the effective exercise of the jurisdiction to summarily dismiss applications that are an abuse of court process [94].
However, Her Honour noted that, as an appellate court, it had the power to allow, dismiss or refer the application to vary back to the Magistrates Court [99]. Reviewing all the material before her, Her Honour held that, while there was no basis to allow the application in full, two variations ought to be made to the Varied Order, both minor [103].
Offences: Contravention of DVO x 7; Wilful damage; Obstruct police officer; Serious assault; Attempted stealing
Proceedings: Appeal against sentence
Issue: Whether the appellant’s sentence was manifestly excessive.
Facts:: The appellant man committed a series of offences in the course of an attempt to commit suicide by having police officers shoot him. The offences occurred in the context of the recent and highly distressing breakdown of his marriage. The appellant approached a police officer and assaulted her from behind, restraining her, pushing her against the police vehicle and attempting to remove her firearm from her holster (Attempted stealing). Other police officers intervened and restrained the appellant. He was arrested and later released on bail. After his release, he attended the police station and provided a personal apology and a gift, recognising the distress he caused to the officers.
While the appellant was in custody, his wife obtained a Temporary Protection Order which included a condition that he have no contact with her. He contravened this order and sent his wife short emails or text messages expressing affection for her and his desire to continue their relationship.
The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oThe appellant entered early pleas of guilty to all charges, was convicted and received the following sentences:
The appellant appealed the sentences for Serious Assault and Attempted stealing on grounds that they were manifestly excessive, and the sentencing judge erred by not giving sufficient weight to the sentencing principle of rehabilitation.
Held: The judge allowed the appeal and referred the matter back for re-sentencing, holding that the imposition of a period of imprisonment was manifestly excessive. His Honour accepted that rehabilitation was a significant consideration in this case and the sentencing judge did not appropriately include it in his determination of a proper sentence [68]. Rather, the sentencing judge, by imposing a custodial sentence, "negatived [the rehabilitation considerations], in that they were excluded specifically with regard to their value" [69] and therefore the judge did not "fully consider and balance the issue of rehabilitation, in relation to the penalty imposed" [70].
In considering whether the appeal should be allowed, His Honour accepted a psychiatrist’s report that confirmed a "causal relationship between the appellant’s acute adjustment disorder with suicidal ideation upon the sudden breakdown of his marriage which led to the commission of the offences" [12]. His Honour also accepted that the appellant had exemplary antecedents and there was a negligible need for deterrence and punishment. The appellant further had a reduced moral culpability (having regard to the principles in R v Yarwood [2011] QCA 367).
His Honour ultimately accepted that the appellant’s rehabilitation and employment were likely to be adversely affected by a sentence of imprisonment and the recording of a conviction due to his inability to travel internationally to complete his PhD studies, and his vulnerable psychological state would be adversely impacted by such a sentence [13]. His Honour further concluded that "It was significant that [his two step-daughters – ie: children of his former wife] constituted part of the appellant’s support network available to the appellant" [32].
Charges: Contravening a domestic violence order (aggravated offence) x 2.
Case type: Appeal against sentence
Facts: The appellant man pleaded guilty to 2 charges of contravening a domestic violence order (aggravated offence) and was sentenced to 18 months and 12 months imprisonment respectively, to be served concurrently with each other, but cumulative on a term of imprisonment that he was already serving. At the time of the offending, he was separated from the complainant, and was subject to a protection order which required him to be of good behaviour, not to approach the complainant woman within 50m and not to contact her. During their 8-year relationship, they had a child.
Issue: The issues on appeal were whether the sentence imposed was manifestly excessive because the learned magistrate erred by:
Held: Morzone QC DJC allowed the appeal and substituted the terms of imprisonment with 12 months for Charge 1 and 15 months for Charge 2. The appellant contravened the domestic violence order by texting and calling the complainant excessively, and by engaging in physically intimidatory and aggressive behaviour by going to the complainant’s home at night, rushing at her, bashing the window and later making a death threat over the telephone despite police interest. Whilst the offending did not involve physical violence, it was serious in that it involved "persistent menacing conduct in serious breach of the no contact and geographical limiting conditions" of the protection order. His Honour acknowledged the prevalence of domestic violence in the community, and was particularly concerned about the continuation of violence despite police or court intervention by protection orders ([22]-[23]). Further, the appellant’s previous convictions for like offences, especially against the complainant, were found to be an aggravating factor as it showed that his attitude of disobeying the law was not isolated ([26]). His Honour therefore held that imprisonment was the necessary punishment, and that 12 and 15 months imprisonment would provide "appropriate moderation according to the sentencing considerations and balancing aspects of specific deterrence, and further rehabilitative processes serving out the sentence within the community under the auspices of parole" ([31]).
Proceedings: Application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before the commencement of the trial.
Issue: The correct interpretation of s21A of the Evidence Act 1977 (Qld)
Facts: Defendant man was charged with choking his female partner without consent and was convicted and sentenced to imprisonment. A week before trial, the prosecution made an application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before commencement of the trial. The defendant opposed the victim giving evidence over video-link and the pre-recording of her evidence.
Judgment: Cash DCJ made orders permitting the complainant to testify at the trial over video-link and with a support person.
The Court rejected the Prosecution’s submission that "by not enacting a requirement to show likely disadvantage or trauma in section 21A(1)(d), parliament intended there to be a presumption of disadvantage which is itself sufficient to warrant departure from normal procedures". This submission was rejected for two reasons. First, the common law principle "that the defendant in a criminal trial should be confronted by their accuser in order to challenge their evidence was not displaced by s12A". Second, "there is nothing in s21A which compels the conclusion that any of the measures permitted by section 21A(2) are to be adopted automatically for any special witness" [9].
Regarding the order to permit giving evidence via video-link, the judge was satisfied that the capacity of the complainant to give evidence would be improved if she did not give the evidence in the defendant’s presence. The Court rejected the defendant’s submission that the defendant would suffer ‘impermissible disadvantage’ if evidence was given over video-link and provided that there is research to suggest that an average person’s ability to detect lies based on ‘demeanour’ is little better than chance.
The judge rejected the Crown’s request to pre-record the evidence as His Honour "not prepared to assume that a retrial would be such a likely outcome as to justify the order sought" [20].
Charges: Contravening domestic violence order x 1; dangerously operating a motor vehicle x 1
Case type: Appeal against sentence
Facts: The appellant wife offended by contravening a domestic violence order and dangerously operating a motor vehicle, whilst being adversely affected by an intoxicating substance. Both offences arose out of the same incident at the residence of the complainant, the appellant’s estranged husband. The appellant migrated from Thailand and could not read or write in English. On the date of the incident, the appellant attended the complainant’s residence in contravention of the protection order and caused extensive damage to the property by driving her car into the front wall of the house. The appellant pleaded guilty and was ultimately sentenced to 18 months’ imprisonment and 18 months driving disqualification.
Issue: The appellant appealed the sentence on the grounds that it was manifestly excessive because:
Held: Morzone QC DCJ found that the learned Magistrate mischaracterised the offending as falling in the most serious of categories. Although the appellant used the vehicle as a weapon, it did not fall within ‘the most serious of categories where an offender weaponises a vehicle in a direct personal attack with potential serious injury of an unprotected victim’. The offending occurred in the context of a volatile marriage breakdown, where she moved out of the matrimonial home and went on ‘a rage of wilful destruction of matrimonial assets whilst intoxicated’. The appellant willingly caused extensive damage, with the potential of indirectly causing injury to the complainant. Morzone QC DCJ held that the offending was aggravated by her intoxicated state, domestic violence and contravention of the protection order ([33]).
Further, the learned Magistrate referred to 5 cases in his decision as to the appropriate penalty. Morzone QC DCJ considered each case in light of the appellant’s offending ([40]-[50]. The cited cases were distinguishable from the appellant’s offending as they involved the serious feature of a direct personal attack with a vehicle being used as a weapon on an unprotected victim. As the applicant’s offending did not fall within the same serious category, such cases could not provide any comparative guidance ([50]).
Morzone QC DCJ also held that the learned Magistrate erred by failing to take into account some material considerations and the suitability of a suspended sentence ([64]). His Honour considered the nature and extent of the offending and mitigating factors, such as lack of criminal history, good character, guilty plea, demonstrated remorse, and cooperation with police. Whilst the appellant clearly ‘deserved’ a prison sentence, which would further the sentencing principles of punishment, and personal and general deterrence, the learned Magistrate ought to have considered the possibility of a suspended sentence. The appellant’s conduct was contextual and situational, she did not require close supervision upon release into the community, and she actively took steps to self-rehabilitate and refrain from alcohol ([63], [71]).
Consequently, Morzone QC DCJ allowed the appeal and varied the sentence by making the prison term partly suspended after the appellant serves 60 days imprisonment.
Charges: 1 x contravention of a Domestic Violence Order (DVO)
Case type: Appeal against sentence
Facts: The appellant man was convicted, on his own plea of guilty, of one offence of contravention of a DVO, and was sentenced to a term of 6 months’ imprisonment, cumulative on the terms of imprisonment he was then serving relating to domestic violence offences against the same woman. The contravention in question was attending the home of his former partner (the protected person) when subject to a protection order. She was clearly scared, being found by attending police hiding in a manhole in the ceiling. The present offending occurred whilst on parole and very shortly after being granted parole ([16]).
The appellant had an ‘unenviable criminal history’ and had been imprisoned for drug and violent offences, and had been re-sentenced on numerous occasions for breaches of bail, suspended sentences and an intensive correction order ([8]).
Issue: The sentence was manifestly excessive. Three specific errors were alleged:
Held:
Byrne DCJ allowed the appeal, set aside the order of the sentencing Magistrate insofar as it related to the appellant’s parole eligibility, and ordered that the appellant be eligible for parole on the date of the delivery of the judgment instead ([27]). Byrne DCJ accepted that it was an error to impose the cumulative sentence without first inviting submissions as to that possibility. It was noted at [18] that the Magistrate raised concerns about imposing another suspended sentence given the appellant’s past history of breaching such orders, but did not raise the possibility of ordering that the term be served cumulatively on the current period of imprisonment. According to Byrne DCJ, if the Magistrate did this, it would inevitably have elicited submissions as to the appropriate point for parole eligibility. It could not be said that this was an ‘error without consequence’.
The offending clearly affected the aggrieved’s safety and welfare, although the appellant did not inflict any actual physical violence on her on that occasion. Given that the offending occurred so soon after the appellant had been released on parole for offending involving the same woman, and in light of the need for specific deterrence given the appellant’s history for breaching court orders, Byrne DCJ held that a head sentence of 6 months cumulative on the period of imprisonment the appellant was already serving was appropriate ([19]). However, the extension of the parole release date was excessive, especially in light of the head sentence of 6 months. His Honour considered that this in itself would be sufficient grounds to allow the appeal ([21]). The lengthy deferral of the parole eligibility date failed to reflect the appellant’s guilty plea, that he did not inflict any physical violence and that he had served about 3 months of pre-sentence custody that could not be declared as time already served under the sentence ([24]).
Charges: Contravention of a domestic violence order (aggravated offence) x 1; Possessing dangerous drugs x 4; Failure to appear in accordance with an undertaking x 1.
Case type: Appeal against sentence
Facts: The appellant was convicted and sentenced for contravening a domestic violence order during the operational period of a suspended sentence. He was also sentenced in relation to other drug and violence offences. The appellant hit the aggrieved (whom the order was made in favour of) during an argument. The strike caused a small cut to her lip. The appellant then left the address but shortly returned holding a crate and threatened to bash her dog. The couple had another argument later in the evening before the aggrieved escaped and called police. The appellant denied being at the address and hitting the aggrieved when later questioned.
The appellant filed his notice of appeal five weeks late. The delay was not significant and was caused by the appellant’s attempts to seek legal advice.
Issue: Whether the sentence imposed was excessive.
Decision and reasoning: The court found that the sentence was not excessive and dismissed the appeal.
The appellant relevantly argued that the contravention offence was his first breach of a domestic violence order against this particular complainant however, Fantin DCJ .observed at [41] ‘The fact that this was the appellant’s first contravention against this particular woman is not a matter in his favour. What is relevant is that he had previously been convicted on earlier occasions of breaching domestic violence orders and of domestic violence offences, but continued to reoffend.’
Charges: Contravention of a domestic violence order
Case type: Appeal against sentence
Facts: The complainant and applicant were married but did not live together. The complainant was pregnant with their second child at the time of offending and there was a domestic violence order in place preventing the applicant from engaging with the complainant in any way without her consent. On the day of the offending, the applicant had become enraged and assaulted the complainant after finding communications between her and another male on her phone. The attack left the complainant with a swollen and cut lip.
The applicant pleaded guilty to the charge and was originally sentenced to three months imprisonment wholly suspended for two years with the conviction recorded.
Issues: Whether the sentence was manifestly excessive and whether the magistrate erred in his reasoning.
Decision and reasoning: Jarro DCJ concluded that the sentence imposed was not excessive.
Ground 1: ‘The applicant came before the court with a relevant criminal history. He is a mature man. He used actual violence and a physical injury was sustained by the complainant, albeit of a limited nature. The offending was aggravated as the complainant was 23 weeks pregnant at the time and the violence was unprovoked’ (pg 5). In considering these aggravating features and the need for general deterrence to be reflected in the sentence given the prevalence of domestic violence in the community, Jarro DCJ considered the sentence imposed to be within the appropriate range.
Ground 2: Jarro DCJ provided that ‘the principle of "parsimony" is not a governing principle used in the exercise of discretion in sentencing and therefore the sentencing judge was not in error by not having regard to the principle.
Ground 3: Jarro DCJ found that the magistrate appropriately balanced the applicant’s mitigating circumstances against the applicant’s aggravating factors and the need for deterrence.
Charges: Domestic violence charges, resulting in a Domestic and Family Violence Protection Order
Case type: Appeal against making of order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)
Facts: The appellant challenged a decision made pursuant to s 37 Domestic and Family Violence Protection Act 2012, granting the aggrieved a protection order for 5 years. The order was made after a contested hearing. The aggrieved claimed that she was not in a relationship with the appellant, but that they had a daughter. Her affidavit provided details about her contact with the appellant, which involved insults by him and several unpleasant interactions, including via text ([16]).
Issue: The appellant appealed the decision on the ground that the learned magistrate erred in finding that 1) the appellant committed domestic violence against the aggrieved within the meaning of Part 2, Division 2 of the Act; and 2) the protection order was necessary or desirable to protect the aggrieved from domestic violence pursuant to s 37 of the Act.
Held: The appellant submitted that the evidence did not support a finding of domestic violence, and that the magistrate erred in relying on the evidence as the credit of the aggrieved was fatally damaged ([23]-[24]), [35]).
Kent DCJ dismissed the appeal. The magistrate’s analysis relied on uncontentious matters. Given the fact that the appellant did not deny sending the various text messages and that they clearly showed insulting language, the credit of the aggrieved was not central to the analysis and result ([35]). It was somewhat difficult to assess whether the events constituted domestic violence in the form of emotional abuse because there appeared to be a mutual exchange of insults between the parties ([36]). Where the communication between the parties involves the ‘trading’ of insults, it is more difficult to conclude that mere insults amount to ‘emotional abuse’. In his Honour’s opinion, insults ‘fall on a continuum of seriousness, from completely trivial to very serious; and at a certain point on the continuum it becomes clear that emotional abuse is involved’ ([37]).
The Court held that there was no appealable error by the magistrate. There was no error demonstrated in any step set out in MBE v MLG in that: 1) there was a risk of future domestic violence, which was more than a mere possibility; 2) there was a need to protect the aggrieved from that risk; and 3) an order was necessary or desirable, particularly considering the factors in s 4(1) ([41]).
Charges: Obstruction of a police officer x 1.
Case type: Appeal against sentence.
Facts: The appellant pleaded guilty to one charge of obstructing a police officer, for which he was sentenced to 4 months’ imprisonment with immediate parole release. It was alleged that the appellant made previous threats to kill his ex-wife and daughter. When the police came to his house to serve him with a police protection notice, he became aggressive and verbally abusive. The police feared a risk of serious injury, even though the appellant was not armed. He fled the property, maintaining that ‘he was not going to be served with anything and was throwing his phone away’. When he returned to the property, he continued to be abusive towards the officers. He was restrained and arrested for obstructing police ([5]-[9]). The Magistrate regarded the offence to be ‘amongst the most serious of obstruct police charges, given the facts presented here and the escalation of the situation’, and sentenced the appellant to 4 months’ imprisonment with an immediate parole release ([20]-[21]). The appellant appealed against the sentence on the ground that it was manifestly excessive and that the Magistrate had overestimated the seriousness of his offending behaviour.
Issue: The issue is whether the sentence that the Magistrate imposed was excessive having regard to the circumstances of the offending, the appellant’s antecedents, his prior criminal history, his mental health issues, his endeavours to rehabilitate and other relevant sentencing principles and guidelines ([29]).
Held: McGinness DCJ noted the appellant’s extensive criminal history, which commenced when he was a child and included breaching domestic violence orders, common assault and stalking ([10]). The offence was found to have serious features, including the nature of the appellant’s verbal abuse, his actions of leaving the property and saying he would continue to refuse service of the protection order. However, the Magistrate’s finding that the offence was ‘amongst the most serious of obstruct police charges’ was an error which led to the sentence imposed being excessive ([31]). The appellant did not physically struggle with the police, and complied with police directions once he returned to the house. He also was not armed. His Honour noted that the offending must be viewed against the appellant’s mental health issues at the time of offending, and childhood histories of sexual abuse at the hands of authoritative figures in a custodial setting. Other relevant factors include his genuine efforts to receive treatment and rehabilitate ([32]). Therefore, because of his criminal history, financial circumstances and his continuing efforts to rehabilitate, a probation or community service order would have been within range. His Honour allowed the appeal, and varied the sentence to 2 months’ imprisonment suspended forthwith for operational period of 2 months. Even though, at first glance, this order could be mistaken for ‘tinkering’, his Honour maintained that reducing the sentence to 2 months was substantial ([33]).
Charges: Four charges including stalking and using a listening device in breach of a domestic violence protection order, and breach of a bail condition.
Case type: Appeal against conviction. Application for extension of time.
Facts: The applicant and complainant had previously been in a relationship. The first charge related to the use of a listening device to record a private conversation, which the applicant installed in the complainant’s vehicle during the course of their relationship. The final three charges occurred when the relationship had apparently ended. As the complainant prepared to go to sleep one night, she noticed the applicant standing on her patio, peering through a bedroom window. The behaviour was in breach of a domestic violence protection order and constituted stalking. Further, it was aggravated by being in breach of court orders ([9]-[12]).
The Magistrate took into account the fact that the applicant was 47 years old, had no relevant criminal history and was a New Zealand native. He obtained a tertiary qualification and stable employment. He also had a number of positive references attesting to his good character and sought counselling while in custody. Her Honour placed the applicant on three years’ probation. No conviction was recorded, except for the offence of unlawful stalking, as it was the most serious charge ([14]-[16]).
The applicant sought an extension of time within which to appeal, arguing that the delay was attributable to administrative error and was relatively short ([5]). It was argued that the three concurrent probation orders in relation to the stalking, contravention of the domestic violence order and breach of bail, amounted to double punishment contrary to s 16 of the Criminal Code (Qld).
Issues: Whether the sentence was manifestly excessive and offended the prohibition on double punishment for the same act.
Decision and reasoning: The Court allowed the appeal and granted the extension of time. The Court held that the Magistrate’s conclusion as to recording of a conviction was free from appealable error. The probation orders for the contravention of a domestic violence order and breach of bail condition were set aside as double punishment. The applicant was convicted and not further punished. Moreover, the sentencing discretion was found to have miscarried in relation to the offence of using a listening device – an offence with a maximum penalty of only two years’ imprisonment and which was relatively minor in the circumstances. The sentence imposed for that offence was reduced from three years’ probation to two years’ probation, with no conviction recorded ([22]-[25]).
Charges: 1 x grievous bodily harm, 1 x assault occasioning bodily harm, 1 x contravention of a Domestic Violence Order (DVO), and a further contravention of a DVO (aggravated)
Case type: Appeal against sentence
Facts: In 2016, the appellant, an Aboriginal woman, was convicted on her guilty plea to domestic violence related offences, namely, grievous bodily harm, assault occasioning bodily harm, contravention of a DVO and a further contravention of a DVO (aggravated offence). When the appellant was released from parole, she formed an intimate relationship with the aggrieved. Their relationship was characterised by alcohol-fuelled domestic violence, which led to its termination ([5]-[7]).
A protection order was issued in 2018, prohibiting the appellant from "following or approaching the aggrieved". The appellant breached this order by attending the aggrieved’s home while he was inside ([9]). The Magistrate sentenced the appellant to 1 month imprisonment to be served cumulatively upon a pre-existing 3 year sentence, with immediate release on parole. The prosecution applied to reopen the sentence on the basis that a parole eligibility date was required by s 160C Penalty and Sentences Act 1992 (Qld). The sentence was reopened in the appellant’s absence and without hearing further substantive submissions about the offending conduct and mitigating circumstances. The Magistrate amended the sentence by fixing a parole eligibility date in lieu of a parole release date ([12]). The appellant was arrested and returned to custody ([13]).
Issue: The appellant appealed the sentence on the grounds of manifest excessiveness. Other grounds were raised in her submissions, such as breach of natural justice and jurisdiction to reopen the sentence ([14]-[15]).
Held:
In Morzone DCJ’s view, the Magistrate ‘erred in exercising the sentencing discretion by initially mistaking the facts, then allowing erroneous or irrelevant matters to guide or affect him in re-opening the sentence without regard to matters of totality, and failing to take into account some material considerations as to the nature and extent of the offending’. The sentence was therefore unreasonable and plainly unjust ([37]). While the appellant had previous convictions for serious violent offences, and had reoffended while on parole for those offences, her offending was comparatively trivial and did not involve actual contact with, or any violence towards, the aggrieved ([42]). However, she has found herself in prison as a result of her ongoing alcohol mismanagement. The current offending was at the lowest end of the range, and imprisonment was found to be disproportionate to the seriousness of the offending and ‘too crushing’ on the appellant ([44]). Consequently, the appeal was allowed and the Magistrate’s orders were set aside. The appellant was convicted, but not further punished for the offence ([45]).
Appeal type: application for a stay of a judgment given in the Magistrates Court.
Facts: On 20 September 2018, Magistrate Strofield declined to grant a protection order for the benefit of the applicant (ODE) against the respondent (AME) on the basis that his Honour wasn’t satisfied that it was necessary or desirable to make one, as required under s 37(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [3]). ODE appealed that decision to the Queensland District Court; she filed a notice of appeal on 9 November 2018 and within it outlined seven grounds of her appeal (see [5]). On that same date, a stay application was brought in the form of an application for a temporary protection order pending hearing of the other appeal. Judge Richards stayed the decision of Magistrate Strofield on 9 November until 23 November 2018 at which time Judge Koppenol dissolved the stay order (see [6]-[7]). This was likely due to the fact he wasn’t satisfied the appeal was of any merit (see [6]-[7]). A further stay application was filed on 6 December 2018 with the aim of extending the temporary protection order until the appeal by staying Magistrate Strofield’s decision to refuse to make a final protection order ([8]).
Issues: The applicant sought a stay on two main grounds. First, her affidavit (filed on 6 December 2018) extended on the points raised in her notice of appeal concerning the merits of her appeal. Second, the respondent had perjured himself in the proceedings before the Magistrate.
Decision and reasoning: application dismissed, appellant restrained from making any application in relation to the proceeding without leave from the court, and the appellant was ordered to pay the respondent’s costs of the application.
As to the first ground of appeal, Porter QC DCJ explained to the applicant that where a party has applied for a stay but failed and then applies again, it is usually required that the party establish some new matter that has emerged since the last refusal to “justify a second bite at the cherry” ([11]). The applicant accordingly pointed to two matters. The first was that since the judgment on 23 November 2018, the respondent had committed further acts of domestic violence by not returning certain belongings to her (see [8]). Porter QC DCJ dispensed with that matter in stating that the respondent’s conduct didn’t comprise acts of domestic violence and noting the respondent’s actual willingness to return the belongings (see [13]). The second point was that the emails relating to the couple’s daughter and her recent experience in hospital indicate the respondent was involved in acts of domestic violence. After examining the relevant extracts in the circumstances of the case, Porter QC DCJ could see no way in which they would amount to domestic violence on the respondent’s part as defined in the DFVPA.
Finally, his Honour couldn’t see a way in which it could be concluded there was perjury arising out of the proceedings before the Magistrate.
Appeal type: appeal against a protection order.
Facts: On 28 October 2015, in seeking parenting and property orders, the second respondent brought Family Court proceedings against the appellant. An incident on 1 November 2015 led to the making of a temporary protection order on 3 November 2015; the second respondent and the couple’s two children were named as the aggrieved. The order included the respective usual conditions: a “no contact” condition and an “ouster” condition under ss 56, 57 and 63 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [21]). There was, however, an exception that allowed for communication via text between the appellant and second respondent with the appellant’s mother acting as the conduit between them (see [21]). The appellant soon applied to vary the order to remove the children’s names ([22]). The application was heard by the Magistrate on 9 December 2015; the second respondent consented to the variation but the police prosecutor denied ([24]). On 18 February 2016, following a mediation in the Family Court proceedings, a resolution as to the parenting and property orders was reached. 11 days later, final consent orders were made by the Family Court to the effect that the original exception to the order was removed and replaced with an allowance for direct communication via email. Both parties also agreed to try to remove the protection order. However, the police prosecution refused the second respondent’s application to remove the order. On 11 March 2016, the domestic violence hearing listed to commence on 14 March 2016 was adjourned so as to provide the appellant with the opportunity to make submissions for the discontinuance of the order. After a four-day summary trial, extending over March and April 2017, the Magistrate gave ex tempore reasons on 10 November 2017 and ultimately granted a five-year protection order against the appellant (see [34]-[47]).
Issues: the appellant’s grounds of appeal were two-fold. First, the Magistrate erred in finding that the emails sent by the appellant’s mother and the conduct of the trial by his counsel constituted further acts of domestic violence. Second, the protection order was not necessary or desirable to protect the second respondent and the children from the appellant.
Decision and reasoning: appeal allowed and the protection order was therefore set aside and the matter was remitted to another Magistrate for re-hearing.
His Honour, after reviewing the exchange of emails between the appellant’s mother and second respondent, concluded that the Magistrate’s finding that the appellant was behind the tone and wording of the emails was based on speculation and not open on the evidence (see [50]-[57]). As to the second part of this ground of appeal, his Honour expressed the view that counsel is entitled to exercise their discretion on how to handle a matter and the Magistrate’s characterisation of the appellant’s counsel’s cross-examination of the second respondent as an act of domestic violence was erroneous. The first ground of appeal was therefore allowed.
The second ground of appeal was allowed. His Honour felt that the Magistrate, in coming to their finding on the necessary or desirable condition, failed to consider the material matters such as the fact that the tension between the Magistrate’s courts undertakings and the Family Court had resolved in April 2017 and the appellant’s mother was no longer acting as a conduit and thereby no longer “inflaming” the relationship (see [66]). Accordingly, his Honour concluded that the Magistrate erred in granting the protection order.
Charges: Contravening a domestic violence order x 1.
Appeal type: Appeal against sentence.
Facts: During proceedings before the Magistrates Court in which a temporary protection order was made, the appellant threatened to kill the aggrieved and her children. The appellant pleaded guilty to one charge of contravening a domestic violence order. He was sentenced to nine months’ imprisonment with an immediate parole eligibility date and 36 days of pre-sentence custody declared as time served. The appellant appealed against the sentence on the basis that it was manifestly excessive.
Issues: The appellant submitted that the sentence was excessive having regard to his psychiatric condition, the principles of totality and the comparable case tendered by defence which, in combination with his personal circumstances, supported a shorter head sentence.
Decision and reasoning: The appellant relied on R v Goodger [2009] QCA 377 as justification for a reduction in sentence because of his reduced moral culpability. However, that case was not authority for the proposition that the sentence must be reduced by reason of a psychiatric condition [50]. Kefford DCJ held that there was no compelling evidence that the appellant’s condition at the date of sentencing meant that continued incarceration would have more of an impact on the offender than it would on a person of normal health. There was nothing to suggest that there was a serious risk that imprisonment would have adverse effects on the appellant’s mental health. Accordingly, the sentence imposed was not excessive in the circumstances, even though the offending occurred at a time when the appellant could not act on the threats made (as he was in custody) ([71]).
The appellant’s criminal history illustrated his general disregard for the law and court orders. An aggravating circumstance was the fact that he offended whilst in the confines of a court room, demonstrating disrespect not only for the complainant but also the Court ([72]). The sentencing principle of protection to the Queensland community from the offender was significant, given the appellant’s vulgar and bold threats to the aggrieved in the presence of the Court. No submissions were made that indicated that the appellant had taken steps towards rehabilitation. The Court made reference to Singh v Queensland Police Service [2013] QDC 037, but did not regard that the decision was evidence that the sentence in the present case was excessive. That case was distinguishable because there were no prior convictions for violence or contraventions of a domestic violence order. It also did not involve the aggravating feature of a threat to kill delivered to the aggrieved and her children in the presence of the court.
Charges: Assault occasioning bodily harm x 1.
Appeal type: Appeal against sentence.
Facts: The appellant was convicted of assault occasioning bodily harm (domestic violence offence), following a two-day trial. Prior to sentencing, he lodged an appeal against conviction. Subsequently, the Magistrate sentenced the appellant to 18 months’ imprisonment on the basis that the appellant serve one half of that term in prison. The appellant appealed against this sentence and was granted bail pending the hearing. The grounds of appeal included that the sentence was manifestly excessive and that the Magistrate failed to (1) identify whether he took into account the extra-curial punishment the appellant received during the offence, in particular the broken foot caused by the complainant; (2) indicate how that extra-curial punishment was taken into account in the sentencing process (if he did take it into account); and (3) consider the appellant’s offer of compensation.
Issues: Whether the sentence was manifestly excessive; Whether the sentencing discretion should be re-exercised to take into account the appellant’s injuries; Whether the appellant’s injuries are capable of constituting extra-curial punishment; Whether the sentencing discretion should be re-exercised to take into account the offer of compensation.
Decision and reasoning: The Court was satisfied that the errors identified vitiated the sentence imposed by the Magistrate. There was no explanation as to the Magistrate’s consideration of extra-curial punishment and how it was taken into consideration with regard to the penalty that was imposed. There was also no explanation as to the basis upon which the Magistrate found that there was a complete lack of remorse. The Court concluded that the Magistrate fell into error when he determined that a sentence of 18 months’ imprisonment was the appropriate penalty. Having referred to comparable cases, such as R v RAP [2014] QCA 228, the Court held that the imprisonment term of 18 months was manifestly excessive. In R v RAP, Justice Wilson held that, in the case of a serious assault in a domestic setting, a sentence of imprisonment for two years or more is, ‘plainly within the proper sentencing range’ and ‘far from excessive’. Similarities between the two cases include the ages of the appellants, their prior criminal records and their otherwise good character ([47]). Although the complainants in both cases suffered physical and psychological injuries, the injuries sustained by the complainant in RAP were more significant. RAP also involved a plea of guilty, whilst this was a matter determined following two days of hearing. Reference was also made to a considerable number of cases with regard to the range that should be considered in relation to a penalty to be imposed, such as R v Pierpoint [2001] QCA 493, R v Johnson [2002] QCA 283, R v Von Pein [2001] QCA 385, R v Fairbrother; ex parte Attorney-General [2005] QCA 105, R v King [2006] QCA 466, R v George [2006] QCA 1 and R v Roach [2009] QCA 360. These cases clearly showed the considerable range of penalties and the need for an independent exercise of discretion. In light of the circumstances of this case, the appeal was allowed, the sentences set aside, the hearing adjourned for sentence on a date to be fixed and the bail enlarged.
Appeal type: appeal against a protection order.
Facts: At the first hearing of the proceeding, on 9 November 2017, the Magistrate considered it unnecessary to grant a temporary protection order and therefore remanded the matter to 16 November 2017. On that later date, the matter was listed for further mention and management on 18 January 2018. At this hearing, neither the parties nor their representatives were present with the exception of the aggrieved’s representative. Ultimately, the magistrate made a protection order for a period of five years in identical terms to an order made for a separate but related family matter involving the aggrieved and her brother (see [27]).
Issues: the significant grounds of the appeal, which turned upon matters of procedure, were two-fold. First, the Magistrate erred in not adjourning the application under s 39(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). Second, the Magistrate erred in finding that there was sufficient evidence to justify that the appellant had committed domestic violence against the respondent or that a protection order was necessary or desirable under s 37(1)(c) of DFVPA.
Decision and reasoning: the appeal was allowed. The protection order was set aside, the proceeding was remitted to the Domestic and Family Violence Court to be heard and determined according to law, and each party was ordered to bear their own costs in the appeal.
As to the first ground, the material question posed by Morzone QC DCJ was whether the respondent was denied the opportunity to be heard by the application proceedings in circumstances where it had been previously set for mention only. Applying the relevant authority on this particular issue of procedural fairness (see [37]), Morzone noted there was no adequate and reasonable explanation for the respondent’s absence. Furthermore, Morzone QC DCJ outlined six material elements of the case that his Honour believed the Magistrate ought to have considered in deciding whether to proceed to hearing or grant an adjournment (see [40]). In failing to consider these features of the case, the Magistrate was said to have misdirected herself in proceeding to hearing with the consequence that the orders ultimately made were unreasonable (see [41]).
Given the conclusion Morzone QC DCJ reached as to the above ground of appeal, his Honour considered it unnecessary to consider the second ground of appeal (see [43]).
Recognising that it would be inequitable for the respondent to bear the costs of the appellant’s success, Morzone QC DCJ ordered that each party ought to bear their own costs in the appeal (see [53]).
Appeal type: appeal against variation to temporary protection order.
Facts: A temporary protection order was issued against the applicant (Mr ECW) for the benefit of the respondent (Ms ECW) and the couple’s three children. A protection order was later made before Mr ECW applied to remove two of the children as named persons protected under the order and vary, among others, orders 3 and 8. The acting Magistrate made variations to orders 3 and 8 while dismissing the variation to the persons named in the order. Mr ECW appealed against this decision.
Issues: did the acting Magistrate fail to hear and determine Mr ECW’s application for a variation to the protection order according to law?
Decision and reasoning: the appeal was allowed and the matter was remitted to the Magistrate’s Court, to be heard and determined, according to law.
Horneman-Wren SC DCJ revealed a number of issues with the way in which the acting Magistrate heard and determined Mr ECW’s application.
As observed by his Honour, s 91(2)(a) of DFVPA provides that before a Court can vary a protection order, the court must consider the grounds set out in the application for the protection order. However, his Honour recognises that the opening remark of the Magistrate – “Okay. So, whose application is this?” – demonstrates that the Magistrate hadn’t read the grounds for the application or the materials filed by each party prior to the hearing. His Honour further noted that a plain reading of the transcript would highlight that the Magistrate didn’t read the application or affidavit materials at any stage during the hearing.
Horneman-Wren SC DCJ also recognises that the Magistrate erred in dismissing the proposal to remove the two children from the order on the basis that they were matters for the Family Court and not for her Honour (see [32]). His Honour clarifies that the matter was not a matter for the Family Court but for her Honour (see [33]).
The matter was remitted to the Magistrate’s court, as opposed to Horneman-Wren SC DCJ conducting the appeal as a fresh hearing, since his Honour was of the opinion that Mr ECW was entitled to have his application heard and determined in the Magistrates Court and to have appeal rights. Conducting the appeal as a fresh hearing would mean, by virtue of s 169(2) of the DFVPA, that Mr ECW would not have any such appeal rights (see [38]-[39]).
His Honour did not set aside the Magistrate’s variation of orders 3 and 8 since the parties agreed that those variations ought to remain in the interim ([41]).
Appeal type: appeal against sentence.
Facts: On 4 August 2016, a protection order was made under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) against the appellant for the benefit of the aggrieved, her de facto partner, and her three children. The order only contained the standard conditions pursuant to 56 of DFVPA including a condition that the appellant must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence. On 8 November 2018, one of the appellant’s children verbally provoked the intoxicated appellant and pointed a knife at her. The aggrieved disarmed the child, kicked him in the bottom and chased him across the street. Two witnesses recount the aggrieved and appellant hurling verbal abuse at the child. The appellant’s conduct fell within the definition of “domestic violence” under s 8 of the DFVPA since it could be classified as “emotionally or psychologically abusive” (see [45]). Accordingly, the appellant was later charged and convicted of contravention of the protection order in the Magistrate’s court. She was sentenced to 3 months imprisonment. The appellant appealed against this sentence.
Issues: the grounds of the appeal were two-fold: sentence was manifestly excessive and there was a breach of procedural fairness in the magistrate not inviting submissions on imprisonment.
Decision and reasoning: appeal allowed and the sentence was therefore set aside.
The second ground of appeal was allowed. His Honour stated that the magistrate erred in denying the appellant’s solicitor the opportunity to address her on the appropriateness of the sentence of imprisonment. Denying this opportunity and imposing the sentence nonetheless constituted a breach of the rule of natural justice (see [50]). This error, amongst other errors in the Magistrate’s exercise of the sentencing discretion, lead his Honour to set aside the sentence. Accordingly, it was necessary for the appellate court to exercise the sentencing discretion afresh, unless doing so lead to the conclusion that no different sentence should be passed (see [14]).
On the basis of the Court’s independent exercise of discretion and analysis of relevant cases, the sentence imposed was considered excessive. The respondent relied upon PFM v Queensland Police Service [2017] QDC 210 and TZL v Commissioner of Police [2015] QDC 171 in their submission that the sentence was appropriate since the offending in question was more serious than in each of those cases that yielded similar sentences (see [53]). In response, his Honour stated that the offending was not objectively more serious than in PFM and TZL and is not truly comparable and therefore of little assistance (see [54]-[58]). At the discretion of his Honour, two recent analogous cases were then considered. Taking into account those decisions and the material facts of the case, namely that the contravention involved no violence and was limited to a single instance of provoked verbal abuse, his Honour concluded that the sentence was outside the permissible sentencing range for the offender (see [64]-[65]) and ordered a sentence of probation for six months.
Charges: Contravention of a domestic violence order x 1; Possession of a dangerous drug x 1; Breach of a bail condition x 1
Appeal type: Appeal against sentence; Appeal by way of rehearing on the record
Facts: The respondent and appellant were in a relationship. The respondent pleaded guilty to three charges, one of which was contravention of a domestic violence order. He was fined $1,000.
Issues: Whether the fine of $1,000 was manifestly inadequate.
Decision and Reasoning: Fantin DCJ dismissed the appeal. Her Honour considered the respondent’s personal circumstances and criminal history, which included 28 breaches of domestic violence orders, 18 breaches of bail conditions and other court orders ([20]). Whilst the respondent’s previous breaches of domestic violence orders were clearly relevant and increased the need for personal and general deterrence, her Honour found that it should not outweigh the low level of gravity of the offence. Taking into account the relationship between the respondent and appellant, the fact that the contravention of the domestic violence order did not involve violence and was limited to one instance of verbal abuse, that the respondent was not charged with any other offence arising from the contravention, the respondent’s early plea and cooperation with police, that the respondent had spent three days in pre-sentence custody, the activation in full of a suspended sentence of two months’ imprisonment, it was open to the Magistrate to impose the fine of $1,000 for the contravention offence ([73]). She did, however, consider that the sentence may be regarded as generous and another judicial officer may have structured the sentences differently.
Charges: Imposition of a domestic violence order x 1.
Appeal type: Appeal against imposition of a domestic violence order.
Facts: The respondent applied for a domestic violence order based on the appellant’s alleged behaviours, dating back several years and including a time prior to which a previous order was made. The application was served on the appellant two days prior to the hearing and the appellant did not attend the hearing. The only material placed before the Magistrate was the application itself. No oral evidence was given. The order was made. The appellant appealed against the decision to make the domestic violence order.
Issues: Whether the decision to make a domestic violence order could be set aside.
Decision and reasoning: Farr SC DCJ allowed the appeal, set aside the decision, and remitted the matter to the Magistrates Court. Whilst it appeared unlikely that the behaviour that occurred since the cessation of the previous order could justify and satisfy the test of domestic violence, even if that was the case, the Magistrate would need to take account of that prior behaviour to determine whether that might constitute domestic violence of a continuing nature, such that it is appropriate to make a second order based upon the same evidence. This was a question for that court to determine after hearing all of the appropriate evidence and submissions, and his Honour found that the present court was not in the position to make that decision ([19]).
Case type: Application for costs after an appeal against a domestic violence order.
Facts: A protection order was made naming the respondent (T) as the aggrieved and the appellant (S) as the respondent. S successfully appealed against the order. S sought an order for T to pay her costs of the original hearing and the appeal ([1]).
Issues:
Decision and Reasoning: Richards DCJ made no order as to costs.
In relation to the first issue, the usual position is that each party to a proceeding for a domestic violence order bears their own costs unless the application for the protection order is ‘malicious, deliberately false, frivolous or vexatious’ (s 157(2) DFVPA). There is no equivalent section in the DVFPA in relation to appeals. However, r 142(2) DFVPA provides that the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) applies to appeals. Rule 681 UCPR states that costs follow the event unless the court orders otherwise. Richards DCJ held, applying GKE v EUT [2014] QDC 248, that the discretion to award costs should be exercised in light of s 157(2) DVFPA ([5]).
In relation to the second issue, Richards DCJ noted that there was some suspicion that T made the application for a domestic violence order in retaliation for S complaining to the police about him or to have some sort of leverage over her. However, his Honour was unable to find that the application was malicious, deliberately false, frivolous or vexatious ([6]).
Appeal type: Appeal against domestic violence order.
Facts: A domestic violence order was made naming the respondent (WKT) as the aggrieved and the appellant (MKA) as the respondent ([2]). MKA appealed against the decision to grant the protection order ([3]). WKT applied to change the venue of the appeal from Cairns to Southport.
Issues: Whether the application for change of venue should be granted.
Decision and Reasoning: The application was granted.
WKT applied to transfer the proceedings on the grounds that:
MKA opposed the transfer on the basis that:
Morzone DCJ emphasised that the exercise of discretion to grant the transfer is governed by the objectives of the Domestic and Family Violence Act 2012 (Qld), one of which is to ‘…maximise the … wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives’. His Honour placed emphasis on WKT’s mental health condition, which is likely to be aggravated by the appeal proceedings ([25]-[26]).
Charges: Contravention of domestic violence order (‘DVO’) x 2; Common assault x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and respondent were in a relationship and raised 5 children together ([14]). The first contravention of DVO occurred when the appellant swore at the appellant and threatened to slice his own throat (‘June contravention of DVO’). The second contravention of DVO occurred when the appellant verbally abused the appellant (‘September contravention of DVO’). The aggrieved slapped the appellant and told him to leave. The common assault charge occurred when, in retaliation for the slap, the appellant punched the aggrieved in the head and ear (together, ‘September charges’) (see [10]).
The appellant was sentenced to 3 months’ imprisonment for the June contravention of DVO, 9 months’ imprisonment for the September contravention of DVO, and 9 months’ imprisonment for the common assault ([2]). The magistrate declared 39 days’ pre-sentence custody and set a parole release date after 2 weeks ([4]).
Issues: The appellant appealed on 4 grounds in relation to the September charges (see [7]-[8]):
Decision and Reasoning: The appeal was allowed.
In relation to the fourth ground of appeal, the Dearden DCJ held that the September charges could be appropriately separated, because the contravention of DVO was in relation to the verbal abuse, and the common assault was in relation to the physical punch ([18]). However, this meant that the respondent conceded that sentence of 9 months for solely verbal conduct was manifestly excessive ([20]). District Judge Dearden considered that the appropriate sentence for the September contravention of DVO should be 3 months ([21]).
The remaining issue was whether the sentence of 9 months imprisonment for the common assault charge was manifestly excessive ([23]). Considering case law and mitigating circumstances (the fact that the verbal abuse did not involve threats to harm the aggrieved and the assault was precipitated by the aggrieved slapping the appellant), Dearden DCJ held that the sentence was manifestly excessive ([23]-[30]). The appellant was re-sentenced to 6 months’ imprisonment ([32]).
Charges: Breach of temporary protection order x 1.
Appeal type: Appeal against conviction.
Facts: A temporary protection order was made naming ACP as the respondent and MP as the aggrieved. Condition 4 of the order provided that ACP must vacate the family property, and condition 5 allowed ACP to return to the property to collect belongings in the company of a police officer ([10]). The order did not specify the time by which ACP must vacate the property, but ACP gave evidence that the Magistrate said that ACP must vacate the property ‘straight away’ ([58]).
MP returned to the property 3 days later, to find ACP loading belongings onto a truck. ACP had not yet vacated the property ([20]-[21]). ACP gave evidence that he understood the order to mean that he could vacate the property himself, and only needed police attendance to return to the property ([60]).
The bench charge sheet did not set out the particulars of which condition of the order the defendant was alleged to have contravened ([8]), contrary to s 177(4) of the Domestic Violence and Family Protection Act 2012 (Qld) ([19]).
Issues: Whether the temporary protection order was uncertain in its terms.
Decision and Reasoning: The appeal was allowed, and the conviction was set aside.
Judge Horneman-Wren SC concluded: first, that the charge was not adequately particularised; and second, that the order was uncertain in its terms. First, the charge sheet did not inform the defendant of the factual ingredients of the offence ([72]). Second, even though the order did not provide a timeframe within which ACP was to vacate the property, the Magistrate stated that ‘the order is quite clear on its face and I am satisfied that the appellant was aware that he was to get out straight away’ ([79]). This was an error because ‘straight away’ was not incorporated in the condition ([90]).
Appeal type: appeal against a protection order.
Facts: The male appellant and the female aggrieved person (MP) were in a relationship. Commencing in October 2012, there were a number of ‘instances’ of domestic violence (see [28]-[38]). A temporary protection order was made on 15 February 2016. A year later, on 7 March 2017, a Magistrate made a protection order against the appellant for the benefit of MP and her three sons under the Domestic and Family Violence Protection Act 2012 (Qld)(DFVPA). There were five conditions stipulated under the order; the first and fourth were standard conditions under s 56 of DFVPA:
Issue: whether the protection order was necessary or desirable to protect the aggrieved from domestic violence?
Decision and reasoning: the appeal was allowed to the extent that a protection order was made but only with the standard conditions. Conditions 2, 3 and 5 were removed and condition 4 was renumbered as condition 2.
Before considering the issue on appeal, Horneman-Wren SC DC’s observed that the Magistrate did not expressly assess either of the first two steps of the three-step process considered by Morzone QC DCJ in MDE v MLG as the necessary approach to determining the requirement, under s 37(1)(c) of the DFVPA, that “the protection order is necessary or desirable to protect the aggrieved from domestic violence” (see [67]). His Honour then took the opportunity to emphasise the discretionary nature of this requirement and that Morzone QC DCJ’s view on how to determine whether an order is necessary or desirable shouldn’t be seen to mandate those three steps (see [68]-[69]). Indeed, his Honour later recognises that it was sufficiently clear from the Magistrate’s reasons that she answered the first question of the three-stage approach in the affirmative (see [76]-[78]).
In relation to the issue on appeal, his Honour considers the Magistrate’s finding that an order was necessary as unreasonable and reached in error. His Honour opined that evidence of risk of future domestic violence in the absence of a protection order (first step) is not a sufficient basis for concluding that the necessary condition is satisfied (see [80]). However, his Honour regarded the Magistrate’s finding that the protection order was desirable as one that ought to have been made (see [81]). In accordance with the requirement under s 37(1)(c) that the court must only be satisfied with one of the two conditions (see [88]), and as reflected in the orders of this appeal, his Honour therefore agreed with the Magistrate in her decision to make the protection order (see [88]).
Ultimately, it was the terms in which the Magistrate made the order that necessitated modification of the protection order. His Honour noted that under s 57(1) of the DFVPA, before the court may impose other conditions in addition to those set out in s 56, it must be satisfied that the condition is both necessary in the circumstances and desirable in the interests of the aggrieved, named person or the respondent. Having recognised this, his Honour then pointed out that the Magistrate failed to explain that she was satisfied that the imposition of other conditions was both necessary and desirable (see [89]-[90]). The order to remove conditions 2, 3 and 5 of the protection order reflect this view of his Honour that the Magistrate erred in imposing those other conditions.
Charges: Contravention of a domestic violence order as an aggravated offence x 1; Assault or obstruction of a police officer as a domestic violence offence x 1; Possession of dangerous drugs x 1; Contravene direction x 1; Contravention of a domestic violence order simpliciter x 1; Authority for controlled drugs x 1; Failure to properly dispose of a syringe or needle x 1.
Appeal type: Appeal against sentence.
Facts: The appellant breached a domestic violence order naming the appellant’s mother as the aggrieved and her son as a named person in the order. The breach occurred when the appellant made threats to kill herself and her son, in the presence of her son ([17]).
The appellant pleaded guilty and was sentenced to six months’ imprisonment for the contravention of a domestic violence order as an aggravated offence and four months’ imprisonment for the contravention of a domestic violence order simpliciter. For the other charges, the appellant was convicted and not further punished ([2]).
At sentence, the Magistrate indicated that he was considering a prison probation order of 2 months’ imprisonment and 12 months’ probation ([5]). After hearing submissions on that sentence, the Magistrate asked the appellant whether she consented to the probation order. MEG asked, ‘what happens if I say no?’ The Magistrate interpreted this question to mean that MEG did not consent to the order, and immediately imposed the four- and six-month sentences of imprisonment ([29]).
Issues: Whether the appellant was denied procedural fairness, and whether the sentences were manifestly excessive.
Decision and Reasoning: The appeal was allowed, and the appellant was re-sentenced to two months’ imprisonment, which was time already served.
Judge Horneman-Wren SC held that the Magistrate erred in construing MEG’s question (‘what happens if I say no?’) as a refusal to consent. Further, the Magistrate erred in sentencing the appellant to a head sentence of six months without inviting further submissions on the sentence ([32]). The Magistrate did not give reasons for why six months was an appropriate head sentence, and did not refer to any comparable cases ([33]).
Charges: Contravention of domestic violence order x 1.
Appeal type: Appeal against sentence.
Facts: The complainant had obtained a domestic violence order with the appellant as the aggrieved. The order contained a condition that the appellant was not to have contact with the complainant. In contravention of this condition, the appellant travelled to the complainant’s house, stood outside, and called out to her and her son ([16]). The appellant had a criminal history including 13 breaches of domestic violence orders, spanning 12 years to 2015. The appellant was sentenced to 4 months’ imprisonment.
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed for two reasons: first, the sentencing judge erred in not applying the principle of totality; and second, the sentence was manifestly excessive.
In relation to totality, the appellant had previously been sentenced for a failure to appear, and was sentenced to 5 months imprisonment. Since the appellant was on parole, the imposition of the new sentence automatically cancelled his parole. Therefore, the effect of the sentence was to impose a 9-month sentence. The magistrate did not treat the matter in this way, and calculated the parole eligibility date as one third of the 4-month sentence ([40]-[41]).
In relation to the length of the sentence, the sentence was outside the appropriate range. Morzone QC DCJ stated that ‘it seems that the Court allowed the appellant’s previous offending to overwhelm other material considerations and the nature and seriousness of the offending subject of the sentence’ ([42]). The offending conduct was in the lower range, and would not normally attract a sentence of imprisonment. However, the nature of offending in the context of previous past breaches of domestic violence offences warranted a period of one month’s imprisonment ([64]).
The judge determined that the extension of the protection order to was ‘necessary or desirable for the order to regulate the parties’ communication and contact for that period. By that time, the parties’ parental relationship and need for contact will change as the child matures into his early teens.’ [70]
Charges: Assault occasioning bodily harm whilst armed with an instrument x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and complainant were married and had a 5-month-old baby. The appellant was from Papua New Guinea and was staying in Australia on a tourist visa ([2]). The offence occurred when the appellant became angry and threw an apple at the complainant, struck her with a broomstick, and struck the back of her head while she was holding the baby ([3]).
The appellant pleaded guilty on the following day and was immediately sentenced to 15 months’ imprisonment, suspended after serving a period of 2 months for an operational period of 3 years ([1]). He was represented by a duty lawyer ([5]).
The magistrate stated that the ‘only’ appropriate sentence was 15 months’ imprisonment ([11]).
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed.
Judge Reid held that the Magistrate erred by stating that 15 months was the ‘only appropriate term’ ([23]). Comparable cases, most relevantly R v Pierpoint [2001] QCA 493, indicated that a lesser sentence was also open ([25]).
On one hand, the offending was serious: it was somewhat protracted, committed against a female partner, and in the presence of a young child. On the other hand, the appellant had no criminal history, the appellant had ceased hitting the complainant before the police arrived, and there was no previous domestic violence order in place ([26]-[27]).
The appellant was re-sentenced to 9 months’ imprisonment, to be suspended in 10 days, after the appellant had completed serving the sentence of 2 months imprisonment ([30]). Had a pre-sentence custody certificate been provided, a wholly suspended sentence could have been imposed ([30]).
Charges: Contravening domestic violence order x 3; wilful damage x 1; common assault x 1.
Appeal type: Appeal against sentence.
Facts: The complainant was the aggrieved in a domestic violence order taken out against the defendant. The breaches of domestic violence order and common assault charge occurred when the appellant punched and pushed the complainant to the ground on three occasions ([6]). The wilful damage charge occurred when the appellant stomped on her mobile phone while she was trying to contact the police ([7]). Following a plea of guilty, the Magistrate imposed cumulative sentences totalling 18 months’ imprisonment, with a parole release date after 6 months ([3]).
Issues: There were three grounds of appeal: first, that the Magistrate placed disproportionate weight on general community deterrence; second, that the Magistrate disregarded the appellant’s mental health issues; third, that the Magistrate erred in ordering the sentences to run cumulatively without consulting either party.
Decision and Reasoning: The appeal was allowed.
In relation to the first ground, the Magistrate described the appellant’s offending as a ‘reign of terror heaped upon the complainant’ ([16]). District Court Judge Muir described this statement as an exaggeration because the violence was at the lower end of the scale and the offences were committed within a short time period ([31]). The Magistrate also referred to statistics that 700 women would be killed in the next 10 years if nothing was done about domestic violence ([19]). District Judge Muir held that using statistics in this way indicated that the Magistrate did not place sufficient weight on the appellant’s mitigating factors.
On the second ground, the appellant asserted that he suffered from depression, post-traumatic stress disorder and schizophrenia. However, the psychologist’s letter tendered in evidence did not mention those conditions. The Magistrate enquired as to who gave the diagnoses, but more information could not be tendered ([27]). District Judge Muir held that the Magistrate was entitled to place little weight on the diagnoses.
On the third ground, Muir DCJ held that it was an error for the Magistrate to not invite submissions about the possibility of cumulative sentences ([36]).
On the whole, Muir DCJ concluded that the sentence was outside the appropriate range ([47]). The appellant was re-sentenced to an overall head sentence of 9 months’ imprisonment, with the appellant to be released immediately on parole after having served approximately 4 months in prison ([50]).
Appeal type: Appeal against decision to grant protection order.
Facts: The appellant and respondent were brothers. A Magistrate ordered that a protection order be made against the appellant by consent (p 2), with the respondent as the aggrieved. The Magistrate represented to the appellant that the order would not affect the appellant’s weapons license (p 3). In fact, a protection order would limit the applicant’s weapon’s license for five years (p 5). The appellant appealed the decision on the ground that the appellant was induced to consent to the order being made (p 2-3).
Issues: Whether the order should be set aside.
Decision and Reasoning: The order was set aside. Judge Long of the District Court concluded that the appellant did not understand the full consequences of the order being made, and the matter was remitted to a contested hearing (p 6-7).
Charges: Contravention of domestic violence order (DVO) x 1; Possess restricted items x 1; Possess explosives x 1; Assault or obstruct police officer x 1.
Appeal type: Appeal against sentence from Magistrates Court.
Facts: The appellant was subject to a DVO with the complainant named as the aggrieved ([12]). The appellant sent threatening text messages to the complainant, and took their child out of school ([12]). This formed the basis of Charge 1, contravening a DVO. When the police arrived at the appellant’s house, he refused to cooperate, and appeared to reach for a knife while holding the child ([12]). This formed the basis of Charge 4, obstruct police officer.
The appellant was sentenced to six months’ imprisonment with a non-parole period of two months ([1]).
Issues: The defendant appealed on the grounds that: the sentence was manifestly excessive; the Magistrate took irrelevant matters into consideration by relying on the documentation from the domestic violence order; the Magistrate fettered her objectivity; and the Magistrate conflated the facts of Charge 1 and Charge 4 ([2]-[3]).
Decision and Reasoning: The appeal was allowed. Horneman-Wren SC DCJ concluded that the Magistrate erred in conflating the factual issues in charges 1 and 4 ([42]). The other grounds of appeal were not made out. Horneman-Wren SC DCJ considered that a shorter sentence would have been appropriate, but since the appellant had been in custody for 7 weeks, his Honour recorded a conviction and did not further punish the appellant ([47]).
Appeal Type: Appeal against variation to Temporary Protection Order.
Facts: A temporary protection order was made against the appellant which stipulated his former female partner, the respondent, as the protected person. The appellant and the respondent had a son together, K. The terms of the temporary protection order were varied twice. The first variation occurred after the respondent took K out of school (against K’s wishes). The appellant arrived to pick up K, at K’s request. An argument ensued between the appellant and the respondent. The temporary protection order was varied to name K as a protected person.
Second, the respondent reported that her father (the maternal grandfather of K) had made threats against the appellant in the presence of K. The temporary protection order was varied to prevent the appellant from permitting, encouraging or facilitating in-person contact between K and the grandfather. The appellant’s position was that he had never been threatened by the respondent’s father in that way and that K wanted to see his grandfather.
The appellant applied to a magistrate to have these terms varied and removed. The application was refused.
Issue/s: Whether the variations ought to be allowed?
Decision and Reasoning: The appeal was allowed. Kent J held that there were insufficient reasons given for the orders made refusing the variations. This was an error of law and the decision had to be set aside on that basis. Further, there was an insufficient evidentiary basis to prove that either of the contested conditions were necessary or desirable. First, K’s presence at the incident between the appellant and respondent was purely incidental. It was upsetting but no more upsetting than other separate actions of the respondent. It was not prolonged or dangerous and not wilfully brought about, or persisted with, by the appellant. Second, the grandfather’s threats against the appellant were out of the appellant’s presence and not initiated by the appellant. They were unlikely to be repeated and did not involve any violence against K. This was too tenuous to substantiate the challenged conditions (see [38]).
Appeal Type: Appeal against a protection order and an order for costs.
Facts: The male appellant and the female respondent were married in India. It was an arranged marriage. They lived in Australia with their son and the appellant’s parents. Each applied for a protection order against the other, making serious allegations which were denied. There were also proceedings in the family court at the time of the protection order hearing.
The respondent’s application and affidavit set out particulars of domestic violence under several headings: verbal abuse, controlling behaviour, psychological abuse using the child, sexual abuse, financial abuse, threats and intimidation. She perceived an alliance against her (the appellant, his parents and the son). She annexed to her affidavit a transcript of a recording she made as she was packing to leave the family home to provide evidence of this. Conversely, the appellant alleged that the respondent had assaulted the child. He had previously taken the child to a doctor and reported the complaint.
The magistrate made an order in favour of the wife. He dismissed the appellant’s application and also made an order for costs. In doing so His Honour stated:
‘Sadly what I say in these proceedings can’t be used in the Family Court. These proceedings are private proceedings. I wish they could. I wish the Family Court could hear what I think about the reliability of [the appellant]. It’s been a scurrilous case. On my view, his application has been deliberately false and vexatious. I can say that, in 12 years as a magistrate, I have never ordered costs in a domestic violence case before. I intend to today for the first time in many hundreds of cases’.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed.
Was there a proper basis for the order made against the appellant? (see [4]-[34])
Devereaux SC DCJ held that it was open to the magistrate to conclude that the appellant had committed acts of domestic violence against the respondent: s 37(1)(b) of the Act.
Devereaux SC DCJ also held that it was open to the magistrate to conclude that the protection order was necessary or desirable to protect the respondent from domestic violence: s 37(1)(c) of the Act.
Devereaux SC DCJ noted generally that ‘[i]t is advisable that a magistrate make specific findings with respect to the matters set out in s 37 of the DVFP Act’ (see [27]). However, here, ‘the manner in which His Honour reached and set out conclusions is sufficiently clear to be amenable to examination and review’ see [28].
Appeal Type: Appeal against the making of a protection order against the appellant and appeal against the decision of the Court to dismiss the appellant’s application for an order.
Facts: The male appellant and the female respondent were in a relationship. They had two children together, DJ and MJ (aged 3 and 2), and another daughter, LS (aged 8), from the respondent’s previous relationship. The appellant had been abusive to LS in the past. The parties had separated and the three children lived with the respondent. The respondent and the appellant each applied for a protection order against the other. There were also contact/care proceedings in the Federal Circuit Court.
The respondent’s case was that on 14 August 2015 the appellant spoke loudly and in an insulting way towards her. Many, if not all, of these statements were made in front of DJ and MJ, upsetting the children. The appellant rubbed his beard against the respondent’s eye area and continued to verbally abuse her. The respondent tried to ignore him. He took her phone and ran outside. There was a struggle. He pushed the respondent, she was thrown onto the car bonnet and the appellant sustained some scratches (see [6]-[32], [112]-[126]). Conversely, the appellant alleged that the respondent ‘went berserk’, pushed him around the balcony, grabbed and attacked him, and he ran away from her. She then physically assaulted him. He sustained scratches and a ripped shirt. He also alleged he was a victim of economic abuse (see [33]-[53]).
The Judicial Registrar (JR) made a protection order against the appellant in favour of the respondent. The JR dismissed the cross-application by the appellant (see [56]-[58]).
Issue/s: One of the grounds of appeal was that the decisions of the Judicial Registrar were made against the weight of the evidence, namely the making of a protection order against the appellant in favour of the respondent; including the two children, MJ and DJ, in the order; including the child LS in the order; and the refusal to make a protection order against the respondent in favour of the appellant.
Decision and Reasoning: The appeal was dismissed.
First, Smith DCJA held that a number of the acts committed by the appellant amounted to domestic violence as per s 37(1)(b) of the Act Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) – ‘the rubbing of the beard was physically abusive, the taking of the phone was physically abusive and the insulting words about the first respondent was in my view emotionally or psychologically abusive’ (see [131]).
Second, in considering whether a protection order was ‘necessary or desirable’ to protect the aggrieved as per s 37(1)(c), Smith DCJ noted that the reasoning of McGill SC DCJ in GKE v EUT applied here. McGill SC DCJ said:
‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’(see [32]-[33]).
Smith DCJA noted that ‘necessary’ is defined by the dictionary as ‘requiring to be done, achieved; requisite, essential’ and desirable is defined as ‘worth having’. There is therefore a ‘lower threshold when one is concerned with the term ‘desirable’. But both are focused on the need to protect the aggrieved from domestic violence’ (see [137]-[139]).
His Honour ultimately agreed with the JR’s reasoning that an order was both necessary and desirable to protect the aggrieved from respondent. At [140]:
‘There is no doubt that the parties are embroiled in Federal Circuit Court proceedings. There are children of the relationship about whom contact/care arrangements will need to be made. These will need to be dealt with in a civilised and appropriate fashion. I have considered s 4 of the Act. In light of the history between the parties, the events of 14 August 2015, the nature of the relationship, and degree of animosity expressed by the appellant towards the first respondent, in my view, it was both desirable and necessary that the order be made in favour of the first respondent. Like the JR, I consider without such an order there is a real risk of future domestic violence’.
Section 53 of the Act provides that the court may name a child ‘if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from (a) associated domestic violence or (b) being exposed to domestic violence committed from the respondent’. Section 10 of the Act defines the meaning of ‘exposed to domestic violence’.
Smith DCJA was satisfied that the children were exposed to domestic violence (see [148]). Further, His Honour stated: ‘I do not consider there is any requirement they understand the words spoke, particularly bearing in mind they were spoken aggressively’(see [149]). Additionally, it was also necessary and desirable for the children to be included in the order because, as the JR found, there was a continued risk of exposure to domestic violence in the future. This was because the parties would continue to be in contact through the children of the relationship and proceedings were on foot in the Federal Circuit Court (see [150]-[151]).
His Honour held that:
‘[I]n all of the circumstances, bearing in mind that there is a real possibility of contact between the appellant and LS, and bearing in mind the acrimonious situation between the parties and the events of 9 July 2015 [when the appellant was physically abusive towards LS] and 15 August 2015, I consider the JR was right to add LS to the order to avoid the risk of her being exposed to domestic violence’ at [159].
In this regard, Smith DCJA noted the respondent had tried to ignore the appellant and that the scratches sustained by the appellant could have been caused in self-defence or accidently by the respondent. In this regard, His Honour quoted the explanatory notes to the 2011 Bill at [166]:
‘Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders. During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship cannot be a victim and perpetrator of this type of violence at the same time. A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken’ (His Honour’s emphasis).
In light of this, Smith DCJA held that there was no ‘physical abuse’ of the respondent by the appellant. Also, on the totality of the evidence, the respondent was most in need of protection (see [167]-[172]).
Charge/s: Breach of a domestic and family violence order.
Appeal Type: Appeal against sentence.
Facts: The male appellant and the female complainant were in a relationship. They were subject to a domestic violence protection order on 8 July 2015 for a period of two years. These were cross-orders. In October 2015, the appellant breached these orders and was fined $500. On 20 November 2015, police attended their address after reports of a dispute. The appellant told police that he and the complainant were in a heated argument, which the complainant had initiated. The appellant said he bumped into the complainant, causing her to stumble. The complainant slapped the appellant. He then grabbed the complainant, threw her on the bed, and restrained her with his body weight. He released her and the argument continued until police arrived.
In sentencing, the magistrate expressed significant concern about the chronology of events namely, that the domestic violence order had been made in July 2015, breached by the appellant on 27 October 2015, the appellant was sentenced for that breach on 11 November 2015, and he then breached the domestic violence order again on 20 November 2015. The appellant was sentenced to three months’ imprisonment, wholly suspended, with an operational period of 12 months.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed. Dearden DCJ noted that the magistrate failed to give appropriate recognition to a number of relevant factors, namely at [22]:
His Honour noted that ‘magistrates dealing with breaches of domestic violence are, of course, under significant time pressures and the learned magistrates sentencing remarks are brief’. However, His Honour held that, ‘the transcript does not indicate that the learned magistrate in any way considered alternatives other than imprisonment in respect of this matter, and appears only to have taken into account the chronology (which is obviously significant) and to some very minor extent (referenced at the conclusion of her sentencing remarks) the steps that the appellant had taken in respect of receiving assistance from Dr Calder-Potts and Anglicare’ (see [24]).
The appellant was resentenced to 18 months’ probation with a special condition that he continue treatment and complete 100 hours of community service. No conviction was recorded.
Charge/s: Contravention of a domestic violence order x 2, breach bail condition x 2, and a further contravention charge.
Appeal Type: Appeal against sentence.
Facts: The male appellant and the female complainant were in a relationship. In relation to the first contravention of a domestic violence order, on 18 March 2015, the appellant pushed the complainant over and punched her to the jaw. No physical injury was alleged. After being arrested and charged, the appellant was released on bail. The second contravention of a domestic violence order occurred on 30 May 2015. The appellant grabbed the complainant by the throat and hit her, knocking her to the ground. He kicked her, dragged her to her feet and verbally abused her. The appellant then dragged her to a nearby park, knocking her to the ground again, hit her in the head, picked her up and continued to drag her. No physical injury was alleged. A head sentence of 15 months imprisonment was imposed on the second contravention of domestic violence order.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Counsel for the appellant submitted that a sentence of 12 months imprisonment with a release after four months was appropriate in light of the authorities of PMB v Kelly [2014] QDC 301 and Singh v QPS [2013] QDC 37. Durward SC DCJ distinguished both of these cases (see [20]).
Here, Durward SC DCJ was satisfied that a sentence of 15 months imprisonment was not manifestly excessive. This was in light of a number of factors. The appellant’s conduct involved significant aggravating circumstances namely, the first contravention of a domestic violence order was committed two weeks after the expiration of an earlier imposed sentence, the second contravention charge occurred while the appellant was on bail for the former offence, and the appellant had previous convictions for breaches of domestic violence orders (including one committed against the same complainant) (see [21]). Further, the conduct of the appellant in the second charge was ‘sustained and patently violent’. It occurred not only in a residence but in a public area (see [22]). Finally, the appellant had a significant criminal history (see [23]).
Appeal Type: Appeal against protection order.
Facts: The female respondent and the male appellant began a relationship in March 2014. The appellant gave her a false name, ‘Cray’, and other false details about his life. The respondent ended the relationship on 31 December 2014. From January to May 2015, the respondent received a series of text messages from the appellant. While at first these messages were consistent with someone trying to salvage the relationship, they became increasingly aggressive and abusive. Some included sexually explicit references.
The respondent contacted police in February 2015. The police made contact with the appellant. The appellant asserted that he was not ‘Cray’ and, in a series of phone calls, threatened the police and the respondent with legal action. He then sent the respondent a nine page threatening and intimidating letter. A temporary protection order was made in favour of the respondent. The appellant then instructed his solicitors to write a letter seeking the proceedings to be discontinued. This letter denied that he ever knew the respondent.
On 20 November 2015, the court made a protection order in favour of the respondent against the appellant. The magistrate noted in his findings that the respondent was clearly upset and frightened in court. She had difficulty giving evidence and, even when removed to the vulnerable witness room, she covered her face from the camera. The appellant, on the other hand, appeared confident and in control.
Issue/s: One of the grounds of appeal was that there was no or no sufficient evidence to support the finding that His Honour was satisfied that an order was necessary or desirable to protect the respondent from domestic violence.
Decision and Reasoning: The appeal was dismissed. Harrison DCJ had regard to the decision of Morzone DCJ in MDE v MLG & Commissioner of the Queensland Police Service where he asserted that the question of whether ‘the protection order is necessary or desirable to protect the aggrieved from domestic violence’ in s 37(1)(c) of [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) requires a three-stage process supported by proper evidentiary basis. As per Morzone DCJ at [55]:
‘Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order:
Harrison DCJ held that although the magistrate did not refer specifically to each of the three stages of the three-stage process described in MDE, the magistrate did not err in finding that it was desirable to make the necessary protection order for the protection of respondent from domestic violence:
Appeal type: Appeal against domestic violence protection order
Facts: The appellant and respondent were in a de-facto relationship for almost 10 years and had children together. After separating, the respondent became the children’s primary caregiver. The appellant assisted her in looking after the children and they continued in a parenting relationship. A domestic violence protection order was made against the appellant to protect the respondent in the Magistrates Court. The magistrate had regard to three court orders existing between the parties in making this order. These were a Family Court order, a protection order made against the respondent naming the appellant as aggrieved, and a temporary protection order with the respondent as the aggrieved.
Prior to the making of the domestic violence protection order, the appellant made a complaint to police that his daughter was ‘sexting’. A few weeks later, he made another complaint that the respondent texted him in contravention of the protection order naming him as the aggrieved. However, after investigations the police determined both these complaints were unfounded. The appellant then allegedly threatened to kill their children, the respondent, her new partner and his children. The appellant than made a further complaint that the respondent’s new partner had unregistered firearms. After searching his home, the police did not find any of the alleged firearms. Several months later the appellant complained that the respondent kidnapped his 17-year-old daughter. This complaint was also unfounded. Finally, the appellant allegedly threatened the children that the respondent would be sent to gaol.
The magistrate was satisfied that a protection order was desirable to protect the respondent from domestic violence. He accepted that the appellant’s conduct in making complaints to police caused the respondent to live in constant fear of the appellant. In particular, she feared that the appellant would act on his threats to kill her and her family. The magistrate considered that this amounted to domestic violence for the purposes of s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).
Issues: Some grounds of appeal were:
Decision and reasoning: The appeal was dismissed and the protection order was affirmed.
As a preliminary issue, Morzone QC DCJ denied the appellant’s request for a de novo rehearing as of right ([12]-[23]). Further, His Honour rejected the submission that the evidentiary standard of proof under the Act is higher than on the balance of probabilities ([24]-[27]- discussing Briginshaw v Briginshaw [1938] HCA 34).
The magistrate did not err in finding the conduct amounted to domestic violence under the Act. The appellant’s complaints to police were ‘over-reaching, baseless or made for a collateral purpose’ ([44]). They were not made for the purpose of protecting the children as submitted by the appellant, but rather to harass the respondent. This, together with the appellant’s threats to the children, impacted the respondent and caused her to live in substantial fear for her own safety and the safety of her children, her partner and his children. The complaints to police were harassing and intimating to amount to emotional and psychological abuse. They were also threatening and controlling or dominating to cause fear to the respondent’s safety. Therefore, the behaviour fell within the definition of domestic violence under ss 8(1)(b),(d) and (f) of the Act.
In finding that the complaints amounted to domestic violence, the magistrate accepted the uncontested facts and rejected the appellant’s evidence where it conflicted with other witnesses. There were no identifiable incontrovertible facts or uncontested testimony to demonstrate the magistrate erred in making these conclusions about the evidence.
Appeal Type: Appeal against a Protection Order.
Facts: The appellant appealed against a magistrate’s decision to make a Protection Order requiring him to be of good behaviour towards the aggrieved (his partner) and her son. The order was made after a disagreement over the family meal. The appellant took the aggrieved’s mobile phone in an attempt to get her to go downstairs to discuss matters with him. The aggrieved tried to get the phone back and the appellant discarded it onto the floor, causing minor but irreparable damage to its cover. At some point, the back of the appellant’s hand came into contact with the aggrieved’s ear, causing relatively low level pain and no injury to the aggrieved. The appellant and the aggrieved continued arguing loudly until the police arrived (see [9]).
The magistrate made the following findings of domestic violence (see [10]):
Issue/s: Whether the magistrate erred in making a protection order under s 37 [Domestic and Family Violence Protection Act 2012 (Qld)], specifically:
Decision and Reasoning: The appeal was allowed. Rackemann DCJ held that it was open to the magistrate to conclude that there was at least some domestic violence committed by the appellant against the aggrieved. His Honour agreed that the following behaviour amounted to domestic violence under s 8 [of Domestic and Family Violence Protection Act 2012 (Qld)]:
‘The action of the appellant in seizing the aggrieved’s mobile telephone was behaviour which, in the circumstances, was coercive - being designed to compel the aggrieved to do something which she did not wish to do (ie come downstairs to discuss matters of concern to the appellant). Further, the appellant responded to the aggrieved’s attempt to get her telephone back by, amongst other things, throwing the phone onto the floor thereby damaging it. That the phone was discarded in a throwing motion had support in the evidence’ at [11].
However, beyond that, the magistrate erred in her findings of domestic violence. In light of the evidence (see consideration at [14]-[29]), the magistrate’s finding of an ‘intentional back-handed slap’ could not be supported. Further, the magistrate erred in characterising the appellant’s behaviour as emotionally or psychologically abusive – behaviour that, amongst other things, intimidates (a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour) or harasses (there must be an element of persistence): GKE v EUT. A consideration of the evidence could not support this conclusion (see [30]-[46]).
The finding of more extensive domestic violence on the night in question than what occurred further affected the magistrate’s consideration of whether an order was necessary or desirable. In reconsidering whether an order was necessary or desirable, Rackemann DCJ again noted the decision in GKE v EUT where McGill SC DCJ observed in relation to s 37(1)(c) [Domestic and Family Violence Protection Act 2012 (Qld)] that:
‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’ (see [32]-[33]).
Here, the risk was not such to conclude that the making of a protection order was ‘necessary or desirable’ on the facts as established at the time of the hearing before the magistrate in February 2015. This was in circumstances where: there was no demonstrated history of domestic violence prior to the night in question; the event was a single incident involving domestic violence which, whilst in no way acceptable, was not at the most serious end of the scale of such conduct; the aggrieved gave evidence that she was not fearful of the appellant and did not believe that she needed protection from him; and, at the time of the hearing before the magistrate, the appellant and the aggrieved had continued their relationship without suggestion of further incident (see [49]-[50]).
Charges: Assault occasioning bodily harm, breach of temporary protection order (TPO) (4 counts), breach of bail (7 counts).
Appeal Type: Appeal against sentence.
Facts: Two weeks before the offending, a TPO was served on the respondent (an Aboriginal man) which named the complainant (his partner), their young son and their unborn child as protected persons. The order prohibited him from being in the vicinity of the complainant apart from authorised contact with their child with the complainant’s consent and required that he be of good behaviour towards the protected persons. The offending occurred when the respondent went to the complainant’s house to visit his son without authorisation. He approached the complainant with a metal pole and verbally abused her. He dropped the pole and walked towards the complainant with a clenched fist. He then punched, struck and kicked her which caused her to fall to the ground. She was taken to hospital and released that night. After fleeing, the respondent returned later that night, came into her yard and asked to talk to her. Police found him sitting in a car with a machete at his feet. His criminal history included property, street and driving offences, as well as a history of breaching community based orders. He had a serious drug addiction. He pleaded guilty early and was sentenced to 12 months’ imprisonment for assault occasioning bodily harm. Concurrent lesser terms for the other offences were imposed. The offending also wholly activated an existing suspended sentence. He was released on parole immediately.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld. Her Honour held that the Magistrate erred in taking considering the respondent’s eventual surrender to police as a mitigating factor. While the surrender was voluntary, it had to be considered in the context of numerous bail breaches leading up to sentence, which was consistent with his history of disregard for court orders. In relation to the complainant’s apparent wish to continue the relationship with the respondent, her Honour noted at [34]-[35] that – ‘Courts in Queensland and in other states of Australia, have recognised the need to approach submissions about reconciliation with real caution, because of the particular features of domestic and family violence. The fact that a victim is a reluctant complainant is not a mitigating factor. Likewise, reconciliation after the victim has complained ought not mitigate the sentence. There may be cases in which reconciliation is relevant to an offender’s prospects of rehabilitation. However, that comes from the offender’s conduct, not the victim’s forgiveness. The nature of the relationship means victims may, contrary to their own welfare, forgive their attacker. That does not reduce the risk posed by the offender and, depending on the dynamics in a particular relationship, it could well exacerbate the risk. Necessarily, prospects of rehabilitation must be assessed by reference to the offender’s attitude and conduct, not the victim’s.’
In this case, the Magistrate correctly did not treat the complainant’s support as a mitigating factor. However, the Magistrate did err by immediately releasing the respondent to encourage his rehabilitation. Rehabilitation is an important consideration for young indigenous people with drug addictions. However, given the seriousness of the offence and the vulnerability of the victim, the need for denunciation and deterrence outweighed the need for rehabilitation. In citing comparable authorities, (see from [45]-[62]), her Honour then concluded that the sentence was manifestly inadequate. The respondent was re-sentenced for assault occasioning bodily harm to 18 months’ imprisonment, with parole release set at the one third mark in the sentence. A conviction for a domestic violence offence was recorded.
Charge/s: Contravention of a domestic violence order.
Appeal Type: Appeal against sentence.
Facts: The appellant was 24. He had a criminal history, including nine previous convictions for contravention of domestic violence orders. The appellant was hospitalised when his female partner, the aggrieved, stabbed him in the leg and foot with a knife during an argument. A temporary protection order was made prohibiting the appellant from contacting the aggrieved. The stabbing incident was not the subject of any charge. Over the next two days, the appellant contacted the aggrieved on her mobile phone 60 times. These calls did not involve any threats or actual violence. The appellant was on parole for a sentence imposed at an earlier time. The appellant was sentenced to six months imprisonment, which was to be served cumulatively upon the 15 month prior sentence.
Issue/s: The magistrate erred in two significant respects which resulted in an excessive sentence:
Decision and Reasoning: The appeal was allowed. First, Morzone QC DCJ noted that the surrounding circumstances, the appellant’s criminal history and the stabbing incident, were properly provided by the prosecution by way of context for the subject offending. However, His Honour continued at [17]:
‘[t]he danger was that that context could potentially take on an overwhelming character with the prospect of elevating the nature of the offending the subject of the sentence. It seems to me that that danger was realised and can be demonstrated by the sentencing remarks of the magistrate where she conflated the past criminal history, other intervening behaviour and the subject offending’.
Here, the criminal history and the conduct that constituted it were not as proximate to the subject offending as apprehended by the magistrate. Evidence of the stabbing was accepted in the context that the police did not press charges against the aggrieved but the magistrate determined that the aggrieved was acting in self-defence. Further, there was little or no regard given to any particular findings of fact surrounding the subject offending, namely, the 60 occasions of telephone contact. Rather, this was relegated to almost incident behaviour. Thus, Morzone QC DCJ held that ‘[b]y conflating the historical criminal behaviour and other violent behaviour with the subject offending, it seems to me that Her Honour mistook the facts and allowed erroneous or irrelevant matters to guide or affect her exercise of discretion’ (see [18]-[21]).
Second, Morzone QC DCJ held that at [30]:
‘the magistrate acted on a wrong principle by characterising the pre-existing sentence to a “different issue altogether” because the appellant breached his parole by reoffending. She apparently had no regard to the “period of imprisonment” required by section 160F of the [Penalties and Sentences Act 1992 (Qld)]… and the extension of the totality principle … It seems to me that her approach caused her to fall into error by failing to take into account material considerations of the whole period of imprisonment (including the balance of the previous sentence), reviewing the aggregate sentences and considering whether the latter was just and appropriate’.
The appellant was re-sentenced to three months imprisonment, to be served concurrently with the existing sentence.
Charge/s: Breach of domestic violence order.
Appeal type: Appeal against sentence.
Facts: The appellant pleaded guilty and was convicted for contravening a domestic violence order and sentenced to 10 months’ imprisonment. The order prohibited the appellant from contacting the aggrieved apart from matters in relation to their child. He breached this condition by 41 sending emails over an 11 week period, the content of some of which were not solely in relation to their child. He was released on parole on the day of sentence. The appellant had an ‘appalling’ (see at [21]) history of breaching protection orders – consisting of 10 total convictions of which 8 related to the aggrieved. In fact, he was on probation for these offences when this offence was committed.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. Kingham DCJ acknowledged at [17] that this was an ‘unusual’ sentence. There was no physical violence, actual or threatened. There was no intimidation or any harassing or controlling behaviour. While there were 41 emails, they were sent over an 11 week period and not all of them breached the order as some were related solely to the child. There was also one very minor personal contact at a child care centre. Kingham DCJ found these facts in combination do not warrant a sentence of imprisonment. Notwithstanding, the appellant’s clear ‘disdain’ ([21]) for protection orders as evidenced by his criminal history warranted a strong element of personal deterrence in the sentence. However, her Honour emphasised that the purpose of the sentence was not to punish the appellant again for prior offending, and that the Magistrate, ‘gave the Appellant’s prior history such weight that it led to the imposition of a penalty which was disproportionate to the gravity of this offending’ (See at [22]). As such, the Court concluded (while also taking into account comparable authorities) that the sentence was excessive. It was reduced to 6 months. The immediate parole release was not changed.
Appeal type: appeal against a protection order.
Facts: On 17 October 2014, a police officer made an application for a protection order against the appellant (MDE) for the benefit of the first respondent (MLG) under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). MDE had been continually harassing MLG over the phone and outside her apartment (see [1]-[6]). On 23 October 2013, a temporary protection order was issued with the standard condition (under s56 DFVPA) that “the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.” Three months later, on 21 January 2015, the Magistrate heard the application and decided to issue a protection order against MDE having been satisfied the requirements under s 37 of DFVPA could be established. The order incorporated the standard condition under s 56 and other conditions under s 57 of the DFVPA ([13]).
Issues: The appellant appealed against the Magistrate’s decision on six grounds, of which the first three questioned the correctness of the Magistrate’s application of s 37 of the DFVPA and the last three concerned procedural and fact-finding errors on the Magistrate’s part (see [18]). Relevantly, the first ground of appeal was that the Magistrate failed to follow, as required, the decision in GKE v EUT [2014] QDC 248 at [33] which provides that a future ‘risk’ of violence must be considered and, if absent, a protection order should not be issued (see [64]).
Decision and reasoning: The appeal was allowed and the protection order was therefore set aside.
The second and third grounds of the appeal (see [69] and [56] respectively), along with the fourth, fifth and sixth grounds (see [73]-[79]), were rejected by Morzone QC DCJ (see [72] and [63] respectively). The first, however, was allowed.
Morzone QC DCJ found that the Magistrate relied on erroneous or irrelevant matters and principles in their determination of whether the order was “necessary or desirable” ([68]). Specifically, his Honour highlighted at para [65]-[66] that the Magistrate’s reasons confused the requirements set by s 37(1)(a) and s 37(1)(c). His Honour further noted that the Magistrate failed to expressly examine the material considerations relevant to s 37(1)(c) and (2) ([67]). These included the nature and risk of future domestic violence, the protective needs of the aggrieved (if any), and, if a need was found, how imposing a protection order would be “necessary or desirable” to meet those needs ([67]).
The Magistrate’s decision was therefore considered unreasonable by Morzone QC DCJ. This prompted his Honour to re-examine the third element posed by s 37(1)(c), that is, whether a protection order is necessary or desirable to protect the aggrieved from domestic violence ([84]).
Importantly, earlier in his judgement, Morzone QC DCJ expressed the view that the third element of s 37(1) requires a three-stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the DFVPA) (see [55]). In short, the three steps involve (1) assessing the risk of future domestic violence between the parties in the absence of any order, (2) the need to protect the aggrieved from that domestic violence in the absence of any order, and (3) whether imposing an order is “necessary or desirable” to protect the aggrieved from the domestic violence (see [55]).
Upon analysis of the evidence in para [85]-[89], Morzone QC DCJ reached the conclusion that the first and second stage cannot be established, meaning the imposition of a protection order was neither necessary nor desirable to protect MLG from the domestic violence and therefore, the protection order ought not remain in force.
Appeal Type: Application for an extension of time in which to file an appeal against the variation of a domestic violence order.
Facts: The appellant (the respondent in a domestic violence order) failed to appear at the Magistrates’ Court for an application to extend the order. The Magistrate noted appellant’s absence. The Court proceeded to ‘hear and decide the application’ pursuant to section 94 of the Domestic and Family Violence Act 2012 (Qld).
Issue/s: Whether the Magistrate correctly heard and decided the matter.
Decision and Reasoning: The appeal was allowed. Judge Reid considered the remarks of the Magistrate. The remarks did not consider the reasons put before the Court by the applicant as to why the domestic violence order should be extended. These reasons included allegations of physical and verbal abuse and multiple breaches of the order. Instead, the Magistrate simply made the order and considered whether the order should be extended for 18 months or for two years. Judge Reid was concerned that the Magistrate dealt with the matter, ‘merely as a rubber stamp exercise’. There was nothing in the Magistrate’s remarks to indicate that she had read the material to ascertain whether or not the breaches of the order actually occurred. There was little or no particularity in the allegations, specifically about when or where the breaches occurred. In circumstances where parties do not attend, it is incumbent upon the Magistrate to ‘hear and decide’ the matter, even if it is entirely upon affidavit evidence. The transcript did not indicate that the Magistrate considered the question at all. As such, the order was set aside.
Appeal Type: Appeal from dismissal of application for protection order.
Facts: The appellant appeared unrepresented in the Magistrates’ Court and filed for a protection order pursuant to the Domestic and Family Violence Act 2012 (Qld). She was initially granted a temporary protection order in the Magistrates’ Court. The Magistrate then made directions to the effect that the evidence of all witnesses in support of the application was to be filed as affidavit evidence. No such affidavit evidence was provided. The appellant believed that the application itself, without further affidavit evidence was sufficient. The application for the protection order was then refused, with the Magistrate concluding that there was no material before the Court (see further at [7]-[9]).
Issue/s: Whether the aggrieved in a protection order application can rely solely on the application without further affidavit evidence.
Decision and Reasoning: The appeal was upheld. The Domestic and Family Violence Act 2012 (Qld) makes clear that the formal rules of evidence do not apply and gives the Court broad powers to ‘inform itself in any way it considers appropriate’ (see s 145). However, the court obviously still has an obligation of procedural fairness. Dick SC DCJ explained that in hearing and determining an application for a protection order, ‘there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter’ (See at [11]). The Magistrate’s directions did not exclude the appellant’s sworn application as evidence. Therefore, the Magistrate’s conclusion that there was no material before the Court was an error of law. The Magistrate did not consider and determine the application. As such, it is clear that an aggrieved person can rely solely on the application as evidence without the need for further affidavit evidence. The respondent can then respond to the application if they choose. The application was remitted back to the Magistrates’ Court for determination by a different magistrate.
Appeal Type: Appeal against the making of a domestic violence order.
Facts: A domestic violence order was made in the Magistrates’ Court against the appellant in favour of the respondent. There had already been orders made in the Family Court in relation to arrangements for their three children. The appellant filed for enforcement of these orders in the Family Court. He attended the respondent’s home for the purpose of serving court documents. When the respondent opened the door, she closed it immediately because she felt frightened. This incident and other prior incidents led to the application for the order.
Issue/s:
Decision and Reasoning: The appeal was upheld.
McGill DCJ upheld the Magistrate’s finding that the incident at the respondent’s home constituted domestic violence. His Honour considered the definition of ‘emotional and psychological abuse’ in s 11 of the Act. He noted that the issue is whether the behaviour is subjectively intimidating or harassing to the other person. Therefore, evidence of the subjective response of the aggrieved is relevant (see at [21]). His Honour noted at [22] that while examples in the Act refer to persistent conduct, intimidation within the meaning of s 11 could arise from a single incident. However, harassment cannot arise from a single incident. His Honour stated that there has to be ‘some element of persistence’ such that, ‘It is not just a question of whether the aggrieved finds something upsetting’ (see at [23]). As such, while the incident at the house amounted to domestic violence, the Family Court application itself was not an example of domestic violence –
‘I suspect it would be possible for the making of repeated applications to the Family Court without justification to amount to “harassment”, though it would have to be a clear case; it would certainly not be harassment simply because from time to time the respondent denied the appellant access to the children and he made an application to the Family Court to obtain it’ (see at [20]). The mere fact the appellant takes steps to enforce Family Court orders does not and cannot constitute domestic violence. Conversely, the respondent unjustifiably withholding the children cannot justify domestic violence by the appellant.
McGill DCJ noted that this question is concerned with the future. Another relevant consideration was that while the respondent did not want to see the appellant at all, the terms of the Family Court order and the presence of the children dictated that there had to be some continuing contact between the parties.
See at [32] – ‘In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that…I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made….’
The evidentiary basis for this risk must amount to more than the mere possibility of such conduct occurring (See at [33]). It is also relevant to consider the seriousness of the violence that is threatened, the credibility of the threat and the practical consequences of the order on the person against whom the order is made. For example, a no contact order ought not be made where some contact is necessary in relation to children (see at [42]-[43]). In applying these principles, his Honour found that it was not necessary or desirable to make an order. His Honour noted that while it was possible that circumstances could arise which amount to intimidation, the issues relating to the children remain in the Family Court. It would not be appropriate to make a protection order to interfere with the appellant’s right to enforce his rights in that jurisdiction. There was no real risk of domestic violence as long as the respondent complied with the Family Court orders (see at [67]).
Charges: Breach of domestic violence order, assault of a police officer.
Appeal Type: Appeal against sentence.
Facts: The appellant and the aggrieved were drinking, then returned home (in the Normanton district). Following a dispute, the appellant became agitated and punched the aggrieved, causing a minor injury. After police were called, officers were forced to use capsicum spray to subdue the appellant. He continued to threaten violence after his arrest. He had a long criminal history including many property and drug offences. He had one prior conviction for breaching a domestic violence order, for which he was fined $100. He submitted this matter was not one of ‘significant gravity’ (See at [9]). The appellant submitted in the Magistrates’ Court that the relationship was not one characterised by violence. Following pleading guilty, he was sentenced to six months’ imprisonment with immediate parole release for the breach offence. He was sentenced to one month imprisonment wholly suspended for an operational period of nine months for the assault offence. In his sentencing remarks, the Magistrate referred to crime statistics and noted the prevalence of breaches of domestic violence orders and offences against police in the Normanton district, which necessitated a strong element of general deterrence in sentencing.
Issue: Whether the sentence for the breach offence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The Court acknowledged that the Magistrate did err by not properly indicating how he took into account of the plea of guilty, and by using the statistics, which were found to not be reliable. Mitigating factors included the appellant’s youth and his early plea of guilty. The relationship was long-term and was not characterised by actual violence. His criminal history, while relevant, was minor. However, at [35] Bradley DCJ emphasised that domestic violence involving psychical violence is a serious issue and the appellant did cause some injury to the aggrieved. He had been recently convicted of breaching a protection order and general and specific deterrence were important. He was subject to various court orders when he committed the offence. The maximum penalty was three years. As such, the sentence was held to be appropriate.
Charge/s: Grievous bodily harm.
Proceeding: Application for a permanent stay of proceedings.
Facts: An indictment before the District Court charged the applicant with grievous bodily harm. The incident involved the applicant drinking alcohol in a group which included the complainant (his de facto partner). An argument ensued. The applicant struck the complainant with a collapsible chair. He was charged with breaching a domestic violence order, pleaded guilty in the Magistrates’ Court and was sentenced to 12 months’ imprisonment with parole release after four months. The police then obtained a medical report indicating that the complainant’s injuries, if left untreated were likely to have caused ‘disfigurement or loss of vision’ and could have proved life threatening (see at [3]). As a result, he was then charged with grievous bodily harm (GBH) three days after being released from custody.
Issue/s: Whether the continued prosecution of the GBH charge would constitute an abuse of process under s 16 of the Queensland Criminal Code because the applicant had already been punished for the same act.
Decision and Reasoning: The application was dismissed. O’Brien DCJA considered the test as applied in R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014). His Honour concluded at [9] that the applicant was punished in the Magistrates’ Court for the act of striking the complainant with the chair and that it was this same act which formed the basis of the GBH charge. Ordinarily, to punish the defendant again for that same act would contravene s 16 of the Code. However, the Crown submitted that s 138 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) operates to authorise the continued prosecution of the GBH charge. The Court accepted this argument. The crucial issue was whether the original prosecution for the breach offence against the Act constituted a ‘proceeding’ under that act. If it did, s 138(3)(a) would apply so that the prosecution for the breach offence would not affect any other proceeding against the applicant arising out of the same conduct. His Honour concluded that the prosecution for the breach offence was a proceeding under the Act (see at [15]). As such, R v Dibble; ex parte Attorney-General (Qld) (where a permanent stay was granted) was distinguished on the basis that the Act specifically authorises continuation of the prosecution. However, this issue has not been authoritatively resolved and uncertainty remains. See at [17] where his Honour states –
‘I should add that, if my tentative view of s 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether s 16 of the Code prohibits him being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.’
See pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book and the summary of R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) for further information.
Charge/s: Assault occasioning bodily harm, breach of domestic violence order, possession of dangerous drug.
Appeal type: Appeal against sentence.
Facts: Following an argument with the complainant, the appellant followed her, grabbed her by the harms and threatened her. She broke free, but was punched by the appellant in the right side of the jaw, causing her to bleed profusely. He was highly intoxicated. That constituted the assault offence. He was found to be in possession of cannabis at the time. The breach involved the same complainant. That offence occurred when she was heavily pregnant. The appellant demanded she have sex with him and she refused. He threw her phone at her and punched a door. He was intoxicated. He had a criminal history consisting of various street offences, one conviction for assault occasioning bodily harm and one conviction for breaching a domestic violence order. He was sentenced to three months’ imprisonment for the breach charge and nine months’ imprisonment for the assault charge, and fined $400 for the drug charge.
Issue/s: Whether the penalty was too severe. More specifically, there were issues concerning –
Decision and Reasoning: The appeal was dismissed.
Case type: Appeal against protection order.
Facts: The appellant and the aggrieved were in a relationship and had 2 children ([6]). During family law proceedings, the aggrieved alleged that the appellant harassed her in numerous ways including: making complaints to government agencies such as the Queensland Ombudsman and Centrelink; filing a Notice of Child Abuse in the Family Court; and applying for a domestic violence order and claiming $250,000 for damages for perjury, both of which were dismissed ([13]).
The Magistrate granted the protection order. He was satisfied that the applicant committed domestic violence in intimidating and harassing the aggrieved and was likely to commit domestic violence again ([21]).
Issues: Whether the Magistrate erred in granting the protection order.
Decision and Reasoning: The appeal was dismissed. McGinness DCJ held that the appellant’s numerous complaints about the aggrieved were ‘unjustified and an abuse of process’ ([44]). The actions constituted a course of conduct designed to intimidate and harass the aggrieved ([44]).
Charge/s: Breach of domestic violence order (2 counts), breach of bail condition.
Appeal Type: Appeal against sentence.
Facts: The appellant pleaded guilty in the Magistrates’ Court to two counts of breaching a domestic violence order. The order prevented him from directly or indirectly contacting the aggrieved. The parties had been in a de facto relationship for five years. The first count involved the appellant standing over the aggrieved, pointing menacingly at her. He was taken into custody and released on bail with a no contact condition. In breach of this condition, he attended her home, yelled insults at her, broke property, head butted an informant and verbally abused her, all in the presence of their children and a witness. The Magistrate acknowledged that the presence of the three young children was a serious aggravating feature. The appellant had a relevant criminal history, including four previous domestic violence convictions committed against the aggrieved. The Prosecutor provided minimal assistance to the Magistrate as to the appropriate sentence. He was sentenced to nine months’ imprisonment followed by two years’ probation for each count, to be served concurrently. He was convicted and not further punished for the breach of bail.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was initially dismissed. Robertson DCJ commented that it is ‘regrettable’ (see at [7] & [25]) that the prosecutor did not provide the Magistrate with any assistance as to the appropriate sentence. The Court held that these acts were a ‘nasty and prolonged’ (see at [29]) example of domestic violence against a vulnerable complainant, by an offender who had a long history of violence against the same woman. He had previously shown disregard for court orders, and in this case also showed complete disregard for the bail undertaking. The only mitigating factor was the early plea of guilty. While the sentences were ‘severe’, they were not so severe as to amount to an error by the Magistrate.
(The appeal was then re-opened and upheld due to a procedural issue with taking into account the appellant’s prior convictions following the Court of Appeal’s decision in Miers v Blewett [2013] QCA 23 (22 February 2013). The requisite notice was not given, so the appellant’s prior convictions could not be taken into account. However, the Legislature has now amended s 47 of the Justices Act 1886 to ensure that prior convictions can be taken into account in sentencing whether or not notice has been served.)
Appeal Type: Appeal against a protection order.
Facts: The appellant applied for and was granted a protection order (under the then Domestic and Family Violence Protection Act 1989 (Qld)). The applicant (the respondent/aggrieved) tendered evidence to the Magistrate that the appellant was physically violent to her on two occasions by grabbing her around the neck. There was also evidence that the appellant threatened to kill her if she went to the police. There was a history of violence in the relationship, which had involved verbal and physical abuse and controlling behaviour since 1992.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was allowed and the protection order was discharged.
Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).
Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved. After finding out that her husband had been having an affair, there was a violent incident between the aggrieved and the respondent. This involved the respondent punching the aggrieved extremely forcefully. The aggrieved had no family in Australia. The aggrieved and the respondent had taken steps to reconcile, including seeing a psychologist. The respondent had not yet seen a personal therapist to deal with anger management issues. The aggrieved claims to now feel supported by her husband and his family. She stated that if she feels scared she would move back home to China, and that making a protection order would not impact on how safe she feels.
Issue/s: Whether the protection order should be made.
Decision and Reasoning: The order was made. Contanzo JJ applied the principle of ‘paramount importance that the safety, protection and wellbeing of people who fear or experience domestic violence is paramount’. His Honour found that it was ‘desirable’ to protect the aggrieved from the risk of further domestic violence by her husband. In making the order, his Honour noted the severity of violence used by the respondent – ‘As a matter of logic and common sense, the more severe the violence exhibited by a perpetrator, the more risk there is that serious violence will be used again unless there has been an appropriate and sufficient intervention. The gravity of the situation is that the degree of violence used was inexplicable and irrational’ (See at [53]).
It was noted that this case involved balancing the public interest of preventing domestic violence with private rights in a marriage. In this case, would an order ‘”get in the way” of the ongoing reconciliation by the parties?’ (See at [20]).
His Honour concluded that the ‘reduction of stressors on their relationship’ had not gone far enough to negate the risk of further domestic violence. The aggrieved remained vulnerable to further domestic violence, though less vulnerable than she had previously. As such, even though the aggrieved did not feel she needed to be protected from her husband, it remained desirable that she be protected with an order. However, the order made went ‘no further than is necessary for the purpose of protecting the aggrieved from the respondent’ (See at [58]).
Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).
Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved.
Issue/s: Whether the respondent committed domestic violence against the aggrieved, and whether the protection order was ‘necessary or desirable’ as required under section 37(1)(c) of the Act.
Decision and Reasoning: The protection order was made, with Constanzo JJ concluding that it was necessary and desirable to protect the aggrieved from domestic violence. In relation to the meaning of ‘necessary or desirable’, his Honour noted that the test is framed in the alternative. A court may make a protection order if it considers it ‘desirable’ but not ‘necessary’ and vice versa. His Honour then considered the plain English meanings of both words (See at [17]). A finding that it is ‘necessary or desirable’ to make an order must arise out of a need to protect the aggrieved from domestic violence with the terms of the order (see at [18]). This need for protection, ‘must be a real one, not some mere speculation or fanciful conjecture’ (See at [19]). This involves an assessment of risk that is faced by the aggrieved. While the risk of further domestic violence must actually exist, it is not necessary that the need or the risk be significant or substantial. However, it must be, ‘sufficient…to make it necessary or desirable to make the order in all the circumstances’ (See at [20]).
In considering whether a protection order is ‘necessary or desirable’, a court must have regard to section 4 of the Act, but can have regard to other matters if relevant. For example, in the old equivalent legislation, the test was one of likelihood. It involved the court considering whether the evidence indicates that there was, ‘some real, significant likelihood’ that further acts of domestic violence would be committed. Something more probable than a mere ‘chance or risk’ was required (See at [23]). This test is not mandatory in the new legislation, but is still a relevant consideration. That is, if the evidence indicates that a respondent is likely to commit an act of domestic violence again, it may be ‘necessary or desirable’ to make a protection order under the new legislation. However, the likelihood test is clearly not determinative (See at [25]). Sometimes it may be appropriate to make an order if the risk is only ‘possible’ as opposed to ‘likely’ (See at [65]). See in particular from [27]-[70], where Contanzo JJ engages in detailed comparisons of the equivalent provisions in all state and territories, as well as analogous Commonwealth legislation. At [47], his Honour explains how provisions from one state or territory can be relevant to courts in another –
‘While the legislation in other States cannot affect the jurisdiction of this court, the types of considerations referred to by the various Acts may provide some insight into the types of considerations which may, in appropriate cases, be relevant considerations in the determination of whether it is necessary or desirable for this court to make an order. They certainly do not provide anything approximating an exhaustive list of possible relevant circumstances. Whether they are relevant will depend on the law in Queensland and on the facts and live issues of each case. What weight ought to be given to any such relevant circumstance must also depend on the overall facts and circumstances of each hearing. The types of considerations referred to by the various Acts may simply provide this court with some inkling about the types of considerations legal minds, and judicial minds, may need to bring to bear on the determination of issues raised under the Queensland Act. However, I have taken great care to look at the context in which each of the other state laws is drafted.’
At [52]-[70], his Honour extrapolated the relevance of the Court’s power to make orders prohibiting conduct under section 1323 of the Corporations Act 2001 to domestic violence issues. The discretionary considerations listed in section 1323 may be relevant when a Magistrates’ Court is considering whether to make a protection order to protect the aggrieved from, ‘coercive, deceptive or unreasonably controlling economic abuse’ as well as other types of domestic violence (See at [56]).
In determining whether it is ‘necessary or desirable’ to make an order, a court will need to engage in a balancing exercise of public and private rights. That is, does the public interest in preventing domestic violence outweigh the private rights of the relevant parties? (See at [57] & [96]). At [61], his Honour observed that it may be ‘necessary or desirable’ to make an order, ‘even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist,’ and that, ‘if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution.’
At [63], his Honour stated that it may be ‘necessary or desirable’ to make an order by having regard to evidence apart from the evidence that establishes domestic violence has been committed. All facts and circumstances may be considered, including evidence, ‘which is properly before the court but which was not led by or relied upon by the applicant.’ A court can draw reasonable inferences from this evidence, such as inferences that a respondent induced an aggrieved to withdraw their complaint or to commit perjury.
Another factor is the gravity of the situation. That is, even if on the evidence it could not be said that it was ‘necessary’ to make an order, the gravity of the situation could indicate that it would be still ‘desirable’ to protect the aggrieved with the order, in which case an order can still be made.
Charges: 8 counts, including aggravated causing harm with intent to cause harm, aggravated threatening life, rape
Case type: Appeal against conviction
Facts: The appellant an was convicted of 2 counts of aggravated causing harm with intent to cause harm, 3 counts of aggravated threatening life and 2 counts of rape. He was acquitted of a charge of aggravated cause harm. The victim was the appellant’s wife, who had migrated from China in 2009, and with whom the appellant had children. The victim testified that their relationship was marred by verbal, physical and sexual abuse, and recounted an incident of violence and rape which had preceded the charged counts (relationship evidence).
Grounds:
Held: Kourakis CJ (Nicholson and Bampton JJ agreeing) dismissed the appeal.
As to ground 1, the appellant argued that the judge failed to give any directions as to the proper use of the evidence of the victim’s distress when she attended at the police station. It was submitted that the judge should have directed the jury that (1) because of the passage of time and the significance of the reconciliation contended for by the appellant, the distress was not relevant; and (2) if they were to use the distress as circumstantial evidence of consistency with respect to the alleged rape, they would need to be satisfied that distress was not an emotional reaction to the victim’s decision to leave the appellant ([36]). The Court, however, dismissed this ground for 4 reasons. First, it was not put by the prosecutor, nor left to the jury by the judge, that the victim’s distress was corroborative or supportive of her testimony ([44]). Second, the evidence was admissible due to the close temporal connection to the last rape offence, the degree of distress and the circumstances in which the victim abandoned the course in which she had enrolled to report the appellant’s violence against her. The distress was also proximate to the rape the victim alleged occurred the night before ([45]). Third, the alternative explanations for the victim’s distress proposed on appeal were unrealistic ([46]). Fourth, counsel for the appellant at trial consented to the judge’s proposal not to give any directions on the evidence of distress ([47]).
As to ground 2, the appellant’s complaint primarily related to the judge’s failure to give specific directions on how the relationship evidence was relevant to prove the mental element on 2 of the rape counts ([50]). The Court found that the the judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been established were sound ([56]). The judge did not err by omission in not directing the jury to ignore the relationship evidence on the question of the appellant’s appreciation of whether or not the victim was consenting to sexual intercourse on the rape charges. Neither counsel referred to the relationship evidence on that issue. It was common ground that, notwithstanding their violent relationship, consensual sexual intercourse was a feature of their relationship. The proper use of the relationship evidence on the subjective element of the rape charges was, therefore, not a live issue at trial.
The verdict on count 8 was not unreasonable. It was sufficiently supported by the victim’s evidence, and there was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of her testimony ([64]).
Charges: Causing harm with intent to cause harm
Appeal type: Appeal against conviction
Facts: The defendant was convicted by jury of causing harm with intent to cause harm to the complainant who he was in a sexual relationship with. The defendant, while intoxicated, grabbed her and dragged her out of the house, pushed her on to the footpath and kicked her body causing various injuries. The appellant’s brothers Stephen and Joe were present at the house. The complainant said that before living with the defendant, a former partner, Ray, had also been violent to her. The defence put to the complainant in cross-examination that it was Ray not the appellant who assaulted the complainant. Ray was deceased by the time of the trial. The complainant gave:
A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:
Grounds of Appeal:
Held:
Reasons:
Ground 1 – Kourakis CJ (dismissing)
Ground 1 – Peek J (allowing) (Hughes J concurring)
Ground 2 - Peek J (allowing) (Kourakis CJ and Hughes J concurring)
Appendix 1: 34P–Evidence of discreditable conduct
Charges: 1 x digital rape (count 2), 4 x aggravated assault causing harm (counts 1, 3, 4 and 5).
Appeal type: Appeal against conviction of above charges.
Facts: The appellant and complainant were married. The appellant allegedly committed the rape by putting his hand under the complainant’s jeans at a train station platform. The assault (count 3) was alleged to have been committed soon after the rape when the couple was walking home from the train station. The remaining offences were committed in the matrimonial home.
Issues: The appellant appealed against the convictions on seven grounds (see [4]), all of which generally concerned the directions given to the jury by the Judge.
Decision and reasoning: appeal was allowed on grounds 3, 4, 5 and 7 and dismissed on grounds 1, 2 and 6. All convictions ordered on the District Court information were quashed and the matter was remitted for a new trial.
For the purposes of convenience, Kourakis CJ first dealt with the fifth ground of appeal in which the appellant contended the Judge erred in directing the jury to ignore a defence submission concerning the plausibility of the digital rape charge (see [49]-[50]). His Honour accepted this ground of appeal, claiming the Judge withdrew a legitimate and factually compelling submission ([50]) with the likely effect of leading the jury to interpret the Judge’s direction as withdrawing the defence counsel’s broader implausibility submission (of which this particular submission formed an integral part of) from their consideration ([51]).
The first ground of appeal was divided into two complaints; his Honour rejected the first complaint, stating it was unnecessary to draw the distinction in order to comply with s 34R of the Evidence Act 1929 (SA) (see [53]). As to the second complaint, His Honour acknowledges that the Judge ought to have expressly directed the jury in relation to the impermissible use of the discreditable conduct evidence under s 34R(1) of the Evidence Act 1929 (SA). In failing to do this, the Judge was said to have failed to comply with the obligations laid out under s 34R(1). Nonetheless, such an omission did not occasion any miscarriage of justice and the second complaint was therefore rejected ([58]).
His Honour notes the merit of the second ground of appeal in stating that the Judge should have directed the jury as to the limited use that could be made of the alleged admissions ([59]). However, his Honour discerned no miscarriage of justice in this omission on the Judge’s part, particularly in light of the Judge’s cautionary observations ([45]-[46]) and the fact that the complainant’s evidence was proven unreliable in any event ([59]).
The third, fourth and seventh ground of appeal raised a particular issue that was considered through the relevant authorities (see [61]-[75]). Ultimately, his Honour allowed these grounds of appeal in recognising that the Judge placed undue weight to the evidence of distress.
Charges: 1x aggravated assault, 1x breach of a suspended sentence bond.
Appeal type: appeal against sentence for the above offences.
Facts: the appellant punched his domestic partner in the face. In doing so, the appellant breached the intervention order in place at the time which prohibited the appellant from assaulting, threatening or intimidating his domestic partner. The appellant entered a guilty plea to the assault charge and the matter was transferred to the District Court for sentencing with the breached bond and other matters. An 11-month sentence was imposed for the aggravated assault while the suspended sentence was revoked and a six-month sentence (subject of the good behaviour bond) was ordered to be served cumulatively on the sentence for the aggravated assault.
Issues: the appellant’s grounds of appeal were two-fold. First, the sentence imposed for the aggravated assault was manifestly excessive ([6]). Second, the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence ([6]).
Decision and reasoning: appeal was allowed, sentence imposed by trial Judge was set aside and the appellant was resentenced (see [36]).
His Honour first set out the authority and principles relevant to determining whether to interfere on appeal with a decision on sentence and whether a sentence is manifestly excessive ([17]-[21]).
His Honour rejected the appellant’s submission that the assault was on the lower end of the scale of seriousness. A single punch to the face was deemed serious by his Honour in light of the fatal consequences such an action may have had ([23]-[24]). It’s seriousness was also heightened by the fact it was committed with an intervention order in place at the time which aimed to protect the victim from the assault that occurred ([27]).
Whether the starting point of 18 months for a first offence of violence produced a sentence outside the permissible range for the offending and offender in question was determined in reference to multiple factors. First, the importance of specific and general deterrence in sentencing for offence of domestic violence lent some justification to the sentence imposed ([26]). Second however, the offender’s poor track record of responding to the leniency extended to him by the courts (see [10]) was considered in light of his personal and mitigating circumstances ([28]). Ultimately, notwithstanding the seriousness of the offending, and having regard to the fact that the assault was the appellant’s first offence of violence, his Honour concluded that a starting point of 18 months was too high and outside the permissible range of sentences for this offending and this offender ([31]).
The second ground of appeal was allowed since the factual basis of the judge’s sentence lacked a sufficient foundation on the evidence presented to the court and wasn’t actually conceded by the appellant ([32]).
Charges: Arson x 1.
Appeal type: Appeal against conviction.
Facts: The appellant was found guilty of arson following jury trial. It was alleged that he deliberately lit a fire inside a townhouse in which he and his partner lived until their separation three weeks prior to the fire. His alibi was that he was at a lacrosse club at the time that the fire was lit. The prosecution relied upon a number of items of circumstantial evidence which it argued cumulatively showed the appellant’s guilt beyond a reasonable doubt.
Issues: The appellant appealed his conviction on the basis that the guilty verdict was unreasonable and cannot be supported having regard to the evidence, and in particular in consideration of his alibi. He contended that no reasonable jury could have rejected his alibi as a reasonable possibility.
Decision and reasoning: In considering the grounds of appeal, the Court applied the principle set out M v The Queen [1994] HCA 63, namely, whether, on the totality of the evidence, it would be open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. On a thorough analysis of all the evidence, the Court dismissed the appeal on the basis that:
Charges: Murder.
Appeal type: Appeal against sentence.
Facts: The circumstances of the offending were that early in the morning, following an argument with the respondent’s partner, during which she slapped, kicked and hit him with a vacuum cleaner pole, the respondent struck her with a crow bar at least six times. The respondent dragged her body to the laundry where he placed a cable tie around her neck and tightened it. The combined effect of the blows and the compression of her neck caused her death. Not long after this occurred the children woke. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking went away. At some point, and possibly whilst the people were still at the front door, the respondent went back to each child. The respondent restrained the six-year-old with cable ties and placed a sock in her mouth, fixing it in position with packing tape. He placed a cable tie around her neck and tightened it. Her death was caused by the combined effect of suffocation and asphyxiation. The respondent also restrained the five-year-old with cable ties and asphyxiated him. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway.
The sentencing Judge sentenced the respondent to life imprisonment with a non-parole period of 30-years to commence on the day the respondent was taken into custody. The sentencing Judge accepted that the respondent was experiencing a degree of dissociation when he killed the children. On appeal, the DPP contended that the 30-year non-parole period was manifestly inadequate, and submitted that the inadequacy was so great, having regard to the gravity of the offending, that the Court should increase the non-parole period to ensure the maintenance of adequate standards of punishment for the offence of murder. The respondent conceded that the non-parole period was manifestly inadequate and that it should be set aside and a new non-parole period fixed.
Issues: Whether the sentence was manifestly inadequate.
Decision and reasoning: The Court took into account the respondent’s personal circumstances ([87]), loss felt by the family ([85]), and the value of human life. At [83]-[84], the Court noted that –
‘A just sentence in the present case must accord due recognition to the human dignity of three victims… It has been said that the value of human life is intrinsic. The murderer denies their victim life and all the potentialities that accompany living which are of inestimable worth. Speaking generally, that denial, that exaction, cost or loss, is magnified where the victim is a child. The younger and more innocent the child the more the murderer repulses us as a community and the more grave or heinous the act of murder because of the value we place on life.’
The punitive, protective and rehabilitative purposes of fixing a non-parole period were also relevant. The punitive purpose in particular reflected the gravity of the offending. The sentencing Judge found that the respondent intended to kill each victim. As King CJ said in R v Stewart (1984) 35 SASR 477, multiple murders fall into the worst category of offending. Therefore, condign punishment was afforded great weight. The Court also noted that the respondent should not be left without hope for spending some time in the community again in the future, as this promotes rehabilitation. The murder was not premeditated in the conventional sense. The murder also occurred in the context of a relationship characterized by domestic violence. The murder was described at [78] as being brutal and the final act cold and lacking in humanity. Citing Munda v Western Australia (2013) 249 CLR 600, ‘A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner’. Although the sentencing Judge found that the respondent suffered a degree of dissociation at the time of the incident, this neither prevented him from forming the intent to kill nor did it prevent him from understanding the nature and quality of his actions. It helped him to depersonalize his two children, but did not prevent him taking action which he considered necessary for the purposes of his own self-preservation ([80]).
The Court found that the determination of a non-parole period in this case could not be reduced to a formula and that the totality principle was applicable to the setting of a non-parole period in relation to a life sentence for murder. The Court allowed the appeal and held that the non-parole period fixed by the sentencing Judge was manifestly inadequate. A non-parole period of 36 years was substituted. Although the respondent was entitled to a discount of up to 10% on the basis of his guilty pleas, to allow the respondent any further reduction would result in a non-parole period unacceptably disproportionate to the gravity of the offending which would vindicate the dignity of the victims ([90]).
Charges: Blackmail x 1; Knowingly distributing an invasive image x 1.
Appeal type: Appeal against sentence.
Facts: The appellant had been in a relationship with the victim. They were both 18 years old. He threatened to distribute a video of the victim with her breasts exposed unless she had sex with him, and in fact distributed it to three people (her friend, new boyfriend and father). He knew that her father was of Syrian background, very strict and was likely to react harshly if he became aware of the video ([10]). Upon watching the video, her father subjected her to ‘significant physical harm’ in a ‘frightening and vicious physical attack’ ([22]). The victim’s relationship with her family was significantly damaged, and she was forced to leave Adelaide and abandon her tertiary education ([24]).
The sentencing judge sentenced the appellant to 3 years and 3 months’ imprisonment with a non-parole period of 15 months.
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The Court of Appeal dismissed the appeal, holding that the sentence was not manifestly excessive. It was significant that both offences involved a sexually explicit video of the victim, and the appellant’s gross betrayal of trust involved in distributing it ([45]). The blackmail was a ‘particularly serious instance’ of this type of offending ([46]). The appellant was aware of the likelihood of a serious and significant reaction on the part of the victim’s father ([51]).
The appellant submitted the sentencing judge did not properly take into account his youth, lack of criminal history, general good character and likelihood of rehabilitation ([60]). However, the Court held that the sentence of imprisonment, without suspension or home detention, was reasonably imposed ([63], [68] [81]).
Charges: Aggravated serious criminal trespass in a place of residence x 1; Aggravated threatening harm x 2; Aggravated threatening life x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and complainant were married but separated. An intervention order was in place. The appellant broke into the complainant’s house while the complainant and her sister were inside. He cut through a flyscreen window with a knife and put a rope around the complainant’s throat. The appellant threatened to kill the complainant and hurt her sister if she did not withdraw the complaint she made to the police about him ([10]). The appellant came to Australia as a refugee and was living on a permanent residence visa.
The appellant was sentenced to a head sentence of five years’ imprisonment with a non-parole period of 2 years ([5]). The judge ordered partial concurrency to the extent of 12 months ([34]).
Issues: The appellant appealed on 4 grounds, that the judge erred in:
Decision and Reasoning: The appeal was dismissed.
On the first ground, Nicholson J held that s 33BB Criminal Law (Sentencing) Act 1998 (SA) does not require a sentencing judge to make a specific finding as to the risk that an offender poses to the community. Nicholson J held that declining to order home detention was within the judge’s discretion ([31]).
On the second ground, Nicholson J held that it was open to the judge to discount the written reference as to character. The reference did not consider the appellant’s character apart from how he presented himself in a social setting ([20]-[22]).
On the third ground, Nicholson J held that concurrency between the sentences was within the judge’s discretion ([36])
On the fourth ground, Nicholson J held that on the assumption that the risk of deportation was relevant, the sentencing judge considered those matters ([46]).
Charges: Property damage x 1; Breach bail x 1; Contravening term of intervention order x 1.
Appeal type: Appeal against sentence.
Facts: The appellant went to the complainant’s residence, knocked on her bedroom window and then smashed the window by punching it ([10]). The appellant was subject a bail agreement and intervention order that prohibited him from approaching the complainant ([11]). The sentencing judge imposed a head sentence of 10 months and 22 days ([2]-[3]).
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed (see [29], [30] and [47]). Justice Stanley commented that ‘the very point’ of the appellant’s bail agreement and intervention order was that the complainant could feel safe and protected in her own home ([26]). His Honour emphasised that ‘the purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical’ and which ‘can have profound consequences for the victim’ ([27]). Justice Hinton added that ‘it is important to the maintenance of confidence in the protection that intervention orders are intended to provide that the courts treat any breach as very serious’ (emphasis added), not only physical violence ([44]). The sentence was at the high end of the permissible range, but was not plainly wrong (see [28], [47]).
Charges: Aggravated serious criminal trespass in a place of residence x 1; Aggravated kidnapping x 1; Aggravated threaten life x 1; Aggravated indecent assault x 1; Aggravated assault causing harm x 1; Aggravated threaten harm x 2; and threaten harm x 1; Breach intervention order x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and victim had been in a relationship ([6]-[7]). Shortly after the relationship had ended, the appellant entered the victim’s house at midnight ([9]). He bound her arms and legs, blindfolded her and removed her clothes ([11]). He told her that he was going to cut off her nipples, breasts and fingers, break her nose, penetrate her with objects, and drive her to a secluded place to make her suffer ([12]-[16]). The offending continued for at least several hours ([22]). The appellant pleaded guilty to the offences. He was sentenced to 11 years and one month imprisonment with a non-parole period of six years.
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Parker J, Vanstone J and Blue J agreeing, held that the sentence took into account all relevant factors, and the sentence was within an appropriate range.
Parker J stated at [33]:
‘Every person has a right to feel safe in their house and the appellant had violated the security and safety of the victim and also violated her personally. He had terrorised her for what must have been hours in her own home. In her view his behaviour appeared to have been deliberately designed to inflict the maximum amount of terror.’
Counsel for the appellant referred to two other cases concerning home invasions (R v Siviour [2016] SASCFC 51 and R v Stephen John Forbes DCCRM 15-1418 and 15-340). Parker J emphasised that conduct giving rise to charges of trespass and kidnapping may be extremely varied, and therefore the length of reasonable sentences may differ ([58]). His Honour considered that the appellant’s sexual offending against a former domestic partner was an aggravating factor not present in Siviour and Forbes ([59]). His Honour held that the sentencing judge balanced the appellant’s lack of criminal history, expression of remorse and strong work history, against the serious nature of the offending and the enormous impact on the victim ([62]).
Charges: Causing serious harm with intent to cause serious harm x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The victim and defendant were formerly in a domestic partnership. The offences occurred on one occasion. In the presence of other people at their home, the defendant: grabbed the victim and dragged her outside; began to call her names; repeatedly hit her head and kick her head and body ([6]). The victim sustained an extremely severe traumatic brain injury, and was likely to be left with long-term cognitive defects ([7]). The sentencing judge had regard to the defendant’s disadvantaged background and low level of cognitive functioning (attributed to the defendant having sniffed petrol since he was four years old) (see [10]-[20], [26]-[27]).
The defendant was sentenced to 3 years and 3 months’ imprisonment, with a non-parole period of one year and six months.
Issues: The prosecution argued that the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. The Court (Parker J, with Kourakis CJ and Nicholson J agreeing) found that this was an exceptional case that required intervention by the appellate court ([36]). Parker J considered that the sentence did not give enough weight to the need for general and specific deterrence in domestic violence offences. Parker J stated (at [45]-[47]) that:
“It was necessary for the sentencing judge to take into account, as his Honour did, the defendant’s background of disadvantage and social deprivation arising from his upbringing in a traditional and remote Aboriginal community. However, the fact that … the defendant had very recently been released after a period of imprisonment imposed for two assaults on a different female drinking companion operated to reduce the leniency that his personal circumstances might otherwise have attracted. Moreover, the attack by the defendant upon his domestic partner was particularly brutal and has had grave consequences for her … The sentence did not give appropriate effect to the views consistently expressed by this Court concerning the need to give significant weight to considerations of specific and general deterrence when sentencing defendants who have engaged in serious domestic violence.”
The defendant was sentenced to 5 years imprisonment, with a non-parole period of 3 years.
Charges: Causing harm with intent to cause harm x 1; Aggravated assault x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and one of the complainants (J) were divorced ([8]). The appellant went to the matrimonial house, where J lived with her new partner (M), the other complainant ([10]). The appellant pushed the J and M into the house. The appellant grabbed M around the throat, pushed her against a wall and punched her ([11]). The appellant picked J up off the floor and threw her onto the dining table ([13]). M suffered ongoing damage to her eye and both women suffered psychological consequences ([17]).
Issues: Whether the judge erred in not suspending the sentence.
Decision and Reasoning: The appeal was dismissed. The appellant had favourable personal circumstances, including his lack of criminal history, little risk of reoffending, remorse and lack of planning in the attack ([25]-[33]). Bampton J held that the sentence was within range, and those factors were reflected in the fixing of the non-parole period at approximately 42 percent of the head sentence ([41]). The favourable factors were appropriately balanced with the unfavourable factors, including the seriousness of the offence, the ongoing injuries, the fact that the offences were committed in the victims’ home, and the fact that the offences constituted domestic violence ([43]).
Charge/s: Assault causing harm, causing harm with intent.
Appeal Type: Appeal against sentence.
Facts: The male applicant and the female victim had been in a relationship for two years. His behaviour towards her had been violent and controlling. On 19 March 2014, the applicant was yelling abuse at the victim and she became so fearful she ran into the streets. He chased her and punched her in the face. On 22 April 2014, the applicant verbally abused the victim, hit her around the head with a pillow and punched her to the left side of her mouth. The second assault caused injuries requiring surgery. As a result of the two incidents, the victim had scars on the left and right sides of her mouth. There was also evidence of a number of uncharged acts. The applicant was sentenced to a total head sentence of six years and eleven months imprisonment, with a non-parole period of five years.
Issue/s:
Decision and Reasoning: The appeal was dismissed. First, Parker J held that the reports were not to be received as fresh evidence. The psychologist report could have been obtained with reasonable diligence for use at the trial, it added very little to what was before the sentencing judge, and the psychologist was not completely briefed on the applicant’s substantial criminal history. The report from Correctional Services also did not add anything significant to what would have been before the sentencing judge (see [50]-[67]).
Second, the head sentence was not manifestly excessive. This was in light of the gravity of the offending conduct, the abusive nature the relationship and the applicant’s significant criminal history of violence. Parker J further rejected the submission that the two sentences ought to have been served concurrently. The offending conduct occurred almost five weeks apart (see [78]-[86]). The non-parole period was also not manifestly excessive. Considerations of deterrence, prevention and punishment militated towards a relatively higher non-parole period, as did the nature of the offences and the context in which they occurred (see [87]-[91]).
Third, the sentencing judge did not err in concluding that the appellant had extremely poor prospects for rehabilitation. The appellant had a long criminal history, including numerous convictions for assaults (many involving domestic violence). He also had many convictions for breach of restraining orders, failure to comply with bail agreements and breaches of bonds (see [92]-[96]).
Charge/s: Murder.
Appeal Type: Application for permission to appeal against conviction.
Facts: The applicant was convicted of the murder of his domestic partner. The applicant had camped with the victim in his car in an isolated location. The victim’s body was found in the car. Medical evidence relating to the nature of the injuries and the cause of death was led at trial. The trial judge found on the basis of this evidence that the victim suffered a severe beating. There was no dispute that the injuries were caused by the applicant. The trial was concerned with whether the evidence could prove that the injuries that the applicant inflicted caused her death and whether they were inflicted with an intention to cause grievous bodily harm.
Issue/s:
Decision and Reasoning: Leave to appeal was granted but the appeal was dismissed.
Charge/s: Murder.
Appeal type: Appeal against conviction.
Facts: The appellant was convicted by a jury of murdering his de facto partner. It was not in dispute that he inflicted the blows that caused her death. The pathologist’s view was that the appellant inflicted at least 50 blows. The injuries were inflicted over several hours, possibly intermittently. The issue at trial was whether he had inflicted these blows with the requisite intent to cause death or grievous bodily harm. The appellant was highly intoxicated at the time of the incident.
Issue/s:
Decision and Reasoning:
The Court agreed that parts of the judge’s directions amounted to an error of law. A correct direction was initially given by the trial judge. This was – ‘The prosecution must prove that at the time that McDonald struck any collection of blows the combined effect of which was to cause a degree of internal bleeding…which caused LT’s death, he intended to kill her or cause her grievous bodily harm’ (see at [29]). However, the judge then gave subsequent directions to the jury. These directions stated that it was sufficient that the appellant formed an intention to kill or cause grievous bodily harm when any of the blows were struck, even if that particular blow (struck with the requisite intent) did not contribute to or cause the internal bleeding that led to her death. Other directions given by the judge were not capable of correcting this error. However, the appeal was dismissed pursuant to the proviso.
See also at [33] where Kourakis CJ (with whom Sulan J and Parker J agreed) noted that the inference of intention, ‘overwhelmingly supported as it is by the evidence of the beating, is reinforced by the evidence of the prior violence to which the appellant subjected LT in their relationship and his admission that he was enraged at the time. The appellant is more likely by reason of those related circumstances to have formed an intention to cause grievous bodily harm relatively early on in the course of the beating.’
Charge/s: Various offences relating to the possession of a loaded, semi-automatic handgun.
Appeal Type: Appeal against sentence.
Facts: At trial, evidence was put before the judge relating to the violent behaviour of the appellant’s former partner. The appellant made a statement to police indicating that she obtained the handgun for her own protection. She pleaded guilty and was sentenced to one year and six months’ imprisonment with a non-parole period of 5 months.
Issue/s: Whether the sentence should have been suspended and whether the trial judge demonstrated pre-judgment and an appearance of bias.
Decision and Reasoning: The appeal was upheld. In a joint judgment, Gray and Sulan JJ found that the Judge impermissibly intervened in the trial process, giving rise to an appearance of bias in the eyes of a fair-minded lay observer. The judge constantly interrupted and in cross-examining the appellant, suggested that she was not willing to participate in a police interview, which was false. The Judge was also in error by not accepting the appellant’s explanation for the reasons that she possessed the firearm. The sentencing therefore proceeded on errors of fact. In resentencing, Gray and Sulan JJ acknowledged the serious nature of the offending, particularly that the gun was loaded and easily concealable. Counsel for the appellant conceded that a sentence of imprisonment was warranted. In mitigation, the appellant had no criminal history and had suffered serious abuse at the hands of her former partner, to the extent that she suffers from PTSD. As such, the head sentence was reduced to 17 months with a reduced non-parole period of 4 months and the sentence was also suspended upon the appellant entering into a good behaviour bond for 3 years. Kelly J also upheld the appeal but dissented with respect to re-sentencing and concluded that it should be remitted back to the District Court, given the disputed facts.
Appeal Type: Application for permission to appeal against a decision of a single judge of the Supreme Court who dismissed an appeal against a decision of a Magistrate who refused to make an interim intervention order.
Facts: The applicant brought an application for an interim intervention order in the Magistrates’ Court against the respondent (the applicant’s former girlfriend’s mother). The applicant claimed that the respondent had been bullying, cyber stalking and contacting his psychiatrist online and in person, as well as defaming him on the internet. The basis of his application was that it was reasonable to suspect that the respondent would commit an act of abuse against him by causing personal injury and criminal defamation on the internet. In the original appeal to a single judge of the Supreme Court, Peek J dismissed every ground of appeal - see Rana v Gregurev [2015] SASC 37. The applicant had a long history of psychiatric issues, and a psychiatrist’s report detailed the impact of the websites on his general well-being (See at [31] of Peek J’s decision).
Issue/s: Some of the issues concerned –
Decision and Reasoning: All aspects of the Supreme Court decision (Peek J - Rana v Gregurev [2015] SASC 37) were upheld by the Full Court.
Charge/s: Criminal trespass in a place of residence, causing serious harm with intent and using a motor vehicle without consent.
Appeal Type: Application for permission to appeal against sentence.
Facts: The victim of the offending was the mother of the respondent’s former partner. After entering her house by the back door, he questioned her about his relationship with her daughter. He became enraged, at which point he restrained her, pushed her to the floor and punched her multiple times to the side of the head. He provided no medical assistance to her and left her lying unconscious on the floor. The victim sustained lasting injuries as a result of the offending. The sentencing judge’s starting point was 6 years’ imprisonment. Taking into account his pleas of guilty, the respondent was sentenced to four years and six months’ imprisonment with a non-parole period of two years and three months.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning:
In granting permission and allowing the appeal, the Court noted the high maximum penalties, (life imprisonment for criminal trespass and 20 years for causing serious harm with intent) and the relatively insignificant mitigating factors. The offending was ‘particularly brutal’ (See at [35]). Parker J (Kourakis CJ and Bampton J concurring) held that the notional starting point of 6 years was manifestly inadequate and the sentence itself was not adequate to amount to general deterrence or just punishment. See in particular at [42] – ‘General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. The sentence imposed fails to provide the level of general deterrence necessary to ensure public confidence in the enforcement of the criminal law in this fraught area.’ The Court also found that the trial judge’s 25% discount for the guilty plea was too high. The respondent ‘had no practicable option other than to plead guilty’ (see at [46]), which needed to be taken into account in determining the quantum of the discount. The total effective sentence was therefore increased to six years and eight months (applying a 20% discount for the guilty plea), with the non-parole period set at four years and two months.
Appeal Type: Application for permission to appeal against a decision of a single judge of the Supreme Court.
Facts: After the appeal in Groom v Police (No 3) was upheld, the matter was remitted back to the Magistrates’ Court, where confirmation of the interim intervention order was again made. The applicant consented to the order following negotiation with the prosecution who agreed to withdraw 31 charges for breach of the order. The applicant then appealed to a single judge of the Supreme Court (Kelly J), and argued that consent should be withdrawn because he was under ‘enormous stress’ and had been ‘railroaded’ (See at [7]). Kelly J refused permission to appeal because the applicant’s counsel had been properly briefed to represent him in the Magistrates’ Court, the consent to the confirmation was informed, the applicant was present throughout the process and he raised no objection and confirmed to the Magistrate that he would accept the order. This was different to the hearing considered in Groom v Police (No 3), where the applicant was in custody and believed he could not properly defend the proceedings.
Issue/s: Whether the appellant could withdraw his consent to the intervention order and have the confirmation set aside.
Decision and Reasoning: Permission to appeal was refused. The applicant submitted to the Full Court that he was denied natural justice because he was not provided with a copy of the transcript from the Magistrates’ Court hearing, and questioned the ‘officiality’ of the transcript on which Kelly J had relied. He also questioned the behavior of members of Police Prosecutions in relation to their conduct with the transcript. The appeal was dismissed – the Court held that the applicant did not identify how the missing transcript caused prejudice. The differences in the arguments in this appeal compared to Groom v Police (No 3) were stark. It is likely that the applicant’s ‘ongoing and deeply felt grievance against his former partner’ were the cause of the continuing appeals rather than any legal error.
Charge/s: Aggravated assault causing harm (two counts) – Circumstance of aggravation: that the victim was the defendant’s domestic partner.
Appeal type: Appeal against sentence.
Facts: The defendant discovered messages from his cousin to his de facto partner on her phone. After waking her up at 3am to question her about these messages, he hit her on the left side of the head before he gave her time to explain. This caused bleeding. He then pinned her down after she tried to break free. Their son, who was sleeping in the same room, witnessed the defendant hitting the complainant. A similar incident occurred the following evening. The defendant punched her to the right of the face with a closed fist and hit her in the right eye. He tried to strangle the complainant who could still breathe so she pretended to pass out. He held up her phone, put it on a coffee table and stomped on it which caused the phone and the table to break. After carrying their son towards his bedroom, he kicked her on the lower back despite her begging him not to hit her again. His criminal history included many driving offences as well as dishonesty and drug offences. He was sentenced to 18 months’ imprisonment for each count to be served cumulatively, with a non-parole period of 18 months. The judge stated he reduced the sentence by 25% on account of the guilty plea.
Issue/s:
Decision and Reasoning: The appeal was allowed in respect of concurrency.
Charge/s: Rape (two counts), creating a risk of harm, attempting to dissuade a witness, breach of bail, breach of restraining order.
Appeal Type: Application for permission to appeal against sentence.
Facts: The respondent attended the home of his former partner and then proceeded to threaten her with a knife, assault her multiple times, commit two acts of anal rape, threaten her daughter and parents and caused her to swallow petrol. He had possession of a cigarette lighter and threatened to set her alight. He also pressed the knife against their sleeping baby’s cheek. The respondent then, through his sister offered to pay the complainant money if she dropped the charges. All of the conduct was in breach of bail and a domestic violence restraining order. The respondent’s criminal history included multiple instances of prior violent offences committed against the complainant and her mother which demonstrate a pattern of domestic violence. The respondent pleaded guilty to all charges and was sentenced to a total term of imprisonment of 10 years with a non-parole period of 5 years and six months, imposed concurrently with a sentence of 6 months’ imprisonment for different offences.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: Permission to appeal was granted and the respondent was re-sentenced to 15 years’ imprisonment with a non-parole period of 10 years. The Crown submitted that the sentence failed to reflect the seriousness of the offending and the need for deterrence (personal and general). Gray J (with whom Stanley J agreed) agreed with this argument and noted the offending involved various aggravating factors including that it was committed in breach of bail and the restraining order, the presence of children, the use of a knife and the putting of a knife on the head of a sleeping baby. His Honour concluded that the sentencing judge did not give sufficient consideration to these mitigating factors.
See in particular at [46] – ‘In seeking and obtaining a restraining order against the defendant, the complainant had sought the law’s protection against violence inflicted by her former partner, the defendant. Despite this and in breach of that restraining order, the complainant was again the victim of violent offending of a most serious nature. The restraining order ought to have demonstrated to the defendant in the clearest terms the seriousness with which domestic violence is regarded both by the courts and by wider society. The fact that the offending occurred in breach of that order is a serious matter of aggravation and a significant factor in my conclusion that the sentence imposed by the Judge was manifestly inadequate.’
Nicholson J also upheld the appeal and made the same orders but made some additional comments regarding concurrency and double punishment in sentencing. His Honour noted that it was appropriate to deal with the breaches of bail and restraining orders (both summary offences) together with the more serious offences. However, it was important to avoid any double punishment in doing so, especially when the more serious offences were ‘aggravated by and assumed colour and context from’ (see at [102]) the summary breach offences. The trial judge ordered separate sentences and made them partially or wholly concurrent. However, ‘the success of this approach depends upon being able to notionally but accurately separate out that component of the sentence nominated for the two summary offences which represents the aggravating feature with respect to the principal offences. Only by being able to do this can a sentencing Judge accurately identify the extent to which, if at all, partial or full concurrency ought to be ordered. Adopting the approach of sentencing separately for the two summary offences where those offences also aggravated the principal offences enhances the risk of an overall under-punishment or over (double) punishment (see at [103])’ – (see further at [105]). His Honour concluded that in this case, the best approach was to impose a single sentence for all offences as opposed to ordering individual sentences with partial and whole concurrency periods. Concurrency and totality however still should not be overlooked when employing that approach.
Charges: Aggravated serious criminal trespass in a place of residence x 1; Rape x 5; Theft x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The defendant was the victim’s (M) former partner ([1]). The defendant had been arrested and granted bail on multiple occasions for offences committed against M ([6]-[10]). The present offences occurred when the defendant attended M’s home while on bail. He pushed her into the house, leaving their baby in the car. He took a sledgehammer that M left inside her house for her own protection. He threatened to rape her with it, and then proceeded to force her to perform fellatio on him, vaginally and anally raped her, and forced the hammer of the sledgehammer into her vagina ([12]).
The defendant initially pleaded not guilty and provided an alibi notice, but after the prosecution presented him with evidence disproving the alibi notice, the defendant pleaded guilty ([15]). The defendant was sentenced to 7 years’ imprisonment with a non-parole period of 4 years. The judge declined to make an intervention order ([2]).
Issues: Whether the sentence was manifestly inadequate and whether the judge erred in failing to make an intervention order.
Decision and Reasoning: The appeal was allowed, and the sentence was almost doubled to 13 years’ imprisonment with a non-parole period of 9 years ([55]). The Court also imposed an intervention order with the sentence ([64]).
Sulan J (Vanstone and Peek JJ agreeing) held that the sentencing judge appeared to have overlooked the brutality and seriousness of the offending and placed too much weight on the appellant's personal circumstances ([45]-[46]). His Honour said that ‘personal and general deterrence must take precedence over the personal circumstances of the defendant’ ([46]).
The offences were serious because they occurred in the victim’s own home ([29]), the defendant had a criminal history that suggested a disregard for the law ([34]) and the terrifying nature of the weapon used ([41]). The pleas of guilty did not demonstrate genuine contrition, coming only after his alibi evidence had been disproved ([47]). The fact that the defendant and victim were previously in a relationship was not a mitigating factor ([42]).
Charge/s: Indecent assault (five counts), Unlawful sexual intercourse (four counts).
Appeal Type: Appeal against conviction.
Facts: Three of the complainants were sisters. The fourth complainant was the appellant’s daughter. The appellant’s partner was the elder sister of the three complainants but was not a complainant.
Issue/s: Some of the issues concerned -
Decision and Reasoning: The appeal was upheld.
Charge/s: Persistent sexual exploitation.
Appeal type: Appeal against conviction.
Facts: The appellant was convicted by a jury of persistent exploitation of a five-and-a-half-year-old girl. The prosecution alleged that the appellant had been in a relationship with the girl’s mother and that he committed at least more than one act of sexual exploitation. At trial, evidence was inadvertently admitted that the complainant was seeing a domestic violence counsellor. Further evidence about the appellant’s aggressive and sometimes violent behaviour was also put before the Court. Following a question from the jury during deliberations, the judge directed the jury to ignore all of the evidence relating to the domestic violence counsellor and the appellant’s aggressive behaviour because it was not relevant to whether the appellant had committed the offences.
Issue/s: Whether the judge should have discharged the jury after the evidence of alleged domestic violence by the appellant was inadvertently led. Alternatively, whether the directions given by the trial judge when he refused to discharge the jury were inadequate.
Decision and Reasoning: David J (Kourakis J and Sulan J concurring) dismissed the appeal. David J firstly noted at [23] that, ‘in cases involving allegations of sexual impropriety in domestic situations evidence of extraneous violence is often allowed for many reasons. Such evidence is often relevant to the question of the relationship between the parties or providing a reason or reasons as to why an alleged victim may not complain.’ This did not apply in this case, as the prosecution did not seek to introduce the evidence. Rather, it came out inadvertently. While David J was concerned that the judge’s direction could have given the jury an impression that there was some ‘sinister impermissible material’ (see at [31]) that had not been introduced, his directions regarding the irrelevance of the evidence were clear and he correctly warned against propensity reasoning. As such, while the situation was not ideal, it did not amount to a miscarriage of justice.
Charge/s: False imprisonment, grievous bodily harm.
Appeal Type: Appeal against conviction.
Facts: The two female appellants were in a relationship with a man named Hill. There was a consistent pattern of domineering and violent conduct by Hill towards both appellants. The appellants were part of a plan to help Hill forcibly confine the complainant and cause her injury. At trial, they sought to admit expert evidence of ‘battered woman syndrome’ to support a claim of duress. The trial judge ruled that the evidence was inadmissible on the ground that the test for duress was objective and expert evidence of the state of mind of the appellants was therefore irrelevant.
Issue/s: Whether the expert evidence of battered woman syndrome ought to have been admissible to support a claim of duress.
Decision and Reasoning: King CJ (with whom Bollen and Legoe JJ agreed) held that the evidence ought to have been admissible and a re-trial was ordered. In reaching this decision, King CJ first held that the trial judge’s reason did not provide a sound basis for excluding the evidence. It ignored the subjective aspect of the test for duress and it also misunderstood the main thrust of the proffered evidence. While the expert might have been in a position to comment on the state of mind of the appellants, the primary thrust of such evidence was to establish a pattern of responses commonly exhibited by battered women. At [23]:
‘The proffered evidence is concerned not so much with the particular responses of these appellants as with what would be expected of women generally, that is to say women of reasonable firmness, who should find themselves in a domestic situation such as that in which the appellants were. It is designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant’.
Second, King CJ considered whether expert evidence of battered woman syndrome met the essential pre-requisite that it had been accepted by experts in the field of psychology or psychiatry as a scientifically accepted facet of psychology. Following significant consideration of scientific literature, at [24] and [26], King CJ held that the evidence was admissible:
‘It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries, or of the Court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations. Expert evidence of how life in criminal or sordid conditions might affect a person's responses to situations, would not be admitted.
‘This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings, even in abnormal situations or relations, is fraught with danger for the integrity of the trial process. The risk that, by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be taken seriously. I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained’.
Charges: Aggravated assault x 1; property damage x 1; resist police x 1; breach of intervention order x 2
Case type: Appeal against sentence
Issue: Whether special circumstances exist.
Facts: The appellant man was sentenced to 5 months and 2 weeks imprisonment suspended after 2 months upon the appellant entering into a good behaviour bond for 2 years. At sentencing the appellant conceded incarceration was appropriate but argued it should either be wholly suspended under s 96 Sentencing Act 2017 (the ‘Act’) or served on home detention pursuant to s 71 of the Act.
The appellant and his daughter argued and she rang her mother (the victim and his former domestic partner) to ask her to collect her. The appellant was argumentative, aggressive and assaulted the victim by pushing her towards the wall. The appellant also damaged the victim’s vehicle. A mental health assessment deemed the appellant suicidal (he had a history of depression and bi-polar disorder). He resisted police when arrested 5 days later and breached an intervention order by failing to attend the Safe Relationships Abuse Prevention Program, and sending a SMS message to the victim asking for a character reference.
Grounds: That the Magistrate erred:
Held:
It is a benefit of suspension under s 96 that a bond with a duration longer than the period of incarceration can be imposed with scope for supervision and directed counselling to facilitate ongoing rehabilitation [98]. Home detention cannot be ‘partially’ ordered under s 71, only ordered for the whole term of a sentence of imprisonment. If some period of imprisonment is considered necessary home detention must be rejected in favour of partial suspension [101]. In deciding whether to make a home detention order, the paramount consideration is community safety, whether that is the offender’s family in the case of domestic violence or the community generally [102]. Another important factor is whether a home detention order "would, or may, affect public confidence in the administration of justice", in which case it must not be made. The sentencing court must consider the impact home detention is likely to have on the victim, spouse, domestic partner or any other person residing with the offender ([103]). The sentencing court must also reflect on whether home detention exposes the community and domestic violence victims to safety risks. The fact that the Magistrate was prepared to partially suspend the sentence suggested the appellant is not currently thought to represent an immediate threat. It also appeared that the appellant had been on bail without incident pending the outcome of this appeal [104].
As his Honour had little information about the steps taken to assist with the appellant’s rehabilitation, the availability of courses or counselling for his difficulties in managing violence and intimate relationships, and his current work and family circumstances, he proposed to stand the matter over for further submissions or evidence on the factual basis on which the Court should exercise its discretion when considering whether to re-sentence the appellant [106].
Offences: Assault x 1
Proceedings: Appeal against conviction.
Issue: Whether the appellant’s lack of legal representation when he entered guilty pleas amounted to a miscarriage of justice.
Facts: The appellant, an Aboriginal man, assaulted his female ex-partner by punching her three or four times in the face and throwing a shoe at her. He had been represented by different solicitors from the Aboriginal Legal Rights Movement in the Magistrates Court on at least four occasions with respect to the charge, but the matter had not been progressed. The appellant’s solicitor withdrew from the file after the appellant indicated in open court that he wanted to plead guilty and "get it over and done with" [6]. The Magistrate informed the appellant that she was "likely, potentially to impose a period of imprisonment as a penalty" [6]. She sentenced him to five months’ imprisonment and imposed an intervention order prohibiting him from contacting the victim, except for telephone or text contact for the purpose of child access arrangements. The appellant appealed on the ground that he had not been represented and therefore the Magistrate should not have accepted his guilty plea, and that the Magistrate misled him about the consequences that would flow from the pleas and induced the appellant to plead at the hearing.
Judgment: The judge dismissed the appeal, holding that there had been no miscarriage of justice due to lack of legal representation. The appellant understood the charges to which he was pleading, the Magistrate explained the seriousness of the offences and that the appellant was likely to receive a sentence of imprisonment, and the appellant volunteered his wish to plead [14]. The appellant had also been legally represented over the several months prior to the hearing and had accepted an opportunity to receive legal advice [20]. His Honour emphasised that the appellant was entitled to proceed unrepresented and that "the withdrawal of legal representation before the appellant entered his pleas is not, in isolation, a ground which can justify appellate interference" [20].
His Honour also held that there was no miscarriage of justice in respect of the appellant being induced to plea, because the appellant entered his pleas voluntarily, "free of any pressure or threat" [19].
Offences: Aggravated assault x 2, contravention of intervention order
Proceedings: Application for review of bail
Issue: Whether special circumstances exist for the granting of bail.
Facts: The appellant man was charged with aggravated assault against his female former partner on two separate occasions and contravention of an intervention order. The appellant punched the back of the victim’s head, struck her with a water bottle, and punched and kicked her in the head on several occasions. A Magistrate refused bail but the appellant sought a review of this decision, contending that special circumstances existed for the granting of bail, pursuant to s 10A Bail Act 1985 (SA).
Judgment: Kourakis CJ dismissed the appellant’s application for review of the bail decision, holding that no combination of the appellant’s circumstances was sufficient to constitute special circumstances indicating that he, as someone charged with assaulting a domestic partner in breach of an intervention order, should be admitted to bail [5]. His Honour did note the systematic and endemic disadvantage of Indigenous people [7] (particularly where they are imprisoned [8]) and the burden of being imprisoned during the COVID-19 pandemic with its attendant restrictions [9]. However, His Honour ultimately held that the presumption against bail applies to all bail (even home detention bail) [14] and the appellant failed to establish special circumstances. Furthermore, the appellant had breached bail orders and intervention orders in past and the charged offences were serious in themselves [4]. His Honour highlighted that "the underlying problem is not [the appellant’s] relationship with the victim ... but the alleged resort to violence in dealing with interpersonal conflict" [15]. His Honour did provide that a fresh review of the question of bail would arise, however, if it appeared in the future that a trial was a long way off or that the appellant’s mental health was deteriorating [17].
Offences: Contravening a term of an intervention order x2; aggravated assault x1; failing to comply with a bail agreement x1; and driving under disqualification or suspension x 1
Type of Appeal: Appeal against sentence following breach of suspended sentence of imprisonment
Ground: The Sentencing Magistrate erred in the exercise of his discretion pursuant to s 114(3) of the Sentencing Act 2017 in that:
Facts: The appellant man was convicted of two counts of contravening a term of an intervention order, aggravated assault, failing to comply with a bail agreement and driving under disqualification or suspension on 2 September 2019. He was sentenced to four months and 15 days imprisonment to be suspended after one month upon entering into a 15 months good behaviour bond. With backdating the bond was entered into on 13 September 2019. Since 17 October 2016 the appellant had been the subject of an intervention order for three years. Condition 3 of the order read "the defendant must not be within 100 metres of the protected persons". The appellant breached this order by being found with the protected person (his female former partner) in the front yard of his family member on 23 October 2019. He was visiting family and while he was at their home the protected person attended. He did not know she would be there and nothing untoward happened between them. It was a chance encounter and by not leaving immediately, the appellant was found to have breached a good behaviour bond and convicted of contravening a term of the intervention order. The Magistrate sentencing him to three weeks imprisonment and at the same time revoked the suspended sentence bond and ordering that the appellant serve the remaining time in imprisonment [3]. An application was made before the sentencing Magistrate providing that the Magistrate "should find that there were proper grounds to say that the failure to comply with the conditions of the suspended sentence bond should be excused and that no further action should be taken in respect to that failure" [4].
Judgment: The appeal was allowed and the suspended sentence of three months and 15 days was revoked. David AJ stated that "[t]he question whether there are proper grounds for excusing the breach is to be confined to the nature of the breach itself without any consideration of matters personal to the offender. That principle has been clearly stated in Heritage " [15]. The sentencing judge was found to have gone beyond this principle and was instead influenced by the previous offending [15]. In considering this, the sentencing Judge was found to have erred.
Charges: Aggravated assault x 1
Case type: Appeal against sentence
Facts: The appellant man pleaded guilty to one count of aggravated assault upon his wife (complainant), with whom he was now separated. There was some variance about the facts. The prosecution alleged that the appellant and complainant were experiencing domestic difficulties. The complainant came into their bedroom, looking for her mobile phone. On the prosecution case, the appellant pushed her to the dresser and moved her face in the direction of her phone. Such conduct was clearly against her will and involved force ([4]-[5]).
The sentencing Magistrate regarded the offending as ‘out of character’ and unlikely to be repeated but was concerned about general deterrence for this type of behaviour, which involved violence towards female partners. He placed less reliance on personal deterrence and considered that the recording of a conviction could potentially affect the appellant’s future employment. Nevertheless, he recorded a conviction on the basis of general deterrence ([7]), and sentenced the appellant to a $200 good behaviour bond for a period of 18 months.
Issue: The appellant appealed on the basis that the sentencing Magistrate erred in recording a conviction and did not consider the appellant’s personal circumstances, including his low risk of re-offending, the impact of a conviction on his employment and the background of the offending ([8]-[9]).
Held: The appeal was dismissed. The appellant’s personal circumstances were noted at [6]. He had no criminal history, had already spent 9 hours in custody, and was employed as an electrician. The appellant and his wife no longer lived together and Family Court proceedings in relation to their property were finalised. Further, there had been no contact between the parties as a result of an intervention order.
The Court dismissed the appeal as no error could be demonstrated. The sentencing Magistrate considered all matters relevant to the appellant’s personal circumstances and was entitled to approach the matter by considering that general deterrence outweighed those matters. He was also entitled to be concerned about the prevalence and nature of domestic violence.
Charges: 1 x contravening a term of an intervention order
Case type: Application for permission to appeal out of time against an order for costs made by a Magistrate.
Facts: The male applicant was charged with contravening a term of an intervention order, the protected person was called at trial by the prosecution to give evidence. The evidence included the victim’s recording of an offending phone call, a copy of which was tendered. After she gave evidence, the prosecution closed its case and she was released. The Magistrate found a case to answer and the matter was adjourned. During the adjourned period, the victim was charged with property damage to the applicant’s vehicle. Consequently, the applicant applied for the witness to be recalled to cross-examine her further because of this behaviour. The Magistrate allowed the prosecution case to be reopened and reversed his ruling that there was a case to answer in order that the victim might be cross-examined. The victim could not be found as she had been released from giving further evidence. The Court issued a witness summons for her return, however, she was not served the summons. It was clear that she believed the matter was finished at least to the extent that her participation was concerned ([2]-[4]).
The applicant sought his costs. The Magistrate ordered that no costs should be allowed with respect to all appearances and work done up to and inclusive of the date of trial, but costs were granted for a number of hearing attendances after that date, albeit at an amount lower than that sought by the applicant ([9]).
A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:
Issue: The applicant sought permission to appeal the Magistrate’s orders as to costs. This application was made around 4 months out of time. The applicant submitted that he should be awarded appropriate costs up to the time the Magistrate found there was a case to answer, and that there should not have been a reduction to the costs awarded for work done after the trial date.
Held: The applicant submitted that he was successful in the matter as no conviction was recorded and no finding of guilt was made. As a result, he contended that costs should follow the event and that he should be awarded appropriate costs up to the time that the Magistrate found that there was a case to answer ([10]). The respondent submitted that the question of costs is discretionary, and noted s 189 of the Criminal Procedure Act 1921 (SA).
In his reasons, the Magistrate indicated that in allowing the case to be reopened for further cross-examination of the victim, the matter had not been completed. It is uncertain how that cross-examination would have impacted his decision to find a case to answer. The alleged offending behaviour was presented by the victim’s evidence and by way of recording. It might go to the question of credit or her attitude towards the applicant, but it is difficult to determine a scenario where that would disturb the relatively low threshold of finding a case to answer. Additionally, the Magistrate had to consider that a permanent stay of proceedings is not necessarily a completion of the matter. In light of these difficulties, David AJ held that the Magistrate did not fall into error in exercising his discretion as to costs ([10]-[13]), and consequently, dismissed the appeal.
Case type: Application for permission to appeal against a Magistrate’s decision refusing an application for the revocation of an intervention order.
Facts: The appellant filed an application in the Magistrates Court for revocation of an intervention order that was issued against him in 2008. The appellant was absent at the application hearing. The intervention order involved allegations that ‘the appellant sent letters to the protected person (a female), presented at the protected person’s door on a number of occasions, caused the protected person to install additional security in her home and other matters’ ([3]). The protected person maintained that she regularly did not feel safe and believed that the appellant was capable of inflicting harm as he was not mentally stable ([4]). The Magistrate noted that the appellant had significant mental health problems in the past, and summarily dismissed the application pursuant to s 26(4) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) ([8]. Under s 26(4), the Court may dismiss an application for revocation of a final intervention order without receiving submissions or evidence from the protected person if 1) it is satisfied the application is frivolous or vexatious; or 2) if not satisfied there has been a substantial change in the relevant circumstances since the order was issued or last varied ([9]).
Issue: The appellant sought permission to appeal against the Magistrate’s decision to refuse his application for the revocation of the intervention order on 3 grounds:
Held: David AJ refused permission to appeal and found that the Magistrate was open to summarily dismiss the appellant’s application for the revocation of the intervention order ([16]). In respect of the first appeal ground, David AJ held that although the Magistrate did apply the incorrect onus, this could have only been in the appellant’s favour. By applying the higher onus of proof beyond reasonable doubt, it was apparent that the Magistrate was satisfied on the balance of probabilities either that the application was frivolous or vexatious or he was not satisfied that there was a substantial change in the circumstances ([11]). In respect of the second appeal ground, his Honour found that the basis of the appellant’s submissions in his affidavit did not go to the question of whether there had been a change in the relevant circumstances. Instead, the submissions indicated a preoccupation with past events ([12]). In respect of the third appeal ground, David AJ held that the psychologist’s conclusion that the appellant ‘is a different person now tha[n] in the past and would benefit from release of the order’ fell short of there being a change in the relevant circumstances since the order was last issued. Consequently, there was no merit in the appeal ([13]-[15]).
Charges: 1 x aggravated recklessly causing serious harm
Case type: Application by the Attorney-General (SA) for an Extended Supervision Order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act) in respect of the respondent for a 3-year term.
Facts: The male respondent was found guilty at trial of aggravated recklessly causing serious harm against his former domestic partner and was ultimately sentenced to 5 years’ imprisonment ([5]). The respondent had a significant history of serious criminal offending, especially violent offending against women ([6]). His history included offences of non-consensual sexual penetration, armed robbery, aggravated unlawful wounding, possession of a weapon with intent to cause injury and fear, and unlawful assault causing bodily harm in circumstances of aggravation and breaching protective bail conditions. It was against this background and while subject to a suspended sentence, that the respondent was sentenced to the offending in question. The circumstances of that offending were that the respondent, while in an intoxicated state, stabbed the victim in the back and fled the house without rendering her assistance. The victim may have died within hours had she not been airlifted to Adelaide ([10]).
The applicant filed an application for an ESO under the terms of the HRO Act. An Interim Supervision Order was made pursuant to s 9 pending the determination of the application for an ESO, which was enlivened upon the respondent’s release from custody in September 2018. Further, a psychiatric report pursuant to s 7(3) of the HRO Act was provided ([11]-[13]).
Issue: The applicant sought an ESO in respect of the respondent for a period of 3 years on the basis that he is a high risk offender who would present an appreciable risk to the community’s safety if not supervised under such an order. The main issue for the Court, however, was the nature of the terms and conditions of the ESO, especially those relating to whether or not the respondent is restrained from leaving South Australia without permission ([3]).
The respondent accepted that he was a high risk offender pursuant to s 5 of the HRO Act, and did not oppose the making of an ESO provided that the order included the following conditions ([14]):
The applicant submitted that the terms of the ESO as proposed by the respondent were beyond the scope of the Court’s jurisdiction, would render it impossible to effectively supervise him when he is absent from South Australia, and would not protect the community’s safety in an effective manner ([29]).
Held: The respondent was born in the dry community of Tjuntjuntjara in Western Australia ([15]), which is described as ‘relatively stable and safe’ and as ‘one of the remotest communities in Australia’ ([21]). The respondent’s daughter, grandson and elderly, ill father also lived in that community. His father’s family originally came from the A?angu Pitjantjatjara Yankunytjatjara (APY) Lands in the remote north-west of South Australia. The respondent proposed that he would move between the Tjuntjuntjara community and Kurrawang, where he has other relatives. He also expressed an intention to live in Esperance ([15]-[16]).
The respondent submitted that given that Tjuntjuntjara is a dry community and he has family support and access to traditional healers, he could participate in men’s business and would therefore unlikely reoffend ([17]). In his opinion, an ESO in the terms proposed by the applicant would require him to stay in South Australia, rendering it difficult to visit the APY Lands ([18]). Further, it was submitted that if he was prevented from living on or near his traditional lands, both on the APY Lands and in Western Australia, this would negatively affect him and increase his likelihood to reoffend, as he would be deprived of the opportunity to play a meaningful role in his culture and lore ([19]). While it was undoubtedly in the respondent’s best interests that he be permitted to return to his homeland, Kelly J noted that the question was not ‘simple’, and required an analysis of the relevant provisions of the HRO Act ([26]-[28]).
Her Honour placed great reliance on the psychiatric report ([35]), which noted that the respondent was at high risk of further violent offending, due to his significant history of violent and sexual offending, his limited (and only very recent) insight into that behaviour, and his tendencies to minimise his behaviour and blame circumstances and victims for his past behaviour ([36]). It was also noted that the respondent was at a heightened risk of sexual offending due to his issues with childhood abuse and increased risk of violence ([37]). If the respondent returned to his traditional lands in South Australia, he would be at a greater risk of reoffending due to potential personal conflicts with other community members and the difficulties in accessing adequate supervision in remote communities. There would also be a real risk of the respondent resuming alcohol abuse without adequate supervision and therapy ([43]). Her Honour further considered therapies appropriate to the respondent’s personality type, and concluded that he would benefit from a combination of traditional western psychological therapy and support provided by traditional healers ([44]-[46]). The further the respondent travels from Adelaide, the more difficult it would be for him to access the necessary therapy ([47]).
The psychiatric report also raised the issue of the respondent’s desire to return to his traditional lands to fulfil his cultural obligations and identified some risk factors involved if he were to return ([48]). Importantly, the majority of the respondent’s offending occurred when he was living on his traditional lands and when he was under the influence of alcohol ([49]). Even though Tjuntjuntjara is a dry community, other communities in which the respondent had expressed a desire to visit are not ([50]). Under the terms of the order proposed by the respondent, there would be no practical way for the Court to satisfy itself that the community is protected should he choose to visit or reside in South Australia ([53]), as South Australian supervisory authorities have no practical way of determining if he was to re-enter the APY Lands ([52]).
Her Honour held that an ESO for a 12-month term would adequately protect the community and enable the respondent to continue with appropriate rehabilitation and therapy ([55]). Her Honour also found that the respondent was a high risk offender who posed an appreciable risk to the community’s safety if not supervised under the order, and that it would be outside the scope of the Court’s jurisdiction to make an ESO in the terms requested by the respondent, and would render his effective supervision impossible when he is absent from South Australia ([33]).
Charges: 3 x contravening a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA)
Case type: Appeal against conviction
Facts: The appellant, who was self-represented at trial, was convicted of three counts of contravening a term of an intervention order, contrary to section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The protected person under the intervention order was the appellant’s ex-partner, the victim ([1]). The agreed facts were that on 3 separate nights, the appellant attended the home of the victim’s father where the victim and their daughter were residing. The appellant left letters addressed to the victim’s father and old family photographs. Although he admitted to attending the premises, he argued that he genuinely believed that the victim and their daughter were residing at a different address ([2], [9]).
Under s 13B of the Evidence Act 1929 (SA), the appellant was not allowed to cross-examine the victim at trial unless it was done so by counsel. The Magistrate failed to refer to the appellant’s rights under s 13B(b)(ii), which includes a reference to the Criminal Law (Legal Representation) Act 2001 (SA). Section 6(1a) of that Act provides that if a defendant who is not legally represented at trial applies to the Commission for legal assistance for the cross-examination of a s 13B witness in the trial, the Commission must, subject to qualifications, grant such assistance ([17]).
Although the Magistrate advised the appellant of his right to apply for legal aid ([14], [16]), he did not advise him that legal assistance must be granted to a defendant subject to certain qualifications (terms), and instead informed the appellant that he probably would not qualify for legal assistance ([18]). The trial was adjourned, and upon resumption, the appellant remained under the mistaken belief that he would not qualify for legal assistance and was not advised of s 6 of the Criminal Law (Legal Representation) Act 2001 (SA). The appellant was unable to test the victim’s evidence in any way. Consequently, the Magistrate accepted her evidence and convicted the appellant ([21]).
Issue: The appellant appealed on the ground that the trial court did not properly and fully advise him of his right to obtain a counsel’s assistance for the purpose of cross-examining the victim ([4]).
Held: Lovell J allowed the appeal and set aside the conviction. Her Honour remitted the matter for retrial before a different Magistrate and ordered the respondent to pay the appellant’s appeal costs ([29]). Importantly, her Honour noted a trial judge’s obligation to ensure that an accused self-represented person understands their rights and has all the necessary information in order to receive fair trial and make informed choices about his or her case ([22]-[23]). In the present instance, the appellant was required to be aware of and fully understand his rights provided for by s 13B and, by extension, s 6(1a) in order to receive a fair trial ([23]). The Magistrate was obliged to ensure that he fully understood that cross-examination of the victim could only occur if he employed counsel to do so on his behalf, and that if he applied to the Commission for legal assistance, they were bound by law to provide it, subject to any conditions they saw fit ([24]). The trial miscarried because the Magistrate failed to properly and fully advise the appellant of his right to obtain counsel’s assistance for the purpose of cross-examination ([25]).
Charges: 1 x assault causing harm
Case type: Appeal against sentence
Facts: The appellant was convicted of assault causing harm after having repeatedly punched the victim in the face, in the presence of her twin daughters from a previous relationship ([14]). The appellant and victim had been in a relationship for approximately 9 years. The relationship was marred by allegations of infidelity made by the appellant, and ‘he felt betrayed and became very angry’ upon discovering that the victim had regularly contacted another man ([13]). The victim’s injuries were extensive ([16]), and she told the Court in her Victim Impact Statement that ‘she was upset that the offending occurred unprovoked in her and her children’s home’ ([18]).
The appellant was sentenced to 14 months’ imprisonment, which was reduced to a prison term of 8 months and 2 weeks as a result of his early guilty plea. The sentence was partially suspended, allowing the appellant’s release after serving 4 months imprisonment upon him entering into a good behaviour bond for 2 years ([2]). The conditions of the bond are noted at [3], and included the requirements that he does not leave South Australia unless given permission by his Community Corrections Officer for specific purposes, and that he attend any programs and appointments as directed.
Issue: The appellant appealed against the sentence on the grounds that it was manifestly excessive and that it was manifestly unreasonable to not wholly suspend the prison sentence. He also appealed the condition of the partially suspended sentence bond requiring him not to leave South Australia without permission.
Held: Kourakis CJ noted the appellant’s personal circumstances at [19]-[27]. He was aged 47 at the time of the offending, worked in the fishing industry, suffered a lengthy period of depression after his father’s death, had numerous previous convictions of driving offences, and consumed an excessive amount of alcohol, particularly after his father’s death and to numb his emotions during hostile relationships. Although the appellant has not consumed alcohol in over 3 years, he reported weekly use of cannabis ([23]). His mother was dependant on him and he also had a brother who suffers from schizophrenia ([20]). The appellant experienced anxiety and low self-esteem, as well as health issues. His psychologist opined that he exhibited dysfunctional personality traits, and experienced self-doubt and feelings of inadequacy ([25]). According to a violence risk assessment, the appellant was identified as likely to pose a Moderate-High risk of re-offending ([26]).
Having regard to the relative importance of general deterrence, Kourakis CJ held that the length of the prison sentence was not manifestly excessive. The appellant had reoffended despite the leniency that had been previously shown to him, and the victim’s physical injuries were very serious. At [35], his Honour stated that ‘[p]ersonal and general deterrence must be given substantial relative weight in sentencing for assaults committed by men against women with whom they are, or have been, in a relationship, particularly when in a jealous rage’. The length of both the notional starting point and the actual prison term was well within the permissible range.
Kourakis CJ also found that the Magistrate’s decision to partially suspend the sentence fell within the proper exercise of the sentencing decision ([36]), and that the Magistrate considered all relevant matters ([38]). It was not unreasonable for the Magistrate to conclude that the appellant’s sentencing would be optimised by a combination of both punishment and deterrence effected by imprisonment for 4 months and rehabilitation over an 18-month period ([40]).
Kourakis CJ allowed the appeal only to the extent of removing the condition of the bond requiring the appellant to not leave South Australia unless given permission by his Community Corrections Officer, as such a condition was unreasonable. The appellant’s home was in Melbourne, where his dependent mother resided and his brother received treatment for his mental illness. His Honour found that ‘Australia is one nation and there is much movement between the south east corner of [South Australia] and Victoria’. His Honour also considered that there was ‘no real connection between the condition that he obtain treatment and counselling and the obligation to obtain permission.’ The appellant should be entitled to ‘come and go from his own home, to help his mother as and when he sees fit, and to fish in Victorian waters without first obtaining permission’ ([42]).
Charges: 1x aggravated serious criminal trespass in a place of residence, 1x theft.
Appeal type: appeal against conviction of above charges.
Facts: The appellant and the complainant were in a relationship and two children were born of that relationship. The appellant and the complainant had separated and there were family court orders allowing the appellant fortnightly access to the children and restraining him from being within 50 metres of the complainant’s house. The appellant was found in the complainant’s house in possession of various items belonging to the complainant. Upon the police’s arrival, the appellant stated, “I fucked up” and begged the complainant not to press charges.
Issues: The appellant advanced two grounds of appeal; both grounds were considered together since they were intrinsically linked in both time and context ([42]). The appellant argued that the trial Judge failed to give adequate directions to the jury as to the use that could be made of the purported confessional statement “I fucked up” and the evidence of the appellant begging not to be charged ([3]).
Decision and reasoning: appeal dismissed.
To illustrate that the trial judge’s directions were not deficient, Parker J first made two material observations of the trial proceedings. The first was that the trial Judge reminded the jury of the defence’s submission that the appellant’s remarks were potentially equivocal and couldn’t be regarded as determinative ([47]). The second was that the trial Judge expressly stated that the use that could be made of the appellant’s behaviour was entirely within the jury’s discretion; it could be used for or against him, rejected in whole or in part, or attributed with different degrees of significance ([48]).
His Honour then referred to the observations of the High Court in RPS v The Queen to reflect the absence of any error in the trial Judge’s directions. In the extract, the High Court stated that the facts are to be determined by the jury and the trial Judge may comment on the facts but often the safest course for a trial Judge will be to make no comment on the facts beyond reminding the jury of the arguments of counsel ([49]). In addition, for the same purpose, his Honour referred to similar observations made in R v Golubovic where it was pointed out that in trials such as the one at hand, there may be little need for the judge to identify the issue or explain the cases of the parties ([50]).
Collectively, these observations are said to point towards a key principle relevant to the appeal, that is, when considering the adequacy of the Judge’s directions to the jury, it is important that the factual issues are few and not complex ([49]-[51]).
For these reasons, amongst others, his Honour deemed that it was unnecessary for the Judge to provide more elaborate directions in the terms suggested by the appellant (see [3]). The directions given by the Judge were viewed as sufficient to ensure the jury wasn’t confused about the issues that needed to be determined ([53]).
Charges: 2 x aggravated assault, 1 x contravening a term of an intervention order, 1 x property damage
Case type: Appeal against sentence
Facts: The offending occurred in the context of a domestic relationship which was in the process of ending ([5]). At the relevant time, the appellant was subject to an intervention order ([11]). The appellant was living with his former domestic partner and her daughter (the protected person under that order). One count of aggravated assault involved the appellant punching his former domestic partner with a clenched first to her left shoulder in the presence of her daughter ([8]). The police were called to the house. The second count of aggravated assault involved the appellant punching the attending Sergeant numerous times, one of which was described as ‘an unusual two-handed punch delivered in a jabbing manner’. The property damage occurred when the Sergeant’s glasses were broken as a result of the altercation between the appellant and himself ([10]). The Magistrate found that the appellant’s behaviour amounted to a breach of the intervention order, as he intimidated the daughter by assaulting her mother and the Sergeant in her presence, abusing her and conducting himself in a violent and abusive manner ([11]).
At trial, the Magistrate noted the appellant’s personal circumstances at [13], referring to his age, his previous marriage, and his employment history. His character references indicated that he was a hardworking, honest person who made a positive contribution to his community ([14]). The appellant had a prior conviction for assault of a police officer for which he was ordered to perform 200 hours of community service within 10 months ([15]). The Magistrate did not refer to the circumstances that led to the making of the intervention order ([17]). In his view, specific and general deterrence were significant sentencing principles ([18]). His Honour also ‘correctly observed’ that the law is required to protect police officers when performing their duties, as well as domestic partners ([19]). Consequently, the Magistrate imposed convictions on all counts and sentenced the appellant to 6 months’ imprisonment ([20]).
Issue: The appellant appealed against his sentence on 2 grounds, namely, 1) that the Magistrate failed to have regard to the appellant’s lack of antecedents, age, community work, good character and the interests of justice in sentencing the appellant; and 2) that the sentence of 6 months’ imprisonment was manifestly excessive.
Held: Hinton J allowed the appeal in part. His Honour considered each ground separately, and placed reliance on relevant case law and statistics from the New South Wales Bureau of Crime Statistics and Research. His Honour noted that the first ground of appeal was essentially a contention that the appellant’s lack of antecedents, age, community work, and good character should have attracted a weight that resulted in a lesser sentence, or resulted in the sentence imposed being suspended in part or in whole ([21]). Referring to House v The King and R v Lutze, his Honour concluded that the submissions made in support of the first appeal ground should be treated as forming part of the submission in support of the second appeal ground ([24]).
As to the second appeal ground, his Honour found that the offending was ‘particularly serious’ and that the Magistrate correctly referred to the court’s duty to protect vulnerable people from domestic violence ([29]). His Honour cited R v Saunders for the proposition that intervention orders and bail conditions can prevent acts of domestic violence, and that the violation of such orders and conditions can have profound consequences for the victim’s sense of safety and security. Hinton J observed ‘the effectiveness of intervention orders as a means of protecting members of the community will be undermined if the courts do not respond appropriately to their breach’ ([33]).
Hinton J did not find the sentence of 6 months’ imprisonment to be manifestly excessive per se. The appellant did not provide any explanation for his conduct or express remorse or contrition, and mitigating circumstances were absent. Although he is an intelligent person, his prior involvement with the courts and police should have been a clear reminder that such violent, abusive conduct towards his family and police is not tolerated ([40]). The appellant’s prospects of rehabilitation were good, as he generally lived a ‘good and productive life’ and would likely continue to do so upon his release ([41]).
His Honour, however, found the requirement that ‘he serve the entirety of the 6 month sentence so as to punish, to deter specifically and generally and to provide the protection’ to be manifestly excessive. The Magistrate’s approach was not reasonably open, having regard to the appellant’s personal circumstances and, in particular, his age, antecedents, previous good character, work history and prospects of rehabilitation ([43]-[44]). The Magistrate appeared to focus on condign punishment to the exclusion of rehabilitation, and overlooked the appellant’s likely response to supervision in the community for an extended period, which would have provided greater protection for the community ([44]).
In summary, the appeal was allowed, but to the limited extent of directing, pursuant to s 96(4) of the Sentencing Act 2017 (SA), that the appellant serve 16 weeks of his 6-month sentence in prison and suspend the remainder of the sentence on condition that he 1) enter into a good behaviour bond for 18 months; 2) be subject to supervision by a Community Corrections Officer; and 3) attend any counselling, treatment and therapeutic programs that deal with anger management and/or domestic violence as directed and deemed appropriate by his Community Corrections Officer ([45]).
Charge: Aggravated assault.
Appeal type: Appeal against Magistrate’s sentence (excusal of breach of bond).
Facts: In 2016 the respondent assaulted his partner and was sentenced to imprisonment for 9 months, suspended upon entering into a good behaviour bond for 18 months. In 2017 the respondent breached his good behaviour bond by committing a further assault on his partner. The Magistrate excused the breach of bond, extended the bond by 6 months, and sentenced the respondent to imprisonment for 28 days for the fresh offending suspended upon the respondent entering into a further good behaviour bond for 18 months. The Police appealed against the excusal of the breach of bond ‘on the ground that, in excusing the breach, the Magistrate erroneously relied on the respondent’s personal circumstances as opposed to the nature and circumstances of the offending’ at [3].
Appeal dismissed by single Judge. Police sought permission to appeal to Full Court.
Issue: Did the Magistrate erroneously rely upon the respondent’s personal circumstances as opposed to the nature and circumstances of the offending when excusing the breach of bond?
Decision and reasoning: Granting permission to appeal and dismissing the appeal, the Full Court held:
‘The approach by the Magistrate to the finding of proper grounds to refrain from revoking the suspension was erroneous, as was the Magistrate’s conclusion that there were proper grounds to refrain from revoking the suspension’ at [41]. ‘The Judge erred in concluding that the Magistrate did not rely on the respondent’s personal circumstances in deciding to refrain from revoking the suspension’ at [47]. Notwithstanding the error, the appeal should be dismissed in the exercise of the court’s residual discretion, as the respondent has been living a law-abiding life in the community for an extended period of time since being sentenced, and the balance of the original period of suspension of the original sentence and the extended period of the suspension has now expired at [63].
Reasoning - proper grounds:
The police relied upon a series of decisions commencing with Norman v Lovegrove [1986] 40 SASR 266and R v Buckman [1988] 47 SASR 303 in which the Supreme Court held that when determining whether there are proper grounds within the meaning of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA)—a largely identical provision is now contained in s 114(3) of the Sentencing Act 2017(SA)—upon which a breach of bond should be excused, those proper grounds must relate to the ‘nature and circumstances of the breaching offence as opposed to the personal circumstances of the defendant’ at [13]. Blue J held in relation to the meaning of the expression proper grounds that ‘it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection 58(3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach’ at [22]. His Honour reasoned that the ‘distinction between circumstances of the offence and personal circumstances is well understood in practice although it is more difficult to define in a priori terms. The circumstances of the offence comprise those circumstances existing at the time of commission of the offence which bear on the culpability of the offender in committing the offence’ at [31].His Honour differentiated between a ‘circumstance of the offence’, for example, an offender suffering a mental impairment which contributed to the committing of the offence, and a ‘personal circumstance’, for example, where ‘it is desirable that a defendant receive treatment for a mental impairment which cannot effectively be provided in prison’ or where hardship is caused to the defendant’s dependant at [31].
His Honour, at [35], cited the Magistrates three reasons for refraining from revoking the suspension:
His Honour held that reasons 1 and 2 were personal circumstances. While the third reason related to the circumstances of the breach, his Honour held that ‘there was no basis on which it was open to the Magistrate to conclude that activation of the original sentence would be a disproportionate consequence of the 2017 offending’ at [40].
Reasoning – the reasons of the Judge:
The Judge referred ‘to decisions of single Judges of the Court that the Full Court authorities do not preclude a court taking into account personal circumstances’, however, stated that it was not necessary to decide this as the Magistrate did not take into account the respondent’s personal circumstances when deciding to restrain from revoking the suspension’ at [43]. Blue J held the Judge erred in his conclusion that the Magistrate did not rely on the respondent’s personal circumstances in refraining from revoking the suspension.
Reasoning – permission to appeal:
Permission to bring a second appeal by the Crown against sentence by a magistrate ‘will only be granted in rare and exceptional cases. This will ordinarily only be when it is necessary to establish or maintain correct sentencing principles or adequate sentencing standards or where the error is so disproportionate to the seriousness of the crime that it demands correction on appeal’ at [49]. Permission to appeal should be granted ‘having regard to the importance of the maintenance of the correct sentencing principles and the availability of the residual discretion’ at [61]. However, as allowing the appeal would have resulted in the defendant’s imprisonment after he had been living a law-abiding life in the community for a sustained period’ at [62], the Court should dismiss the appeal in the exercise of its residual discretion.
Charges: Stalking x 1; non-compliance with bail agreement x 3.
Case type: Appeal against conviction and sentence.
Facts: On 2 November 2016, the appellant was arrested and charged with stalking his father-in-law. He was released on bail subject to conditions, one of which prohibited him contacting his then wife of 13 years, who was also the mother of his five children and the daughter of his father-in-law. On 10 November 2016, the appellant telephoned his wife, but did not leave a message. The appellant also sent 2 text messages on a separate occasion. As a result, he was arrested and charged with 3 counts of breaching the terms of his bail. The Magistrate found the appellant guilty, and imposed convictions in relation to each count and released him upon his entering into a 6 months’ good behaviour bond in the sum of $500. The appellant appealed against the conviction and sentence. His appeal against conviction was over 40 weeks out of time.
Issue: This is an appeal against a conviction and sentence, where the appeal against conviction was made out of time. The appellant submitted that the relevant bail condition was unreasonable or unlawful for including the prohibition against contact with his wife when she was not the complainant. He also argued that he had not been competently represented by counsel at his trial.
Held: Upon the hearing of the appeal, the appellant was unrepresented. Hinton J noted that one of the purposes of conditions of a bail agreement is to prevent further offending ([33]). Hinton J was not satisfied that the impugned condition was legally unreasonable, as the evidence suggested a domestic disturbance between the appellant and his wife, a repeat of which the police intended to prevent by prohibiting contact. Further, Hinton J found that the validity of a bail agreement does not depend on the prosecution’s success at trial of any charge to which the bail agreement relates. The fact that a person is charged is sufficient to subject him or her to bail ([36]).
Hinton J also found that it was open to the Magistrate to be satisfied of the appellant’s guilt on Count 1 beyond reasonable doubt ([44]). His Honour noted that contact, in terms of communication, can be direct or indirect and that the evidence established that the call was made from the appellant’s phone. His Honour found that it is irrelevant whether a mental element attaches to the act, as the offence of breaching a bail agreement pursuant to section 17 of the Bail Act 1985 (SA) is one of strict liability. A bail agreement, in his view, not only seeks to ensure compliance but also requires the accused to take positive steps to ensure compliance. To hold that an offence is one that has a mental element attaching to the act would undermine the requirement that an accused granted bail take positive steps to avoid an inadvertent breach ([43]).
His Honour refused to grant the appellant an extension of time in which to appeal against his convictions, as no explanation was provided for the delay and the appeal did not have sufficient prospects of success. His Honour held that the the appeal was, in effect, an effort to have the appellant’s case re-tried so that he could adopt a different approach ([45]). The appeal against sentence was also dismissed. The appellant was obliged to take steps to ensure compliance with the bail conditions, which he failed to do ([46]-[51]).
Civil proceedings: claim by plaintiff for specific performance of motor vehicle purchase contracts; counterclaim by defendant for misleading conduct, jurisdictional challenge; and security for costs application by defendant.
Appeal type: appeal against Magistrate’s reasons, security for costs order, and failure to make jurisdictional challenge order.
Facts: The plaintiff purchased three high performance Holden motor vehicles in the name of the plaintiff’s company. Only two are relevant to this matter. The purchases were negotiated by Mr Mazzacano and two others. Mr Mazzacano, as a former Holden employee, was entitled to an employee discount scheme. The plaintiff’s claims that he ordered the vehicles and was invoiced for each by the defendant ($42,927 and $44,467). He paid both the balance and deposit. The defendant contends that the plaintiff company was not entitled to access the discounts as the purchase was not for the benefit of Mr Mazzacano. The defendant did not deliver the vehicles but returned the purchase monies to the plaintiff. The plaintiff sought specific performance of its contracts with the defendant on 19 July 2017 and filed an application for summary judgment. The defendant filed a defence stating that the plaintiff was not entitled to the EPSA discount. The defendant subsequently filed an amended defence and counterclaim, and included a counterclaim for misleading conduct and the defendant filed interrogatories seeking clarification on the nature of the business being operated by the plaintiff asking ‘what is the nature of the business that was being operated by the plaintiff during 2017’.
The defendants made a jurisdictional challenge and a security for costs application. The plaintiff appeals against orders granting security for costs and declining to order costs in relation to the defendant’s jurisdictional challenge.
Issues:
Decision and reasoning:
Dismissing the appeal, Doyle J held:
There was no error in relation to the Magistrate’s exercise of his discretion to order security for costs per House v King (1936) 55 CLR 499.
The plaintiff did not establish that there was the potential for substantial injustice were permission to be refused and the orders for security left to stand.
Reasoning – appeal ground 1:
That a Magistrate attaches insufficient weight to a particular consideration is not, in itself, an allegation of error in the sense required by House v The King at [49]. That ‘Appellate intervention in interlocutory decision making’ should be ‘truly exceptional at [50]. In relation to the alleged inadequacy of reasons in relation to both security for costs and the costs of the failed jurisdiction application, his Honour, held at [53] that ‘in the case of interlocutory disputes, little by way of reasoning may be required’…’as long as the key planks in the judge’s reasoning process leading to the relevant decision are apparent, that will generally suffice’. The Magistrate in their reasons, ‘identified the plaintiff’s status as a trustee company’, the ‘defendant’s delay in bringing the application’ and ‘stated his conclusions in relation to the availability of security for past costs’ at [55].In the event that a plaintiff is a trustee, a defendant ‘should not be subjected to the potential complexity…expense and uncertainty, associated with having to resort to derivative rights in order to recover any costs’ at [64]. The plaintiff did not identify whether it holds the properties in its own right or as trustee, and as such the Magistrate was right to attach significance to the consideration [75]. In relation to the Magistrate not giving any weight to the defendants’ delay in bringing the application for security. While ‘it is a well-established that applications for security should be brought promptly’ [at 78], whether it is in the interests of justice to make an order for security is also a factor [at 82].
Other matters that were of some relevance to the discretion to order security was the absence of indication by the plaintiff that it would not be able to provide security, further there was no challenge to the bona fides or arguable merit of the plaintiff’s claim including that he had paid the for the cars prior to the order for security for costs. At [104] it was open for the Magistrate to make a reduction to the quantum of security upon the existence of the counterclaim, however the amount ordered was not ‘erroneously high’.
Conclusion as to security for costs:
Reasoning – appeal ground 2:
At [65] ‘while it is significant, the context of an application for security, that a plaintiff is suing as trustee, it does not follow automatically that it will be appropriate that there be an order for security’.
Proceeding: Private application for final intervention order.
Appeal type: Appeal against Magistrate’s revocation of interim intervention order.
Facts: Mr Shahin is the owner of two adjacent properties, numbers 17 and 18. His family occupies number 17, while his sister occupies number 18. Dr El-Shafei owns number 19, which is adjacent to number 18. There have been ongoing disputes between the parties regarding a number of matters. Dr El-Shafei alleges he was assaulted by Mr Shahin, claiming a resulting wrist injury. Dr El-Shafei is charged with an offence relating to damage caused to the boundary fence. Following the dismissal of a police application for an intervention order, Dr El-Shafei filed a private application which proceeded ex parte withDr Cannon (then Deputy Magistrate) granting an interim order pursuant to s 21 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The application for a final intervention order was heard a week later by Magistrate Sheppard. The interim order was revoked and the matter referred back to Dr Cannon for further hearing. Dr Cannon declined to award costs of the intervention order application in favour of Mr Shahin. Mr Shahin filed a notice of appeal again Dr Cannon’s dismissal of his application for costs. Dr El-Shafei subsequently filed a notice of appeal against Magistrate Sheppard’s revocation of the interim intervention order on 29 June 2018. A second and third amended notice of appeal were filed by Dr El-Shafei on the 12 July and 5 September 2018. The second notice amended an incorrect identification of the parties. The third notice filed the day before the appeal hearing, was not served on Mr Shahin’s representatives until the morning of the hearing.
Issues:
Decision and reasoning:
Permission to appeal
As a criminal proceeding (per R 4.07 of the Magistrates Court Act 1991 (SA), the jurisdiction conferred on by the IO Act is vested in the Criminal Division), any appeal relating to an intervention order is subject to s 42 of the Magistrates Court Act 1991 (SA) at [41]. S 42(1a) of the Magistrates Court Act 1991 (SA) does not preclude an appeal against interlocutory judgment in these circumstances. Per Sulan J in Groom v Police (No 3) [2013] SASC 93, the words “before commencement or completion of the trial” in s 42(1a)(c) have no operative effect unless there is a trial. Accordingly, ‘the Court has power to grant permission for an interlocutory appeal if … there are special reasons why that would be in the interests of the administration of justice’ at [45]. Granting permission, his Honour was satisfied special reasons existed due to the significant questions of law raised (ie the application of s 76A of the Criminal Procedure Act 1921 (SA) and validity of referring the matter for further hearing) at [48].
Dismissing Dr El-Shafei’s appeal, Parker J held
‘An applicant for an interim intervention order is not required to make full and fair disclosure in the same manner as an applicant for an ex parte order’ at [76]. ‘The relevant issue is not whether one party is more or less blameworthy than the other, but rather whether it is reasonable to suspect that an act of abuse may be committed’ (grounds for issuing an intervention order per s 6 IO Act) at [77]. S 23 IO Act provides the Defendant with an opportunity to respond before the Court concludes whether a final order is appropriate at [78]. ‘There is a real risk that the imposition of a full and fair disclosure obligation in such an environment is likely to frustrate or impede the object of providing prompt intervention to protect those at risk of abuse’ at [78]. Given the impracticality of subjecting the police to full and fair disclosure, private applications should be under no greater obligation at [81].
S 26 IO Act does not operate to preclude the Court from exercising its powers under s 76A where the operation of s 76A is considered necessary to remedy an injustice. The power conferred by s 76A was available to the Magistrate at [109], [112].
There was no process or outcome error in the decision of Magistrate Sheppard. Her Honour’s concern about the accuracy and timing of the information provided by Dr El-Shafei was a proper reason for revoking the interim order at [117]. As the ‘decisive issue was the reliability of the information put before the Court’ and as Dr El-Shafei was awarded ample opportunity to address those issues, he was not unfairly disadvantaged by a lack of legal representation at [129]. The orders of Magistrate Sheppard required a rehearing of the application for an interim order. A rehearing did not occur and the proceedings of 18 May 2018 before Dr Cannon therefore miscarried at [132]. If Dr El-Shafei pursues his application the matter should proceed to a hearing to determine whether a final order should be made (per s 23 IO Act) at [135].
Upholding Mr Shahin’s appeal against the dismissal of his costs application, Parker J held
There were not proper grounds to reject Dr El-Shafei’s application for costs as Dr Cannon ‘did not have sufficient information to decide whether or not Dr El-Shafei had acted in bad faith or unreasonably’ at [139]:
Charges: Contravention of an intervention order x 2.
Appeal type: Appeal against conviction.
Facts: The appellant was convicted after trial of two counts of contravening a term of an intervention order. After finding the evidence of the protected persons to be truthful and accurate, the Magistrate recorded convictions and imposed a good behaviour bond for 12 months.
Issues: The appellant appealed the convictions on a number of grounds including that the Magistrate erred in admitting evidence of past discreditable conduct, applied the wrong onus of proof in relation to the charges, placed undue reliance on the credibility of the protected person, impermissibly relied on evidence of a charge that was dismissed in finding the appellant guilty of the two charges, wrongly regulated the cross-examination of the appellant, and that the evidence was insufficient to support the convictions beyond reasonable doubt.
Decision and reasoning: Kelly J dismissed the appeal on the following grounds:
Appeal type: Appeal against decision of a magistrate to issue a final intervention order.
Facts: The police issued an interim intervention order against the appellant for the protection of Mr Larkins, his wife, his child and three other children in his care, all of whom lived in the same street as the appellant. The appellant and his wife (who had separated, but continued to live in the same house) had a poor relationship with Mr Larkins and his wife. Mr Larkins and his wife were Indigenous Australians. Mrs Larkins had been involved in Federal Court proceedings relating to unspecified issues with the appellant’s wife.
The Magistrate was required to determine whether or not the interim intervention order should be confirmed as a final intervention order or a final intervention order be made in substitution. The order was declared to address a domestic violence concern. The Magistrate made a final intervention order against the appellant in substitution for the interim order, finding that it was reasonable to suspect that the appellant would, without intervention, commit acts of abuse against the protected persons and that it was appropriate in the circumstances to issue a final order. The protected persons were unchanged but the terms of the final intervention order differed somewhat from those of the interim order.
Issues: Whether a final intervention order should be made; Whether the Magistrate erred with respect to evidentiary matters and in applying the statutory requirements for making a final intervention order.
Decision and reasoning: It was entirely open to the Magistrate to accept the evidence of Mr Larkins and his wife on critical issues in preference to that of the appellant and his wife. The transcript showed that the appellant appeared angry and malevolent towards Mr Larkins and his family, displaying significant animosity with racial overtones towards them. It was reasonable to find that the appellant would commit further acts of abuse in the absence of an intervention order. In all the circumstances, the Magistrate’s order was appropriate.
Dismissing the appeal, Nicholson J held that:
Charges: Breach of bail x 1; Property damage x 2; Assault causing harm x 1.
Appeal type: Appeal against conviction for assault.
Facts: The appellant and complainant had been in a relationship for about eight weeks. Each had one daughter. The complainant was woken by her daughter vomiting. The next day, the complainant and appellant argued. When the complainant told the appellant to leave her home, he became very angry and violent. The complainant alleges that the appellant kicked, punched and shoved her. She ran to her neighbour’s house with her daughter and asked them to call the police. She could hear him ripping the flyscreens off her house. The Magistrate described the appellant and complainant as witnesses who ‘gave their evidence clearly and with some passion, both of them without major discrepancies’. He found the appellant guilty of assault but not guilty of the property damage charges.
Issues: Whether the verdict was open on the evidence; Whether the Magistrate adequately explained why the appellant’s evidence was rejected; Whether the magistrate’s reasons were adequate.
Decision and reasoning: The appellant appealed the guilty verdict on the grounds that (1) the Magistrate’s reasons were insufficient to explain his finding that ‘Nothing was sufficient to justify a movement of the foot sufficiently hard to damage the side of her face. He could have extracted his foot without kicking her to the cheek’; (2) that the Magistrate did not explain why his evidence was rejected beyond reasonable doubt; and (3) that there was insufficient evidence for the Magistrate to have rejected beyond reasonable doubt his version of events, which should have led to the Magistrate entertaining a reasonable doubt as to his guilt in relation to the assault charge.
Bampton J held that, having read the evidence in its entirety and in accordance with the requirements referred to in M v the Queen [1994] HCA 63, the finding of guilt was not supported by the evidence. The state of the evidence was such that the prosecution failed to prove that the appellant intentionally applied force to the complainant causing ‘harm to the tongue and cheek’. Her Honour held that the Magistrate did not adequately explain his finding of guilt and did not explain how the elements of assault were satisfied. The Magistrate’s reasons were not underpinned by a reasoning process linking and justifying the findings made ([53]). There was reasonable doubt as to the appellant's guilt. It was not open to the Magistrate to be satisfied beyond reasonable doubt of the appellant's guilt. Accordingly, the appeal was allowed, the verdict of guilty was set aside and a verdict of not guilty was substituted.
Charges: Intentionally causing harm x 1; Contravening an intervention order x 1.
Proceeding type: Prosecution appeal against grant of bail.
Facts: The respondent, an Aboriginal man, was charged with intentionally causing harm and contravening an intervention order. The respondent assaulted his former partner (the complainant) during an access visit to their son. The circumstances of aggravation included that the complainant was his ex-partner and the respondent used a coffee mug, to inflict injuries to the head and face of the victim ([5]). The respondent also had a criminal history for offences of violence and dishonesty ([9]). The respondent was a prescribed applicant within the meaning of s 10A of the Bail Act 1985 (SA) such that bail may not be granted unless special circumstances are established. The DPP contended that bail should not be granted due to the risk of re-offending (given the respondent’s history of non-compliance with various court orders) and concerns for the complainant’s safety ([15]).
Issues: Whether bail should be granted.
Decision and Reasoning: Kelly J dismissed the appeal. Special circumstances justifying release on bail included that the complainant no longer resided in the Court’s jurisdiction ([17]), the likely trial date would not be for some time, and a recent report that Aboriginal and Torres Strait Islander people are highly over-represented in the remand population. According to the Australian Law Reform Commission Report No 133, Aboriginal and Torres Strait Islander people continue to be over-represented in the remand population by a factor of over 11. However, a finding of special circumstances does not mean that bail is automatically granted. At [12], her Honour stated –
‘Ordinarily, it may be expected that if special circumstances are established, then a grant of bail may follow but upon special circumstances being established, it will remain open to the bail authority to refuse bail if nonetheless, having regard in particular to the gravity of the offending, the likelihood that the prescribed applicant will re-offend, the likelihood that the prescribed applicant will interfere with a witness or evidence and the likelihood that he or she will abscond, the bail authority considers that bail should not be granted’.
Notwithstanding that the respondent was a prescribed applicant, her Honour held that there were special circumstances. It was therefore appropriate to grant the respondent bail on conditions of strict home detention ([18]).
Charges: Assault causing harm x 1.
Appeal type: Appeal against conviction.
Facts: The complainant gave evidence that the appellant punched her from behind, pushed her to the floor, pushed her head into the floor and wall, and bit her on the cheek ([16]-[17]).
Issues: Whether the conviction was unreasonable or insupportable having regard to the evidence.
Decision and Reasoning: The appeal was allowed, and the matter was remitted for retrial before a different magistrate ([98]).
Lovell J described the case as an ‘oath on oath’ case ([10]). At [51]-[54], Lovell J provides a useful exposition of what is necessary for a Magistrate to include in a judgement to amount to adequate reasons. Simply summarising the evidence is not sufficient. The reasons must engage with conflicts in evidence and how those conflicts can be resolved.
Lovell J held that the Magistrate failed to provide adequate reasons in two areas. First, in accepting the evidence of a police officer and M’s treating doctor without explaining how the Magistrate reconciled the inconsistencies between their evidence and M’s evidence ([57]-[79]). Second, in dismissing the evidence of the appellant’s uncle without explaining why ([80]-[86]).
Charges: Aggravated assault x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and complainant were in a domestic relationship. They had a 7-month-old child and the complainant was pregnant with another child. The appellant was 17 years old at the time of the offences. An intervention order was in place requiring the appellant to not assault, harass, intimidate or threaten the complainant. The offence occurred when the appellant grabbed the complainant by the upper arms and squeezes them ([6]).
The Magistrate recorded a conviction and imposed a 12-month good behaviour bond.
Issues: Whether the magistrate erred in recording a conviction.
Decision and Reasoning: The appeal was allowed. The conviction was set aside, and again imposed the 12-month good behaviour bond ([24]).
The appellant submitted that the magistrate failed to have sufficient regard to the appellant’s youth and the purposes of the Young Offenders Act 1993 (SA), in particular the policy that there should be no unnecessary interruption of employment ([12]).
Stanley J emphasised that the appellant had a history of domestic violence and highlighted the need for general deterrence at [19]:
Offences of violence by men against women are all too prevalent. All too often they result in harm but the deterrence of those offences will not be adequately achieved unless all offences of violence, whether they cause harm or not, are properly addressed.
Nonetheless, Stanley J held that the public interest in a conviction being recorded is diminished when the defendant is a youth ([18]). It was important that the appellant was now reconciled with the complainant and his ability to provide for her and their children would be diminished by recording a conviction ([22]).
Appeal Type: Appeal against refusal to grant bail.
Facts: The applicant and the female complainant had been in a relationship for 10 years. On 14 September 2016, the applicant was charged with using a dangerous article, aggravated assault with a weapon against his own child or spouse, and committing an assault aggravated by the use of an offensive weapon. These offences occurred in the context of the breakdown of the applicant and complainant’s relationship and were committed against the complainant and her new partner. On 14 September 2016, an interim intervention order was made against the applicant. The applicant breached this order on two occasions.
The applicant was charged with two counts of contravening a term of an intervention order pursuant to s 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and one count of aggravated threat to cause harm. The applicant was a prescribed applicant pursuant to s 10A(2)(ba) of the Bail Act 1985 (SA) because he was charged with breaching an intervention order in circumstances involving violence. As such, there was a presumption against the grant of bail unless the applicant established the existence of special circumstances: s 10A(1). The magistrate refused to grant bail.
Issue/s: The magistrate erred in failing to find there were special circumstances.
Decision and Reasoning: The appeal was dismissed. Hinton J noted generally that Parliament’s approach to an act of defiance to a protective order allegedly perpetrated in circumstances involving violence ‘only tolerates release into the community on bail if special circumstances can be established’ (see [16]). This is part of the community’s recognition of the ‘prevalence of domestic violence’ and the need to insist on strict compliance with intervention orders to ensure they fulfil their protective purpose (see [17]).
His Honour continued that, ‘special circumstances will only exist where the applicant can demonstrate that he or she does not pose the risk which Parliament had in contemplation in reversing the presumption and in relation to whom the denial of bail would result in consequences beyond the contemplation of Parliament’. The relevant risk here was ‘of further defiance of an order and violence threatened or perpetrated in doing so’ (see [19]).
The ability to fashion bail conditions which reduce the risk of offending and offer protection to the victim will not ordinarily amount to special circumstances (see [40]).
On the facts, Hinton J held that there were no special circumstances warranting the grant of bail. None of the sorts of special circumstances referred to in R v Buhlmann were present (see [20] of this case). The applicant had not pointed to any exceptional hardship that would result from his continued incarceration (see [42]).
Appeal Type: Appeal against the imposition of a final intervention order.
Facts: The male appellant was having an affair with a married woman, Ms P, who told him her marriage was over. The appellant was concerned that she was not telling the truth. On 8 October 2015, after an argument, the appellant went to Ms P’s home address at night. Being unable to see or raise her, he went to the backyard and called out to her. Ms P and her husband contacted the police. The appellant left without making any threat or committing any violence.
The next day, police approached the appellant and searched his vehicle. They found a can of OC spray (oleoresin capsicum spray), a hammer and a small knife, but it was agreed that he did not take these onto Ms P’s premises. The appellant was charged with being on premises without lawful excuse and for the items in his car. A police interim intervention order was issued against him with respect to Ms P, her husband and their children. On 19 August 2016, the appellant pleaded guilty. Relevant to this appeal, on the same day, the magistrate imposed an intervention order pursuant to s 19A of the Criminal Law (Sentencing) Act 1988 (SA).
Issue/s:
Decision and Reasoning: The appeal was allowed. Peek J held that s 19A of the Criminal Law (Sentencing) Act 1988 did not create a freestanding power to issue final intervention orders. At [24], His Honour stated that:
‘Section 19A does no more than enable a court hearing substantive charges – in this case it happened to be a Magistrate – to issue an intervention order as if a complaint had been made under the Intervention Orders (Prevention of Abuse) Act 2009; the critical question of whether an order is to be made pursuant to such a complaint (or “as if a complaint had been made”) will depend on the substantive provisions of the Intervention Orders Act.’
Here, the sentencing magistrate made no reference to the requirements set out in the Intervention Orders Act. As such, it was impossible to assess whether the magistrate approached the matter incorrectly and failed to address the issues relevant to making a restraining order (see [33]-[34]). There was also an unacceptable risk that the magistrate took an incorrect approach to s 19A and failed to have sufficient regard to the requirements of the Intervention Orders Act (see [35]). Accordingly, the intervention order was quashed. The original police interim intervention order was declared to be continuing in force until it was withdrawn or a confirmation hearing convened.
Charge/s: Aggravated assault x 1; contravention of an intervention order x 9, breaching bail x 5.
Appeal Type: Appeal against sentence.
Facts: The appellant attended the home of the female victim (his former partner). An argument ensued. While holding their eight-week-old child, the appellant pushed the victim against the bedroom door by holding her throat (aggravated assault). The appellant was also charged with nine counts of failing to comply with a term of an intervention order and the five counts of breaching bail. The applicant was sentenced to five months and two weeks imprisonment. This also involved revoking a suspended sentence imposed for an offence of driving while disqualified. The breaching offences were five of the counts of contravening an intervention order and one of the counts of breaching bail.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed.
First, the magistrate did not err in the application of s 18A. It was appropriate and convenient to go directly to the single sentence imposed for the course of conduct constituting the breach and contravention charges. The magistrate treated this offending separately from the offending on the charge of aggravated assault. Any descent into further detail would have created unnecessary elaboration – R v Major applied: see [18].
Second, there was no error in the approach of the magistrate. One of the key submissions rejected by Stanley J was that proper grounds existed to refrain from revoking a suspended sentence because there was a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment that would be activated. In rejecting this, Stanley J held that the breaching offences shared the same characteristic as the earlier offending; they involved the appellant failing to comply with a term or condition imposed on him. However, more importantly, there was not a marked disproportion between the seriousness of the breaching offences and the sentence of imprisonment activated. The contraventions of an intervention order were ‘serious offending’. As per Stanley J at [28]:
‘In R v McMutrie this Court said that a breach of a restraining order is a matter of particular gravity. The object of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is the prevention of domestic and non-domestic abuse, and the exposure of children to the effects of such abuse. The principal instrument for achieving this objective is the making of intervention orders. The protective objects of the Act can only be achieved if courts are scrupulous in doing what they can to ensure that persons who are subject to such orders comply with them. The repeated breaches of those orders by the appellant demonstrate a persistent, blatant and contumelious disregard for the orders and the authorities that impose them. Crimes of domestic violence are often occasions for the exercise, or attempted exercise, of power over the victim by the offender. Breaches of intervention orders can be occasions for the offender to intimidate the victim with an implied threat that such orders will not protect them. The courts must act to contradict this impression’.
Third, there was no error in the approach taken by the magistrate to the victim’s attitude towards penalty. Stanley J noted that ‘[w]hile the attitude of the victim to an offence is not an irrelevant factor in sentencing, that attitude cannot be determinative of what constitutes an appropriate sentence. Moreover, this principle must be applied with considerable caution in cases of domestic violence’ ([33]). His Honour continued at [36]:
‘The reason for such caution is obvious. In situations of domestic violence a victim’s motivation for advocating a particular penalty is often influenced by their ongoing relationship with the defendant and an unhealthy relationship of dependency between them. Their attitude is often influenced by apprehension about the consequences for them in the future given a continuing relationship with the defendant. This attitude frequently fails to reflect what is in their best interests and what the court might consider appropriate in all the circumstances. It would be contrary to sound sentencing practice to place victims of domestic violence in the position where they hold, or appear to hold, the keys to the offender’s release. To place victims in that position is to impose on them a burden they ought not be required to bear’.
Finally, the sentence was not manifestly excessive. This was in circumstances where the aggravated offence was towards the lower end of the scale for that offence but it was still a serious offence, exacerbated by the presence of a small child; the aggravated assault was not mitigated by the expressed attitude of the victim; the repeated breaches of the intervention order constituted serious offending; the appellant did not have a favourable criminal history; and considerations of general and specific deterrence were particularly important here: see [52]-[53].
Appeal Type: Appeal to set aside an interim intervention order.
Facts: On 13 January 2015, a magistrate issued an interim intervention order against the appellant protecting his wife. The appellant was reported for five breaches of this order. On 7 May, the appellant was interviewed by police in relation to those alleged breaches. The appellant provided the police with his phone and its passcode. On the same day, the prosecutor contacted the appellant’s solicitor and offered to resolve the trial if the appellant consented to the confirmation of the intervention order. The prosecutor also offered not to proceed with the fresh charges in relation to the alleged breaches in those circumstances. The appellant’s solicitor said his client agreed to this. After being charged with subsequent breaches, the appellant sought to appeal the confirmation of the order.
Issue/s: The appellant consented to the confirmation of the interim intervention order in error or by mistake because he believed there was no other satisfactory alternative available to him to recover his mobile telephone from police and thereby protect the confidentiality of commercially sensitive information.
Decision and Reasoning: To find ‘special reasons’ under s 42(1a)(c) of the Magistrates Court Act 1991 (SA) to allow an appeal against an interlocutory order, only an ‘arguable’ case needs to be demonstrated. The appellant’s case was arguable (see [26]-[27]). Permission to appeal was granted.
However, the appeal was dismissed. At [38], Stanley J held that:
‘a court will allow an appeal from the confirmation of an intervention order made pursuant to s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) in circumstances where the defendant’s consent was not freely given in the sense that the consent was not properly informed, was made inadvertently or was made by mistake or in error in the sense that the person giving the purported consent did not appreciate to what it was he or she was consenting’.
His Honour rejected the submission that ‘it is sufficient to set aside the order that a defendant only establishes that he or she consented to the confirmation of the order without due consideration to material matters, if that proposition is understood as requiring merely a failure on the part of the defendant to direct his or her mind to some relevant consideration in giving consent’ (see [39]).
Here, the appellant’s consent was freely given. Stanley J did not accept that the appellant had no satisfactory alternative but to consent to the confirmation of the intervention order. He could have been under no misapprehension as to what it was consenting to (see [40]-[41]).
Case type: appeal against costs order following a magistrate’s refusal to confirm an intervention order.
Facts: The respondent (Mr Hodder), his former wife (Ms Hodder) and her new partner (Mr Minchin) were police officers. Mr Minchin made an application for an intervention order against Mr Hodder alleging that Mr Hodder acted in a threatening and harassing manner towards him. The police obtained an interim intervention order on his behalf. After a trial, the magistrate found that Ms Hodder and Mr Minchin were not reliable witnesses. The magistrate found no basis for confirming the order and dismissed the application ([19]).
The magistrate ordered costs against the police for the whole of the proceedings, holding that they acted unreasonably in bringing and maintaining the proceedings ([20]).
Issues: Whether the magistrate erred by:
Decision and Reasoning: The appeal was partly allowed.
On the first ground, Parker J held that the magistrate erred in finding that the police acted unreasonably. The prima facie position is that costs should not be awarded against a complainant in proceedings for a restraining order. The fact that the police could have investigated a matter further does not establish unreasonableness. Prosecutors should not prejudge the issue and should proceed where it is open to the court to accept the complainant as a credible witness ([37], [56]).
The second ground depended on whether it was reasonable for the police to continue the proceeding after the second day, when Mr Minchin’s credibility had been damaged. The matter was remitted to the same magistrate to decide whether the police acted unreasonably in continuing with the application after the second day of the trial ([78]).
On the third ground, Parker J held that it was within the magistrate’s discretion to award costs above the scale, having regard to the complexity of the evidence such as subpoenas and telephone recordings and the need to engage senior counsel ([88]).
Appeal Type: Appeal against a Magistrate’s decision to revoke an interim intervention order.
Facts: An interim intervention order was made against the respondent (the appellant’s former husband). A Magistrate dismissed an application to confirm the order and revoked the order. The alleged abuse consisted of three letters that the respondent sent to the appellant. One of the letters concerned renewal of their deceased pet dog’s council registration and the attached dog tag. She believed that the respondent was making a point of using her address when he knew she did not want it disclosed and that the letter was a ‘gratuitous and hurtful’ reminder of the dog’s death. During their marriage, they had intimidated the respondent’s former wife by driving past her house. She was worried she would suffer similar harassment. The respondent denied all knowledge of the other letters. The appellant gave evidence which alleged prior acts of abuse by the respondent, including threats to kill and physical abuse. The Magistrate largely rejected this evidence as not proven, taking into account the fact that the appellant admitted lying in an affidavit previously filed in the Family Court. The Magistrate also rejected the respondent’s explanation about sending the dog tag and found it was sent out of spite to upset the appellant.
Notwithstanding, while this conduct was spiteful, the Magistrate was not satisfied it resulted in emotional and psychological harm within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act). The Magistrate concluded that it was reasonable to suspect that the conduct would cause ‘upset, annoyance and anger’ but not harm. While the Magistrate found it was reasonable to suspect that the conduct would continue without intervention because the respondent’s evidence ‘did not provide any direct reassurance that the conduct will not continue’ (See at [19]), he found that it would not be appropriate in the circumstances to confirm the order. He gave the respondent an opportunity to show he would not persist with the conduct. If the conduct persisted, the appellant could make an application for a further interim order. The Magistrate also noted the appellant was a personal trainer, coaches kick boxing and holds a black belt in martial arts.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
‘Here there was no proven act of past abuse. While the Magistrate accepted there was a reasonable suspicion abuse would occur in the future without intervention, it might be inferred that the Magistrate did not consider there to be a high likelihood of this occurring. Indeed, the Magistrate’s judgment appears (from his reference to the contingency that his judgment might prove to be misplaced) to have been that the suspicion will probably not come to fruition. It is also relevant that while there was a suspicion of abuse in the broad sense contemplated by the Act (i.e. extending to emotional and psychological harm), the Magistrate made a positive finding that it was not reasonable to suspect that the defendant would cause physical harm to the protected person.
Charge/s: Murder.
Proceeding: Application to exclude expert evidence.
Facts: The defendant was tried for murdering his mother. His counsel sought to adduce expert psychiatric evidence relating to his relationships with his family, his mother as well as his childhood. The Director of Public Prosecutions sought to have this evidence excluded.
Issue/s: Whether the evidence fell outside the area of human knowledge or experience, such that a jury would be able to form a judgment about it without expert assistance.
Decision and Reasoning: The application was allowed and the evidence was excluded. It was not in dispute that the defendant caused his mother’s death – the issue at trial related to self-defence. The evidence detailed his traumatic upbringing where he witnessed episodes of domestic violence. It explored the dynamics of the relationship between the accused and his mother. It did not detail any recognised psychiatric illness or disability that the accused suffered which would affect his capacity to give evidence or recollect events. Indeed, the psychiatrist was in fact impressed with the accused’s ability to describe subtleties of his history in a way that convinced the psychiatrist that his account was accurate and that the relationship was abusive. The psychiatrist’s view was that the case was ‘unusual’. Blue J noted at [12] that the only ‘expert’ element of the report was the psychiatrist’s view that the accused was fit to stand trial and that the mental impairment defence was not available. His Honour then distinguished the case of R v Runjanjic; R v Kontinnen (1992) 56 SASR 114; [1991] SASC 2951 (28 June 1991), where the Court held that expert evidence regarding the ‘learned helplessness’ associated with ‘battered woman syndrome’ were contrary to ordinary expectations of human behaviour such that juries could be misled without the assistance of expert evidence. The recent Queensland Court of Appeal decision of R v Jones [2015] QCA 161 (1 September 2015) was analogous. In that case, the proposed expert psychiatric evidence was found to be a matter of common knowledge. The same approach was adopted in this case. Many of the matters in the evidence simply detailed the history of the relationship and issues relating to Chinese family culture. These were not issues that needed explanation from a psychiatrist. See at [22] – ‘The accused can give the evidence as he sees fit about the verbal or physical violence that he suffered at the hands of his mother. If that evidence is accepted by the jury it will be self-evident that the relationship between Mr Li and his mother was both complex and intense.’
Charge/s: Aggravated assault.
Appeal Type: Appeal against conviction
Facts: The appellant, a woman, and the complainant, a man, met in 2011 and married in 2012. The appellant was on a spousal visa. The complainant’s version of events involved the appellant coming into his bedroom at night when he was trying to sleep. He asked her to leave the room multiple times but she did not. He recorded some of the incident on his phone (and the recording was admitted in evidence). As they were grappling with a light switch, he claimed that the appellant punched and scratched him. He attempted to block the punches. He asked her to stop punching him. He suffered minor injuries. At trial, the appellant claimed that she acted in self-defence. She claimed that she was scared of him because he had previously been violent towards her, and that the reason for going into his bedroom was to discuss her visa.
Issue/s: Whether the Magistrate erred by rejecting her claim of self-defence without the proper analysis required by s 15 of the Criminal Law Consolidation Act 1935.
Decision and Reasoning: The appeal was dismissed. The appellant submitted that rather than restricting himself to the events on the night, the Magistrate should have considered the evidence of alleged prior violence by the complainant to place context around the incident. The Magistrate noted that the appellant’s claim that she was scared of the complainant lacked credibility, as she decided to enter his room in the middle of the night, notwithstanding his requests that she leave. The Magistrate found it difficult to accept her reason for going into the room (to discuss the visa) and also difficult to accept that the middle of the night was the most convenient time to do so. He described the appellant’s evidence of self-defence as vague. It did not explain how the conduct was reasonable for her own defence. Vanstone J accepted the Magistrate’s conclusions – the appellant made no attempt to directly address the elements required for self-defence in her evidence and she did not explain why, despite the complainant’s requests, she did not leave the room. Vanstone J also held that the Magistrate was correct not to rely on the evidence of alleged prior violence inflicted by the complainant because it was not ‘fleshed out in detail’ (see at [18]) and there was nothing in this evidence which was relevant to the incident on the night.
Charge/s: Assault.
Appeal type: Prosecution appeal against acquittal.
Facts: The respondent allegedly slapped his female companion in the face. This was witnessed by a police officer, whose evidence formed the basis of the prosecution case. The companion did not give evidence and at the time of the incident was not distressed. She informed the police officer that it was ‘OK’. According to the officer, at the time of the incident, the companion did not want the respondent to be arrested. During the hearing, the Magistrate invited submissions as to whether the prosecution evidence was sufficient to ground consent or ‘otherwise of having received force from the defendant’ (see at [3]). The respondent was acquitted of the charge, with the Magistrate concluding that the prosecution’s evidence was so lacking in weight or reliability that no reasonable tribunal of fact could safely convict (an R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45) direction). The Magistrate found a reasonable doubt about the ‘lack of consent’ element in the offence of assault. He noted that the prosecution’s case was ‘hampered’ by the victim’s failure to give evidence (See at [13]).
Issue/s: Whether the Magistrate erred in finding that the prosecution’s evidence lacked in weight or reliability and whether the Magistrate erred in finding a reasonable doubt as to the ‘lack of consent’ element.
Decision and Reasoning: The Court firstly noted the hesitance of appellate courts to interfere with Magistrates’ decision to acquit. The appeal was dismissed for this reason but Nicholson J accepted the appellant’s submissions relating to the trial process.
The Court accepted that there was a prima facie case to answer. The Magistrate gave no reasons regarding how he concluded that lack of consent could not be inferred beyond reasonable doubt. The appellant submitted that a reasonable tribunal of fact would not be able to ignore the inherent unlikelihood that a person would consent to being hit with the force as described by the police officer. Nicholson J accepted this submission, finding that the Prasad direction should not have been made and the case should have proceeded. The victim’s lack of complaint, lack of cooperation with the police and her request that the respondent not be charged were evidentiary matters which may assist in determining whether she had consented to the slap. In fact, they were consistent with a finding that the victim was prepared to submit to the conduct. Importantly, Nicholson J noted at [24] – ‘Submission and failure to complain are not the same as consent’ and at [27] – ‘Whilst each case will turn on its own facts, the mere fact that an alleged victim does not give evidence, will not necessarily mean that lack of consent cannot be proved beyond reasonable doubt.’ However, while there were errors in the Magistrate’s approach, there were no ‘clear and compelling circumstances’ ([27]) to interfere with the acquittal in this case.
Charge/s: Contravention of intervention order.
Appeal Type: Appeal against conviction.
Facts: An intervention order was in place between the appellant and his former partner. The breach arose from a conversation between the appellant and his former partner. The order prohibited discussions between the pair other than with respect to their child. In conversation, the appellant then brought up the appellant’s ongoing court proceedings relating to the intervention order itself. At trial, the Magistrate admitted into evidence an audio recording of this conversation secretly made by his former partner. His former partner claimed she was advised by police to record communications between her and the appellant. Conversations between her and the appellant were usually unwitnessed by anyone else, which made previous complaints that she had made to police a case of her word against his and thus difficult to prove in court.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
1. The Court rejected an argument that the conversation was permitted by the intervention order. The topic of the conversation, (the intervention order itself) was not related to their child which was the only topic that the intervention order allowed them to discuss. See further at [47]-[58].
2. Nicholson J held: the conversation was a private conversation within the meaning of the Act; the former partner intended to use the device to record the conversation and that there was no consent to the conversation being recorded. The Court then considered whether the use of the device was in the public interest or for the protection of the former partner’s lawful interests. While his Honour acknowledged that the breach was relatively minor, he noted that breaches of intervention orders are serious. In this case, the former partner had made many allegations of breaches but had encountered problems with proof. The Court accepted that the former partner held genuine concerns for her own safety. Nicholson J then made the following comments at [39]-[40] about how recording private conversations can be in a protected person’s ‘lawful interests’ – ‘… there is no way of knowing how seriously an intervention order might be breached until the fact of breach takes place. Breaches of intervention orders are capable of constituting serious crimes. Irrespective of whether or not a serious crime is in contemplation, a court should more readily accept that the recording of a “private conversation” has been carried out in pursuit of a person’s lawful interest in circumstances where that person has a genuine concern for their own safety. Domestic violence is a very serious problem in our community. It would appear that, at least, the recognition and reporting of domestic abuse, be it physical, psychological, or by threatening behaviour, is on the rise. An intervention order is a very important first step in protecting a person, usually a woman, who has been the subject of domestic abuse. Such an order gains much of its value in this respect according to the extent that it can be enforced. Respondents must be discouraged from infringing any such court order.’
The Court also accepted that the recording was in the public interest for two reasons. Firstly, that there is a public interest in, ‘allowing a protected person… the ongoing protection available through the recording and documenting of interactions that result in breaches’ (See at [44]). Secondly, that these recordings can assist the defence as well as the prosecution (see at [45]). It would also be possible for a defendant to make similar recordings to disprove a false allegation.
Charge/s: Being unlawfully on premises, unlawful damage, assault (two counts), contravention of intervention order (three counts), hindering or resisting police (three counts), assault police (one count)
Appeal Type: Appeal against sentence.
Facts: The defendant was in an intermittent relationship with the victim. There were various incidents of verbal and physical violence over several years. This led the victim to apply for an intervention order which prohibited the defendant from approaching, contacting or communicating with the victim or her daughter. However, he returned to live with the victim on various occasions without the intervention order being changed. On the day in question, the defendant and the victim were arguing. The victim attempted to shut him out but he forced the door open, which knocked the victim onto the ground. He attempted to enter the victim’s daughter’s room multiple times to prevent her from calling the police. The daughter was pushing against it from the inside. He damaged various objects and threw a television across the room. He pushed the victim into a door frame and attempted to light a spray can while pointing it at the victim. He then pushed and attempted to punch two police officers, who had to use capsicum spray to subdue him. A psychiatrist diagnosed the defendant as suffering from an adjustment disorder with depressive features when he committed the offences. A single penalty for all offences of 14 months, 23 days’ imprisonment with a non-parole period of 8 months was imposed. The defendant’s history included one like offence of violence committed against the same victim. He had had previous long term relationships which did not involve violence. The Magistrate concluded that the defendant had no insight into the offences he committed, and that his prospects of rehabilitation were minimal.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. Blue J found that while the Magistrate was rightly appalled at the nature of the violence, insufficient weight was given to the defendant’s prospects of rehabilitation given the fact he had previous relationships that did not involve violence. The Magistrate also erred in not taking into account the lack of prior convictions for violence before his relationship with the victim and the psychiatric illness that he was suffering. He also had the support of a former long-term partner. As such, taking into account his pleas of guilty, he was resentenced to 11 months and 19 days’ imprisonment. This was suspended after the defendant served 5 months and five days upon entering into a good behaviour bond for 18 months.
Appeal Type: Appeal against dismissal of an application for the confirmation of an interim intervention order.
Facts: The appellant and the respondent were in a de facto relationship and had separated. While proceedings in the Family Court were on foot, the appellant applied for an interim intervention order that was granted, but not confirmed. The factual basis for the intervention order was a series of incidents following the end of the relationship, where the appellant alleged his former de facto partner had, among other things, sexually assaulted him and punched him (See at [8]-[18]).
Issue/s:
Decision and Reasoning: The appeal was upheld in respect of costs but otherwise dismissed.
Charge/s: Contravention of intervention order (two counts).
Appeal Type: Appeal against conviction.
Facts: The protected persons in the order were the appellant’s neighbours, with whom the appellant had been in conflict for an extended period. There was a considerable amount of evidence admitted at trial regarding the history of the appellant’s behaviour towards the complainants.
Issue/s: Whether the Magistrate erred by admitting evidence of the appellant’s prior discreditable conduct.
Decision and Reasoning: The appeal was upheld. The Court found that the Magistrate did not give an adequate explanation of the purpose of the evidence of the appellant’s prior behaviour towards the complainants. Furthermore, the Magistrate made no reference to s 34P of the Evidence Act 1929 which sets out rules regarding this type of evidence. The Court found that the evidence was ‘highly prejudicial’ to the appellant because it was similar to the offences which were the subject matter of the trial, and indicates that the accused has a propensity to commit offences of a similar nature. If it was to be used in that way, the Magistrate had to be satisfied that its probative value outweighed its prejudicial effect on the accused. Furthermore, no notice was given by the prosecution of their intention to adduce such evidence, and no direction was made by the Magistrate as to its use.
Charge/s: Aggravated assault – (Circumstance of aggravation: that the defendant committed the offence knowing the victim was his domestic partner.)
Appeal Type: Appeal against conviction.
Facts: The defendant assaulted the victim by pushing her onto the floor with his knees in her back, twisting her arms and forcing her face into the floor. At trial, the defendant claimed he was acting in self-defence. Both the defendant and the victim were severely intoxicated.
Issue/s:
Decision and Reasoning: Blue J dismissed all grounds of appeal.
Charge/s: Contravention of intervention order.
Appeal Type: Appeal against conviction.
Facts: An intervention order was made in favour of the appellant’s former wife. The fifth term of the order prohibited the appellant from entering or remaining ‘in the vicinity’ of the property at which his former wife lived. The appellant formed a friendship with another woman who, by coincidence, lived quite close to his former wife’s home. After visiting this property, the appellant realised that there was a direct line of sight between the backyard of his friend’s property and his former wife’s property. There was no direct route of access between the houses, and they were not addresses on the same street. The distance between the two houses was measured to be 26 metres. He was convicted of breaching the fifth term of the order.
Issue/s: Whether the fifth term which prohibited the appellant from being ‘in the vicinity of’ specified premises was void for uncertainty and whether it was a valid exercise of power under s 12(1) of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act).
Decision and Reasoning: The appeal was upheld. The term was void for uncertainty and not a valid exercise of power under the Act. Peek J held that mandatory terms in intervention orders must be ‘clearly and specifically authorised by the words of s 12(1)’ (See at [18]). The terms of intervention orders can leave the affected person in no doubt as to the meaning and extent of the order. His Honour noted that the term ‘vicinity’ is inherently imprecise, which is in contrast to s 12(1) of the Act which requires that orders be specific and certain. Police do not have powers to insert ‘broad and vague terms’ (See at [28]) which gives them a right to use their individual opinions to determine in a particular case whether a contravention of the term has occurred.
Charge/s: Aggravated assault (2 counts) – Circumstance of aggravation: that the applicant committed the offence knowing the victim was his wife, aggravated assault causing harm, driving while disqualified, contravention of bail agreement (5 counts), contravention of intervention order (5 counts), property damage.
Appeal Type: Application for extension of time to appeal against sentence.
Facts: See at [4] for a detailed factual summary of each offence. The assault offences involved the appellant kicking his wife while she was in bed and on a separate occasion punching her when she was on the couch recoiling from the applicant. The contravention of the intervention order counts all involved the applicant leaving voicemail messages for his wife. The applicant was sentenced to a single term of 1 month imprisonment for all offences. The remaining eight months were suspended with a good behaviour bond.
Issue/s: Whether the whole sentence should have been suspended.
Decision and Reasoning: The application was dismissed. The applicant submitted that the Magistrate should have suspended the whole sentence based on the mitigating factors which led the Magistrate to suspend most of it. The Magistrate placed large weight on the mitigating factors, including that the applicant runs a successful business which he uses to help pay child support, as well as favourable character references. In fact, the Court described the sentence as ‘merciful’ given that the offending was repetitive, protracted and serious, and included ‘contumacious disregard’ of court orders (See at [10]). The Court also upheld previous authority that deterrence is an important factor in sentencing where there is a history of domestic violence, particularly breaches of intervention orders.
Appeal Type: Appeal against confirmation of intervention order.
Facts: The Magistrate confirmed an intervention order made in favour of the appellant’s ex-wife. Some of the alleged incidents of domestic violence included the appellant holding a screwdriver to his ex-wife’s throat, swearing and throwing clothes and shoes around in arguments. The Magistrate made findings of fact in relation to each alleged incident. On that basis he found a reasonable suspicion that the appellant would, without intervention, commit an act of abuse against his ex-wife and that such an act would cause distress, anxiety or fear which was not trivial.
Issue/s: Whether the Magistrate made proper findings of fact. Whether the Magistrate should have applied the higher standard of proof of ‘beyond reasonable doubt’, rather than the ‘balance of probabilities’.
Decision and Reasoning: The appeal was dismissed. The Magistrate set out the evidence very carefully, and in fact found that most of the alleged incidents were not sufficiently proven. The Court also found that the balance of probabilities is the correct standard, because the consequences of the imposition of an intervention order are ‘not so grave as to warrant such a heavier onus’ (at [18]). Finally, the Magistrate did not err by finding that the proven facts could amount to distress, anxiety or fear which is not trivial, because these considerations are somewhat subjective so the trier of fact has a distinct advantage.
Charge/s: Aggravated assault (three counts), Contravention of intervention order (three counts), breach of bail (two counts), resisting police, damaging property.
Appeal Type: Appeal against sentence.
Facts: The appellant pleaded guilty to all 10 offences which were on four Magistrates’ Court files. All of the offences were committed either against or in the presence of the appellant’s partner (the mother of his child) in the context of arguments. The contravention of the intervention order arose from conduct that would have made his partner feel threatened, as opposed to a positive intention to make her feel threatened or any physical contact. A single sentence was imposed for each file and the four sentences were made cumulative. None of the sentences were suspended.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was upheld.
Appeal Type: Appeal against the order of a Magistrate.
Facts: With the appellant’s consent, a Magistrate confirmed an interim intervention order which had been put in place against him in favour of his domestic partner pursuant to s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009. At the time of the hearing, the appellant was in custody and appeared unrepresented in the Magistrates’ Court. On the day of the hearing, he did not have documentation relating to his case including an affidavit sworn by the applicant, and his responses to this affidavit. This was because he had attempted to have the documents brought to him in prison by a friend but permission was refused. The prosecution had not provided him with the affidavit. The Magistrate granted an adjournment until the afternoon, but refused to grant a longer adjournment.
Issue/s: Whether the appellant’s consent to the intervention order was freely given and whether he could withdraw his consent and have the order set aside.
Decision and Reasoning: The appeal was upheld. Before deciding the main issue, the Court confirmed as a matter of procedure that the Magistrate’s confirmation order was interlocutory in nature as it was capable of variation or revocation. As such, permission to appeal was required (See at [29]- [32]). The Court then found (at [40]) that had the longer adjournment been granted, no prejudice to the protected person would have occurred because the interim intervention order would have remained in place. Sulan J drew an analogy between consent under s 23(3) and admissions made in civil proceedings. As such, the corresponding principles that govern whether such admissions can be withdrawn became relevant. The Court found that the appellant’s consent was given in circumstances, ‘in which he considered that he had no satisfactory alternative but to agree’, because of all the circumstances outlined above, the fact that he was partially unrepresented, as well as the fact that he was not aware that he could have applied for a further adjournment. As such, his consent was not freely given.
Appeal type: Appeal against Magistrate’s decision to dismiss application for intervention order.
Facts: The appellant and respondent were separated and had two children. Orders were made in the Federal Magistrates Court in relation to custody, access and protection of their children ([4]). The orders provided that the children live with the appellant, that the respondent have limited access to the children, and preventing the respondent from bringing the children into contact with certain people ([5]-[6]).
The appellant sought an intervention order in the Magistrates Court restraining the respondent from contacting the children ([11]).
Issues: Whether the Magistrate erred in holding that the Family Court was the proper forum for the appellant to pursue the relief he seeks.
Decision and Reasoning: The appeal was dismissed. The Family Court had jurisdiction over the proceedings and could amend the parenting orders if it considered appropriate ([18]-[19]). An intervention order made by the Magistrates Court would be invalid to the extent of inconsistency with the Family Law Act ([16]).
Appeal Type: Police appeal against a Magistrate’s refusal to confirm an interim intervention order.
Facts: The Magistrate refused to confirm an interim intervention order which had previously been made ex parte against the respondent in favour of his former de facto partner. At trial, there were disputed facts regarding various prior incidents of physical and verbal abuse. The Magistrate made no findings of fact about these incidents.
Issue/s:
Decision and Reasoning: The appeal was upheld.
The Court found the Magistrate erred in finding that there was no reasonable suspicion in the circumstances. There is no requirement that the facts found by the Magistrate themselves constitute an act of abuse, that they be recent or that they occur before or after a relationship breakdown. An order could be made based on a statement of intention to commit an act of abuse, no matter who that statement was made to. While the timing of the acts is relevant, Kourakis CJ stated that depending on the circumstances, an event many years earlier could constitute a reasonable suspicion (See at [30]-[31]). A reasonable suspicion will include a suspicion that the ‘defendant will act in a certain way’ and a suspicion that those acts would have the prescribed effect on the protected person of something more than a trivial kind (See at [32]). In this case, the respondent’s former de facto partner had anxiety that the respondent may kill her. This was not trivial and the Magistrate had erred in finding it was.
Kourakis CJ then made several factual findings including that the appellant used a knife and verbally abused his former de facto partner and therefore found that the prescribed reasonable suspicion under the Act existed. His Honour then found that it would be appropriate in the circumstances to make the order.
Charge/s: Breach of domestic violence restraining order, threatening to cause harm.
Appeal Type: Appeal against sentence.
Facts: In 1999, a domestic violence restraining order was made against the appellant in favour of his wife. In 2010, he called his wife, verbally abused her and threatened her partner. This conduct amounted to a breach of the order which prohibited him from contacting her in any way. His criminal history was relevant and included offences of violence against his wife and daughter, as well as many prior breaches of the restraining order. He had an alcohol problem. At the time of the offending, he had ceased taking anti-depressant medication and had increased his alcohol consumption. He was sentenced to four months’ imprisonment.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was allowed in respect of the partial suspension.
Charge/s: Common assault, trespass, breach of bail.
Appeal type: Appeal against sentence.
Facts: The defendant had been in a relationship with the victim for nine months. The victim was 8 weeks’ pregnant at the time of the offending. The defendant was the father and aware of the pregnancy. While the defendant and the victim were having a conversation, the defendant became aggressive, at which point the defendant punched her in the left side of the head which caused her to fall to the ground. He then kicked her in the head while she lay on the ground, which caused her to pass out. While she suffered no permanent injury, she experienced extreme pain. After being arrested and placed on bail, the defendant breached this bail by trespassing because he wanted to see if his partner was with another man. He again breached bail by having a conversation with his partner. He pleaded guilty and was placed on an 18 month supervised good behaviour bond, which included conditions that he obey the directions of a Correctional Services Officer, particularly in relation to attending programs for mental health, anger management and domestic violence. The Magistrate stated that a term of imprisonment would have been appropriate but for the guilty plea.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld. Gray J held that the Magistrate erred by not paying sufficient regard to the fact that this was an act of domestic violence against a young pregnant woman, which was not justified by the fact that the defendant was angry. While the defendant was not charged with an aggravated assault based on a domestic relationship, this remained a relevant factor. The mere fact that the defendant pleaded guilty should not have resulted in a term of imprisonment not being imposed. Indeed, other factors, such as the fact that it was an offence of domestic violence required consideration. His Honour’s starting point for common assault was 6 months’ imprisonment, which was reduced to 4 months’ because of the guilty plea and remorse. His Honour then had regard to the lack of criminal history and evident remorse and suspended the sentence, upon the defendant entering into a three-year good behaviour bond to be supervised for 18 months. Conditions that he attend anger management, drug and alcohol abuse and domestic violence programs were included. The convictions for the other offences were confirmed but no further penalty was imposed.
Charge/s: Aggravated assault (aggravating factor – that the offence was committed against the appellant’s domestic partner), contravention of restraining order (two counts), breach of bail.
Appeal Type: Appeal against sentence.
Facts: The appellant’s domestic partner believed the appellant was having an affair. She obtained documents from his computer. In attempting to get the documents back, the appellant pushed her backwards into a chair after grabbing her. The appellant prevented her from getting help by cutting the power to her telephone. She was fearful of the appellant. This conduct constituted the breach of the restraining order as well as the assault. After being arrested and released on bail with conditions that he not contact the victim, the appellant contacted the victim daily through the internet as well as by appearing at locations the victim drove to and sending her flowers. This conduct was in breach of bail and the restraining order. The offences were committed in the context of a background of domestic violence. The total effective sentence imposed was nine months’ imprisonment.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. While the victim suffered no physical injury, she was isolated, in considerable fear and subjected to physical force while the applicant prevented her from obtaining assistance. The fact that this incident was not unique was also relevant - the physical assaults she had suffered from the appellant in the past were an important consideration. See in particular the following comments by Duggan J at [16] – ‘Personal and general deterrence play an important role in offences involving domestic violence. This is particularly so in the case of a repeat offender. Furthermore, Parliament has acknowledged the importance of deterrence in such cases by declaring that an offence of violence against a domestic partner is an aggravated offence attracting an increase in the maximum penalty over and above that applicable in the case of an offence of common assault. The fact that the assault constituted a breach of a restraining order made by the Court is a further factor to take into account in considering the single sentence imposed in respect of the assault and breach of restraining order.’
Charge/s: Aggravated Assault (aggravating factor – that the offence was committed knowing the victim of the offence was their child)
Appeal Type: Appeal against sentence.
Facts: The appellant plead guilty and was convicted for the aggravated assault of his son. The appellant inflicted a substantial blow on the child, which left bruising and finger marks on his leg. However, he did not require any hospital treatment. It occurred in the context of the appellant attempting to discipline his son. The appellant’s criminal history included a prior conviction for an assault in a domestic setting. He was sentenced to six months’ imprisonment, fully suspended upon entering into a good behaviour bond for two years with conditions that he be under the supervision of a Community Corrections Officer and that he undertake counselling for drug issues, anger management and domestic violence issues.
Issue/s: One issue concerned whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld and the sentence was reduced to three months’ imprisonment, fully suspended with the same bond conditions as fixed by the Magistrate. While acknowledging the appellant’s criminal history, Nyland J found that this was an isolated incident in the context of the appellant attempting to discipline his son, and was not intended to cause any injury. As such, while the sentence was excessive, the Court agreed with the Magistrate that a sentence of imprisonment was appropriate – ‘the court must make it clear, not only to the appellant but to others who might be like-minded, that violence of any kind to a child will not be tolerated’ (see at [28]).
Charge/s: Aggravated serious harm with intent, aggravated assault causing harm, aggravated harm with intent. (Aggravating factors – that the appellant knew the victim was his de facto spouse).
Appeal type: Appeal against sentence.
Facts: The appellant was on bail for an unrelated charge at the time of the offending. The first incident arose when the complainant went to collect the appellant (her de facto partner) due to the appellant’s curfew as a condition of his bail. The appellant reacted angrily to this, which led to the assault. She was admitted to hospital for four days. The complainant’s injuries were extremely serious with lasting effects including permanent facial and dental damage, ongoing amnesia, psychological issues and disfigurement. The appellant was arrested and eventually released on bail with conditions that he not approach or communicate with the complainant in any way. In breach of this bail, the appellant seriously assaulted the complainant again by punching her in the face, choking her, pulling her by the hair and throwing her into a mirror. The complainant again sustained serious injuries and required hospital treatment. There was a long history of domestic violence in the relationship, and one of the past incidents involved an assault by the appellant. The complainant called police but was unable to explain what occurred. When police returned the call, the appellant held a gun to the complainant’s head. She told the police all was OK and hung up. At the time of the offending, the appellant was 27 and the complainant was 17. They had been in a relationship for some years and the police had been contacted about domestic violence three times in the 12 months prior. The appellant had relevant criminal history apart from the history of domestic violence. He pleaded guilty and was sentenced to 7 years and 8 months’ imprisonment.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Gray J (with whom Sulan J and White J agreed) discussed the causes of domestic violence and the preferred response of the courts. See at [27]- [28] -
‘The causes of domestic violence are multiple. It has been recognised that relevant contributing factors include immaturity, mental illness, abnormal personality disorders, inhibition through drug abuse, poor anger management and lack of counselling and support. Courts have identified all of the above as common causative factors in modern times. Although imposing longer and longer terms of imprisonment does remove perpetrators from the community, domestic violence continues and its incidence increases. The imposing of sentences of imprisonment is a blunt instrument that does not adequately address the underlying causes of domestic violence in any real way.
The courts have long recognised that personal and general deterrence have a heightened significance when sentencing for the crimes of domestic violence. As King CJ observed in R v Banens (Unreported, Supreme Court of South Australia, King CJ, Legoe and Von Doussa JJ, 18 November 1987) at 7-8:
“The sentence which is imposed by the court for a crime of domestic violence is aimed, in large part, at deterring other people who may be involved in like situations. I think that, in a serious case of domestic violence, it is necessary for this Court to make clear, by actual intervention, to the public that the sentences imposed for this type of crime are calculated to provide effective deterrence to those who might be tempted to commit similar crimes. Not only must the penalties imposed operate, as far as such penalties can, as an effective deterrent, but it must be made clear to the public that the courts are imposing sentences having that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed.”’
His Honour went onto comment on the vulnerability of victims at [29] – ‘Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation.’
This was particularly relevant on these facts as the victim/complainant was only 17. She had made multiple complaints to police but had received little protection, other than the no contact and no alcohol conditions of the appellant’s bail. The Court did not make use of the wide powers under s 11 of the Bail Act 1985. While the bail agreement indicated there was to be supervision by a Community Corrections Officer, there is no evidence that this occurred. Also, the appellant was not required to undertake counselling to address his violence, alcohol abuse and anger issues. As such, in this case, the no contact condition provided little protection and the complainant was left vulnerable and in danger. The Court concluded that the sentencing judge was correct to take a serious view of the appellant’s conduct. Over the preceding 12 months, the appellant had ‘bullied, victimised and brutalised his younger partner’ (See at [41]) and had continued this conduct notwithstanding the fact that the complainant sought protection from police and the bail conditions. Personal deterrence was important as the appellant had not been deterred by earlier warnings. General deterrence was also particularly important. See finally at [42] where Gray J referred to the fact that Parliament has made an assault in a de facto relationship an aggravating factor, which draws attention to the seriousness of this conduct. The Courts should pay due attention to this factor in sentencing.
Charge/s: Common assault (two counts), threatening life.
Appeal Type: Appeal against sentence.
Facts: The victim was the appellant’s wife. There was a long history of physical and psychological abuse in the relationship. The assaults involved the appellant slapping and spitting on his wife. The threatening life offence involved the appellant holding a knife to his wife’s throat. He was sentenced to two years and five months’ imprisonment, with a non-parole period of twelve months.
Issue/s: Whether the sentence was manifestly excessive. In particular, whether the sentence should have been suspended.
Decision and Reasoning: The appeal was upheld and the appellant was re-sentenced to two years’ imprisonment with a non-parole period of 9 months. The appellant submitted that the sentencing judge erred in not sufficiently taking into account the time he spent in custody and in home detention and his prospects of rehabilitation. The respondent submitted that there was no error in the sentencing judge’s approach, and that the charges had to be considered against the background of domestic violence that occurred over the period of a 17 year marriage. The respondent argued that this made general deterrence of paramount importance. Anderson J (Doyle CJ and Bleby J agreeing), agreed at [31] that general deterrence is a very important consideration in sentencing where there has been a history of domestic violence in the relationship. This was applied at [38], where Anderson J held that the history of domestic violence in the relationship and the importance of general deterrence could not justify suspending the sentence. However, the sentencing judge erred in assessing the appellant’s prospects of rehabilitation as moderate. This was contradictory to the information that was before him, which included a lack of prior convictions and the fact the appellant no longer had a problem with alcohol abuse. The sentencing judge also erred by not specifying the extent to which he took the period of home detention into account.
Charge/s: Unlawful and malicious wounding with intent to cause grievous bodily harm.
Appeal type: Application for leave to appeal against sentence.
Facts: The respondent, an Aboriginal man, was intoxicated and engaged in an argument with his de facto wife. He lost his temper and struck her on the head with the blade of a shovel which caused very serious injuries. He then threatened to break her legs, struck her on the knees with the shovel handle and struck her on the arm, which was already broken and in plaster. He had a relevant criminal history including offences of violence. He was sentenced to 18 months’ imprisonment with a non-parole period of 10 months.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld. Mitigating factors included the fact that the offence was committed on the spur of the moment while he was intoxicated and he was immediately remorseful (see at [9]). However, Doyle CJ (with whom Prior J and Vanstone J agreed) described the attack as ‘brutal’ and ‘cowardly’ (see at [10]). Doyle CJ then made the following comments at [12] –
‘The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is often offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender. Mr Lennon's record makes it clear that he has not yet learned that violence towards women cannot be accepted.’
As such, while there was no error in the primary judge’s reasoning, the sentence was too low. It was not justified by the mitigating factors in the context of the objective seriousness of the crime and the respondent’s criminal history. The respondent’s Aboriginality was acknowledged but no significance of that factor was identified. The Court held that the head sentence should have been twice what was imposed. There was a need for the Court to re-sentence because the original punishment was, ‘so inadequate as to shake confidence in the administration of justice’ (see at [18]). The appellant was then re-sentenced to four years’ imprisonment with a non-parole period of 20 months. While Doyle CJ was of the view that a longer non-parole period was warranted, this was not appropriate because the original non-parole date fixed by the trial judge was to expire within two weeks of the decision being handed down. To increase the non-parole period so close to this date would have been particularly harsh on the respondent.
Charge/s: Damaging property (two counts), contravention of restraining order (two counts), threatening life, assault occasioning actual bodily harm.
Appeal Type: Appeal against sentence.
Facts: The appellant pleaded guilty in the District Court to all of the above charges. The victim was the appellant’s estranged wife. Prior to the offences, there was domestic and family violence that led to the restraining order being obtained. The property damage offences involved the appellant damaging his wife’s car. The threatening life and assault offences involved the appellant attending a house at which his wife was staying and producing a knife. He was allowed to enter the house after he handed over the knife and stated that he would not harm his wife. He then entered the house, grabbed his wife in a headlock and punched her in the face multiple times while threatening to kill her. She suffered a broken nose and black eye. The appellant’s criminal history included various drug and assault offences. A psychiatrist concluded that the appellant had developed a depressive disorder associated with the deterioration of his relationship, which had caused him to act aggressively and violently towards his wife and children over some years. His condition had not stabilised. He was sentenced to three years and two months’ imprisonment with a non-parole period of 18 months.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The appellant submitted that the primary judge did not adequately consider the appellant’s rehabilitation and had given undue weight to his criminal history and the comments of the psychiatrist. He submitted that the sentence should have been suspended. However, the appeal was not upheld for these reasons. Rather, the original sentence was set aside due to an error with calculating the maximum penalties for the property damage offences. In re-sentencing, Nyland J (with whom Gray J and Debelle J agreed) concluded that while the two property damage offences might not appear particularly serious, they should be treated as part of an escalating course of conduct which culminated in the assault, which caused serious injury and would have been a terrifying experience. Her Honour also noted that the fact the conduct was committed in breach of a domestic violence order was an aggravating factor. General deterrence was significant to ‘bring home to others who might be like-minded that the courts will not tolerate this type of behaviour’ (See at [21]).’ He was re-sentenced to two years and nine months’ imprisonment with a non-parole period of nine months. The reduced length of the sentence gave credit for the appellant’s guilty plea and time already served in custody and on home detention bail. The non-parole period was reduced to take account of the positive reports from the psychiatrist about the appellant’s rehabilitation, such that he was no longer a threat to his wife and personal deterrence was no longer necessary.
Charge/s: Attempted murder, wounding with intent to kill or do grievous bodily harm, unlawful wounding, breach of restraining order.
Appeal Type: Appeal against conviction and sentence.
Facts: The appellant’s relationship with his former de facto partner had recently ended. The appellant approached her at a club because he wanted her to come outside to witness him attempt to cut his own throat. As he attempted to force her to leave, a struggle ensued and she was wounded by his knife. They had been in a relationship for 20 years. The appellant had a history of domestic violence, mental health issues and various other illnesses. His criminal history involved alcohol and drug related offending and prior breaches of restraining orders. He was acquitted of attempted murder and wounding with intent but convicted of unlawful wounding and possessing a knife with intent. The trial judge indicated that the possession of the knife and unlawful wounding offences arose out of the same events. He pleaded guilty to breaching the restraining order. He was sentenced for all three offences to three years’ imprisonment with a non-parole period of 18 months.
Issue/s:
Decision and Reasoning: The appeal against conviction was upheld and the appeal against sentence was dismissed.
‘Domestic violence is not just physical abuse but includes a range of violent and abusive behaviours perpetrated by one person against another. A high percentage of victims are women and children. Domestic violence has existed for centuries. However over the last 30 years its prevalence has been increasingly recognised. This has caused considerable community and governmental concern. More recently legislation has evolved in an effort to protect the vulnerable…The law seeks to protect the innocent and vulnerable. The legislative scheme is directed towards providing protection. This protection is primarily provided through the mechanism of restraining orders (Now known as intervention orders). Restraining orders are the principal legal response to domestic violence. They are can be (sic) obtained expeditiously from a magistrate's court. The standard of proof is on the balance of probabilities. Orders can be tailored to the particular conduct of the abuser and breaches are a criminal offence. In this case the victim had obtained a restraining order. She had done all she could to protect herself. The breach of that order is a matter of particular gravity. The use of the knife to engender fear and wound was an aggravating feature to the appellant's crime. The gravity of his conduct called for the imposition of an immediate custodial sentence’
See furtherat [23] – ‘A restraining order had been obtained to prevent the very conduct the subject of the wounding conviction. The need for personal deterrence is a significant factor in this case. The appellant needs to understand that court orders must be obeyed and that non compliance in circumstances of domestic violence will be viewed very seriously. General deterrence is also an important consideration in sentencing.’
Charges: Causing harm with intent to cause harm x 1; damaging property x 1; assault x 1; rape x 2; assault causing harm x 1
Case type:Judge only trial
Facts: The accused man was charged with 6 offences alleged to have been committed against the complainant woman between 2016 and 2018 when they were in a ‘romantic relationship’ and were living together for periods of time. The offences included causing harm with intent to cause harm, damaging property, assault, rape, and assault causing harm. The alleged offences were committed in a domestic setting, at different addresses where the complainant resided with her 3 children, apart from periods on weekends or school holidays when they stayed with their respective fathers. The prosecution alleged that the relationship was characterised by the accused’s violence and aggression, and that the complainant was trapped in a destructive cycle of physical violence, abuse, threats and controlling behaviour, which usually occurred in the presence of her young children. According to the prosecution, the charges are specific examples of a general pattern of behaviour demonstrated by the accused in the course of the relationship.
In relation to Count 1, the accused was alleged to have choked the complainant. He also punched and slapped her in the face (Count 3). Further, the complainant allegedly woke to the sensation of her vagina being penetrated (Count 4), and the accused further penetrated her with his fingers (Count 5). The accused also allegedly threw the complainant and stood on her ankle with his body weight, causing extreme pain (Count 6).
Held: Tracey J held that the prosecution failed to exclude the defence case as a reasonable possibility on any of the charges, and found the accused not guilty on each count ([281]-[282]). Much of the complainant’s evidence was inconsistent and unreliable. Her Honour was troubled by the delay the complainant made in reporting Count 1 to police and the delay in providing the letter relied on by the prosecution as the accused’s acknowledgment of the violent acts that had occurred the previous night ([234]). Whilst the letter could be interpreted as referring to the event where he strangled the complainant as she alleged, it could also be viewed as an apology for calling her a bad mother, threatening suicide, punching the wall and grabbing her arms as the defence alleged ([236]).
Much of the defence case was focused on blaming the complainant for issues in the relationship, consistent with the threatening and intimidating abuse she allegedly experienced. Her Honour rejected the defence argument that she was often the perpetrator of violence. The evidence in relation to the complainant’s previous relationships did not demonstrate a propensity for violence or false reporting to police. It was clear that on some occasions, she had not been the instigator and/or was the victim. Tracey J also formed the impression that the accused exhibited manipulative behaviour ([272]). Moreover, behaviours, such as the complainant’s contacting police, making statements on some occasions and not others, withdrawing complaints, denying incidents occurred, allowing the accused back into her life and seeking variation to intervention orders, are common features in serious domestic violence cases. Abusive and violent relationships give rise to behaviours that may appear too odd or counterintuitive to be believed ([273]).
Tracey J did not doubt that some aspects of the complainant’s evidence were true or that she loved the accused. However, she did have difficulty assessing the complainant’s evidence overall. Whilst she sometimes appeared to be focused and doing her best to describe the events, she also appeared distant, non-committal and prone to exaggeration. She was open about her methamphetamine use and the fact that she had used drugs in her home, albeit not in front of her children ([274]). At times, the complainant’s manner seemed perplexing and her Honour had difficulty accepting her version of events as credible. The differences between her evidence and what she told police were troubling. Such inconsistencies could not be excused, even allowing for the passage of time, the frequent and repetitive nature of alleged abuse blurring a memory of an event, or the chaotic lifestyle that often accompanies drug use ([275]). It appeared much of her angst stemmed from the accused’s relationship with another woman. The complainant’s credibility was undermined by her initial refusal to accept the accuracy of texts she had sent to this woman and her denial that the relationship with the accused did not affect her, despite text messages to the contrary ([276]). Further, her Honour noted that although domestic violence victims may not seek attention for the injuries they sustain and may take extraordinary steps to conceal evidence of abuse, the complainant’s graphic descriptions of her injuries and episodes of violence were not borne out by other evidence. There was no evidence from the complainant’s consultations with doctors of any bruising or injury consistent with the allegations. Her daughter’s distress, apparently in response to questions about drugs, raised the question of whether there had been some discussion between her and the complainant before giving evidence ([279]). Tracey J observed that the police officers who gave evidence appeared to be careful and impressive witnesses who would have assessed and recorded any sign of injury ([280]).
Charges: 4 x assault causing harm (Counts 1-4), 1 x rape (Count 5), 2 x aggravated assault causing harm (Counts 6-7), 1 x aggravated assault (Count 8), 1 x aggravated creating likelihood of harm (Count 9)
Case type: Criminal trial by judge alone
Facts: The accused was charged with 4 counts of assault causing harm, 1 count of rape, 2 counts of aggravated assault causing harm, 1 count of aggravated assault and 1 count of aggravated creating likelihood of harm. The complainant was his former de facto partner ([1]). The prosecution argued that the charged acts were committed during their de facto relationship ([3]). The defence case, however, was that the relationship was not a violent one and that the charged acts of violence and rape did not take place ([5]).
Held: The accused was found guilty of Counts 1-5 and 7-9. Judge Chapman did not find him guilty of Count 6, but guilty of the alternative offence of aggravated assault ([188]-[221]). The complainant gave evidence that the accused suffered from alcohol and drug abuse, and would get emotional about his past, resulting in rage ([19]-[20]). Judge Chapman emphasised that she avoided using the evidence in any prejudicial way against the accused, such as to reason that he was generally violent and therefore must have committed the charged acts ([187]). Her Honour noted that the fact the accused used drugs did not mean that he was a bad person or had the propensity to commit the charged offences. Rather, her Honour stated that the evidence of his alcohol and/or drug use may only partly explain his aggressive behaviour towards the complainant and his inability to control outbursts of rage ([21]). Evidence of various uncharged acts was further discussed at [23]-[52]. Judge Chapman was satisfied that all the uncharged acts occurred as described by the complainant and showed that the charged acts did not "come out of the blue" ([185]).
Charges: Aggravated serious criminal trespass in a place of residence x 1; Indecent assault x 1; Assault x 1; Theft x 1.
Case type: Trial by a single judge.
Facts: The complainant alleged that the accused entered her house, strangled her, grabbed her in the vagina, punched her in the face and stole her mobile phone ([23]-[[26]). The accused denied all the allegations ([6]).
Issues: Whether the accused should be convicted.
Decision and Reasoning: Judge Rice convicted the accused on counts 1, 2 and 4 ([56]). In relation to Count 3 (assault), Rice J found that it was not proved beyond reasonable doubt that the accused punched the complainant ([54]).
Evidence of uncharged acts of violence occurring earlier in the relationship was also admitted. The prosecution said that it showed that ‘the accused had a tendency to act in a violent and controlling manner’ towards the complainant ([12]). However, Judge Rice ignored the evidence on the basis that some of the complainant’s evidence was inconsistent, and was not supported by independent evidence ([20]).
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]).
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].
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]).
Charge(s): Assualt; Causing grievous bodily harm
Proceedings: Appeal against sentence
Grounds:
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].
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.
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:
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.
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]).
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.
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.
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.
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]).
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:
Decision and Reasoning: The appeal was upheld in respect of issue 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.
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.
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:
Decision and Reasoning: The appeal was upheld and the conviction set aside.
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 denied the assault.
Issue: The issue for the Court was whether the judge 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.
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]
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]).
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]).
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:
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]).
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]).
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]).
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]).
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.
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.
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.
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.
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).
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:
Decision and Reasoning: The notice to review was dismissed.
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:
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.
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]).
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]).
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]).
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]).
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.
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.
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.
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.
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. |
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| 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. |
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| 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. |
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.
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.
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]).
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]).
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’.
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:
Decision and Reasoning: The appeal was allowed on ground 2.
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.
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:
Decision and Reasoning: The appeal was upheld in respect of issues 2 and 3.
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.
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]).
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:
Whether the police family violence order was not validly made because:
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).
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]).
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.’
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. This evidence was admissible 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]).
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.
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.
Charges: Murder
Case type: Application for leave to appeal against conviction
Facts: The applicant man was convicted of the murder of his female intimate partner and sentenced to 25 years’ imprisonment, with a non-parole period of 20 years. The victim was mildly intellectually disabled and had been the victim of domestic violence in a prior relationship. The applicant acted in a jealous and possessive manner towards her, which sometimes included acts of violence. After the assault which resulted in the victim’s death the applicant left the victim alive, but in a debilitated state and failed to seek assistance. He admitted to having "lost control" and seriously injuring the victim. An autopsy showed the victim suffered around 43 injuries, mostly soft tissue injuries caused by moderate blunt force trauma. Toxicology testing revealed the presence of GHB in her body. Expert witnesses disagreed as to whether the assault caused the victim’s death: one forensic pathologist believed the victim died as a consequence of soft tissue injuries sustained in an assault in the context of her using GHB; another said that the cause of death could not be determined.
Grounds:
Held: Ground 1 was allowed, the murder conviction was set aside, and the Court substituted a verdict of manslaughter. Ground 2 was dismissed.
The Court found that whilst it was open for the jury to be satisfied beyond reasonable doubt that the applicant’s actions, in assaulting the victim, were the substantial and operative cause of her death, it was not reasonably open to be satisfied beyond reasonable doubt that the applicant intended to cause her really serious injury ([106]). Taken at its highest, the admission the applicant made to Witness A was that as a result of causing her death, he had enjoyed or experienced a significant rush of adrenalin ([93]). Further, the Court accepted that a jury could not reasonably conclude that Witness A’s evidence was either truthful or reliable ([94]). Whilst the assessment and credibility of a particular witness is essentially a matter for the jury, that proposition does not preclude the assessment by an appellate court of the evidence given by that witness (Pell v The Queen [2020] HCA 12 (7 April 2020)) ([95]).
The verdict of manslaughter was substituted because the applicant caused the victim’s death by an unlawful and dangerous act and it was inevitable that the jury would conclude that a reasonable person in the applicant’s position would have realised they were exposing the victim to an appreciable risk of serious injury [104]. Leaving the victim in a severely debilitated state and refraining from obtaining medical or other assistance constituted criminal negligence for the purpose of the offence of manslaughter. The evidence was that the applicant was well-aware that the victim required assistance and treatment. It was inevitable that the jury would have been satisfied the applicant’s actions fell so far short of the standard of care which a reasonable person would have exercised in the circumstances, and involved such a high risk of death or really serious bodily injury, as to merit criminal punishment ([105]).
Ground 2 failed because the prosecution did not put to the jury that the evidence could or should be used as evidence of incriminating conduct by the applicant ([120]) and the judge gave a clear and specific direction to the jury that it should not rely on the evidence, and explained why it was of no probative value ([121]).
Charges: Recklessly cause injury x 1; intentionally damage property x 1; possess a firearm while a prohibited person x 1; attempt to pervert the course of justice x 1; persistently contravene a family violence intervention order x 1
Case type: Application for leave to appeal against sentence
Facts: The applicant pleaded guilty to recklessly causing injury (grabbing her by the throat causing bruising and breathing difficulty), intentionally damaging property, possessing a firearm while a prohibited person, attempting to pervert the course of justice (a number of phone calls demanding the victim retract her statement), and persistently contravening a family violence intervention order. He also pleaded guilty to a series of related summary charges, including failing to store a firearm in a secure manner, possessing cartridge ammunition while unlicensed, and committing an indictable offence while on bail. The offending occurred in the context of family violence within a domestic relationship. The applicant was sentenced to 3 years’ imprisonment with a non-parole period of 2 years.
At the time of the offending, the applicant lived with his former partner (the victim). They had been in a ‘turbulent "on again, off again"’ relationship for around 16 years. The applicant had been subject to 3 intervention orders and a family violence safety notice prior to the present offending. The relationship came to an end, however, the victim and their daughters had continued to visit the applicant in custody until the recent COVID-19 pandemic.
In relation to the most serious charge of attempting to pervert the course of justice, the sentencing judge noted the fear that the victim must have experienced as a result of the applicant’s threats over the phone ([20]). The offences involving the possession of the firearm were linked to, and committed "because of [the applicant’s] mental state with the intention of self-harm" ([22]). With regard to the applicant’s prospects of rehabilitation, his Honour accepted that the offending occurred "in the context of a daily methamphetamine habit". The applicant had a long history of addiction to drugs, and his prospects of rehabilitation were considered guarded ([25]). The applicant’s guilty pleas, however, entitled him to a reduction in sentence ([26]). His criminal history related mainly to driving or drink-driving offences ([27]). With regard to the applicant’s Indigenous background, the judge took into account the fact that he came from a disadvantaged background, experienced deprivation and poverty, suffered from learning difficulties, and had been exposed to substance abuse and mental health issues ([28]).
Held: The Court of Appeal held that the sentence imposed on the charge of attempting to pervert the course of justice was not manifestly excessive. The applicant’s conduct was persistent and involved repeated threats of violence to the victim ([69]). "An attempt to pervert the course of justice is a substantive, and not an inchoate offence", and "any conduct that meets [its] description must be viewed seriously and denounced appropriately" ([70]). The submission in relation to double punishment was rejected as the elements of charges 4 and 5 were separate and distinct: "The criminality involved in attempting to persuade [the victim] to withdraw her complaint against the applicant, through the use of threats, harassment, and a form of emotional blackmail, was conceptually, and practically, separate from the deliberate and persistent contraventions of the family violence intervention order". The judge was therefore entitled to order some degree of cumulation between them ([72]). Ground 4 also failed as the judge considered all relevant matters, and it was open, on the evidence, to conclude that the applicant’s prospects of rehabilitation were guarded ([73]). As there was no error by the sentencing judge, the Court refused leave to appeal.
Charge(s): Aggravated burglary x 1; intentionally causing injury x 1; intentionally damaging property x 1; theft x 1; unlawful assault x 1
Case type: Application for leave to appeal against sentence
Grounds: The sentence was manifestly excessive, in particular:
Facts: In 2018, the applicant man pleaded guilty to a series of offences committed against his wife of 20 years (the victim). The offending occurred in the context of the breakdown of their domestic relationship, in the early hours of the morning at the victim’s home. He broke into the house, pushed the victim against the wall, and assaulted her boyfriend. When the victim sought to intervene, the applicant verbally abused her and threw her against the bedroom wall, causing her head to go through the plaster. The applicant continued to punch the victim’s boyfriend, and after another attempted intervention by the victim, he threw her across the room. He also damaged her boyfriend’s car. The applicant left the premises but returned about half an hour later. Once again, he barged through the front door, entered the bedroom, grabbed the victim’s hair and threw her against the wall, and continued to physically abuse her boyfriend. He also punched the victim in the face. While she was attempting to contact her friend, the applicant snatched her phone and left the house with it. The applicant was arrested later the same morning.
At sentence, the judge noted that the applicant had been drinking heavily and told police that there had been a slow build-up of emotion. His account to police was also seen as an attempt to minimise his conduct ([23]-[25]). Further, the sentencing judge stated that "offending of this nature is all too often perpetrated by men who respond to difficulties in a relationship, with possessive, violent rage" ([27]). Mention was also made to the victim impact statements which detailed the applicant’s history of domestic violence towards the victim, specifically in the form of mental abuse ([28]-[29]). The applicant had a lengthy history of heavy drinking and extensive difficulties with gambling, which resulted in the sale of the family home in order to pay his debts ([32]). The judge characterised the motive for the applicant’s offending as a desire to exact revenge for the victim’s having interfered in his relationship with another woman, and observed that his return to the house on the second occasion demonstrated a degree of premeditation. The applicant had no prior convictions ([33]). His guilty plea was not made at the earliest opportunity, and in his record of interview, he sought to downplay the gravity of the offending, blamed the victim for his behaviour, and falsely denied having punched her boyfriend ([34]). In these circumstances, her Honour was not persuaded that the applicant "deeply regretted his wrongdoing and desired to atone for it". While there was some level of remorse, this was not given much weight ([36]). Her Honour also explained that a combination sentence was inappropriate as the offending was too serious ([38]). He was sentenced to a total effective sentence of 3 years’ and 7 months’ imprisonment, with a non-parole period of 2 years.
Held: The Court of Appeal granted leave to appeal and dismissed the appeal. It stated that "aggravated burglary, where the offender’s intent is to assault and injure a former domestic partner, must always be regarded as an offence of a serious nature" ([60]). The appeal ground of manifest excessiveness was difficult to maintain in light of the aggravated burglary and serious assaults committed on that second occasion ([62]). The Court held that the sentencing judge took into account and gave weight to all relevant mitigating factors. The applicant did not succeed in his submission that the judge erred in her finding that little weight should be given to his remorse, as she "took great pains to explain why, putting to one side the remorse associated with the plea of guilty, she could give little weight to what the applicant had told various third parties about how he felt" ([64]-[65]).
Offences: Recklessly cause serious injury in circumstances of gross violence; Intentionally destroy property
Proceedings: Application for leave to appeal against conviction; Application for leave to appeal against sentence
Grounds (conviction):
Grounds (sentence):
Facts: The female applicant was driving a Toyota Camry car when it collided with a truck and tanker trailer which was driven by the male victim. The vehicles were travelling in opposite directions on an open stretch of highway; the applicant’s car crossing the centre line and colliding with the front right-hand side of the truck. The truck rolled, causing the victim serious injury (a severe laceration to his scalp and two fractured vertebrae in his neck) and extensive damage ($900,000 worth) to the truck and trailer (which were later written-off). The applicant sustained minor injuries.
The applicant and victim had been in a sexual relationship for some time and had a daughter together, although they disagreed as to the nature of the relationship (the victim believed it to be only sexual/physical while the applicant was "besotted" with the victim). When the victim was driving his truck, the appellant would often follow him in her car and turn up at his home. On the day of the offending, the victim had stopped for a break at a parking bay and was approached by the applicant who threw the remote control to the victim’s garage at him, told him she was pregnant and yelled "I’ll kill you" before driving off. The applicant had stated on numerous occasions that "if she couldn’t have [the victim], nobody would" and that she should "take him out" by "driving straight into him".
The applicant was convicted of recklessly causing serious injury in circumstances of gross violence and intentionally destroying property, and sentenced to seven years’ imprisonment with a non-parole period of five years.
Judgment: The court dismissed the application for leave to appeal against conviction. The court rejected Ground 1, finding that it was open to the jury to conclude that the appellant knew the collision would probably cause serious injury to the victim because of the nature of the collision (high speed, head-on, on an open road) and the threats made by the applicant [40]. The court noted that "The issue for the jury was not which of the two drivers bore the greatest risk of injury but whether the applicant knew the truck driver would probably be seriously injured" [39]. The court also rejected Ground 2, finding that the applicant did not seek to make a distinction between damage and destruction at trial [48] and in any event, any disconformity between the indictment and the way the case was run at trial could have been resolved by amending the indictment [49].
The court also dismissed the appeal against sentence. The court rejected Ground 1, finding that while the judge incorrectly approached s 10(1) as if it called for an assessment of a non-parole period for the s 15B offence alone, the answer the judge gave to that assessment demonstrated that "there was never any possibility of a non-parole period for the whole of the offending of less than four years" and that there was no basis to consider that the judge could have found substantial and compelling circumstances justifying a non-parole period of less than four years [94]. The court further held that, "When regard is had to the additional criminality of the conduct underpinning [the Intentionally destroy property charge], we are satisfied that any error in applying the ‘special reasons’ provisions could not have played any role in the sentence imposed on the individual charges or in setting the non-parole period" [94].
The court also rejected Ground 2, holding that the two charges were very serious, and separate, offences and the extent to which the sentences were to be made concurrent was the discretion of the sentencing judge [99]. The court further rejected Ground 3, holding that neither the sentence nor its constituent parts were wholly outside the permissible range [100]. The court noted that the offending was grave and "exceptionally dangerous conduct" that had "very serious consequences" for which the conduct needed to be denounced and punished [103]. The appellant did not have the utilitarian benefit of a plea and there was no evidence of remorse [103].
Offences: Using a carriage service to menace, harass or cause offence; Aggravated burglary; Common assault; Making a threat to kill.
Proceedings: Application for leave to appeal against sentence
Grounds:
Facts: The male applicant commenced a relationship with the female victim in 2006 and the couple had two children together. Their relationship involved periods of separation and reconciliation. During the periods of separation, the applicant would stay at the victim’s house overnight on the days he would see the children. However, the overnight stays and the regular visits to see the children ceased after several arguments between the applicant and the victim. One night, the applicant sent the victim 14 text messages, threatening to come after her and kill her. The next morning, the applicant went to the victim’s house and banged on the front door repeatedly. The victim told the applicant to leave and that she had called police. The applicant tried to break open a sliding door with an outdoor chair but failed, so smashed two front windows and entered the house through the unlocked front door. The victim secured herself and the children in her bedroom by placing a wedge under the door but the applicant forced the door open. The victim was on the phone to 000, so the applicant took the phone, terminated the call and hit the victim repeatedly on the head, face and neck with the phone. The children were crying as this occurred.
The victim fled outside but the applicant followed her and dragged her indoors where he forced her to the ground, choked her and told her he would kill her and her family. The applicant took the children and placed them in the car, then returned and punched the victim in the face, knocking her to the ground. He drove off (during which time the victim called 000) but returned and started banging on the front door again. The victim let him in because she did not want to antagonise him. The applicant locked the front door and punched her in the face a number of times, telling her that he would kill her whole family. Police arrived and arrested the applicant who denied the assaults and the threats to kill. He was convicted on all charges and sentenced to four years’ imprisonment with a non-parole period of two years and two months.
At trial, the court accepted that the applicant was a refugee from South Sudan [20] and that he began drinking excessive quantities of alcohol due to his financial struggles and it was in this context that the offending occurred [23].
Judgment: The court dismissed the appeal. In rejecting Ground 1, the court held that the offending was particularly serious and the applicant’s moral culpability was high [53], despite the mitigating factors being "quite substantial" [55]. The court noted that "confrontational aggravated burglaries, in the setting of an underlying domestic dispute, are all too prevalent in our society. They are calculated to cause lasting and serious physical and emotional harm to the victim. By their nature, such offences have the potential to escalate into incidents that result in serious harm and, on occasion, human tragedy" [50]. As a result, general deterrence is of significance in such cases [50], as is condemnation by the courts of such conduct [51]. The court further noted that "The courts have made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable" and the fact that the assaults occurred in the presence of the couple’s children was a serious aggravating factor, a "serious breach of [the applicant’s] duty as a parent towards his own children" and an "appalling example" of behaviour for the children, particularly the son [52].
The court also rejected Ground 2, finding that the delay between the date of offending and the date the applicant entered a guilty plea (22 months) was a sufficient basis for the judge to entertain genuine reservations about the applicant’s level of remorse, and his prospects of rehabilitation [42], despite a plea of guilty often being an indicator of genuine remorse [45].
Offences: Carrying a loaded firearm in a place with reckless disregard for the safety of another x 1; Making a threat to kill x 1; Possessing drug of dependence x 1; Contravention of family violence intervention order x 2; Failing to store a category A/B long arm correctly x 1; Failing to store category A/B long arm ammunition correctly x 1; Possessing a prohibited weapon x 1
Proceedings: Application for leave to appeal against sentence
Issue: Whether sentence was manifestly excessive.
Facts: The appellant man and female victim had been in a relationship for 14 years and were married at the time of the offending. The appellant threatened to kill himself in front of the victim, leaving the house and returning with a shotgun. He swung the shotgun in front of the victim like a baseball bat, then touched the barrel to her forehead before pushing it into her eye socket and threatening to kill her "slowly" [25]. The appellant fired a shot into the TV then pointed the gun back at the victim’s head and threatened to shoot her again [25]. The victim was held like this for around three hours. The appellant plead guilty and was sentenced to four years and three months’ imprisonment, with a non-parole period of three years and six months. At the sentencing hearing, the appellant alleged that he did not remember the incident. Medical evidence was also tendered showing that the appellant had a history of depression and alcohol abuse, but that he had committed to make improvements and had ceased alcohol and prescription medication [17].
The appellant appealed against this sentence on the following grounds:
Held: The court refused to uphold ground 1 as the sentences were not manifestly excessive. The conduct founding the Making a threat to kill charge "constituted a very serious example of the offence" [25] and that, balancing the seriousness of the offending with the mitigating factors (see [24]), the sentence was proportionate [26] and punished the appellant to an extent just in all the circumstances [28]. Even though the sentence imposed was more lengthy than the general trend for the offence of threat to kill in recent cases, "[s]entences in comparable cases ... are not precedents which must be applied", but each case must turn on its own facts [28].
However, the court upheld ground 2, providing that the finding by the sentencing judge that the appellant was not remorseful did not justify the imposition of a relatively high non-parole period [32]. The purpose of fixing a non-parole period is to "provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate" (Power v The Queen (1974) 131 CLR 623at 629). The court substituted a non-parole period of two years and six months [33].
Furthermore, the court partially upheld ground 3, finding that the trial judge erred in finding that there was a complete absence of remorse. The court provided that it considered "that there was some evidence of remorse to be drawn from the early pleas of guilty and from the applicant’s insight and incipient commitment to reform" [19]. The court referred to its reasons for finding against the remainder of ground 3 (namely, whether the sentences and non-parole period were manifestly excessive).
Charges: Attempted murder x1; Reckless conduct endangering persons of serious injury x1.
Appeal Type: Application for leave to appeal against sentence
Ground: The individual sentence on Charge 2, order for cumulation, total effective sentence and non-parole period are manifestly excessive, having regard to the five-year maximum penalty for the offence, the fact that it was committed in the context of a suicide attempt, and the significant factors in mitigation, including the applicant’s early pleas of guilty, advanced age and ill health, and prior good character.
Facts: The applicant was sentenced to eight years’ imprisonment on the charge of attempted murder of his wife and two years and six months’ imprisonment on the charge of reckless conduct endangering persons of serious injury for driving his vehicle into a train. On year of the sentence or chare 2 was cumulative on the sentence for charge 1, resulting in a total effective sentence of nine years’ imprisonment.
The applicant 77 year old man and female victim were married but had separated at the time of offending, the wife moving out of the family home into a bungalow at the back of the property. On the day of offending, the applicant and victim had consumed a large amount of alcohol together and the applicant became argumentative [5]. The victim suggested the applicant see a psychologist. That evening, the applicant told a friend that he felt depressed, he needed his wife to look after him to survive and that "if anything were to happen to him, [the friend] should make sure he claimed a Holden Kingswood motor car presently garaged at the applicant’s home" [5]. Two hours later, the applicant entered the wife’s bungalow and deadlocked the door behind him before saying "I’ve got something for you" and producing a large knife [6]. He proceeded to stab the victim 13 times, including defensive injuries, mostly to the chest and arms. The applicant stated that he was going to kill both himself and the victim during the attack. The victim also suffered blunt force trauma and other lacerations before managing to escape the offender when he fell over and struck his head.
The applicant then drove away from the property. "A dash camera recorded him in a confused, angry and emotional state of mind. He expressed disbelief that he had not killed his wife [and] then discussed with himself how he could kill himself" [8]. The applicant then proceeded the drive his car into a train. "The train struck the driver’s side of the applicant’s car, pushing it for a considerable distance. No one on the train was injured" [8] and the applicant did not sustain substantial injuries.
Judgment: Leave to appeal against sentence was refused [41]. To demonstrate manifest excess "an applicant must demonstrate that the impugned sentence is ‘wholly outside the range’ of sentences available for that particular offence in the relevant circumstances" [29]. Likewise "arguments for excessive cumulation must fail unless an applicant can demonstrate that the order for cumulation is manifestly excessive" [30]. The sentence for the reckless conduct charge was not manifestly excessive: "[w]hilst a sentence of 50 per cent of the maximum available upon a plea of guilty to a man in the applicant’s circumstances can reasonably be viewed as ‘stern’, we are not persuaded that it is beyond the range of sentences reasonably available to his Honour."[36] The cumulation of one year upon the base sentence for attempted murder was also not manifestly excessive. The sentence for attempted murder "represents less than a third of the maximum penalty available for what was an appalling example of domestic violence, committed with homicidal intent. Whilst old age, ill health and an almost pristine criminal history all counted in the applicant’s favour, in the face of his conduct towards his wife, it could not count for a great deal" [38]. The sentence was moderate in all the circumstances. In considering the appropriate degree of cumulation the sentencing judge appropriately considered "the temporal and circumstantial relationship between the offences" and specifically considered the sentencing factors such as overall criminality, general deterrence and the principle of totality.
The court also rejected Ground 2, finding that the delay between the date of offending and the date the applicant entered a guilty plea (22 months) was a sufficient basis for the judge to entertain genuine reservations about the applicant’s level of remorse, and his prospects of rehabilitation [42], despite a plea of guilty often being an indicator of genuine remorse [45].
Charges: Criminal damage x 1; attempt to pervert the course of justice x 1; possess prohibited weapon x 1; contravene family violence intervention order x 1
Case Type: Application for leave to appeal against sentence for possess prohibited weapon
Facts: In 2019, the applicant went to his former partner’s property and caused damage. He was arrested the next day, and police searched his vehicle and found a home-made laser pointer. While in custody, he made telephone calls whereby he attempted to have people call his former partner and ask her to withdraw her police statement. The applicant pleaded guilty to criminal damage, and attempting to pervert the course of justice. He also pleaded guilty to 2 summary offences, carrying a prohibited weapon and contravening a family violence intervention order. The applicant was sentenced to a total effective sentence of 2 years’ imprisonment, with a non-parole period of 15 months. The individual sentence imposed on the weapon offence was 2 months’ imprisonment to be served cumulatively on the sentences for the other offending.
Ground: The sentence and the order for cumulation on this charge was manifestly excessive because, inter alia, the offending was not aggravated in any material way and the accused pleaded guilty to the offence at the earliest available opportunity.
Held: The Court allowed the appeal, set aside the sentence on the weapon offence, and ordered that the applicant be convicted and discharged on that charge. The applicant’s counsel submitted that the laser pointer had not been used as a weapon, and that it was not used in connection with any of the other offending. Despite the fact that the applicant had prior convictions for possessing controlled and prohibited weapons, it was clear that the sentence for the weapon offence was "egregiously excessive", given the intrinsic nature of the weapon, the lack of material as to whether the applicant had or would have used it, and the complete absence of evidence supporting the sentencing judge’s findings that it was potentially dangerous and could cause injury ([18]). As a consequence, the total effective sentence was amended to 22 months’ imprisonment with a non-parole period of 13 months.
Offences: manslaughter x1; attempted murder x1and recklessly causing serious injury x1.
Proceedings: Appeal against sentence
Facts: The applicant man and the female victim lived together in a domestic relationship for many years and had two children together. In 2013 the applicant was charged with drug-related offences and imprisoned for three years. During this time, the female and male victims commenced a relationship and were married. Shortly before the applicant was released, the male victim moved out of the female’s house and into a nearby residence. They continued their relationship in secret after the applicant was released and resumed living with the female victim.
The applicant was later informed of the victims’ relationship and confronted them about it. The victims’ stated they were just friends, but the applicant refused to accept their denials. The applicant then grabbed a hunting knife he had previously hidden and stabbed both victims in the chest. The male victim died at the scene and the female was seriously injured, though there was no evidence of any permanent or ongoing impairment as a result of the injury.
Applicant was charged with murder of the male victim and attempted murder of the female victim and in the alternative either intentionally or recklessly causing serious injury. Prior to trial the applicant offered in writing to plead guilty to manslaughter. No offer was made in respect to the charges relating to the female victim’s injuries. Following trial he was convicted of the manslaughter of the male victim and recklessly causing serious injury to the female victim. He was given a total effective sentence of 15 year’s imprisonment with a non-parole period of 11 years.
Grounds of appeal:
Held: The Court allowed the appeal on against sentence on grounds 1 and 5 (in part), limited to the order for cumulation only. The order for cumulation was quashed and ordered a total effective sentence of 13 years and six months’ imprisonment with a non-parole period of 10 years.
In regard to Grounds 2 and 3, the Court held the sentencing judge was entitled to consider the utilitarian value of the applicant’s offer to plead guilty as ‘relatively modest’ given the overall circumstances of the case and rejected the second ground. While the offender offered to plead guilty, this is not necessarily a sign of remorse and agreed with the sentencing judge’s conclusion that the offer was most likely motivated by pragmatic considerations [40], thus also rejecting the third ground. In light of the Court’s rejection of an inference of remorse, they noted that the sentencing judge’s reasoning "embraced a consideration of the entirety of [the] post-offence conduct, favourable and unfavourable to the applicant" and rejected the fourth ground [44].
Turning to Grounds 1 and 5, the Court noted that while the individual sentences were each particularly stern but not wholly outside the range of sentencing discretion [48], this was not the case for the order for cumulation. "Given the very significant overlap in time, context and conduct, and particularly, the high sentences imposed on both charges, [the Court] consider[s] that the principles of totality and proportionality ought to have operated to moderate the order for cumulation to a considerably greater extent" [54]
Charges: Sexual assault x 1; Make threat to kill x 1
Case type: Application for leave to appeal against sentence
Facts: The applicant man and the female victim were in a relationship for 11 years and had 2 children. The relationship terminated in 2016. Before the relationship ended the applicant allegedly forced the victim to engage in oral sex (Charge 1) and, months later, told the victim that he would ‘slit her throat’ if she ever left with the children (Charge 2). The applicant also said he would ‘take [the children] out too’ which constituted an uncharged act. In 2016, an interim protection order was granted in favour of the victim and the children, and in 2017 a final intervention order was made for an indefinite period. Relevantly, the applicant had been sentenced at the Magistrate’s Court in early-2017 to 91 days’ imprisonment, combined with an 18 month Community Correction Order for other offending against the victim that occurred on the same date on which the offending giving rise to Charge 2 in the present matter occurred ([3]-[14]).
In sentencing the applicant, the judge recognised that the victim suffered profound trauma as a result of the applicant’s degrading, cruel and humiliating treatment of her. These adverse effects continuously and significantly affected her. Given the seriousness of the offending, there was a need for stern punishment to achieve general and specific deterrence and denunciation ([22]). The applicant, on pleas of guilty, was sentenced to 23 months’ imprisonment in combination with a 3-year Community Correction Order (CCO). The sentence imposed in early-2017 and time that the applicant had spent in a residential drug rehabilitation clinic were relevant to totality.
Issue: The applicant completed the term of 23 months’ imprisonment in February 2019 and sought leave to appeal on the grounds that the sentence of imprisonment followed by a 3-year CCO is manifestly excessive.
Held: The Court refused leave to appeal ([38]). The two offences constituted serious acts of family violence and the offending was not isolated ([33]). Further, a CCO was necessarily and properly punitive, and was structured towards advancing the applicant’s rehabilitation and community protection ([34]). It could not be said that the decision to attach a CCO to the term of 23 months’ imprisonment was clearly or wholly outside the range open to the sentencing judge, and there was no error of principle ([36]). The offending was ‘grave’ as the applicant’s conduct towards the victim was ‘cruel and degrading’, ‘designed to be humiliating and hurtful’, and resulted in substantial trauma ([37]). The sexual assault was described as a ‘humiliating and degrading act’. Further, the threat to kill was ‘chilling and menacing, and had a traumatic and ongoing effect’ on the victim ([33]). The conduct resulted in profound trauma.
Charges: Charges 1 and 2 (intentionally causing injury and alternatively recklessly causing injury – acquitted following trial); Charges 3 and 4 (intentionally causing injury – acquitted - and alternatively recklessly causing injury - convicted); Charge 5 (common law assault - acquitted)
Case Type: Application for leave to appeal against conviction on charge 4
Facts: The charges related to two occasions on which the applicant man was alleged to have assaulted the complainant woman, with whom he was then in a de facto relationship. Charges 1 and 2 (intentionally causing injury and alternatively recklessly causing injury) concerned an allegation that the applicant threw the complainant, causing her to hit her head. Charges 3 and 4 (intentionally causing injury and alternatively recklessly causing injury) related to an allegation that the applicant, on a different day, grabbed the complainant’s arms and held her down, causing bruising to her arms and back. It was alleged that immediately after that incident, the applicant also pushed her, constituting the basis of Charge 5 (common law assault). The applicant was found guilty of Charge 4, acquitted on the other charges and, following a plea, was convicted and fined $4,000 ([1]-[4]).
After verdict, the prosecution served a victim impact statement from the complainant, to which a document called ‘Initial report - Recommendation for more than five hours of counselling’ was attached. The report noted that the complainant consulted a psychologist and recounted events the subject of Charges 3 and 4. The appellant submitted that this was the first occasion, known to him, that the complainant had given a different account in which it was suggested that he had thrown her across the room against the wall ([9]-[10]). Applying the principles in R v Nguyen and Tran to the relevant evidence, the appellant submitted that although the report existed at the time of trial, he exercised reasonable diligence in obtaining relevant records and this had failed to result in the production of the report. It was argued that his legal representatives sought disclosure of various documents which would have included the report; that he sought production of the victim impact statement during committal proceedings and the complainant refused to provide it at that time; and that he obtained a subpoena to compel the complainant to produce the victim impact statement. The appellant contended that as he was acquitted on Charges 1, 2 and 5 and given the case largely turned on the complainant’s evidence, the existence of a different version of events as evidenced in the report potentially further undermined the complainant’s credibility ([12]-[13]).
Grounds of appeal:
Held: Having decided Ground 2 was established, the Court was required to determine whether to order a new trial or enter a judgment of acquittal. The report met the threshold for fresh evidence and, had the evidence been before the jury, there was a significant possibility that the appellant would have been acquitted on Charge 4 ([18]).
In determining whether to order a new trial, the Court considered that the appellant would be compromised in his ability to test the complainant’s evidence on Charge 4 by reference to the inconsistencies in the complainant’s account of events which underpinned Charges 1, 2 and 5. Any disadvantage to the appellant would be particularly acute in relation to Charge 5 which was so closely tied in time and context to Charge 4 ([35]). The Court drew an analogy with R v Bartlett ([37]), and held that a retrial of Charge 4 alone would be ‘unfair’. Consequently, the Court allowed the appeal, set aside the conviction on Charge 4 and entered judgment of acquittal on that charge ([39]).
The Court emphasised the public interest in seeing allegations of domestic violence, where there is sufficient evidence to sustain a conviction, being prosecuted in accordance with the law ([25]). The gravity of domestic violence is not solely measured by the extent of the physical injury. Women and children ‘who suffer the brunt of domestic violence’ are entitled to feel safe and secure in their own homes. Other ‘very important factors’ the Court will consider in assessing the severity of a particular offence include the breach of trust reposed in a domestic partner and the compromising of the security of the home ([26]).
Offence: Manslaughter
Proceedings: Crown appeal against sentence
Issues: Whether sentence was manifestly inadequate;
Whether sentence was manifestly inadequate;
Facts: The exact events surrounding the offence are unclear. What is known is that the respondent husband "killed [the victim (his wife) by unlawful and dangerous act(s); put her body into the body of her car; and disposed of [and concealed] her body in a remote location" [4]. When later questioned about his wife, the offender lied to relatives and police by claiming that she "had left the family home after they had an argument saying that she was going to clear her head" but never returned [5].
There was no evidence of earlier domestic violence in the relationship. He was convicted on his plea of guilty to manslaugter following a contested committal where the charge was murder.
Held: The offender was resentenced by majority to 13 years’ imprisonment with non-parole period of 10 years.
The sentence was held to be manifestly inadequate, with Priest JA stating the "sentence imposed on the respondent was far too low to reflect the needs of general deterrence, denunciation and just punishment". The disposal of the wife’s body was treated as a significant aggravating factor and "emblematic of [the offender’s] complete lack of remorse" [73]. The domestic setting of the offence was also an aggravating circumstance, with Ferguson CJ and Whelan JA providing that while "there was a time when the seriousness of such domestic violence offences was not properly recognised. That is no longer the case...[The wife] should have been able to live without any fear in her own home. It should have been a safe place for her" [10]. General deterrence and denunciation were particularly significant. These factors were not sufficiently outweighed by the offender’s previous good character, prospects of rehabilitation or the utilitarian value of his guilty plea.
Charges: 3 x causing injury intentionally; 1 x false imprisonment; 1 x rape; 1 x make a threat to kill; 2 x contravention of Final Family Violence Intervention Order (FVIO)
Case type: Appeal against sentence.
Facts: The offending involved intentionally causing physical injury, threatening to kill, false imprisonment, rape and breaching FVIOs. The respondent and complainant were in an intermittent de facto relationship for a few years prior to the offending. The respondent was sentenced to 7 years and 6 months’ imprisonment with a non-parole period of 5 years.
Issue: The appellant appealed against the sentence on the grounds that it was manifestly inadequate, and that the learned sentencing judge failed to:
Held: Manifest inadequacy is difficult to establish ([28]). Nevertheless, the respondent was re-sentenced to 10 years and 6 months’ imprisonment with a non-parole period of 8 years. Notwithstanding the factors relied upon in mitigation ([21]), several of the individual sentences imposed and the orders for cumulation were found to be inadequate, and therefore produced a total effective sentence that was below the range of sentences available to the sentencing judge so as to reveal an error of principle ([28]). Personal factors included: history of drug and alcohol abuse; criminal history which included a number of dishonesty and drug matters, assault and robbery, intentionally and recklessly causing injury, and failure to comply with court orders; a disadvantaged and dysfunctional upbringing; and low cognitive functioning. However, in the Court’s view, there was a need for both specific and general deterrence, given the respondent’s long history of violence, especially towards the complainant ([34]-[35]). The offending in question was ‘brutish, cowardly...and calculated to humiliate and degrade a powerless, diminutive woman’ ([32]). The Court also noted that ‘people considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of [the] community and will not hesitate to impose stern punishment upon wrongdoers’ ([35]).
Charges: Causing serious injury intentionally x 1
Proceedings: Appeal against sentence
Facts: The respondent pleaded guilty following a self-serving confession 4 years after the assault having previously denied all involvement several times. The DPP appealed the sentence and non-parole period. The complainant, who had been involved in a domestic relationship with the respondent’s estranged wife, sustained life-altering and life-threatening injuries as a result of being struck with a metal bar. The original sentence was 5 years and 6 months with a non-parole period of 2 years and 9 months.
Issues: Whether the individual sentence and non-parole period are each manifestly inadequate.
Decision and reasoning:: Appeal allowed and resentenced to 7 years and 6 months with non-parole period of 4 years 6 months. The discount given for the respondent’s confession was too great, as the respondent’s admissions did not go so far as to warrant a full discount.
The court also considered that the seriousness of offending called for a stern response and strong denunciation, as this was a case of extraordinary violence which had a devastating impact on the victim ([83]).
"[84] There is a further important consideration, that of general deterrence. This was a violent act of reprisal following the breakup of the respondent’s marriage, expressing his animosity and anger towards the person who had been his wife’s partner. Although there are differences between a case like this and a direct attack against a former partner, they are closely related. Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.
[85] For similar reasons, nothing should be said in sentencing reasons to suggest that statements by such an offender to the effect of ‘I just snapped’ or ‘I’d had enough’ in any way mitigate the seriousness of the offending or reduce the offender’s moral culpability. Such self-justifying statements are, regrettably, all too common in cases of family violence. Marital breakdown is stressful and upsetting for all concerned. But a resort to violence can never be condoned.
Charges: Recklessly causing serious injury x 1
Proceedings: Application for leave to appeal against sentence
Facts: The applicant was sentenced to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months. The applicant sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive given that the offending was not at the median of offending for the type of offence.
The victim of the incident was the applicant’s de facto partner. Around the time of offending, the applicant sent the victim a series of text messages asking for money, which the victim refused. The applicant was angered by the refusal and when he returned to the couple’s home, he started verbally abusing her. He pushed her off the bed, injuring the victim’s knee, before pulling back on to the bed with his hand around her throat. Threatening to kill the victim, the applicant obtained a knife from the kitchen and pushed it against the victim’s throat while she was still on the bed. This caused a superficial laceration. The owner of the apartment became aware of the altercation and called the police. While the owner was on the phone the victim tried to push the applicant off her, causing him to slash her on the left arm with the knife.
The applicant pleaded guilty prior to the committal hearing despite previously denying he was the aggressor. The judge "accepted this plea as being ‘indicative of some remorse’" [19].
Issue: Whether sentence was manifestly excessive
Decision and reasoning:: The sentence was manifestly excessive. A sentence of 4 years 3 months was substituted.
There was no finding that the wound to the victim’s arm was deliberately inflicted, unlike the laceration to her neck. When compared to more serious cases (Marrah, Nolan [63]) of the same offence this was significantly less serious. Ashley and Weinberg JJA state that ‘it is the fact that, despite the limited utility of raw sentencing statistics, the sentence imposed in this case was not far short of twice the median length of imprisonment for the offence over the 2016/2017 year, and that over the five-year period ending 2017 only a very small number of those imprisoned for this particular offence were subject to a sentence exceeding five years. Underlining the severity of the sentence imposed here, by no means did all persons sentenced for this offence in the five year period receive a custodial disposition.’[65]
Nevertheless, the court also pointed out that despite the sentence being manifestly excessive, this conclusion "does not gainsay the need for sentences for this offence, committed in a domestic setting, to reflect the need for general deterrence, specific deterrence ... and protection of the community as pertinent sentencing considerations" and noted that "sentences for this offence, committed in a domestic setting, have increased in recent years." ([63]).
Offences: Rape x 2
Proceedings: Application for leave to appeal against sentence
Issues: Whether the individual sentences, the total effective sentence and non-parole period were manifestly excessive
Facts: The male appellant and female victim had been partners for 22 years and had three children together. The appellant found out that the victim had been having an affair for the last five years. He lost self-control and raped the victim, verbally abusing her during the assault while she just lay there. Afterwards, the appellant felt terrible and apologised. Two days later, the appellant discovered more details of the affair and lost control and raped the victim again. The couple cried together afterwards and the appellant apologised many times. The day after this, the appellant became concerned that the victim would try to harm herself and the appellant felt guilty about what he had done, so he reported his actions to a mental health clinician. The clinician alerted police and arrested the appellant who plead guilty immediately. The victim never intended to report the offending and saw police involvement in their marriage as ridiculous.
At the sentencing hearing, the victim gave evidence in support of the appellant and told the court that this was a private matter for the appellant and the victim to work out together. She testified that she wanted the appellant to be released as soon as possible so that the couple could start repairing what had happened, but that this had not been allowed to occur because of the imposition of an Intervention Order. Despite this, the judge sentenced the appellant to nine and a half years’ imprisonment with a non-parole period of seven years.
Grounds:
Judgment: The court allowed all grounds of appeal, holding that the sentences were manifestly excessive and resentencing the appellant to four years’ imprisonment, with a non-parole period of two years. The court held that while the appellant’s behaviour was reprehensible [2] and involved a "grave breach of trust and violation of ... bodily integrity" [153], "the prison sentences in this case must be much shorter than would ordinarily be required" [10]. This was because of two exceptional factors: 1) the appellant’s self-reporting and confession (without which he never would have been prosecuted), and 2) the victim’s "remarkable and powerful evidence" [10]. The court stressed that this was "an exceptional case" [1] and "these are wholly extraordinary circumstances calling for an equally extraordinary response" [10]. However, the court noted that denunciation and just punishment were relevant sentences factors in this case [153].
The court noted that a twelve-month Intervention Order was previously taken out against the appellant on behalf of the victim for smashing food into the victim’s face. However, the couple remained living together and their sexual relationship continued [17]. The court noted that the couple got divorced (because the appellant was frustrated that the victim worked so much), but continued to live together as if nothing had changed [20]. They did not tell the children of the divorce. The victim testified that she was the "Alpha female" and "glory parent" and would only see the children two or three times a week, and that the appellant was the sole carer of the children, the one who did all the hard work [21].
Regarding Ground 1, the court accepted that the sentencing judge erroneously found that the impact on the victim (who would now have to arrange for care of the children and explain the appellant’s absence to them) was an aggravating factor, as opposed to a mitigating factor [84]. The court also accepted that it was not open to the judge to have qualified the mitigation resulting from the reduced psychological and emotional impact of the offending on the victim in the way the judge did [95] and that the judge erred in qualifying the mitigatory effect of the victim’s evidence by being "mindful of the complex nature of the potential damage resulting from sexual offences committed in the context of family violence, which may not be readily apparent" [102]. While the court accepted the sentencing judge’s comments regarding the nature of sexual violence in a family setting and held that it was "therefore appropriate for sentencing judges to be cautious when confronted with evidence of forgiveness by victims of violence, whether sexual or otherwise" [103], the court held that each case turns on its own facts. In this case, there was no evidence that the relationship was afflicted by family violence or that the victim was persuaded to reconcile by the appellant [106]. The court noted that "There is not the slightest suggestion that [the victim] gave this evidence as woman ground down by years of ill-treatment and ensnared in a relationship from which she found it impossible to escape" [5].
The court also upheld Ground 2, finding that the fact that the appellant could not remember certain things was "not inconsistent with a high level of remorse" in part because the appellant consistently make extensive admissions about his conduct to police but also consistently told police that there were parts he could not remember [123]. The court accepted that there was overwhelming positive evidence of remorse [124]. The court considered that it was not open to qualify the level of the appellant’s remorse on the basis that his reporting of the offending was about the victim, not the appellant’s crimes [125].
The court further upheld Ground 3, holding that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive because they failed to reflect all relevant considerations (including the appellant’s early pleas, remorse, previous good character, hardship involved in his imprisonment, and strong prospects of rehabilitation) and the sentencing judge failed to give sufficient weight to the two exceptional factors outlined above [139].
The court noted that the resentenced non-parole period was shorter than what otherwise might be imposed, but that this would still adequately reflect all of the sentencing purposes mentioned [166].
Case type: Appeal against sentence
Facts: The applicant sought leave to appeal against the sentence imposed for the offence of attempted aggravated burglary (3 years’ and 6 months’ imprisonment) on the ground that it was manifestly excessive. The applicant and victim lived together at the time of the offending, and were in a relationship ‘on and off’ for around 6 years.
Issue: The issue for the Court was whether the sentence was manifestly excessive, having regard to the objective gravity of the offending, the applicant’s limited criminal history and youth, the early plea of guilty and current sentencing practices.
Held: The applicant submitted that his criminal history was ‘limited and relatively minor’ ([32]). He had previously been sentenced, without conviction, to a community correction order (‘CCO’) for offences, including a charge of unlawful assault, charges of possession and use of cannabis and descending onto a railway track ([26]). He did not complete the CCO and was subsequently fined ([27]). The applicant contended that the offending was not towards the ‘serious end of the spectrum’ as it was brief, was not committed in company, and there was limited evidence of planning. He argued that there was only an intention to assault, not an intention to inflict actual physical harm ([31]).
The Court held that the seriousness of the offending was increased by factors, such as the fact that it involved ‘an attempted forced intrusion into a residence’ during the night, while possessing a ‘menacing weapon ... with an intention to assault a terrified and vulnerable domestic partner’ by creating fear ([45]). His efforts to enter the premises were persistent and threatening ([46]), and his conduct could not be described as brief or short-lived as had been submitted by the applicant ([48]). His conduct was viewed within the context of his earlier abusive behaviour towards the victim ([47]). The absence of an intention to physically harm the victim and of a history of family violence was found not to diminish the inherent gravity of the offending ([49], [53]). Significantly, the offending was committed in circumstances of family violence, which aggravated the offending ([50]). His conduct was motivated by a sense of entitlement, which reflected on his moral culpability and exemplified ‘the very worst of male attitudes towards women’ ([51]). As a result, general deterrence was an important sentencing purpose ([52]).
Mitigating factors included the applicant’s early guilty plea, relative youth, limited prior history and remorse ([62]); however, when balanced against the objective gravity of the offending, these factors did not persuade the Court that the sentence was wholly outside the range of sentences reasonably available to the sentencing judge ([62]). The Court also noted the dearth of sentencing decisions involving attempted aggravated burglary ([58-[59]). Nevertheless, the Court dismissed the appeal against the sentence.
Offences: Aggravated burglary; intentionally causing injury x2; threat to kill x2; persistently breaching a family violence intervention order; summary assault x1; summary offence of using a drug of dependence; and unlawful assault.
Proceedings: Application for leave to appeal against sentence
Grounds:
While drunk and drug-affected, the applicant forced his way into the home of his female ex-partner, the protected person in a FVIO to which he was the respondent. Upon entering, he grabbed KC’s father, threatened to kill him and chocked him in a sleeper hold to the point of unconsciousness. He followed KC as she fled the home and similarly choked and threatened her in the presence of her young daughter, continuing the choke hold until a police officer struck him with a torch and placed him in a headlock, having failed to subdue him with pepper spray. An elderly neighbour tried to comfort those at the scene but was also threatened by the applicant. When police arrived, they were only able to subdue the applicant with force.
The applicant persistently breached a family violence intervention order during the month leading up to the offence and had previously committed violent offences against KC and her father. He entered pleas of guilty and was sentenced to a total effective sentence of nine years and seven months’ imprisonment with a non-parole period of seven years. The sentencing judge described the offending as "very grave", "sustained and dangerous", "gratuitous" and "cruel and chilling". Sentencing considerations were general deterrence, specific deterrence, denunciation and protection of the community. Weight was placed on the applicant’s significant criminal history and "selfish and cowardly" approach to relationships. Significant mitigating factors were raised on his behalf including his early pleas of guilty, remorse, medical conditions causing particular hardship in custody, and reasonable prospects of rehabilitation.
Held: The first ground was conceded by the Crown. In respect to the second and third grounds, it was held that the sentence for aggravated burglary, cumulation, base sentence and resulting total effective sentence were all manifestly excessive and in breach of totality, providing that it is "likely that the judge placed too much weight on Mr Lim’s prior criminal history, was overwhelmed by the gravity of the offending or gave insufficient weight to the mitigating factors, or that some combination of these factors was operative" [122]. The sentence for unlawful assault was also held to be manifestly excessive.
The Court rejected the fourth ground of appeal as they considered using the offender’s prior convictions to inform an ‘assessment of the gravity of his crimes [was] not the same "as speaking of an assessment of the objective gravity of a crime" [53].
Charges: 1 x stalking; 1 x damage property; 1 x intentionally causing injury; 1 x sexual assault; 1 x commit indictable offence on bail; 3 x contravention of Family Violence Intervention Order (FVIO)
Case type: Appeal against sentence
Facts: The appellant and victim were in a relationship for about 3 years, and had married. They separated in 2016 due to infidelity and domestic violence issues. The charges to which the appellant pleaded guilty were contained in 2 separate indictments. 2 summary charges were brought against him. The appellant was subject to a Final FVIO in 2016 which he breached by attending the victim’s address, damaging her car, and coming within 5 metres of her on two occasions. He also stalked the victim by contacting her in breach of the Intervention Order ([9]-[17]), damaged her car ([21]), pinned her to the ground, and choked and sexually assaulted her by kissing her on the lips ([25]-[26]). The appellant also wrote the victim letters and emails over a period of several months that were threatening in nature. At the time of committing the offences, the appellant was on bail for other matters ([29]). The victim was injured as a result of the attack ([30]).
The sentencing judge concluded that the offending was serious, ‘protracted, violent and terrifying’, and sentenced the appellant to 6 years’ imprisonment with a non-parole period of 4 years.
Issue: The issue for the Court was whether the sentence and orders for cumulation were manifestly excessive, given the mitigating factors of the applicant’s health issues and the characterisation of offences.
Held:: The Court dismissed the appeal as the total effective sentence imposed by the sentencing judge was not manifestly excessive and did not fail to adequately reflect the principle of totality ([75]-[81]). The offences were committed over a period of many months within the context of family violence. The damage caused to the victim’s property was found to be significant, planned and executed to cause harm ([56]). At [62], the Court noted that the sentencing judge correctly emphasised the seriousness of the offence of intentionally causing injury. The victim was frightened and threatened with words, such as ‘You are going to get it’ and ‘Just die’ ([61]). Further, the context of the sexual assault was considered to be ‘significant and inextricable’, as it occurred during a ‘frightening physical attack’, and was motivated by hatred and contempt ([66]). As for the 2 charges of contravention of the FVIO on the separate indictment, the Court did not consider the individual sentences to be manifestly excessive and that despite the applicant having no ability to carry out the threat as he was in custody, the fact that they contained death threats and were sent by someone who had previously employed threats of death made it very serious offending ([69]-[74]). As each offence was committed over an extended period of time, directed at the one person within the context of family violence, and escalated and continued even in custody, the overall criminality meant that the orders for cumulation was not manifestly excessive ([79]-[80]).
Offences: Reckless conduct endangering life
Proceedings: Appeal against sentence
Issues: Whether the sentence was manifestly excessive, in particular that the Learned Sentencing Judge gave insufficient weight to the delay in these proceedings being finalised.
Facts: The male appellant and his wife severely neglected the 83-year-old victim, the appellant’s mother, who relied entirely upon them for care. The victim previously lived in a supported residential service where she was very healthy and active, and would routinely visit the doctor. However, her visits to the doctor (which included filling her prescriptions) declined and ceased altogether when she returned to live with the appellant. The victim was found dead in her bed in squalid conditions. She died as a result of bronchopneumonia in a setting of cerebral infarction, weighing only 34kg and covered in bruises and abrasions. The appellant plead guilty to the charges and was sentenced to 18 months’ imprisonment, with a non-parole period of 12 months. The appellant appealed this sentence on the ground that it was manifestly excessive because the sentencing judge failed to give sufficient weight to the delay in the proceedings being finalised.
Judgment: The court refused to allow the appeal, holding that the sentence was not manifestly excessive but could even be regarded as "lenient" [49], [54]. The court noted that "the proper approach for this Court to adopt is to consider the circumstances of the offence and those of the applicant, instinctively synthesising the aggravating features and those going in mitigation – including the considerable delay – to determine whether the sentence imposed by the judge is wholly outside the range open in the sound exercise of discretion" [41]. While the delay had been considerable (five years from the offending to sentencing) and the court held that "ordinarily, a delay of that order would constitute a very powerful mitigating factor" [43], in this case, the appellant did not have a lengthy period of rehabilitation (the court accepting that he had developed no insight into his offending and did not have good prospects of rehabilitation) nor did he suffer stress or anxiety as a result of the delay [43]-[45]. Beyond the delay, the court emphasised, there was little that mitigated the offence [46].
The court noted the seriousness of the offending, holding that the victim was in such poor condition "because of the applicant’s callous disregard for her welfare" [48]. It further accepted that the appellant’s treatment of his mother was "cruel, heartless and inhumane" [48]. Forrest JA held that the appellant "admitted he foresaw that his conduct placed [the victim] at an appreciable risk of death, and yet he continued to neglect her ... I consider that conduct to be truly reprehensible" [53].
Charges: Aggravated burglary x 1; theft x 1; recklessly causing serious injury x 1; conspiracy to commit theft x 1; breach of community correction order (CCO) x 1.
Case type: Appeal against sentence.
Facts: The applicant pleaded guilty to charges of aggravated burglary, theft, recklessly causing serious injury and conspiracy to commit theft. She was ordered to serve a community correction order (CCO), but was later charged with breaching that order and the mandatory terms contained in it. The applicant was sentenced to a total effective term of 15 months’ imprisonment, with a non-parole period of 9 months.
Issue: The applicant sought leave to appeal against the sentence on two grounds. The first ground was that the sentences imposed were manifestly excessive. It was also contended that the sentencing judge failed to give sufficient weight to 1) the impact of family violence suffered by the applicant, which compromised her ability to comply with the CCO; and 2) the applicant’s prospects of rehabilitation. The second ground was that the sentencing judge erred by not deferring sentencing before making a finding that the applicant was ‘unwilling and unable’ to comply with a further CCO.
Held: The application for leave to appeal against the sentence was refused. The applicant’s counsel contended that the applicant’s capacity to fully comply with the terms of the CCO was affected by the domestic violence perpetrated on her by her partner ([20]). It was argued that the applicant was the ‘captive of her partner throughout the term of the [CCO]’, and found it difficult to leave him and the drug infected environment in which she was then living ([25]). Although the Court recognised that the applicant was clearly subjected to domestic violence by her ex-partner, their Honours noted that the materials placed before the sentencing judge did not sufficiently explain her substantial and repeated failures to comply with the conditions of her CCO ([48]). While it was understandable that the applicant, under the pressure of the domestic circumstances in which she was living, relapsed into drug use, it appeared that she sometimes managed to remove herself from the abuse. Taking those matters into account, and giving full weight to the impact of her partner’s conduct towards her, their Honours did not accept that the sentencing judge erred in concluding that the applicant was either unwilling or unable to comply with a further CCO ([49], [56]). No sufficient circumstances were put to the sentencing judge which would require him to defer sentencing ([56]).
Charges: Murder x 1.
Case type: Application for leave to appeal against sentence.
Facts: For about four months leading up to the victim’s death, the applicant and the victim were in an intimate relationship. In the period leading up to the incident, the applicant, Marmo (the applicant’s co-accused) and the victim were heavy ice users. On the day of the incident, the applicant was angry with the victim because she made a family violence complaint against him to police. The victim was savagely beaten by the applicant for ‘snitching and dobbing’ ([9]). Marmo and two other people were present. The applicant’s attack on the victim escalated, and involved kicking her to the head and body with extreme force. The victim later died and the applicant and Marmo agreed that Marmo should ‘dispose of her’, by dumping her body down a mineshaft and then burning it using petrol ([12]). The trial judge sentenced the applicant to a term of 26 years’ imprisonment, with a non-parole period of 22 years. Marmo was sentenced to a term of 24 years’ imprisonment ([3]).
Issues: The applicant seeks leave to appeal against his sentence on the following grounds:
Decision and reasoning: The Court refused the applicant’s application for leave to appeal against the sentence. In determining the first ground of the appeal, the Court found nothing wrong with the trial judge’s conclusions about the respective roles of the applicant and Marmo. It was the conduct of the applicant that was ‘at the heart’ of the horrific offending and but for his anger with, and treatment of, the victim, her death would not have occurred ([42]). The Court was also unpersuaded that the applicant’s late plea of guilty required the trial judge to impose a lesser sentence than the sentence she imposed on Marmo ([43]). Overall, her Honour correctly differentiated the cases of the applicant and Marmo, and the Court therefore rejected the first ground of appeal ([44]).
The Court found that there was no substance in the applicant’s second ground of appeal, that the non-parole period was manifestly excessive. The fact that the non-parole period was almost 85% of the head sentence did not indicate any error. The higher the head sentence, the higher the percentage of the head sentence the non-parole period will likely be, and often it will exceed 80% ([46]). The non-parole period was not manifestly excessive in light of the circumstances of the applicant’s offending. The Court also held that the trial judge’s conclusions that a lower non-parole period need not be fixed on the basis that the applicant’s prospects for rehabilitation ‘appear reasonable’.
Charges: Rape x 1; reckless conduct endangering serious injury x 1 (acquitted); common law assault x 1 (acquitted); stalking (intent to cause physical harm) x 1.
Case type: Appeal against sentence.
Facts: The respondent was convicted of rape and stalking with intent to cause physical harm. He was acquitted of reckless conduct endangering serious injury and common law assault. The respondent and the complainant had been in a relationship for two years before the offending conduct. In relation to the charge of rape, it was alleged that the respondent placed his fingers inside the complainant’s vagina, so as to constitute digital, rather than penile, penetration ([5]).
The respondent was sentenced to two years and three months’ imprisonment with a non-parole period of one year. The Crown appealed on the ground that the individual sentence imposed for the rape charge (two years), the total effective sentence and the non-parole period were manifestly inadequate, and that the sentences imposed failed to:
Issues: Whether the sentence and non-parole period were manifestly inadequate.
Decision and reasoning: The Court (Priest AP, Beach and Forrest JA) noted the difficulty in establishing a ground of manifest inadequacy as it requires the Crown to show that it was not reasonably open to the sentencing judge to come to the sentencing conclusion reached, and that the sentence imposed was ‘wholly outside the range of the sentencing options available’ ([35]). The appeal was dismissed because the objective gravity of the offending was lower than is often seen for rape offences. The Court distinguished Shrestha v The Queen [2017] VSCA 364 as the respondent did not display the same degree of criminality as the offender in that case ([36]). The Court agreed with the sentencing judge’s findings that the incident was a single, impulsive act, which did not appear to be premeditated. Excessive violence was not involved and the duration of the incident was relatively brief. Further, as the rape involved digital, rather than penile, penetration, ‘the offence could properly be described as a breach of an agreement as to the limits of intimacy, in the context of a longstanding relationship in which intimacy occurred throughout.’ ([37])
Moreover, the Court, agreeing with the sentencing judge, held that the fact the respondent exhibited little remorse and ran a trial was an important mitigating factor ([38]). Their Honours also did not disagree with the sentencing judge’s finding that the respondent had ‘relatively good’ prospects for rehabilitation ([27]). Although the sentence imposed was lenient, the Court held that is was within the range of available sentencing options.
Charges: Rape x 2; common assault x 1.
Case type: Application for leave to appeal.
Facts: At the time of the offending, the respondent and the complainant were in a relationship. Their relationship was characterised by physical and emotional abuse. On two separate instances, the respondent raped the complainant ([2]-[3]). He also assaulted her by punching her in the face ([4]). In the past, the respondent had generally acted in a possessive and aggressive manner towards the complainant ([8]). He had previously made threats to commit suicide if she left him and had insisted on having sex with her on many occasions ([6]-[7]). An important piece of evidence in this application was a pretext call between the respondent and complainant. In the pretext call, the respondent made an admission to one or more of the allegations made by the complainant. Before the empanelment of the jury, the trial judge made a ruling excluding the admission into evidence of the contents of the pretext call.
Issues: Whether leave to appeal should be granted. Whether the exclusion of the evidence would eliminate or substantially weaken the prosecution’s case.
Decision and reasoning: The Court held that the trial judge did not err in considering that the jury could not reasonably conclude that the complainant specifically referred to either of the incidents subject to the two rape charges in the pretext call ([45]). Further, it was held that the trial judge correctly accepted that the jury could conclude that the respondent did make an admission of sexual misconduct in the pretext call. However, this admission was of limited probative value in the context of the case. The trial judge did not err in concluding that the probative value of the evidence would be outweighed by its prejudicial effect ([54]). Consequently, the Court concluded that the applicant should not be granted leave to appeal the decision of the trial judge to exclude the contents of the pretext call from evidence ([55]).
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to the murder of his father (the victim). The offence took place at the offender’s house that he occupied with the victim and his then girlfriend. The offender had an argument with the victim which erupted into a violent altercation, leading him to physically assault the victim until he was dead. Following the murder, the offender and his then girlfriend approached two men to help remove the body from the house and take it to a disused mineshaft for disposal. The offender’s relationship with his father at the time of the offending was ‘intensely troubled’; however despite the difficulties, they had a close and co-dependant bond. Further, he suffered from a range of emotional and psychological problems and was prone to drug abuse ([9], [57]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Dixon J sentenced the offender to 21 years’ imprisonment with a non-parole period of 17 years. The offender had a limited criminal history which included contravening a family violence safety notice and offences against police ([74]). Further, he pleaded guilty late and therefore was not entitled to the same degree of mitigation as if he had pleaded guilty at the earliest possible stage. There was also delay in the finalisation of proceedings which was due to factors beyond the offender’s control. For example, his then girlfriend changed legal representation more than once, and he was also diagnosed and treated for testicular cancer. As a result of these matters, the offender had been on remand since March 2016 ([75]-[78]). Her Honour noted that he had used this time productively, having enrolled in several programs open to remand prisoners, and received training in drug education ([79]). The offender’s prospects of rehabilitation were found to be reasonable, particularly if he remained on stabilising medication and avoided illicit drugs upon release ([82]-[83]).
The objective gravity of the crime was aggravated by the way the offender continued to assault the victim when he was already severely incapacitated. It was further increased by the nature of the physical violence, together with his efforts to dispose of the body and involve other people in that conduct. The concealment of the offence meant that the victim’s relatives did not learn of his death for some time after it occurred. Regardless of the pressures that the offender may have endured, her Honour found him to be solely responsible for the victim’s death ‘in an episode of appalling brutality’ ([84]-[85]).
The offending was not premeditated but arose in circumstances of sudden rage in the context of a highly dysfunctional household. Her Honour accepted that the offender was contrite but noted that expression of sincere remorse gave way to self-interest in the aftermath of the murder. She gave weight to denunciation, just punishment, general and specific deterrence, and the need for rehabilitation. However, specific deterrence was somewhat diminished as a factor given his limited criminal history and conduct on remand ([86]-[90]).
The parties only referred to a small number of cases involving the murder of a parent, none of which were comparable to the present case. A notable feature of this case was that despite the history of conflict between the offender and the victim, he ‘accepted responsibility for murdering the person [he] had come to depend on most’ ([91]-[93]).
Charges: Multiple counts of assault and rape.
Appeal type: Appeal against sentence.
Facts: The applicant was charged with 12 counts of assault and rape. The first five charges involved intentionally causing injury and rape against his former domestic partner. The remaining seven charges concerned offences of assault, rape, making a threat to kill and intentionally causing injury against the same domestic partner, however, the parties had separated at the time these particular offences were alleged to have been committed. The applicant pleaded not guilty to the offences. The sentencing judge imposed a sentence of 10 years 10 months’ imprisonment, with a non-parole period of seven years and three months.
Issues: The applicant sought leave to appeal because the sentence imposed was manifestly excessive in that:
Decision and reasoning: The Court emphasised that the ground of manifest excess will only succeed if it can be proven that the sentence imposed fell wholly outside the range of sentencing options available to the sentencing judge. Their Honours considered the applicant’s limited criminal history to be relevant, but given his lack of remorse, denial of the offending and the circumstances of the offending, the sentencing judge was open to conclude that his prospects of rehabilitation were ‘guarded’ ([39]). The offending was found to be very serious, and the context of domestic violence significant ([42]). The applicant’s personal circumstances were also considered, including his previous experiences as a victim of sexual abuse, and his medical and psychological history (including brain damage and bipolar disorder). Ultimately, the Court refused the appeal as the total effective sentence imposed by the sentencing judge was not outside the range of sentencing options available to him.
The Court observed that the context of domestic violence is also very important. The Court quoted from Pasinis [2014] VSCA 97:
Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.
The Court noted the importance of general deterrence in this context.
Charges: Rape x 2; make a threat to kill x 1.
Case type: Application for leave to appeal against sentence. Determined ‘on the papers’.
Facts: The victim was the applicant’s wife of many years. The applicant and the victim married in 1996 and have 2 children. The family emigrated from Egypt in 2009, and practise the Coptic Christian Orthodox faith. The rape offences involved penile-anal penetration, contrary to the Coptic religious faith (charges 3 and 4). The applicant also threatened to kill the victim, telling her that if she saw a counsellor he would kill her and tell everyone that she was mentally unstable and had committed suicide (charge 5). The victim suffered an anal injury as a result of the rape the subject of charge 4. The applicant was sentenced to 10 years and 6 months’ imprisonment, with a non-parole period of 7 years and 9 months. For the charge of making a threat to kill, the individual sentence was 2 years, and for the two rape charges, the individual sentences were 8 years each. The applicant was also sentenced as a serious sexual offender in respect of charge 5.
Issue: The applicant sought to appeal against the sentence. One ground of appeal was that the sentences imposed on each of the individual counts, and the order for cumulation of the sentence imposed on charge 4, were excessive.
Held: Tate JA refused leave to appeal as she was not persuaded that it was reasonably arguable that the sentences imposed against the applicant went beyond a sound exercise of the sentencing discretion ([48]). The sentences imposed against the applicant in relation to the rape charges were ‘very stern’. However, the offending was ‘extremely serious’ and, as the sentencing judge acknowledged, there has been a recent shift towards sterner sentencing for rape and other sexual offences. This has been a conscious decision of the courts to reflect the seriousness of domestic violence and sexual crimes committed against women in Victoria ([39]).
Her Honour noted the extreme seriousness of the offending and the absence of remorse. Therefore, there was a need for specific and general deterrence in the context of protecting the community from a serious sex offender in respect of charge 5 ([43]). Having regard to the facts, circumstances and available data regarding current sentencing practices, the sentence of 2 years’ imprisonment in respect of charge 5 was not manifestly excessive nor was the relatively modest cumulation of 6 months ([46]). Further, the order for cumulation with respect to charge 3 was found to be necessary to reflect the fact that the 2 rape offences occurred as ‘distinct and separate episodes’ ([47]).
Charges: Aggravated burglary x 1; Criminal damage x 1; Resisting an emergency worker on duty x 1.
Appeal type: Applicant for leave to appeal.
Facts: The applicant and his ex-partner argued by text message, culminating in the applicant’s text: ‘Addie won’t had no mother from today’ and ‘I’ll have the last laugh I promise you that’. Addie was their six-month old daughter. On the same day, the applicant broke into his ex-partner’s home, causing damage and turning on the gas before leaving. The applicant was charged with aggravated burglary, in that he entered as a trespasser, intending to destroy property with reckless disregard as to the presence of another person. He was also charged with causing criminal damage and resisting an emergency worker. He was sentenced to two years and six months’ imprisonment, with a non-parole period of two years.
Issues: The applicant sought leave to appeal on the basis that (1) the sentencing judge erred by imposing a manifestly excessive non-parole period of 80% of the total effective sentence; and (2) his Honour did not explain the necessity for the imposition of the relatively high non-parole period.
Decision and reasoning: The high ratio between the non-parole period and the head sentence was such that leave to appeal was granted, but the appeal was dismissed ([27]). Given the nature of the offending and the applicant’s criminal history, the sentences imposed (leaving to one side the non-parole period) were very modest and not excessive. The Court found that the explanation for the moderate sentence was largely the significance placed by the judge on the prospect of deportation. As the sentence exceeded two years’ imprisonment, the sentencing judge was required by s 11(1) of the Sentencing Act 1991 (Vic)to fix a non-parole period, unless he considered it inappropriate to do so, having regard to the nature of the offence or the offender’s past history. Clearly, his Honour considered it appropriate to fix a non-parole period. s 11(3) required that period to be at least six-months less than the term of the sentence. Here, the non-parole period fixed was, in a sense, the ‘maximum’ period that could be fixed. In determining the non-parole period, the judge was required to take into account the purpose of parole, namely, to provide for mitigation of punishment in favour of rehabilitation after the offender had served the non-parole period (see Power v The Queen [1974] HCA 26). The seriousness of the offending was such that justice required a non-parole period of at least two years. Therefore, the high ratio between the head sentence and the non-parole period was explicable by the very modest sentences imposed (and cumulation ordered) for the offences. There was no error in his Honour fixing the non-parole period.
Charges: Defensive homicide x 1
Appeal type: Appeal against sentence
Facts: The female appellant had been in an abusive and violent relationship with her male partner for 12 months prior to her offending. Her partner threatened to kill her family unless she killed the victim. Acting under the fear of this threat, she killed the victim. The appellant pleaded guilty to defensive homicide.
Issues: Whether the sentence imposed was manifestly excessive.
Decision and Reasoning: Maxwell ACJ and Tate JA held that the sentence of 10 years’ imprisonment with a non-parole period of seven years was manifestly excessive. The appellant was re-sentenced to six and a half years’ imprisonment, with a non-parole period of five years.
The sentencing judge accepted that the killing took place at the direction of the appellant’s violent and abusive partner who had threatened to kill her family unless she killed the victim. She had been subjected to ‘repeated acts of violence, degradation and humiliation at the hands of her partner, who was… a highly dangerous person’. The fact that she proceeded to kill the victim rather than attempting to flee, and that she used excessive violence, ‘could only be understood through the lens of the sustained family violence she had experienced’ ([7]).
Maxwell ACJ and Tate JA held that the sentence imposed reflected a mischaracterisation of the gravity of the offending and of the appellant’s culpability. Insufficient weight was also given to the mitigating factors of cooperation with authority and youth ([65]).
The appellant’s undertaking to assist, and the provision of her statement, reflected remorse and a genuine desire to bring a person to justice ([55]). As a result, discount for cooperation was necessary because ‘there [was] some personal risk’ to the applicant, as a result of which she had already spent some time in protective custody.
Beach JA held that whilst the sentence was stern, it was not manifestly excessive ([133]).
Charges: Aggravated burglary x 1; Intentionally cause injury x 2; Recklessly cause injury x 2; Intentionally damage property x 1; Extortion with a threat to kill x 1; False imprisonment x 1; Making threat to kill x 1; Contravening family violence intervention order x 1; Attempt to pervert the course of justice x 2.
Case type: Application for leave to appeal against interlocutory decisions.
Facts: The charges related to an incident of violence committed by the applicant against the aggrieved, his partner. The aggrieved was to be the central witness for the prosecution ([5]-[7]). The aggrieved invoked s 18 Evidence Act 2008 (Vic), which provides that a person can avoid giving evidence against their partner if there is a sufficient likelihood that harm would be caused to the person ([9]-[11]). The prosecution then gave notice under s 65 Evidence Act 2008 that they would rely on statements that the aggrieved had made to the police as tendency evidence as an exception to the hearsay rule ([16]).
Issues: The applicant appealed against 3 main interlocutory decisions made by the judge. First, admitting the statements the aggrieved made to the police. Second, refusing to certify the appeal, which is a precondition to appeal against an interlocutory decision under s 295(3) of the Criminal Procedure Act 2009 (Vic). Third, refusing to sever the proceedings for each of the applicant’s charges.
Decision and Reasoning: The Court dismissed all grounds of the appeal. On the first ground, it was reasonably open for the judge to admit the evidence as an exception to the hearsay rule. The applicant argued that admitting the evidence might lead to prejudice because the aggrieved could not be cross-examined (since she had invoked the protection against giving evidence against a de facto partner) ([58]). The Court held that there were sufficient protections available to ensure a fair trial, including directions against giving too much weight to untested statements ([59]). Accordingly, in relation to the second ground, it was reasonably open for the judge to refuse to certify ([64]). On the third ground, the Court held that many charges stemmed from the same factual basis, so there was no basis to sever the charges ([68]).
The Court observed that the applicant did not seek to challenge the judge’s ruling that the tendency evidence satisfies the requirements of ss 97 and 101, ‘presumably’ because ‘he regards a submission of that kind as foredoomed to fail, based upon the recent decision of the High Court in Hughes v The Queen’ [2017] HCA 20 (14 June 2017). [72] The Court stated at [73] that:
It is, however, worthy of note that the general evidence of the history of domestic violence, which forms the basis of the tendency notice, may not have quite the probative force in relation to the allegation of the threat to kill and extortion, as it does in relation to the other charges brought against the applicant.
The Court concluded by cautioning trial judges about the use of tendency evidence: ‘[if the tendency] evidence were led, the judge would have to give a careful direction as to how it could be used and, more importantly, how it could not be used’ ([75]).
Charges: Recklessly cause injury x 4; Common law assault x 1.
Appeal type: Appeal against sentence.
Facts: The applicant and victim were married and had two children. The applicant worked as a solicitor and the wife, the victim, as a librarian. The applicant had an epileptic seizure, which caused him to stop work and his mental health to decline. The applicant became increasingly controlling of the victim, forcing her to relinquish her financial independence and remain at home with him rather than going to work. The ‘recklessly cause injury’ charges occurred when the applicant punched and hit the victim at home and in their bed. The common assault charge occurred when the applicant twisted her arm so violently that her arm broke. The applicant threatened suicide, and the victim went to the police (see [5], the remarks of the sentencing judge).
The applicant was sentenced to 7 months and 14 days’ imprisonment and a 2-year community correction order ([1]).
Issues: Whether the sentence was manifestly excessive.
Decision and reasoning: The appeal was dismissed (see [28]). The applicant argued that the injuries sustained were at the lower end of the scale, and the broken arms was not intended ([21]). The Court did not accept that submission. Justices Santamaria and Coghlan JJA stated that the offending was ‘serious’ and stemmed from an ‘abusive relationship between the applicant and the victim, who was vulnerable and frightened of the applicant’ ([29]). The Court quotes Kalala v The Queen [2017] VSCA 223, discussing the scourge of domestic violence:
The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations. In Filiz v The Queen [2014] VSCA 212 [23], the Court acknowledged the ‘shameful truth’ that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.
The Court concluded that the principles of general deterrence and denunciation loomed large in the present case, and the sentence was, if anything, merciful ([31]).
Charges: Sexual assault x 1; Stalking x 2; Attempting to pervert the course of justice x 1; Contravention of family violence intervention order (‘FVIO’) x 1; Making threats to kill x 1; threatening to distribute intimate images of another person x 1.
Appeal type: Appeal against sentence.
Facts: The victim was the defendant’s ex-wife. The offences occurred over an 18-month period after they had separated ([7]). The offences included: the defendant forcing the victim onto her bed and ejaculating on her; threatening to distribute intimate photos to the victim’s father and employer if she did not agree to his terms for their property settlement; entering her house and leaving videos of himself; and sending mail to her house ([7]-[22]); threatening to kill himself if the victim did not drop the charges (attempting to pervert the course of justice). The defendant was originally sentenced to 16 months’ imprisonment (see table at [2]).
Issues: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed.
The Court (Priest, Hansen and Coghlan JJA) re-sentenced the defendant to 2 years and 11 months imprisonment with a non-parole period of 2 years. The primary judge treated the offences as ‘situational in the sense that it was based within a relationship, not that that condones it in any way, shape or form’ [34]. But the Court of Appeal placed more emphasis on the fact that the domestic context, breach of FVIO and offending while in jail were all aggravating factors [49].
The Court appeared to endorse the DPP’s description of the sexual assault as ‘particularly serious … being violent, non-consensual and humiliating for C who was treated as though a marital chattel’ [40].
Charges: Recklessly causing serious injury x 1; False imprisonment x 1; Making threat to kill x 1.
Appeal type: Application for leave to appeal against sentence.
Facts: The appellant and complainant were in a de facto relationship with two children. Over one afternoon, the appellant inflicted the following actions on the complainant in the presence of the children: throwing a pot of boiling water over her; punching and kicking her; whipping her with a kettle cord; hitting her with a broom; rubbing salt and curry powder into her wounds; and threatening to kill her (see [3]-[11]). The applicant pleaded guilty and was sentenced to 8 years’ imprisonment with a non-parole period of 5 years and 6 months. The applicant had previously been refused leave to appeal against sentence, but renewed the application to the full Court.
Issues: First, whether the sentencing judge erred in not applying principles relevant to young offenders; and second, whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed.
The Court (Beach, Ferguson and Coghlan JJA) dismissed the first ground on the basis that the judge took into account the applicant’s age, but also took into account the seriousness of the offences, the fact that the offences took place in a domestic relationship and in the presence of the applicant’s and victim’s children, and the serious injuries inflicted on the victim ([30]-[31]).
The Court dismissed the second ground on the basis that the sentencing judge took into account the applicant’s disadvantaged upbringing, lack of relevant antecedents, plea of guilty and remorse, and no comparable case established that the sentence fell outside the reasonable range ([38]). The Court appeared to endorse the sentencing judge’s comments that this was an unusual case with many aggravating factors ([24]), and that the use of weapons, boiling water and salt as ‘gratuitous and sickening behaviour’ ([22]).
Charges: Incitement to murder x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and victim were in a de facto relationship ([4]). While the victim was visiting relatives in Burundi, the applicant became suspicious that she was seeing another man ([7]). The applicant arranged and paid for the victim to be killed ([8]). While speaking with the victim on the phone, the applicant told her to go outside ([9]). Upon walking outside, the victim was forced into a vehicle, held captive for 2 days and told that she would be killed. However, the kidnappers did not kill her because she was a woman ([10]). The victim returned to Australia. The applicant pleaded guilty and was sentenced to 9 years’ imprisonment with a non-parole period of 6 years ([1]).
Issues: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The main argument advanced by the applicant was that the sentence was the highest yet imposed for the offence, and the circumstances of the offending were not more serious than previous offences ([3]).
President Maxwell and Redlich JA (‘the joint judgement’) made some general conclusions ([3]), including:
The joint judgement remarked that the case had many aggravating factors, including the fact that the applicant played an active role in initiating the plan and delivering her into the hands of the kidnappers ([24], [46]). Since it was not suggested that the case warranted the maximum penalty, it was inappropriate to classify the case was a ‘worst category’ case (citing R v Kilic [2016] HCA 48) ([28]). However, the sentence was reasonably open to the sentencing judge ([54]).
The joint judgement stated at [62]:
The applicant’s motivation — to have NR killed as punishment for perceived infidelity — is expressive of the very worst of male attitudes towards women … It follows that this offending must be viewed as involving moral culpability at the highest level.
Justice Osborn agreed with the joint judgement, but was reluctant to express a global view on the adequacy of current sentences for incitement to murder ([92]).
Charge/s: Persistent contravention of a family violence intervention order, common assault, threat to kill, theft x 2, criminal damage.
Appeal Type: Appeal against sentence.
Facts: The principal victim of the offending was the applicant’s former female domestic partner. After the relationship broke down, the victim obtained a family violence intervention order, which the applicant repeatedly breached. One night, the applicant broke into the victim’s house and wrapped a telephone cord tightly around her neck. He threatened to kill her and cut off 40cm from her hair, saying he wanted to disfigure her to the point that no-one else would find her attractive. He then took the victim’s phone, house and car keys and drove away. The applicant was sentenced to a total effective sentence of four years and nine months with a non-parole period of two years and nine months.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The objective gravity of the offending warranted severe punishment, certainly extending to a sentence of the overall length here. In that regard, Beach JA noted that the persistent contravening of a family violence intervention order was itself extremely serious and was ‘no mere breach of an intervention order of the kind so frequently seen’. The conduct on the night of 29 October 2014 was also extremely serious because it must have been terrifying for the victim, the applicant knew there were children in the house, and the assault was not spontaneous. This was not an act brought about by a temporary loss of self-control, resulting from something said or done by the victim. His Honour stated that instead, ‘it was an act of wanton cruelty intended to humiliate and terrify a defenceless woman in her own home’ (See [37]-[41]).
Charge/s: False imprisonment, threat to kill, contravening a family violence intervention order, assault with a weapon, assault police, resist police.
Appeal Type: Appeal against sentence.
Facts: The male applicant and the female victim were in a relationship and the victim was 17 weeks pregnant with their child. The applicant wanted the victim to terminate the pregnancy and had made numerous threats against the victim and the baby. A family violence intervention order was made. On the day of offence, the applicant locked the victim inside the house, held a knife against her, and threatened to kill her if she screamed or called the police. He then tried to force the victim into the bath, saying that he was going to abort the baby. He continued to threaten the victim and the baby until he became tearful. The applicant was sentenced to a total effective sentence of three years and nine months imprisonment with a non-parole period of two years and six months.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. In light of the applicant’s mitigating circumstances (his mental condition, his lack of prior convictions and his steps towards rehabilitation), the sentences imposed were high. However, the circumstances of the offence were particularly serious and required the imposition of a sentence that was sufficient to reflect the gravity of offending and to serve the purposes of sentencing including general deterrence and denunciation (See [24]). In particular, at [22]-[23], Kaye JA held:
‘The applicant’s offending had a number of very serious characteristics. As the respondent has pointed out, it was premeditated, and the applicant had clearly prepared for it. The victim was vulnerable. She was carrying the applicant’s baby. The applicant took advantage of his greater strength, and the fact that he had a weapon, to overwhelm her. The threat to abort the baby was, as the judge correctly said, a ‘most ugly’ aspect of the false imprisonment. The whole experience, to which the applicant subjected her, must have been extraordinarily terrifying. She was justifiably in grave fear for her own life and that of her baby. While the imprisonment did not extend for hours or days, it lasted for over one hour, during the whole of which the applicant terrorised his victim.
In those circumstances, the offending by the applicant, comprising charge 1, called for a stern sentence. In such a case, involving wanton domestic violence, general deterrence, specific deterrence, and denunciation were important considerations: Filiz v The Queen [2014] VSCA 212 at [21] and Mercer v The Queen [2015] VSCA 257 at [54]. While the judge accepted that the applicant’s psychological condition moderated the weight to be given to those considerations, nevertheless, they rightly remained important factors in the determination of the applicant’s sentence: R v Yaldiz [1998] 2 VR 376, 381’.
Charge/s: Murder, arson.
Appeal Type: Crown appeal against sentence.
Facts: The male respondent and the male deceased were in a relationship. The deceased had a dominant and controlling personality while the victim was submissive and often demeaned and belittled by the deceased in public. On the morning of offence, the respondent rejected the deceased’s sexual approach and the deceased called him a ‘frigid bitch’. The respondent tried to apologise but the deceased repeated his abuse. The respondent snapped. He hit the deceased over the head with a steel pan and strangled him with a dog lead. The respondent acted if the deceased was alive for several days before setting fire to their home with the deceased’s body inside. He acted as if the deceased had died accidently until he was arrested.
At sentence, Dr Barth, a psychologist, provided evidence of the respondent’s psychological condition. He diagnosed the respondent as having a maladaptive personality adjustment and as suffering from pervasive feelings of worthlessness, inadequacy and insecurity. The sentencing judge accepted that the respondent’s personality disorder played some role in his offending, and therefore operated to reduce his moral culpability and to moderate to some extent the need for general and specific deterrence. A total effective sentence of 18 years imprisonment, with a non-parole period of 13 years, was imposed.
Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was dismissed. The Court provided extensive consideration of the six circumstances identified in R v Verdins in which impaired mental functioning is considered relevant to the appropriate sentence to be passed on an offender (See [66]-[84] in particular). The Court rejected a purely mechanistic approach and they emphasised that careful consideration must be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances in Verdins are engaged. This requires rigorous evaluation of the evidence (See [68]). Here, the respondent did not establish on the balance of probabilities that he suffered from a mental impairment. As the principles in Verdins do not extend to personality disorders such as those relied upon, the relevant principles (in particular, the moderation of the need for general and specific deterrence, and the reduction of moral culpability) were not engaged (See [85]).
Nevertheless, the respondent’s mental condition was still of some relevance to sentence, it just did not attract the level of mitigation of sentence that must be allowed where Verdins principles are applicable. First, the sentencing judge did not err in accepting that the respondent’s personality disorder operated to moderate, to some extent, the need for general and specific deterrence. Second, the Court also held that on the evidence it was open to the sentencing judge to conclude that the murder of the deceased was not premeditated, vindictive or gratuitous but rather the result of a very complex and conflicted personality structure. In that way, the sentencing judge was correct in taking the respondent’s disorder into account in making an assessment of the moral culpability of the respondent (See [99]-[100]).
Charge/s: Aggravated burglary, intentionally cause serious injury x 2.
Appeal Type: Crown appeal against sentence.
Facts: Trevor Barnes (‘the first respondent’) and his younger brother (‘the second respondent’) entered into the premises of the first respondent’s estranged wife, without her consent. Three days prior to the home invasion, the first respondent had been released from prison for offences including assaulting his wife and multiple breaches of an intervention order she had in place against him. The first respondent saw his wife and her new partner in the shower together and smashed the door of the shower. He struck his wife’s new partner and his wife with a jemmy bar before pulling out a Stanley knife. He only stopped when his wife said she loved him. The first respondent was sentenced to six years imprisonment with a non-parole period of three years.
Issue/s: One of the issues was that the sentence imposed on the first respondent was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. First, in relation to the charge of aggravated burglary, Redlich JA noted that this was a very serious offence of ‘intimate relationship aggravated burglary’. The first respondent entered into the house, uninvited and in company, carrying a jemmy bar, with the intention to assault his estranged wife, whom he knew was frightened of him because of his past instances of violence. He had just been released from prison and committed these offences in breach of an intervention order and a partly suspended sentence. As Redlich JA stated at [48]-[49]:
‘General deterrence, denunciation and just punishment are important purposes in sentencing for such an offence … Specific deterrence and protection of the community are also important in this case, given that Trevor had not long since been released from prison for offences that included assaulting Ms Bethune and breaching an intervention order in her favour’.
However, the sentence here failed to adequately reflect these purposes.
Second, in relation to the charges of intentionally causing serious injury, in sentencing the first respondent for these offences, the sentencing judge stated: (See [68])
‘I make it plain that I consider that you are the main offender in this criminal enterprise and the whole appalling saga was dictated by your immaturity and inability to control your anger in the context of your possessive and controlling behaviour of Ms Bethune, whom you had subjected to domestic violence on earlier occasions. In sentencing you, the court must denounce your conduct, give emphasis to general deterrence, and impose just punishment. A strong message needs to be sent to males in the community who are inclined to be violent towards their female partners. You do not own them. You have no right … menacingly [to] control them. If you lay a hand on them in anger, the law will not spare you punishment. Men who are bullies towards women usually have some psychological inadequacy. They need to look long and hard at themselves to try to understand why they are inclined to behave with anger and brutality, and seek professional help to overcome such inclinations.
In your case, emphasis must also be placed upon specific deterrence because of your prior history of violence towards Ms Bethune. As I have indicated, your history of offending whilst on a suspended sentence, and breaching an intervention order, do not inspire optimism’.
Redlich JA noted that while the sentencing judge was clearly alive to the need to place considerable weight on the need for general deterrence, denunciation, just punishment, specific deterrence and protection of the community, the sentences imposed did not adequately reflect these purposes (See [69]).
Charge/s: Aggravated burglary, making a threat to kill x 3, common assault, contravening a family violence intervention order, reckless conduct endangering a person x 2.
Appeal Type: Appeal against conviction and appeal against sentence.
Facts: The male applicant and his wife were married and had three children together but separated in 2007. A family violence intervention order was later made against the applicant. In 2013, the applicant went to his wife’s home and committed a number of offences including aggravated burglary, breach of a family violence intervention order, threatening to kill and common assault. At trial, evidence was adduced of three previous incidents where the applicant had been physically and verbally abusive towards his wife and their children. It was adduced as tendency of the applicant to act in a particular way namely, to make threats to kill family members, to assault family members, to falsely imprison family members, and to contravene family violence orders. The applicant was sentenced to a total effective sentence of ten years imprisonment, with a non-parole period of eight years.
Issue/s:
Decision and Reasoning: Priest JA (Maxwell P and Beale AJA agreeing) dismissed the appeal against conviction. The principles governing the admissibility of tendency reasoning were formulated in Velkoski v The Queen where it was said that:
‘The features relied upon must in combination possess significant probative value which requires far more than ‘mere relevance’. In order to determine whether the features of the acts relied upon permit tendency reasoning, it remains apposite and desirable to assess whether those features reveal ‘underlying unity’, a ‘pattern of conduct’, ‘modus operandi’, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the tendency evidence its relative strength’.
Here, consistent with the principles in Velkoski, ’the evidence impugned by the applicant met the necessary high threshold of admissibility. Indeed, the conduct revealed by the tendency evidence was, as I have mentioned, conceded to be strikingly similar to the charged conduct. Given that the live issue for the jury was whether the charged conduct occurred, the evidence introduced as tendency evidence had the potential to shed considerable light on that issue, in circumstances where it could hardly be realistically contended that the probative value of the evidence did not substantially outweigh its prejudicial effect’ (See [27]).
Priest JA (Maxwell P and Beale AJA agreeing) also dismissed the appeal against sentence. The total effective sentence and non-parole period could not be said to be excessive in light of the applicant’s extensive and persistent history of criminal offending, the need for general and specific deterrence, his lack of remorse and rehabilitation, and the need for denunciation of his conduct. In particular, Priest JA stated that: ‘general deterrence is important in cases such as this of violence against domestic partners, so as to deter other like-minded individuals from similar offending’ (See [32]-[40]).
Maxwell P (Beale AJA agreeing) made some additional observations at [48]-[50]:
‘Priest JA has referred to the importance of general deterrence and this Court’s repeated statements that sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members.
Plainly enough, the sentences which the courts impose will not serve that purpose unless the sentences and the reasons for them are properly publicised. As the Court said last year in DPP v Russell (in relation to sentences for random street violence) at [5] and [6]:
‘Obviously enough, … a prison sentence can only have that wider deterrent effect if it is publicised across the community, especially amongst those … who are at risk of offending in this way. Courts have neither the expertise nor the resources to engage in the kind of sustained community education which is necessary if general deterrence is to be a reality. That is a task for government.
After all, it is the responsibility of government to ensure public safety. And government must therefore take responsibility for communicating the deterrent message to those who need to hear it. That requires sustained effort and the commitment of substantial resources. Without that, the community simply will not derive the benefit — in greater public safety — which should flow from the painstaking work of sentencing judges and magistrates in this State. Self-evidently, if the message is not getting through no change in sentencing law can make the difference’.
In view of the community concern about domestic violence and the importance of deterring it, those considerations are particularly pertinent in this area. A copy of the Court's decision in this matter will be forwarded to the Royal Commission on Family Violence for its consideration’.
Charge/s: Assault x 5, intentionally causing injury, threatening to inflict serious injury, false imprisonment.
Appeal Type: Appeal against sentence.
Facts: The female victim was the male applicant’s domestic partner. The applicant accused the victim of concealing drugs, becoming increasingly angry and aggressive. He slapped her, punched her to the side of the face, threw her to the floor, and whipped her with a coat hanger. The applicant then accused the victim of having a relationship with another man. He banged her head against a wall, punched her and threatened to physically harm her. The victim managed to escape but only after she had been confined for several hours. The applicant was sentenced to a total effective sentence of three years and six months imprisonment, with a non-parole period of 2 years and six months.
Issue/s: One of the issues was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. This was a serious example of serious offending. As per Maxwell P and Beach JA at [54]:
‘This Court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts: R v Gojanovic [2002] VSC 467, [31]; R v Robertson [2005] VSCA 190, [13]; DPP v Smeaton [2007] VSCA 256, [21]–[22]; R v Hester [2007] VSCA 298, [19]. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences’.
The sentence imposed could not be regarded as manifestly excessive. Indeed, in light of the objective seriousness of the applicant’s conduct and giving full effect to considerations of totality, the sentence imposed by the judge was entirely appropriate (See [55]).
Charge/s: Intentionally cause serious injury, assault police officer x 3.
Appeal Type: Appeal against sentence.
Facts: The male applicant was in a de facto relationship with the female victim. A week prior to the offending, the applicant became enraged and, fearful of violence, the victim obtained an interim intervention order. Despite the intervention order, the victim let the applicant stay at her place. On the day of the offence, the applicant cut the complainant’s throat with a razor blade. He then tried to suffocate the complainant with a pillow before producing a serrated knife and trying to cut her throat again. After some time, the applicant stopped attacking the complainant and she asked him to cuddle her because she did not want to die alone. Police arrived and the applicant attacked them with knives in both hands. The applicant was sentenced to a total effective sentence of 11 years and six months imprisonment with a non-parole period of eight years and three months.
Issue/s: The sentencing judge erred in making adverse findings about the seriousness of the applicant’s offending namely,
Decision and Reasoning: The appeal was allowed. Neither finding had been sought by the prosecutor on the plea and the applicant’s counsel were not given notice that the sentencing judge was considering making such findings. Further, there was insufficient evidence to establish beyond reasonable doubt that the applicant had the relevant foreknowledge of the effect the drugs would have on him (See [4]). The court also made a number of observations about family violence at [29]-[30]:
‘The sentencing judge described the attack on C as ‘extremely vicious and intolerably abhorrent’. It was clear, His Honour said, that C was terrified:
You made her believe she was going to die. To ask you, her attacker, to comfort her after your attack because she thought she was going to die reveals how frightening the experience must have been for her. Yet she was in her home in the presence of an intimate partner and entitled to feel safe and secure. She was doing no more than going about her ordinary life. I do not think that she trusted you; rather, she was in fear of your confrontations when denied what you wanted. Undoubtedly, your vicious attack will be an ongoing nightmare for her. It is clear that the community is intolerant of violent behaviour in such circumstances and expects the courts to send a strong message that behaviour of this kind is totally unacceptable. Women in domestic situations are entitled to feel safe from the violently abusive behaviour of their ex-partners. This circumstance is a significant aggravating feature.
We respectfully agree. What his Honour said accords with recent statements of this Court on the subject of violent attacks by men on their current or former domestic partners. In Filiz v The Queen , the Court said:
It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners.
In Pasinis v The Queen, the Court said:
Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.
General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.
Most recently, in Director of Public Prosecutions v Meyers, the Court said:
Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking’. See also DPP v Portelli [2013] VSC 588.
Charge/s: Murder.
Appeal Type: Application for extension of time for leave to appeal against sentence.
Facts: Following a plea of guilty, the applicant was sentenced to life imprisonment with a non-parole period of 30 years for the murder of his de facto partner. Both the applicant and the victim were heavy users of illicit drugs and the relationship was characterised by violence committed by the applicant against the victim. On the day of the offence, the applicant poured petrol over the victim at a petrol station and set her alight. The victim was conscious and screaming the entire time while the applicant taunted her. He actively prevented bystanders from helping the victim by threatening them with a knife. In sentencing the applicant, the judge concluded that the applicant’s behaviour was an example of ‘the worst kind of viciousness and sadistic behaviour that a court is likely to ever see’.
Issue/s: The head sentence and the non-parole period were manifestly excessive. In particular, the sentencing judge erred in placing this murder in the worst category of the offence.
Decision and Reasoning: The application was refused. While the applicant’s conduct arose out of a drug-fuelled rage, it was very clear the applicant understood what he was doing. In this context, his drug consumption did not reduce his moral culpability in any way (See [42]). Further, significant aggravating circumstances were present which explained why the objective gravity of the offence was elevated namely, the circumstances of the death, the applicant’s conduct at the time of offence, and the fact that others were exposed to this horrific event (See [45]). The applicant’s guilty plea and criminal history were given adequate weight.
Charge/s: Intentionally causing serious injury.
Appeal Type: Crown appeal against sentence.
Facts: The female respondent stabbed her male partner four times: twice in the shoulder, once in the lower back and once in the chest. The respondent suffered from a mild intellectual disability and PTSD. She was sentenced to a Community Correction Order (CCO) for 12 months, with conditions including mental health treatment, compliance with a justice plan and the supervision of a community corrections officer.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. In light of the respondent’s intellectual disability and mental illness, her moral culpability was reduced, as was the significance of general and specific deterrence. However, even allowing for the respondent’s reduced moral culpability, the sentence imposed was insufficient to satisfy the requirements of just punishment and denunciation, given the objective gravity of the offence (See [36]-[38]).
In re-sentencing the respondent, the Court had regard to the Court’s guideline judgment in Boulton v The Queen. The Court praised the trial judge for imposing a CCO, which was appropriate in an unusual case such as this. The objective of community protection was more likely to be achieved – through the reduction of the risk of reoffending – by making such an order with appropriate conditions attached, rather than imposing a prison sentence (See [34]-[35]). However, the length of the CCO was increased to three years and greater conditions imposed.
Charge/s: Criminal damage x 2, reckless conduct endangering serious injury, recklessly causing serious injury, threat to kill, assaulting police, various summary offences.
Appeal Type: Appeal against sentence.
Facts: The applicant and one of the victims were married. The applicant suspected his wife was having an affair with their neighbour. Accordingly, he placed a tracking device on his wife’s car, located her, drove dangerously, threatened to kill her and damaged her vehicle. The total effective sentence was 3 years and 3 months, with a non-parole period of 2 years.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed. The Court considered whether the imposition of a ‘Community Correction Order’ (CCO) would have been more appropriate than imprisonment. Beach JA quoted extensively from Boulton v The Queen, an important guideline judgment about CCO’s. In Boulton, it was noted that imprisonment should always be the last resort, and that a CCO is an alternative punitive option, even for ‘relatively serious offences which might previously have attracted a term of imprisonment’ (See at [23] – [26]).
While Beach JA acknowledged that this was a serious offence, with a number of aggravating features, a CCO should have been ordered here. The offending occurred over a relatively short time, the appellant was married with four children, had no criminal history and he had the support of his wife who was the principal victim. The sentence was set aside and substituted for a sentence of four months’ imprisonment and a CCO of three years’ duration with conditions including 300 hours of unpaid community work (See at [30]). This case confirms that where such mitigating factors exist (particularly a lack of criminal history), the sentencing objectives can be achieved by combining a short term of imprisonment with a CCO. However, Beach JA noted that this would not have applied if the appellant had a criminal history.
The relevant passage in Boulton that his Honour referred to is – ‘The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending’.
Charge/s: Damaging property, aggravated burglary, false imprisonment, intentionally causing injury, possessing an unregistered firearm.
Appeal Type: Crown appeal against sentence.
Facts: The female victim was the male respondent’s ex-partner. On the day of the offence, the respondent drove to the victim’s premises with a double-barrelled shotgun, a power nail gun, a crow bar, cable ties and rolls of gorilla tape, various knives and cutting tools, and a plastic drop sheet. He smashed his way into the house and attempted to restrain the victim with cable ties. The victim struggled and the applicant struck her with the shotgun and started strangling her. He eventually managed to restrain the victim. After three and a half hours, police attended the premises and the applicant let the victim go. The respondent was sentenced to three years and six months imprisonment with a non-parole period of 18 months.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to five years and six months imprisonment with a non-parole period of three years. For the fourth time in six months, the Court here was concerned with sentencing for an offence of aggravated burglary committed by a male offender against his former domestic partner, ‘intimate relationship aggravated burglary’ (See [3]-[4]). At [5]-[6] the Court said:
‘On this appeal, as in each of the previous appeals, the offender submitted that what was said by the Court in Hogarth — about the need to increase sentences [for confrontational aggravated burglary] — had little or no application to aggravated burglary where the victim was a former domestic partner. That submission failed on each previous occasion, and we likewise reject it.
As these reasons demonstrate, the task of applying Hogarth does not require the classification of offences into categories. Put simply, Hogarth established that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held’.
In reaching this decision, the Court made some observations about domestic violence offending. At [45]-[46] they stated:
‘We would wish to endorse the remarks in Filiz at [21]-[23] about the particular seriousness of offending involving former domestic partners. Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.
General deterrence is, accordingly, a sentencing principle of great importance in cases such as these. Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison’.
Charge/s: Aggravated burglary with intention to assault, intentionally causing serious injury x 2, theft, contravening a Family Violence Intervention Order.
Appeal Type: Appeal against sentence.
Facts: The male applicant had been in a relationship with the female complainant for ten years and they had three children together. A Family Violence Intervention Order was made against the applicant in relation to the complainant and their children. On the night of the offence, the complainant was lying in bed with her new partner. The applicant kicked open her bedroom door and started striking the complainant and her partner with a curtain rod. The complainant telephoned the police and the applicant fled. Another intervention order was obtained which prohibited the applicant from contacting the complainant. He breached this order on two occasions. The applicant was sentenced to three years and six months imprisonment with a non-parole period of one year and ten months.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Redlich JA’s comments at [21]-[23] have often been cited in subsequent cases:
‘Senior counsel for the applicant rightly conceded that general deterrence is a significant sentencing factor in this case, not only in relation to aggravated burglary generally, but most particularly in relation to violent offending against a former domestic partner: Felicite v The Queen at [20]; DPP v Pasinis at [53]. Of particular significance is the fact that the applicant was already subject to a Family Violence Intervention Order. Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection: Cotham v The Queen at [14]; DPP v Johnson at [38]-[49].
At the oral hearing it was said that the complainant’s fear would have been greater if her home had been invaded by strangers seeking to steal personal property. It was suggested that the context of the offending affected its seriousness. We do not accept that these matters affect the objective gravity of the offences. The level of fear engendered by the applicant, in kicking in the locked bedroom door and proceeding to beat the victims with an iron rod, did not have to be evaluated according to such niceties. The attack the applicant launched upon his ex-partner was strongly suggestive of a desire to do her and her partner serious harm, and anybody in their position would have feared that such harm would occur. The complainant’s victim impact statement makes clear that the physical and emotional effects will be lasting.
It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners. In such circumstances, the submission that the complainant’s level of fear when being attacked by her ex-partner was less than it might have been if she had been attacked by a stranger should be rejected’.
Although there were a number of relevant factors in mitigation – that is, the applicant’s relatively early plea (but absent any remorse), his previous good character, his rehabilitation, both actual and prospective, work history and solid family support, and the difficulties he would suffer in prison when separated from his children, these had to be balanced against the aggravating factors of the offending and the need for general deterrence discussed above, as well as the need for specific deterrence, just punishment and denunciation. In light of this, it could not be said that the sentence was manifestly excessive (See [29]).
Charge/s: Intentionally causing serious injury.
Appeal Type: Appeal against sentence.
Facts: The female complainant was the male applicant’s de facto partner. The applicant repeatedly and brutally assaulted the complainant over a four year period. The charged offence occurred in 1989 and concerned a ten hour assault by the applicant which included striking the complainant multiple times and breaking her jaw, hitting her with various objects, heating up a knife and dragging this across her neck, and stabbing her with a syringe. The applicant was sentenced to five years imprisonment, with a non-parole period of two and a half years. There was a substantial delay between the offending and the applicant being charged – some 24 years.
Issue/s:
Decision and Reasoning: The appeal was dismissed. First, the sentence was not manifestly excessive. Ashley JA acknowledged that the delay was substantial and as such merited substantial consideration as a matter of fairness to the accused. During that period, the applicant had ‘reformed’ (at [65]), was in a stable relationship, had a child, and was able to demonstrate rehabilitation. Notwithstanding this, the sentence imposed at trial, though harsh, was within the discretion of the primary judge.
Second, the sentencing judge did not fall into error by concluding that mitigating factors including delay, rehabilitation and the applicant’s youth, ‘had to take a back seat to circumstances which favoured a greater sentence’ (at [41]). The seriousness of the offending as an example of severe domestic violence meant that just punishment, denunciation and general deterrence took prime consideration. An argument that the delay in bringing the proceedings reduced the need for general deterrence was dismissed. The delay here was connected to the complainant’s fear and trauma and then further delay was caused by change in investigators (See [53]-[56]).
Third, the sentencing judge did not err in referring to statements made by the victim to the police, in supplementing the general description of the assaults relied upon for contextual purposes by recourse to statements made by the complainant, and by referring to the victim impact statement. In particular, the circumstances of earlier assaults were, as the judge repeatedly stated, admitted for contextual purposes only (See [34]-[39]).
Charge/s: Recklessly causing serious injury, rape, threat to kill.
Appeal Type: Appeal against sentence.
Facts: There numerous family violence incidents between the male applicant and the female respondent during their relationship. A family violence intervention order was active at the time of offending. On the day of offence, the applicant and the complainant were arguing after the applicant accused her of having sexual relations with other men. The applicant punched the complainant, picked her up by her hair and threw her to the floor, kicked her several times, and banged her head on the floor. He also grabbed her around the neck such that she could not breathe and the applicant repeatedly shoved his fingers in the complainant’s vagina. He retrieved two knives and said he would kill her and her dog. The applicant was sentenced to 12 years imprisonment with a non-parole period of ten years.
Issue/s: One of the issues was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed. The gravity of the applicant’s conduct was aggravated by the fact the applicant was subject to a family violence intervention order. As Tate JA said at [25]:
‘The gravity of the offending was aggravated by the fact that the applicant was at the time the subject of an intervention order, which he flagrantly disregarded. Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship’.
However, the orders for cumulation did not produce an aggregate sentence that was commensurate with the gravity of the whole of the offending (See [21]-[22], [27]-[28]).
Charge/s: Intentionally causing serious injury (ICSI) x 2.
Appeal Type: Appeal against sentence.
Facts: The male applicant and the female complainant were in a de facto relationship. On the day of the first offence, the applicant began punching the complainant and went to kick her in the face. The complainant put up her left arm to protect herself and the applicant’s kick broke her arm. After some delay, the applicant took her to the hospital. Three months later, the applicant started hitting the complainant and again the complainant put her arm up to defend herself and the applicant broke her right arm. Despite her excruciating pain, the applicant did not take the complainant to the doctor until the following day.
When the incidents were first charged, the applicant and the complainant had resumed their relationship and concocted a false version of events to exonerate the applicant. The relationship subsequently ended and the complainant went to the police. They were both charged with conspiracy to pervert the course of justice. The applicant was also charged with two counts of ICSI and sentenced to eight years imprisonment with a non-parole period of six years.
Issue/s: The sentence was manifestly excessive and the sentencing judge failed to give appropriate consideration to the totality principle.
Decision and Reasoning: The appeal was dismissed. The sentence imposed could not be said to be manifestly excessive. Further, the totality principle was appropriately applied. Kyrou AJA made a number of observations about family violence that have been cited in a number of subsequent judgments. The Court considered the serious consequences of violent domestic assaults and emphasised the importance of general deterrence in cases involving offences committed in the context of family violence. As at [53]-[54]:
‘Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.
The effects of family violence are now well documented. They are not confined to physical injury. Victims often feel responsible for the violence and ashamed that they were not able to prevent the perpetrator from offending. As occurred in this case, it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable … Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and longlasting psychological trauma. As in the present case, the physical effects of the violence and its erosion of the victim’s confidence can also affect their ability to participate in paid work and have other serious financial effects’.
His Honour reiterated at [57]:
‘General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm’.
Charge/s: Rape.
Appeal Type: Appeal against conviction and sentence.
Facts: The male appellant and the female complainant had been in a relationship for 13 years. The complainant alleged that in April 2011 the appellant hit her after she refused to have sex with him. She described this as the ‘last straw’ and told the appellant she was leaving him. They remained living in the same house. One month later, the intoxicated appellant forced her into bed and penetrated her with his penis. Their son saw the incident and called the police.
At trial, the Crown sought to admit evidence of physical assaults by the appellant against the complainant that occurred between 1999 and 2003 (none of these assaults happened after the complainant refused to have intercourse with the appellant). The Crown argued that this evidence explained the context in which the alleged rape occurred, and was relevant to whether the complainant had freely agreed to have intercourse with the appellant and whether the appellant was aware that the complainant was not consenting or might not be consenting on the night of the alleged offence. The trial judge took account of the highly prejudicial nature of the evidence but considered that it was both relevant to and probative of the facts in issue and should be admitted for the limited purpose described in her ruling (see [19]-[23]).
Issue/s: The trial judge erred in admitting evidence of past conduct by the appellant because the evidence was not relevant.
Decision and Reasoning: The appeal was allowed. Neave JA held (Bongiorno and Coghlan JJA agreeing) that the evidence was inadmissible. Bongiorno and Coghlan JJA also held that there was a miscarriage of justice (Neave JA in dissent). Neave JA first considered whether the ‘relationship evidence’ (evidence of physical assaults) was relevant. Her Honour stated generally at [29]:
‘Evidence of the relationship between an accused and the alleged victim of an offence may be relevant and admissible for the purpose of placing the event which is the subject matter of the offence in context, where such evidence may assist the jury to evaluate the conduct of the complainant and the applicant on the occasion which gave rise to the charge. Where the evidence is of criminal or other disreputable acts committed by the accused, so that there is a danger that the jury will treat it as evidence that the accused has a propensity to commit acts of the kind charged, the judge must warn the jury of the limited purpose for which the evidence can be used. In particular the jury must be told that the relationship evidence cannot be regarded as a substitute for the evidence that the accused committed the charged acts, or for the purpose of showing that the accused is ‘the kind of person’ likely to have committed that offence (R v Grech (1997) 2 VR 609)’.
Neave JA went on to consider the circumstances in which relationship evidence may be relevant. At [31], Her Honour noted that relationship evidence of prior violence by the accused towards the complainant may be admissible in sexual offence cases ‘because it assists the jury to evaluate whether the complainant had freely agreed to sexual activity on the occasion to which the charge relates, or whether the accused knew that the complainant had not consented or might not have consented to having sex on that occasion’: see, for example, R v Loguancio [2000] VSCA 33; (2000) 1 VR 235, 23 (Callaway JA).
At [33], Her Honour noted that relationship evidence of prior acts of violence by the accused ‘may also be admissible where a person is charged with homicide or an offence arising out of the infliction of injury on a victim, because such evidence is relevant in evaluating the accused person’s claim that he or she had an amicable relationship with the victim, or that he or she acted in self-defence’: see, for example, Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 and R v Mala (Unreported, Court of Appeal, Brooking, Ormiston, Batt JJA, 27 November 1997).
In this case, the appellant correctly conceded that evidence of the April 2011 assault when she refused to have sexual intercourse with him only a month before the alleged rape was relevant in assessing the likelihood that she had in fact voluntarily agreed to have intercourse with him or he believed that she had done so (see [35]). However, Neave JA held at [36]-[37] that:
‘[D]espite the appalling nature of the earlier assaults, I consider that the evidence of those assaults was not sufficiently relevant to the nature of the relationship which existed at the time of the alleged rape to the admission of that evidence. There was a lengthy time lapse between the earlier assaults and the alleged rape. Of itself, that time lapse might not have made the evidence irrelevant…’
‘However in this case there was not only a significant time delay between the alleged rape and the earlier assaults, but the complainant remained with the applicant despite the assaults and bore him children after those assaults had occurred. It may be that she did not leave him earlier because she was afraid of him, but there was no evidence that he had assaulted her because she refused to have sex with him, prior to April 2011’.
Bongiorno and Neave JJA agreed with the reasons set out by Neave JA as to why the evidence was inadmissible. However, they also held that there was a substantial miscarriage of justice as a conviction in this case was not inevitable: see Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469. Neave JA in dissent at [52]-[61].
Charge/s: Murder.
Appeal Type: Appeal against sentence.
Facts: The applicant had recently divorced from Ms Barnes, the mother of his four year old daughter (the victim). Consent orders were made in the Family Court which reduced the applicant’s share of custody. The applicant was distressed by this outcome. A few days later, he was driving with his three children and had a telephone conversation with Ms Barnes, telling her that she would never see her children again. He pulled the car over and threw his four year old daughter off a bridge.
Issue/s: One of the issues was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. There were a number of aggravating circumstances on the facts including that the applicant killed an innocent child, the circumstances of the killing were horrendous and the child’s death would have been painful and protracted, the applicant’s conduct was a fundamental breach of trust, the killing was in the presence of his two sons, the applicant killed his daughter in an attempt to hurt his former wife as much as possible, the crime was committed in a public place, the applicant offended the public conscience, and the applicant threatened his ex-wife in the presence of their children (see [15]). The most heinous nature and gravity of the applicant’s offending, his lack of remorse and poor prospects for rehabilitation, meant that a non-parole period of 32 years was not manifestly excessive.
Charge/s: Aggravated burglary, assault, contravening a family intervention order.
Appeal Type: Crown appeal against sentence.
Facts: The male respondent entered the house of his former female partner, the complainant, with two knives and with the intention of killing himself in front of her. The complainant awoke and started screaming. This woke their daughter and the respondent left the premises (aggravated burglary and assault). The applicant was also charged with breach of a family violence intervention order which included conduct of a home invasion four days prior to the aggravated burglary, telephoning the complainant and threatening her and her family, and by coming within 200 metres of the complainant’s house on the night of the offence.
He was sentenced to 15 months imprisonment for aggravated burglary, six months imprisonment for assault, and six months imprisonment for contravening a family intervention order. The sentencing judge took the view that the circumstances surrounding the burglary and assault were ‘almost identical’ to those surrounding the breach and ordered the sentence for breach to be made wholly concurrent with these sentences. After cumulation, a head sentence of one year and nine months imprisonment was imposed, with a non-parole period of ten months.
Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed, with Redlich, Neave and Bongiorno JA providing separate reasoning. The judges gave detailed consideration to matters relevant to sentencing for breach of an intervention order.
Neave JA (Bongiorno JA agreeing) agreed with Redlich JA in part but held that the sentence imposed for the breach of the intervention order was manifestly inadequate. Her Honour stated that the frequency with which intervention orders are breached – and the potentially tragic consequences of this – warrants strong judicial condemnation of the contravention of such offences. As per Her Honour at [4]-[5]:
‘All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats. Family violence is a serious problem in Australia. In 2004, it was reported that family violence is ‘the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years’. Breach of intervention orders is relatively common. In its Report on Breaching Intervention Orders, the Sentencing Advisory Council said that, between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed on average approximately 14,000 intervention orders per year. Over a quarter of all intervention orders imposed were breached.
Further, offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them. As was recognised during parliamentary debates on the Family Violence Protection Bill 2008, intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. The Victorian Law Reform Commission, in its report which ‘underpin[ned]’ many of the changes in the Bill, observed:
The response to a breach of an intervention order is crucial to ensuring the intervention order system is effective in protecting family violence victims. If police or the courts do not respond adequately to breaches of intervention orders, they will be perceived as ineffectual – ‘not worth the paper they are written on’ – by victims and perpetrators alike’.
Here, the respondent’s conduct that formed the basis of the breach was conceptually distinguishable from the other offences, including the aggravated burglary. The respondent also had a significant history of breaching these orders and displayed contempt for such orders. Accordingly, the sentence imposed for breach an intervention order was manifestly inadequate.
Redlich JA (with whom Neave JA and Bongiorno JA agreed in part) held that the sentence imposed for the aggravated burglary was manifestly inadequate. In dissent, His Honour held that the sentence for the breach of the intervention was not manifestly inadequate. However, upon re-sentencing the respondent, the sentence imposed for breach of an intervention order was lenient and thus a substantially higher sentence was warranted in the circumstances.
Redlich JA concluded that the sentencing judge erred by having regard to the respondent’s claims that his previous breaches were ‘innocuous or insignificant’ (at [49]). In reaching this conclusion, His Honour noted that it was an aggravating feature of the offending that the respondent had repeatedly contravened intervention orders. Accordingly, the principles of general and specific deterrence had to assume particular importance here (See [42]-[43]). As per the Court in R v Cotham at [14]:
‘Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant’s actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated’.
It was also an aggravating feature that the breach involved a child who was protected by the order because such orders are granted pursuant to a legislative regime that places ‘particular emphasis on the protection of children from family violence’ (See [45]).
Redlich JA also concluded that the sentencing judge erred in ordering the sentence for the breach to be wholly concurrent. The offence of breach was not part of a single episode of offending (See [52]-[53]). As per the comments in R v Maher at [16] relating to cumulation and concurrency:
‘I turn to the relationship between, on the one hand, the stalking counts and the burglary and aggravated burglary, and, on the other hand, the breaches of the intervention order. It appears to me that the distinct criminality of the offending means that there should be some cumulation between the sentences imposed. Breaches of the intervention order, were in terms, disobedience of a court order. It would be inappropriate if that was not reflected in the breaches having real impact upon sentence. But, to meet the totality point, some amelioration of the individual sentences for the breaches and on the other counts is, in my view, required’.
Charge/s: Murder.
Appeal Type: Appeal against sentence.
Facts: The relationship between the male applicant and his wife, the victim, was characterised by the applicant’s ‘inability to control his anger’ (at [2]). The victim met another man and said she was ending her relationship with the applicant. A few days later, during the course of an argument, the applicant stabbed the victim repeatedly in the neck and throat. At least part of the attack was witnessed by their four year old son. He was sentenced to 19 years imprisonment, with a non-parole period of 16 years.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. As per Redlich JA at [20]:
‘The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and societies’ abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be the protector, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress’.
The sentence could not be said to be manifestly excessive. It appropriately reflected the considerable weight given to the principles of general deterrence and just punishment arising from the spousal relationship between the applicant and the victim (See [36]).
Charge/s: Intentionally causing serious injury, breach of intervention order.
Appeal Type: Appeal against sentence.
Facts: The complainant was the applicant’s estranged wife. The complainant obtained an intervention order against the applicant. In the presence of their two children, the applicant stabbed the complainant in the back, slashed her fingers, punched her, kicked her and pulled some of her hair out.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The Court held at [23] that ‘the sentence was not manifestly excessive and, indeed, properly reflected the gravity of the offence after taking into account all mitigatory factors including the plea of guilty. The Court rightly treated with the utmost seriousness the appellant’s knife attack on his defenceless wife in the presence of their children and in circumstances which included the invasion of her home in breach of a court order. Further, the relative brevity of the non-parole period might be thought to properly and adequately take into account the personal circumstances of the appellant’.
Charge/s: Intentionally causing serious injury, intentionally causing injury, common assault, criminal damage, breach of an intervention order.
Appeal Type: Appeal against sentence.
Facts: The offending was spread over two indictments. The male applicant and Rachel Delaney were in a de facto relationship. She was married to, but separated from, Daniel Smyth. During the applicant’s relationship with Ms Delaney, there were repeated incidents of tension and conflict between him and Mr Smyth. After Ms Delaney informed the applicant that their relationship was over, he broke into her house and attacked Mr Smyth (who was also present). He bit of a large part of Mr Smyth’s nose and held Ms Delaney by the throat. The applicant was sentenced to eight years imprisonment.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed. Nettle JA cited with approval the sentencing judge’s remarks that, ‘it is incumbent on a sentencing judge to impose condign punishment in a case like this in order to send a clear message to likeminded people that a civilised society does not condone people using physical violence to take the law in their own hands to settle disputes and deal with domestic partners in a violent way. Her Honour also observed, correctly, that inasmuch as these attacks were cowardly, unprovoked and unexpected attacks, there was a particular need for specific deterrence’.
However, as the Crown conceded here, the sentence was manifestly excessive (See [24]-[25]). Nettle JA further noted that, although this was not the case in which to do so, there was a need to revisit sentencing practices in relation to offences of intentionally causing injury (See [25], [29]-[30]).
Charge/s: Recklessly causing serious injury, attempting to pervert the course of justice.
Appeal Type: Appeal against sentence.
Facts: The male applicant and female complainant were in a relationship. They were arguing and the applicant started punching and striking the complainant. The applicant was sentenced to three years and three months imprisonment with a non-parole period of two years and three months.
Issue/s:
Decision and Reasoning: The appeal was dismissed. There was an assertion from counsel for the applicant that the complainant did not want these charges to be pursued (but no evidence from the complainant to substantiate these assertions). Beach AJA held that the sentencing judge was not bound to give any weight to the unsupported assertions made about the complainant’s attitude to the prosecution. His Honour referred to Neave JA in R v Hester at [27] and held that, ‘even in cases where there is evidence of forgiveness of the victim of domestic violence, this evidence should be treated with extreme caution’ (See [8]).
Further, notwithstanding the applicant’s attempts to deal with his drug and violence problems since being remanded in custody, the sentence imposed was well open and could not be said to be manifestly excessive. The sentencing judge properly took into account the personal circumstances of the appellant, the appellant’s bad criminal record, principles of general deterrence, specific deterrence and denunciation. As per Beach AJA, ‘this Court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts’. In the circumstances, the sentence could not be said to be manifestly excessive (See [11]).
Charge/s: Common assault x 4, intentionally causing injury x 3, threat to kill x 2, aggravated burglary, kidnapping, intentionally causing serious injury.
Appeal Type: Appeal against sentence.
Facts: The male applicant pleaded guilty to 13 offences, involving appalling physical violence, humiliation and abuse committed against his female de facto partner, sister, mother and four year old daughter. The total effective sentence was nine years and three months’ imprisonment, with a non-parole period of seven years.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The first ground of appeal was dismissed but the second ground of appeal allowed. The applicant’s contention that the sentencing judge failed to give sufficient weight to his plea of guilty was dismissed. The offending here was extremely serious. The conduct involved constituted breach of an intervention order, it was well planned and involved the use of an accomplice, the applicant was armed and threatened his partner, he took away her children, and she was unable to escape for six hours. His Honour also noted the that maximum penalties for aggravated burglary and intentionally causing serious injury as 25 years and 20 years respectively (See [70]-[72]). It was clear that the trial judge incorporated the discount for the plea of guilty in her orders of accumulation, which were only 12 months on the base sentence.
However, the appeal was allowed on the basis of the non-parole period. It was noted that a seven year non-parole period is ‘very substantial’. Coghlan JA concluded that the primary judge must have imposed such a substantial non-parole period because of a ‘guarded view taken of the applicant’s prospects of rehabilitation’ (at [83]). However, the applicant had no criminal history and had pleaded guilty. As such, His Honour concluded that the primary judge erred in imposing such a long non-parole period on the basis of her conclusion on rehabilitation alone. The non-parole period was reduced to six years.
Neave JA agreed with Coghlan AJA but made some brief remarks about the complaint of manifestly excess. She noted at [4]:
‘Notwithstanding the mitigating circumstances to which the learned sentencing judge referred, the shocking violence which the offender inflicted on those he professed to love required strong denunciation and considerable emphasis on both general and specific deterrence’.
Charge/s: Rape.
Appeal Type: Appeal against conviction and sentence; Crown appeal against sentence.
Facts: The complainant gave evidence that her marriage to the applicant was arranged by her parents. After the applicant was aggressive, she fled to a women’s refuge. They were divorced and the complainant obtained a family violence intervention order. The applicant began sending text messages to the complainant, masquerading as another man. The complainant invited this man to her house but told the applicant to leave when he arrived. He then dragged her to the bedroom, forced her onto the bed and penetrated her vagina with his penis. The applicant was found guilty after a trial and sentenced to four years imprisonment, with a non-parole period of two years and three months.
Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.
Decision and Reasoning: The Crown appeal against sentence was allowed. In upholding the appeal, Buchanan JA said at [36]:
‘I consider that the sentence would generally be regarded as inadequate if imposed upon an offender who tricked his way into the house of a stranger and raped her. The fact that the applicant and the complainant, in the past, had shared a consensual sexual relationship may have played a part in producing this sentence. In my opinion it should have played no part save insofar as those who have been in a relationship should be deterred from asserting any right or power in a like fashion against their former partners. This rape constituted an act of dominion by the applicant over the complainant’s body, which is not to be tolerated. In my opinion, the sentence, and in particular the non-parole period, was manifestly inadequate and represents an error that warrants interference by this Court’.
Charge/s: Recklessly causing injury.
Appeal Type: Appeal against sentence.
Facts: During the course of an argument, the applicant punched his wife, the complainant, six times in the head. The complainant did not seek medical attention for two days. She was admitted to hospital and found to have a large sub-arachnoid haemorrhage. She was also discovered to have carotid aneurysms. As a result of the carotid aneurysms, the complainant suffered permanent changes to her life and could no longer live independently. It was acknowledged by the sentencing judge that, on the basis of medical evidence, it was not possible to know for certain whether there was a causal link between the applicant’s attack and the serious medical events that followed. The applicant was sentenced to 14 months imprisonment suspended after 10 months for a period of 12 months.
Issue/s: One of the issues was whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The sentence could not be said to be beyond the range of sound sentencing discretion. Despite the limited nature and extent of the attack, and the injuries which it was shown to have caused, the offence was still serious. The complainant was a person with limited cognitive impairment and, to that extent, she was vulnerable and in need of care and support. The complainant was entitled to the applicant’s love and protection as his wife but was instead assaulted by the applicant in their own home. Nettle JA said at [23]:
‘As such, the offence involved a gross breach of trust in the place where the victim was most entitled to feel safe. General deterrence is of real importance in cases of domestic violence, especially in cases where victims are particularly vulnerable. And because of the applicant's prior convictions, aged as they were, it was apparent that there was a need for some measure of specific deterrence’.
Charge/s: Intentionally causing injury, intentionally causing serious injury, false imprisonment.
Appeal Type: Appeal against sentence.
Facts: The male applicant and the female complainant were in an intimate relationship. On two occasions the applicant physically assaulted the complainant while intoxicated. On the second incident of assault, he also detained the complainant for 45 minutes and refused to let her seek medical attention. At sentence, a victim impact statement was tendered in which the complainant said she was partly to blame for the second incident and that she wanted to resume a relationship with the applicant. The applicant was sentenced to four years imprisonment, with a non-parole period of three years.
Issue/s:
Decision and Reasoning: The appeal was dismissed. First, the sentencing judge did not err in not taking into account the part of the victim impact statement in which the complainant assumed blame for the second offending. There was also no substance in the claim that the sentencing judge failed to have regard to have proper regard to the complainant’s attitude to her relationship with the applicant (see [13]). Second, the sentences imposed were balanced, if not lenient, in all the circumstances. The offending was very serious – it was a savage, brutal and cowardly act on a victim who was physically much weaker than the attacker. Chernov JA also noted that the Courts have stated on a number of occasions that ‘such domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition’ (see [19]-[20]).
Neave JA agreed with Chernov JA and added at [27]:
‘It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue, many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Simpson JA in R v Glen at 4 that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution’.
Charge/s: Intentionally causing serious injury.
Appeal Type: Crown appeal against sentence.
Facts: The respondent saw the victim, his ex-girlfriend, at a Shopping Centre and became abusive and aggressive after she refused to help him ‘score’ heroin. He punched her and kicked her repeatedly in the head when she fell to the ground. The respondent was sentenced to three years imprisonment, with a non-parole period of 20 months.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. It was possible to infer that after being refused heroin, the respondent ‘snapped’ and his moral culpability was therefore less than it otherwise might have been. However, having said that, ‘this was a vicious, cruel and unprovoked attack on a small and virtually defenceless woman. To kick anyone in the head is grossly dangerous. To do it more than once, deliberately, is courting the worst kind of disaster. Fortunately, that did not occur. But her injuries were serious, and they are to some extent likely to be permanent’. The offence was aggravated by the fact that it was committed in a busy shopping centre and it represented a gross breach of trust the victim reposed in the respondent. Accordingly, the respondent’s moral culpability was high (See [13]). Given the nature and gravity of the offending and the extent of the respondent’s criminal history, Nettle JA held the sentence was manifestly inadequate (See [16]).
Dodds-Streeton JA added further comments regarding some particularly troubling features of this offending. At [21], Her Honour stated:
‘Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil. As in the present case, the perpetrator not uncommonly expresses remorse immediately after a violent assault, but nevertheless seeks to blame the victim for causing the attack. Although the respondent did appear to regret the assault, as the sentencing judge observed, his letter to the court denigrated the victim's character and effectively sought to blame her for his backsliding into drug use and for provoking the attack. In the police interview, he denied the crime, at one point apparently claiming that the victim had assaulted him, and called her a lying dog’.
Charge/s: Murder.
Appeal Type: Appeal against conviction and appeal against sentence.
Facts: The female deceased entered into a de facto relationship with the applicant. The relationship deteriorated, in part due to the deceased’s gambling habit. The relationship ended and the deceased moved into separate premises. The applicant started stalking her, largely to monitor her treatment of his son. The applicant followed her home one evening, clubbed her on the head a number of times with a rubber mallet and strangled her with cord. The applicant was found guilty by a jury of murder and was sentenced to 20 years imprisonment, with a non-parole period of 15 years.
Issue/s: One of the issues was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The sentencing judge was justified in concluding that the applicant was not remorseful for killing the victim. The evidence before the judge was of a vicious, determined and brutal attack by a person with a significant advantage in size and weight over his victim. The sentencing judge was further entitled and correct to regard general deterrence as a significant factor in such a case in the exercise of his sentencing discretion. As per the Court at [140]:
‘[O]ur courts have stated on more than one occasion that in cases of killings of the type which occurred here in a “domestic” setting, the concept of general deterrence is an important and weighty sentencing consideration. The sentence, in such cases, must be such as to provide a strong message that outbursts of homicidal rage, in contexts such as this case are totally unacceptable and will be dealt with by stern sentences of the type imposed upon the applicant’.
The Court continued at [141]:
‘As (the sentencing judge) correctly observed many individuals have to confront circumstances of difficulty in the course of the breakdown of relationships. The Court must send a clear message to estranged parents that custody and other such disputes are to be resolved by proper processes and not by horrendous violence such as that imposed on the deceased in this case. In all the circumstances it cannot be said that the sentence imposed in this case is manifestly excessive’. See also R v Gojanovic [2005] VSC 97 (27 January 2005).
Note: the High Court refused special leave to appeal (see Gojanovic v The Queen [2011] HCATrans 66).
Charge/s: Damaging property, intentionally causing injury, breach of an intervention order.
Appeal Type: Appeal against sentence.
Facts: The male applicant engaged in protracted stalking of the female complainant for a number of years, in an attempt to initiate a relationship. The complainant obtained an intervention order against the applicant. In breach of this order, the applicant attended the complainant’s workplace, smashed her car’s windscreen and caused injury.
Issue/s: Some of the issues were that –
Decision and Reasoning: The appeal was dismissed. Vincent JA remarked at [37] that:
‘I would add that the sentencing judge was clearly correct in attributing a high level of seriousness to the appellant's conduct and reflecting that in the sentences imposed. Not only did the appellant’s conduct involve a savage and sustained attack upon his unfortunate victim but, it must not be forgotten she had sought the protection of the law against his continued and frightening criminal harassment. He responded to her endeavours, and to the imposition of a sentence of imprisonment upon him, by seeking to punish her and damage her property. Obviously the community cannot accept that those who avail themselves of its protection may be subject to revenge or retribution if its structures and that protection are to possess credibility and operate to deter potential offenders’.
Charge/s: Theft x 19.
Appeal Type: Appeal against sentence.
Facts: The offending took place between 2000 and 2004 when the female applicant was employed as an accountant at a firm. She diverted funds paid by bankrupt estates for creditors to her own accounts. The applicant was sentenced to a total effective sentence of 20 months imprisonment, with a non-parole period of 12 months. The sentencing judge accepted evidence that the applicant’s offending behaviour was symptomatic of ‘battered woman syndrome’. There was a history of physical and sexual abuse at the hands of the applicant’s husband.
Issue/s: One of the issues was that the sentencing judge erred:
Decision and Reasoning: The appeal was dismissed. The sentence imposed did not suggest that the sentencing judge failed to give any or sufficient weight to the impact of the applicant’s mental state upon the significance of general deterrence, specific deterrence or moral culpability. His Honour’s sentence, reflecting moderation in individual sentences, and a small extent of cumulation, was in fact merciful (See [16]-[28]).
In obiter, Ashley JA observed that the Verdins principles had not as of yet been applied in respect of offences of this kind, where the offender asserts battered woman syndrome, as the relevant mental impairment, reduced moral culpability and the weight to be accorded to specific and general deterrence in sentencing. The battered woman/learned helplessness situation had typically been raised in homicide cases in relation to the question – why the offender did not leave their abusive partner? His Honour left open the possibility of the Verdins principles applying in a case where learned helplessness is given as the explanation for the commission of, for example, property offences. But this case was not an appropriate vehicle for making such a determination because there was insufficient evidence of the impairment to the applicant’s functioning arising from the history of abuse (See [12]-[14]).
Charge/s: Burglary, theft, conduct endangering persons, negligently causing serious injury x 2.
Appeal Type: Appeal against sentence.
Facts: The female applicant and Mr O’Neill, her partner and co-offender, broke into a milk bar and stole goods and cash. The applicant drove off from the store with Mr O’Neill as her passenger. They were chased by police, with Mr O’Neill threatening to kill her if she slowed down. The applicant crashed the car into another vehicle driven by Mr Hahn. The impact caused both vehicles to be engulfed in flames, trapping Mr Hahn inside his vehicle. He suffered extensive burns to his body. Mr O’Neill also suffered injuries as a result of the crash. The applicant was sentenced to a total effective sentence of six years imprisonment, with a non-parole period of four years.
Issue/s: One of the grounds of appeal was that the sentencing judge erred in his assessment of the applicant’s moral culpability by giving insufficient weight to the threats made to her by her partner.
Decision and Reasoning: The appeal was dismissed. As per Callaway JA at [15]:
‘the judge did accept that O'Neill's threats motivated the appellant to drive as she did and that she took those threats seriously because of the history of violence directed towards her. There was an element of "battered woman" syndrome. Nevertheless, His Honour said, the police were present and protection would have been immediately available to her. I appreciate that she would have feared what O'Neill might do subsequently, but it is one thing to engage in shop-lifting or the like under a threat of violence; it is another thing altogether to engage in conduct so dangerous that it results in the kind of injuries sustained by Mr Hahn. General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat. The judge was not in error in saying that general deterrence must be the paramount sentencing consideration for offences of the kind the subject of counts 3 to 5 and that a substantial period of imprisonment was required to deter others minded to act in a similar way. I do not consider that his Honour undervalued the threats from O'Neill, particularly when the sentences he imposed on counts 3 to 5 are taken into account’.
Charge/s: Intentionally causing serious injury x 2.
Appeal Type: Appeal against sentence.
Facts: The male applicant was in a relationship with the female victim and lived with her and her son, the other victim, for a few months. The relationship ended but they maintained an association. The applicant married the victim’s sister but started to harass both the victim and her sister. The victim obtained an intervention order protecting her and her children. In breach of the intervention order, the applicant entered into the victim’s house. He stabbed her with a knife to the face, mouth, chest and neck approximately eight times (count 3). The victim’s son tried to intervene but the applicant struck him with the knife twice times, almost severing the child’s hand (count 4). The applicant was sentenced to a total effective sentence of ten years imprisonment, with a non-parole period of seven years.
Issue/s: The sentencing discretion miscarried as the judge was required to sentence the applicant on the basis that the verdict on count 4 rested not upon a finding by the jury of the deliberate infliction of serious injury to the victim but upon their application of the instructions of the trial judge concerning the concept of transferred malice.
Decision and Reasoning: The appeal was dismissed. There was no error on the part of the sentencing judge. His Honour did not impose a sentence on the basis that the applicant deliberately stabbed the victim (See [14]-[19]). Vincent JA further noted that the proper exercise of the sentencing discretion in this case required an order that effectively cumulated part of the sentence imposed on count 4 upon the sentence imposed on count 3. This was necessary to reflect the seriousness of the two separate offences and the particular aggravating features attaching to each, some of which were common and other not. In this context, it was particularly serious that the applicant act in flagrant violation of an intervention order the female victim had obtained to protect herself and her children. This is because the intervention order is:
‘… designed by parliament to provide the protection of the law to vulnerable individuals, usually, as in this case, women and children, who legitimately fear for their safety. Offenders who disregard such orders and occasion injury to persons whose personal security is intended to be guaranteed through this means must anticipate that an extremely stern view will be adopted by the courts of their conduct and, save in the most unusual circumstances, will be subject to condign punishment’ (See [21]-[22]).
Charge/s: Presentment 1 – false imprisonment; Presentment 2 – causing injury recklessly, indecent assault x 2, rape; Presentment 3 – aggravated burglary, common assault, false imprisonment, making a threat to kill, causing injury recklessly.
Appeal Type: Crown appeal against sentence.
Facts: The primary victim was the male respondent’s former de facto partner and mother of their child. The circumstances of the first presentment were that the victim said she wanted to end their relationship. The respondent dragged her to his house and tied her to a chair. The false imprisonment ended when she was able to convince the respondent to call her mother because their daughter needed feeding. The second presentment related to the respondent’s offending after he had resumed living with the victim. He slapped the victim and hit her with a leather strap. He then tried to force the victim to perform oral sex on him and engaged in penile-vaginal intercourse with her without her consent. The victim obtained an intervention order against the respondent. The offences that were the subject of the third presentment occurred when they had ceased co-habitation and the respondent forced his way into her parent’s home. He assaulted the victim’s friend who was there at the time, threatened to kill the victim, and punched and hit her. The respondent was sentenced to a total effective sentence of four years imprisonment.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed, The sentence imposed did not equate with the gravity of the crimes. As per Chernov JA at [21]:
‘It seems plain enough that the respondent's offending conduct had the aggravating features for which the Director contended. It was brutal and cowardly and was, in the relevant sense, ongoing. It involved, in the main, ferocious physical attacks by the respondent on a much weaker victim whom the respondent claimed to love. On those occasions he treated her as if she were his slave who had to do his bidding or be severely punished if she refused. Such conduct is clearly unacceptable to this community and must be denounced by the courts. That the respondent experienced the brutal upbringing for which he contended does not make his behaviour, even though it may have been a manifestation of his uncontrolled anger, any more acceptable’.
Charge/s: Aggravated burglary, intentionally causing serious injury.
Appeal Type: Appeal against sentence.
Facts: The applicant and the victim, his cousin, were born in Western Samoa. They had a heated argument over the phone, in which the applicant said he would ‘chop [the victim’s] head off’. The applicant armed himself with a machete and went to the victim’s home. The applicant entered through an unlocked door and struck the victim twice with the machete to the back of the head and neck, in front of two small children. After the offence, a cultural ceremony of apology and reconciliation was performed. At sentence, the victim expressed his desire that the applicant not be imprisoned, his forgiveness of the applicant and that they now had a very good relationship. The applicant was sentenced to a total effective sentence of four years imprisonment, with a non-parole period of two years.
Issue/s: Some of the grounds of appeal included that the sentencing judge erred in that he failed to take into account the attitude of the victim and the remorse of the offender.
Decision and Reasoning: The appeal was dismissed. As per Eames JA at [38]-[40]:
‘The statement of his Honour that the attitude of the victim could not ‘govern’ the sentencing approach was consistent with the principles stated in Skura. In the present case, however, there was good reason why the judge would be cautious in evaluating the weight to be given to the evidence of the victim. In the first place, he was not the only victim of the appellant’s crime; the two children also witnessed what must have been a horrifying incident, although there was no evidence of any long lasting adverse effects on the children. Crimes of violence frequently create alarm and distress to people other than the immediate victims, and in assessing the need for general deterrence a sentencing judge must have regard to the impact of crime more broadly than merely upon the immediate victim.
An additional reason for being cautious about the weight to be given to the evidence of the victim related to the nature of [the victim’s] evidence. One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.
In the present case, the victim was himself in a difficult position among other members of the Samoan community, and his acceptance of the apology might have been motivated by a range of considerations’.
The sentencing judge accepted that the ceremony was of great cultural significance and that it represented a traditional apology of the most humble and sincere kind. He further accepted that the applicant had expressed genuine contrition and remorse. These statements reflected that the sentencing judge did in fact give weight to the performance of the cultural ceremony and to the factors of remorse and forgiveness (See [43]). Eames JA was not persuaded that the weight given to these factors displayed error in the sentencing judge’s approach. On the contrary, having regard to the seriousness of the offences, the sentences imposed were merciful (See [44]).
Charge/s: Incitement to murder.
Appeal Type: Appeal against sentence.
Facts: The female applicant pleaded guilty to a single charge that she incited Jason Dorrian, an undercover police officer, to murder her husband, the complainant. She was sentenced to seven years imprisonment, with a non-parole period of four years and six months. At trial, her husband submitted a victim impact statement that stated his forgiveness of the applicant, his desire that she return to live with the family and his willingness to offer her support to enable her to re-enter society. The sentencing judge stated that the relevance of the victim’s attitude was doubtful.
Issue/s: The sentence was manifestly excessive in light of the way the sentencing judge dealt with evidence of a number of factors including the victim impact statement of her husband.
Decision and Reasoning: The appeal was allowed, with the judges providing separate reasoning. Smith AJA stated at [48] that:
‘So far as the attitude of the victim to the degree of sentence is concerned, that is generally irrelevant. But evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting. It may mean that ‘psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor’: R v Hutchinson (1994) 15 Cr App R (S) 134, 137. Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation’.
Here, the sentencing judge considered one aspect of the victim impact statement – the attitude of the victim and whether it could affect the sentence. His Honour did not appear to consider the impact of the crime on the victim or the relevance of the victim impact statement, and the attitude shown in it, to the question of rehabilitation. However, ‘the evidence revealed by the victim impact statement was in fact significant and, in particular, showed that there was no adverse impact on the victim’. Further, the applicant’s prospects of rehabilitation were enhanced because of the willingness of the victim and the daughter to help the applicant deal with her serious personality disorders. Accordingly, the sentencing judge erred in failing to have regard to this relevance of the victim impact statement (See [50]).
Eames JA also held that the sentencing judge did not give sufficient weight to the victim impact statement of the applicant’s husband (See [13]). His Honour stated at [12]:
‘This Court has often acknowledged that the introduction of victim impact statements has served an important purpose of ensuring that sentencing judges have a full appreciation of the consequences of criminal conduct to the victims of the crimes, thereby ensuring that judges properly weigh the factors relevant to victims which must be considered by virtue of s.5 of the Sentencing Act 1991. The courts have also warned that the victim impact statements should not be misused so as to produce a sentence which is unfair, and that an articulate or emotional victim impact statement could not justify a sentence being imposed which was not just in all the circumstances’.
However, while judges must ensure the contents of victim impact statements do not unbalance the sentencing process so as to cause a miscarriage of the sentencing discretion, Eames JA held that there may be many instances where the victim impact statement may have the effect of producing a more severe sentence. Likewise:
‘If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence’ (See [13]).
Charge/s: Recklessly causing serious injury.
Appeal Type: Appeal against sentence.
Facts: The applicant was married to the victim and they had three children together. The applicant forcibly dragged his wife out of the house and into the shed, where he had set up a noose. There was a struggle and he placed a noose so tightly around her neck that she passed out. The applicant was sentenced to four years imprisonment with a non-parole period of one year.
Issue/s: One of the grounds of appeal was that the sentencing judge erred in finding that the offence was aggravated because it occurred in a domestic context.
Decision and Reasoning: The appeal was dismissed. The sentencing judge in fact stated that the legislature and the community regarded the offence of recklessly causing serious injury as serious, an attitude that was correct particularly in a domestic context. Ormiston JA held that the sentencing judge was entirely justified as seeing this as a factor to be born in mind (See [19]). His Honour further stated that:
‘ I think [the domestic context] can be seen to be aggravating both as to its potential consequences and also inasmuch as a husband (or a wife) is in a privileged position in relation to a spouse. They each know the everyday movements, the habits, the likes and dislikes, the fears and pleasures of their spouse, which might enable them not only to effect an attack more easily on their victim but also to devise the kinds of attack which could more seriously affect their spouse, not merely physically, but so as to cause mental anguish. Now it was not suggested that there were special advantages which the applicant had in the present case, but he was certainly able to know whether the children would be up or asleep and where they would be, and where to take his wife to gain privacy for this cruelly devised attack. The matter need not be examined any further, for in truth the advantages that he had, including that of surprise, justified the judge in holding that it was proper to view more seriously this attack occurring in the domestic context of this family. The consequences for both his wife and children were manifest, as fairly could have been expected’ (See [20]).
Charge/s: Indecent assault, common assault, digital rape.
Appeal Type: Appeal against sentence.
Facts: The offences were committed by the applicant against his estranged wife, the complainant, with whom he had two children. During the course of an argument, the applicant grabbed the complainant by the crotch and lifted her up, slamming her into the bed on a number of occasions. Three days later, the applicant broke into the complainant’s house and started to choke and slap her. She struggled against him and he pushed her to the floor and penetrated her vagina with his finger. The applicant was sentenced to a total effective sentence of three years and four months, with a non-parole period of 14 months.
Issue/s: One of the issues was that the sentencing judge erred by failing to give sufficient weight to a number of factors including the pre-existing relationship between the applicant and his wife.
Decision and Reasoning: The appeal was dismissed. Winneke P addressed the submission that where the rape occurs against the background of a previous settled sexual relationship, it should generally be regarded by a sentencing court as less serious than a rape by a total stranger. Winneke P considered the authorities led in support of this submission and at [7] and [8] expressed the following conclusions:
‘I do not regard them as laying down a sentencing principle of inflexible or universal application. A rape committed in the context, and against the background, of a previous settled relationship may in certain circumstances be a factor which a court can take into account in mitigation where it can be seen that the impact upon the victim has, for that reason, been less traumatic than otherwise it might have been. But, equally, it is not difficult to imagine a rape, committed by a man who has been in a previous relationship with his victim, which would be every bit as frightening as a rape committed by a stranger. The one thing which the authorities to which this Court has been referred demonstrate is that the crime of rape, whatever the circumstances, and upon whomsoever committed, is regarded by the courts as a grave insult to its victim and a crime which can rarely give rise to a non-custodial sentence.
It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms. In a society in which there is an increasing number of couples becoming estranged, the courts have a heightened obligation to deter those who have previously lived in a stable relationship with a wife or partner from regarding such wife or partner as akin to a chattel devoid of rights or freedoms, and as an object readily available for their sexual gratification’.
Charge/s: Attempted murder.
Appeal Type: Appeal against sentence.
Facts: The male applicant and the female complainant formed a relationship, which the complainant subsequently ended. One evening, the applicant tailgated the complainant, forcing her to stop her vehicle. He dragged her out of the car and threw her down an embankment. Stating that he was going to kill her, the applicant punched the complainant and stabbed her multiple times before he was restrained by passers-by. Despite losing massive amounts of blood, the complainant survived. The applicant was sentenced to 14 years imprisonment with a non-parole period of 11 years.
Issue/s:
Decision and Reasoning: The appeal was dismissed, with separate reasoning provided by Chernov JA and Winneke P but each concurring with the final orders. Chernov JA found that the sentence could not be said to be manifestly excessive in the circumstances. The offence was in the upper range of the scale of seriousness for the crime of attempted murder – it was a brutal, cowardly and unprovoked attack induced because the complainant had left their relationship. The applicant showed no remorse and repeatedly lied to police. A sentence reflecting the principles of denunciation and general and specific deterrence was warranted in the circumstances. Further, without the intervention of others the applicant would have killed the victim. Finally, it was clear the sentencing judge took into account all relevant mitigating factors (See [27]-[31]).
Winneke P similarly held that the sentence could not be said to be manifestly excessive. His Honour said at [50]:
‘[T]his was truly a case where the court’s sentence must mark the community’s condemnation of the applicant’s conduct and must be such as to deter others like-minded from resorting to such conduct as a means of resolving emotional disputes. The type of conduct engaged in by the applicant, reflecting as it does a lack of self-discipline and self-centred lack of respect for the freedom of choice of his victim, was rightly viewed by his Honour, I think, as a serious example of this crime’.
Charge/s: Rape, recklessly causing serious injury.
Appeal Type: Crown appeal against sentence.
Facts: The respondent was convicted of raping and recklessly causing serious injury to his estranged wife. During the assault, which lasted one and a half hours, the respondent punched the complainant over 200 times, predominately to the face. He was sentenced to two years imprisonment, with a non-parole period of one year. The sentencing judge relied on four matters in deciding to impose a sentence at the lower end of the scale: (a) the offender was unlikely to reoffend, (b) the confusion in his mind as to where his relationship with the complainant was going, (c) the offender’s previous good record (which indicated the actions were out of character), and (d) the fact that, since the complainant was his wife, she would not have suffered the long-term traumatisation endured by other rape victims.
Issue/s: The sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. Charles JA (Phillips JA agreeing) held that the sentences imposed were manifestly inadequate. None of the first three factors (a), (b) or (c) identified by counsel justified the low penalty for the rape of the complainant. Charles JA did not accept the Crown’s submission that factor (d) disclosed a significant error of principle. The sentencing judge’s statement as to traumatisation was no more than a finding of fact in the circumstances of this particular case, and not purely premised on the fact that the complainant was his former wife. Notwithstanding this, a substantially heavier sentence was warranted in the circumstances.
Charles JA further held that the imposition of such a lenient sentence here undervalued two important sentencing considerations. First, general deterrence plays an extremely important role in warning the community that rape, within or outside of marriage, will not be tolerated and will attract condign punishment. Second, the considerations which influenced the sentencing judge to impose a lower sentence suggested that His Honour gave little weight to specific deterrence. In light of the respondent’s lack of remorse for his actions, specific deterrence ought to have played a significant role in the construction of an appropriate sentence. Error was also shown in the sentencing judge’s decision not to direct any cumulation of sentence for the serious physical violence inflicted upon the complainant (See 27).
Tadgell JA also agreed with Charles JA but provided some additional observations. In particular, at 28-29, His Honour stated:
‘In particular, it cannot be said that [the sentencing judge] purported to apply any principle to the effect that rape by a man of his wife or former wife or of a person with whom he is or has been in a close relationship is to be treated more leniently than a rape by a stranger. The authorities do not appear to support any such principle. The most that can be said, in my opinion, is that the penalty to be imposed for the crime of rape cannot be regarded as necessarily conditioned by the relationship of the parties to it. Any relationship or lack of it between them will no doubt usually fall to be considered as one of the circumstances to be taken into account in a determination of the appropriate penalty. In some circumstances a prior relationship may serve as a factor of mitigation, but it need not, and it may indeed serve to aggravate the offence’.
There was no error of that kind here but the sentence was still manifestly inadequate for the reasons articulated by Charles JA.
Charge/s: False imprisonment, theft x 3, breach of intervention order x 5, unlicensed driving.
Appeal Type: Appeal against sentence.
Facts: The male applicant and female complainant were divorced and the complainant had obtained multiple intervention orders against the applicant over a period of time. The applicant broke into the complainant’s home, threatened the complainant with a knife and tapped the complainant’s mouth and legs and tied her to the bed. He then took the complainant’s credit cards and left the premises in the complainant’s car. Some days later, the applicant again broke into the complainant’s house. The complainant fled the premises and the applicant took credit cards and various other items. On a final occasion, the applicant telephoned the complainant at work, trying to persuade her to drop the charges against him. All these incidents were in breach of an intervention order. The applicant was sentenced to a total effective sentence of two years and six months imprisonment, with a non-parole period of 15 months.
Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Charles JA held that the sentence could not be said to be manifestly excessive. The applicant committed serious crimes which adversely affected the victim and her children quite significantly. The applicant was contemptuous of the intervention order, disregarding it and its terms as and when he pleased. And he had been in court on two previous occasions for breaching the same order (See [16]). As per Charles JA at [14]:
‘Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant's actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated’.
Charge/s: Attempted murder.
Appeal Type: Crown appeal against sentence.
Facts: The respondent was convicted of the attempted murder by stabbing his wife. He attacked her in a frenzy in public in front of their children. At the time of the incident, the respondent was suffering from post-traumatic stress disorder. He was sentenced to six years imprisonment, with a non-parole period of four years.
Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. Batt JA stated that ‘general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap’ at 381 (See also R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 (23 May 2007) and R v Tsiaras [1996] 1 VR 398 (28 November 1995)). His Honour held that the sentence failed manifestly to meet the gravity of the respondent’s crime. The fact the offence occurred in a domestic situation did not decrease its heinousness. The crime warranted a sentence reflective of the considerations of general and specific deterrence, the community’s expectation of proper punishment and the possibility of rehabilitation (See 381).
Winneke P agreed with Batt JA but added his own observations. His Honour agreed at 382 that the sentence was manifestly inadequate and stated:
‘[T]his was a very serious example of the crime of attempted murder. It was premeditated and vicious and carried out upon a defenceless woman, in a public place, in the presence of the terrified children of both the respondent and the victim. I agree with the learned sentencing judge that the crime is not to be regarded as any the less heinous because it was committed against the background of an emotional domestic dispute. That is merely an explanation and not an excuse for the crime.
Winneke P also held at 383 that ‘whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused’.
Charge/s: Murder.
Appeal Type: Appeal against sentence.
Facts: The victim was the applicant’s wife. Throughout the marriage, there were episodes where the applicant drank to excess and subjected the victim to mental and physical abuse. The victim obtained an intervention order against the applicant. The applicant stabbed the victim in the throat on a train. The applicant was sentenced to 20 years imprisonment, with a non-parole period of 15 years.
Issue/s: The sentence was manifestly excessive.
Decision and Reasoning: The appeal was allowed. The sentence imposed on the applicant was outside the range of sentences imposed for comparable offences. In re-sentencing the applicant, Phillips CJ stated at 7:
‘[T]here appears to be an implication in counsel’s submissions on behalf of the applicant that, in some way, cases involving a murder arising out of a relationship, or arising out of a domestic situation are less heinous as a class than other types. There is no doubt in my mind that the court must set its face against such an implication’.
Charges: Murder x 1
Case type: Sentence
Facts: The accused murdered his long-term intimate partner by suffocating and strangling her while he was in a cannabis-induced psychosis. He surrendered himself to police the same day as the killing, made a full confession and pleaded guilty to murder at the first available opportunity. The offence was not an isolated instance of domestic violence, as the accused had been physically and sexually violent towards the deceased in the past. He had also been previously admitted to a psychiatric unit, on which occasions the deceased reported that his mental state had deteriorated in the context of substance abuse, and that he had tried to strangle her in her sleep. He also assaulted the deceased in 2010.
Issue: Whether the voluntary drug taking was an aggravating circumstance; whether his Schizotypal Personality Disorder was a mitigating circumstance.
Held: After an assessment, a forensic psychiatrist made several observations about the accused, including that he used various coercive behaviours, such as violence and threats of violence and suicide, to mitigate the persistent likelihood of the deceased abandoning him. It appeared that the fatal attack was motivated by delusional beliefs. The psychiatrist also found that notwithstanding his prior history of domestic violence, the killing would not have occurred in the absence of the psychotic episode ([26]). In the police interview, the accused described his childhood as "troubled". His stepfather physically and emotionally abused his mother, and the accused used cannabis for many years, and has "dabbled" with other drugs ([52]-[58]).
The Court did not accept the prosecution’s submission that the accused’s cannabis use was an aggravating feature, as it could not be established beyond reasonable doubt that he knew that he was likely to become violently psychotic from the cannabis use during the relevant period ([27]-[30]). Further, his moral culpability was not reduced by his psychosis at the time of the offending, because he had voluntarily taken the cannabis in the knowledge that it might make him violently psychotic ([32]). His forensic psychiatrist considered that his Schizotypal Personality Disorder indirectly contributed to his offending because (1) his problems with social anxiety and depression predisposed him to the heavy use of cannabis, and (2) it lowered the threshold for developing psychosis following ingestion of psychotogenic substances ([37]). The defence counsel’s submission that his personality disorder was a mitigating circumstance was also rejected by the Court ([40]). Cannabis was not the only way to deal with his anxiety. The accused should have undertaken a drug rehabilitation program instead, particularly since he was aware that cannabis might cause him to become violently psychotic ([39]).
Aggravating circumstances included the fact that the deceased was the accused’s long-term intimate partner, she was murdered in her own home, and the offence was not a "one-off instance of domestic violence". The fatal conduct, however, was not motivated by the same considerations which led to the earlier domestic violence instances, and was not planned ([45]-[50]). Mitigating circumstances included the accused’s cooperation with authorities, remorse, and his reasonable prospects of rehabilitation, given his excellent insight into his psychological issues and his positive response to medication while in custody ([65]-[71]). Consequently, he was sentenced to 22 years’ imprisonment, with a non-parole period of 16 years.
Charges: Murder x 1
Proceedings: Sentencing
Facts: The male offender and female victim had been in a relationship for three months and lived together. The couple argued in the days leading up to the offending and the victim appeared nervous and scared to those she met. She told several friends that she could not leave, even though the offender had choked her. On the night prior to the offending, the victim visited her friend after a fight with the offender. The victim received text messages from the offender saying that he would kill himself if the victim did not come back. The offender went to the friend’s house and spoke to the victim, but the victim said she was not ready to come back home now but would come soon. The offender left the house and travelled to the house of a friend. On the way, he slashed his right forearm repeatedly; the friend wrapped the offender’s arm in a tea towel. In the meantime, the victim returned home but did not find the offender there, so she texted her friend, indicating that she thought she would be okay. A text message exchange then occurred between the offender and the victim in which the offender asked the victim if he could come home and told her that he loved her, but the victim said she did not want to talk and that "If you love someone you would not harm them and control them". The victim exchanged text messages with other people but these ceased abruptly around 4:55am.
At this time, the offender returned home and stabbed the victim numerous times to the face, scalp, neck and arms with a kitchen knife while she was on her bed. She died quickly after this attack. The offender tried to clean the scene with bleach and hid the body and bloody sheets under the bed. He then tried to burn down the house by lighting a fire in a cabinet next to the bed, but this only smouldered as the cabinet was closed and the fire was starved of oxygen. The offender went to his friend’s place and told him that he had killed the victim, but only because she had attacked him in his sleep. He repeated this account of events to police, claiming that the victim had attacked him when he refused to get her more ice.
Judgment: The judge sentenced the offender to 29 years’ imprisonment, with a non-parole period of 23 years. His Honour noted that the offender’s "crime of murder is a very serious example of that always serious crime" [118]. In addressing the offender, his Honour emphasised the aggravating features of the offending: "In the context of an ongoing domestic relationship which left your partner strongly fearing you, at least in the days leading up to her death, for reasons which have not in any honest way been explained by you, you took to her with a dangerous knife while she was in the sanctuary of her own bed in her own home ... You ignored her futile and desperate attempts to ward off your blows. Having killed her, you showed your lack of regard for her by hiding her under her bed, conducting a cursory clean-up, then setting the fire in the cabinet intent on burning the crime scene. Then you left her, dead on the floor, covered in blood" [118]. And further, "Yours was a sustained and outrageously violent attack upon a helpless woman," such that his Honour held that the lack of planning or premeditation "said nothing about its seriousness" [121]. His Honour further stated that "You were in a position of trust where she was concerned. She should have been able to look to you for love and protection. You chose, however, to kill her by extravagant, protracted and shocking acts of violence. Each single act of stabbing her entailed serious danger to the welfare of your helpless victim. You carried out many such individual acts" [123] and that "Your breach of trust and lack of normal human decency are simply stunning" [140].
His Honour held that rehabilitation would have little part to play in the sentence, because the offender’s prospects of rehabilitation were "exceedingly dim," given he had not honestly acknowledged his crime nor dealt with his drug and other issues [131]. Instead, just punishment, denunciation, general deterrence, specific deterrence and protection of the community were important to the sentence [141]. His Honour noted that "The sentence of this Court must make it perfectly clear that the Court deplores violent crimes of this sort, especially against a domestic partner" and that "the sentence I pass must bring it clearly home to any person who might be minded to inflict extreme violence upon a domestic partner, for whatever reason, that such conduct will be met with strong punishment" [141]. His Honour was satisfied beyond reasonable doubt that the physical altercation did not commence as the offender claimed and that his account was a complete fabrication; that is, it did not begin with the victim attacking the offender because the victim was evidently very scared of the offender and "would have known that to [attack the offender] would only serve to inflame [the offender] and might trigger a violent reaction from a person of whom she was in fear" [50], [51], [55]. In rejecting the offender’s claim, his Honour held that there was no explanation for the shocking crime [56].
His Honour rejected that the plea of guilty was made at a reasonably early stage, having been made 16 months after the offending [59], but noted that there was still a significant utilitarian benefit to the plea, which would constitute a mitigating factor [61]. His Honour also rejected that the offender was remorseful [64], taking into account his conduct after the offending (in attempting to clean the scene and hide the body), his false assertions of the victim attacking the offender first, and his obvious sorrow for his own position, not the death of the victim. His Honour accepted that the offender had a substantial history of methylamphetamine use, and that the offender was using that drug at the time of offending [80]. However, his Honour also noted that the offender had an extensive criminal history for matters of violence, dishonesty, weapons and driving, and that he had been imprisoned numerous times and received numerous community-based dispositions which were frequently breached [83]. His Honour was not convinced that the offender actually suffered from PTSD and noted that even if he did, this would not result in any term of imprisonment weighing more heavily on the offender than a person in normal health [102]. His Honour therefore held that the principle enunciated in the fifth limb of R v Verdins [2007] VSCA 102 did not have any application in this case [103].
Offences: Common assault x 2; Unlawful assault x 2; Sexual assault x 2; Criminal damage; Threaten to commit a sexual offence; False imprisonment; Contravention of a Family Violence Intervention Order (FVIO) x 4; Persistent contravention of a FVIO; Committing an indictable offence whilst on bail; Contravening condition of bail.
Proceedings: Bail application
Issue: Whether compelling reasons exist justifying the grant of bail.
Facts: The applicant and complainant commenced a ‘romantic’ relationship in August 2019. The applicant moved into the complainant’s home which she shared with her 23-year-old daughter. On the day of the offending, the complainant came home from work and found the applicant intoxicated. They argued before the applicant told the complainant to join him in the shower. The complainant initially refused but eventually agreed to appease the applicant who appeared angry. The applicant suggested they have sexual intercourse but the complainant refused. The applicant became violent towards her, pushing her into the shower door. The complainant tried to leave the shower but the applicant pushed her onto the bed, held her wrists above her head and thrust his knee into her thigh. The complainant kicked the applicant in the genitals. The applicant then punched the complainant in the abdomen about ten times. The applicant left the house but came back shortly later, yelling "Right, time for round two". The complainant attempted to leave in her car but was initially blocked in by the applicant’s car. She managed to leave but returned to the house to collect her dogs as she was fearful the applicant would harm them.
The complainant went to the toilet when she arrived but found the applicant in there. The applicant rubbed faeces over the complainant’s face and hair, then pushed her up against a wall using his forearm under her chin. She broke free and called 000, while the applicant began hitting things in the house. The applicant grabbed the complainant, threw her onto the bed, pushed his forearm to her throat and punched her in the abdomen, stating he was going to give her anal with his clenched fist. The applicant got off the complainant when she grabbed his genitalia with her fingernails. She cancelled the police request but asked her sister to come and help her. The complainant’s sister and daughter arrived, followed by police.
A full and final non-contact FVIO was granted after this incident which the applicant breached by texting and calling the complainant. On one occasion though, the complainant visited the applicant at a motel room for about five minutes.
Judgment: The judge granted bail on the applicant’s own undertaking with strict conditions (including he: provide a $3000 surety, reside at his parent’s residence, abide by a curfew, comply with the FVIO, not contact any prosecution witness, not enter the suburb the complainant lives in, not consume alcohol or drugs), finding that the applicant had established that a compelling reason exists to justify the granting of bail, despite the offending being "serious and distasteful" [65]. The applicant argued that the following were compelling reasons to justify bail: the applicant’s limited criminal history (he has only come before court twice); his first time in custody; weakness of the prosecution case (the complainant’s credibility is likely to be successfully challenged); delay (one year on remand); implications of the COVID-19 pandemic (lockdowns and the possibility the virus could enter prisons); availability of stable accommodation with the applicant’s parents; his ties to the jurisdiction, including his parents and children; $3000 surety from his mother; other conditions to reduce the magnitude of risk (for example, imposition of a curfew) [32].
His Honour noted that the applicant conceded that the offending was serious, finding that "the offending alleges multiple acts of family violence committed by a more powerful male upon a relatively vulnerable female who would have been entitled to look to him for protection, rather than physical violence and threatening conduct" [49] and that the applicant "flagrantly breached requirements" of the FVIO [50]. While his Honour did accept that the complainant’s credit "will be subject to strong and justifiable attack", he found that the prosecution case could not be described as weak due to other things supporting the complainant’s account [52]-[53].
His Honour further found that the applicant’s criminal history included a finding of guilt for an assault upon a previous domestic partner and that the applicant had "deliberate and flagrant disregard" for previous grants of bail. As such, his Honour held that there was a "real concern as to [the applicant’s] willingness to abide by conditions of bail" that might be imposed in the future [57]. Furthermore, his Honour noted the existence of the FVIO and that the complainant was very frightened of the applicant and dreaded his release on bail [60].
His Honour accepted that a full year on remand would be a significant period of time for a case which would remain in the summary stream [61] and that such a period would be particularly significant in light of the onerous conditions as a result of the COVID-19 pandemic [62]. Additionally, his Honour held that the applicant was likely to receive a sentence lower than the period of time he would spend on remand if not bailed [63]. In considering the "unacceptable risk" test, his Honour noted that there was a legitimate concern that the applicant would try to contact the complainant again, but that, since his arrest, the applicant had not attempted to contact the complainant and had not been violent towards her. His Honour considered that the risk posed by the applicant could be ameliorated with imposition of strict bail conditions.
Offences: Intentionally cause injury x 3; Common assault x 8; Making a threat to inflict serious injury x 2; Attempt to pervert the course of justice x 2; Being a prohibited person in possession of an imitation firearm x 2
Proceedings: Bail application
Issues: Whether exceptional circumstances exist justifying the granting of bail; Whether there is an unacceptable risk that the applicant would reoffend or endanger the community if released.
Facts: The male applicant and female complainant were in a relationship from November 2017 until September 2018, during which there were a number of separations and reconciliations. From February 2018, there were numerous instances of violence by the applicant towards the complainant. These included: using a chain like a whip to hit the complainant; pushing her out of the car; splashing hot wax on her hair, face and arms; tasering her; hitting her on the back of the head; throwing drinking glasses at her; kicking her hard in the stomach when she was pregnant; burning her on her back with a blow torch; and hitting her with a metal pole. The applicant also made several threats towards the complainant, including: a threat to cut her hands off; threatening to kill her (while holding a gun); threatening to shoot different limbs; threatening her so that she would recant her testimony to police. The applicant’s sister told the complainant that she had to tell police that she made up the allegations, and the complainant later made a statutory declaration to this effect. However, she maintained the allegations at the committal hearing and explained why she made the statutory declaration.
Judgment: The judge refused the bail application, holding that the applicant failed to establish exceptional circumstances existed that justified the granting of bail and even if this had been established, the risk posed by the applicant of reoffending or endangering the community if released would be unacceptable. The applicant relied on the following matters as proof of exceptional circumstances: delay (about two years from arrest until trial), onerous nature of remand due to the COVID-19 pandemic, weakness of the prosecution case, absence of any contact with the complainant while on bail, availability of support through CROP (a drug intervention program), family support and stable accommodation, modest criminal history (no convictions for violence), first time in custody, no pending matters other than the trial, and the applicant’s medical condition [43]-[44].
His Honour found that the applicant did not challenge the proposition that the offending was serious, noting that "Whilst not anywhere near the higher end of the range of seriousness of offences of family violence, the alleged attacks by the applicant upon his then partner were repeated, nasty, and had some disturbing elements to them, including the use of weapons and the infliction of a kick to the abdomen of a pregnant woman" [58]. His Honour considered that the complainant was scared of the applicant and a FVIO was in place with her as a protected person [71].
His Honour also found that the prosecution case was not weak, the applicant’s criminal history "reveal[ed] some signs of a lack of respect by the applicant for the orders of the court", and the applicant had already been imprisoned in the past for failing to answer bail. His Honour noted that the applicant’s conduct in respect of bail "paint[ed] a picture of a person who is entirely unwilling to comply with the requirements of bail when they do not suit him" and that this was an important consideration when assessing exceptional circumstances [67].
While his Honour accepted that the applicant had an extensive history of illicit drug use as a form of pain relief for an accident the applicant suffered eight years ago, his Honour held that it was completely unacceptable for the applicant to do this, particularly where the applicant knew this would breach his bail conditions [69]. Furthermore, his Honour held that the provision of family support was "not an important matter in the overall mix of circumstances in this case" where the applicant had family support in the past but still offended [70]. His Honour noted that the applicant was likely to spend 17 months on remand before trial, but that this "is not, on its own, or in combination with other factors, exceptional" [72]. In any event, any sentence imposed was likely to exceed this period anyway [73].
Offences: Rape x 2; Infliction of injury; Threats; Damaging property.
Proceedings: Bail application
Issue: Do exceptional circumstances exist justifying the grant of bail; does the applicant pass the unacceptable risk test.
Facts: The male applicant threatened to kill and physically harm his female ex-partner, MZ, on multiple occasions, including by pointing a firearm at her and threatening to throw acid in her face. Following an argument between the couple, the applicant punched MZ in the face and kicked her in the middle of her back, before pushing her on the bed, covering her face with a pillow and stating that he was going to rape her. He removed the pillow and grabbed MZ around the throat before raping her. The assault lasted several minutes before the applicant left MZ alone at his house. MZ reported the assault (but not the rape). When the applicant learnt of this, he threatened to kill MZ’s family. A Family Violence Intervention Order (‘FVIO’) was issued to protect MZ.
The applicant also threatened to kill and physically harm another female ex-partner, SB, and her children, and frequently damaged her property. On a number of occasions, the applicant slapped, spat on, choked, scratched, pulled SB’s hair and threw her to the ground. He also physically assaulted SB’s 16-year-old daughter and one of SB’s friends, and detained SB in her home on one occasion. SB ended the relationship, but the applicant continued to abuse her until he was remanded for other matters. After his release, the applicant attended SB’s house, forced her onto her bed, threatened to kill her if she was ever with another guy, and raped her.
The applicant applied for bail twice in relation to the charges arising out of these events, but both applications were refused as the applicant failed to establish exceptional circumstances and there was an unacceptable risk of further offending.
Held: The judge refused to grant bail as the applicant failed to establish that exceptional circumstances existed justifying bail and if the applicant were released, there was a high risk that he would endanger the safety of the public, commit offences while on bail, interfere with witnesses and/or fail to answer bail. The applicant contended that various matters, when considered together, constituted exceptional circumstances. These included: delay (his trial was unlikely to occur until next year because of the COVID-19 pandemic and he already spent 252 days in custody); the onerous circumstances of his custody (he has been held in protection due to physical attacks upon him and receives no visitors due to COVID-19 restrictions); lack of strength of the prosecution case; his criminal history occurred in the context of drug use; he has used his time in custody well (by completing courses and maturing); the availability of stable residence, employment and family supports; and the availability of a surety of $500,000 [33].
His Honour held that the offending was very serious [47], the cases against the applicant were not weak [48], his criminal history (violence, dishonesty and weapons offences, breaches of FVIOs, failing to answer bail) rose questions as to his character and ability to abide by any court orders [49], he had previously been convicted for failing to answer bail [50], at the time of offending he was already subject to bail and CCOs [51], he was very unlikely to be willing and able to comply with any bail conditions [52], there were already several FVIOs against the applicant [53], the proposed living arrangements if he were to be released were unsatisfactory as the applicant has committed family violence against his mother and sister in the past (with whom it was proposed he should live) [54], there was no evidence he had taken major steps towards dealing with his drug issues [55], both victims were frightened of the applicant [56], and he would receive a much longer term of imprisonment if convicted for even one rape offence than he would on remand [57].
His Honour also noted the implications of the COVID-19 pandemic, but approved Re Tong [2020] VSC 141 in which the court held that the pandemic is "simply part of the surrounding circumstances required to be taken into account in a consideration" of steps in the bail process. His Honour therefore was "far from satisfied that the applicant ... discharged the onus resting on him to establish the existence of exceptional circumstances" [59].
Even if the applicant had established exceptional circumstances, His Honour concluded that the risk of the applicant harming the victims and/or their families was so high that His Honour would have refused bail in any event [62].
Charges: Various offences, including contraventions of FVIO, recklessly causing injury, unlawful assault, failing to answer bail and committing an indictable offence on bail
Case type: Application for bail
Facts: On 19 April 2019, the applicant man was charged with contravention of a FVIO and persistent contravention of a FVIO (‘the informant Sidorovska matter’). He was released on bail, however, after failing to appear in the Sunshine Magistrates’ Court, an order was made forfeiting his bail and a further bench warrant was issued for his arrest. On 2 October 2019, the applicant was charged with recklessly causing injury, unlawful assault (x 2), contravention of a FVIO, failing to answer bail and committing an indictable offence on bail (‘the informant McKay matter’). The applicant had been refused bail twice in the Sunshine Magistrates’ Court in relation to both sets of charges.
The applicant and complainant woman were in a relationship and have 3 children together. At the time of the relevant alleged offending in the informant Sidorovska matter, the applicant and complainant were separated and a final no-contact FVIO was in place against the applicant, listing the complainant and the children as the affected family members. In relation to the informant McKay matter, the applicant allegedly assaulted the complainant woman by striking her to the leg with an implement, as well as to the head. This occurred in contravention of a FVIO and in close proximity to the children.
Issue: The issue for the Court was whether exceptional circumstances existed to justify bail and whether the previous history of family violence towards the complainant not resulting in findings of guilt should be taken into account.
Held: The Court refused bail as the applicant failed to discharge the onus to prove the existence of exceptional circumstances to justify his release on bail ([64]). In considering the submissions for a finding of exceptional circumstances, the Court found that:
Although the applicant’s criminal history was not lengthy, it was deemed highly significant. For example, he had previous convictions for persistent contravention of a FVIO, and had previously acted with violence towards another female partner, both of which resulted in imprisonment ([57]). This indicated that he had not been adequately deterred and showed a lack of regard for court-imposed sanctions and for the importance of bail ([63]). There had also been a number of alleged incidents of family violence towards the complainant, which did not result in findings of guilt. The Court considered these matters as relevant to whether the applicant posed a risk of future endangerment to the complainant and her children ([58]-[59]).
Offences: Murder
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male offender and female victim had been in a domestic relationship from 2001 until the victim was killed in July 2018. They had three children together. There was a history of controlling behaviour by the offender towards the victim. The offender’s mental health had deteriorated in the lead up to the offence, with his GP recording that the offender was "struggling with depression due to a loss of income and employment, and that [he] had been self-medicating with alcohol and cannabis but had stopped consuming these substances" [9]. The GP did not observe any homicidal ideations or psychosis symptoms at the time.
The morning of the offence, the neighbours heard a large argument ensuing within the offender’s home. The offender threw food and cleaning products into the rubbish and damaged items in the kitchen with a hammer before suddenly attacking the victim by punching her in the face. The victim fell to the ground and was kicked by the offender before he grabbed a knife and stabbed her in the head, neck, chest and upper body. The attack was witnessed by two of their children, one of whom unsuccessfully tried to stop the attack. The offender then proceeded to set fire to a near-by fabric couch and applied the lighter flame to the older daughter’s shoulder. He then forced the children and family dog into a car and drove away. Police later found the offender and children unharmed.
The offender suffered from ‘severe, acute and transient’ drug-induced psychosis at the time of offending [62]. The offender’s psychosis meant that his degree of moral culpability was of significant dispute.
Held: Eckersley was sentenced to 22 years’ imprisonment with a non-parole period of 18 years.
The judge provided that ordinarily, "a drug-induced psychosis does not commonly result in the application of the Verdins principles and a mitigatory outcome" [88]. However, as the offender was prescribed the drug by his GP and was not aware that they could cause psychotic symptoms, the judge was satisfied of the offender’s low moral culpability [92]. This lower culpability lessened denunciation and deterrence as sentencing factors, however the judge noted that this did not "take away from the fact that the killing of an intimate partner is an inherently terrible act" [108]. The judge also noted that while the murder did not occur in the context of a history of family violence, "the killing of an intimate partner is a most serious form of offending which must again be tragically emphasised by the Court" [112].
In sentencing Eckersley, Justice Champion considered the children witnessing the offence, the offender’s destruction of the victim’s body and fleeing the scene as aggravating factors. The unreasonable delay in sentencing was also accounted for.
Charges: 33 offences, including strangulation
Case type: Bail application
Facts: The applicant was charged with 33 offences, 32 of which arose out of incidents alleged to have occurred over 3 days. The other charge involved the contravention of an undertaking given to the Magistrates’ Court. The primary complainant was the applicant’s wife, however, the alleged offending also involved the complainant’s children. It was alleged, among other things, that the applicant grabbed the complainant’s throat and pushed her head through a wall, while threatening her that he would ‘drain’ their bank account and take their daughters to the United States ([6]).
The applicant was refused bail in August 2019, and applied for bail again ([3]-[4]). The applicant contended that a compelling reason to justify a grant of bail could be established based on his personal and financial circumstances, the strength of the charges against him, the likely delay until determination of the charges, and the lawful sentencing range open to the sentencing court. He also submitted that, without being granted bail, he was likely to spend a significantly longer period of time on remand ([11]-[12]). On the issue of unacceptable risk, the respondent pointed to the applicant’s ‘history of contravention of court orders’ and his addiction to illicit substances which appeared ‘to be linked to his offending and violence against the complainant and [her] children’ ([17]-[21]).
Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.
Held:: The applicant was admitted to bail on strict conditions. In the Court’s view, bail conditions, such as daily reporting to police, prohibition from approaching the vicinity of the complainant’s residence and curfews, would sufficiently mitigate any risk posed by the applicant ([33]). The applicant was 33 years of age, and had a limited prior criminal history and no prior criminal history involving violence. He had no prior convictions for breaching court orders, however, he previously admitted to breaching a family violence order ([26]-[27]). The applicant ran a trucking business, which would likely suffer financially if he was not granted bail. Factors militating against the applicant included the seriousness of the allegations of strangulation and the fact that the complainant was afraid of him. Nevertheless, the Court found that the applicant had established a compelling reason to justify the grant of bail, given his lack of a negative bail history, the modesty of his criminal history, his personal and financial circumstances, the time already spent in custody, the period of any likely sentence and the material and recommendations in the CISP Remand Outreach Program (CROP) report ([30]).
Charges: Murder
Proceedings: Sentencing
Facts: The accused and victim were married. After an argument with the victim, the accused strangled her with an electrical extension cord until she collapsed and fled the scene. Expert evidence that the accused was suffering from a major depressive episode at the time of the offence ‘which may have clouded [his] thought processes and [his] appreciation of the consequences of [his] actions’ [24] was accepted at trial along with evidence that the accused loved his wife and had been violent to her before.
Issues: Appropriate sentence
Decision and reasoning:: The accused was sentenced to 16 years’ imprisonment with a fixed non-parole period of 11 years.
The court accepted that the fact the accused was suffering from a major depressive episode significantly reduced the accused’s moral culpability [24]. Beale J said ‘[d]omestic violence murders are often upper range examples of the offence of murder, particularly where there has been a history of domestic violence. This is not your case. The fact that you killed your wife of nearly 50 years was a gross breach of trust which elevates the seriousness of your offending but, having regard to all circumstances, and particularly your mental illness, I find that yours is a mid-range example of the offence of murder’ [25]. The other mitigating factors considered by his Honour include the accused’s: remorse; previous good character; excellent prospects of rehabilitation; age; and ‘the punishment [the accused will] continue to experience knowing you killed your beloved wife’ as other mitigating circumstances [54].
Charge: Murder
Proceedings: Sentencing
Facts: The female offender was found guilty following trial of the murder of her male domestic partner, her various offers of a guilty plea to negligent manslaughter, then dangerous driving causing death (following the death of the sole living witness to the offence), and then again negligent manslaughter having been rejected. The pleas offered appeared to relate to the Crown’s perceived prospects of proving their case with the evidential difficulties occasioned by the death of the witness.
The offender and victim had a turbulent relationship involving many arguments and periods of separation from January 2016 until his death in October 2017. The victim was attempting to remove his caravan from the offender’s property when the offender became verbally abusive and refused to let the victim move it. The victim walked away to call police for assistance but was followed by the victim in her car and struck by the vehicle. The call to 000 remain connected during the accident and picked up the ensuing conversation between the offender and a witness in which the offender claimed that the victim jumped in front of her car and she was unable to avoid him. This false story was later repeated to police.
The offender was 68 years of age and had no prior criminal convictions. She had been diagnosed with cancer. She was subject to an intervention order prohibiting the commission of family violence against the victim at the time of offending.
Held: Bufton was sentenced to 24 years’ imprisonment with a non-parole period of 18 years.
The Court treated this protection order as an aggravating feature along with the use of a dangerous weapon and noted that the ‘crime occurred in the context of [Bufton] having been in a domestic relationship with [the victim], and of [Bufton] having acted out of anger and frustration at the state of the relationship [36]. Her persistence in the false account of events and the fluctuating pleas were considered to be indicative of a lack of contrition or remorse[46-52]. Assistance rendered by the offender to the accused was conduct which could be explained by the crime being carried out in full view of the witness[53]. The judge said at [52]:
"For completeness, I make it clear that you are not to be punished for your refusal to admit what you had actually done, or for pleading not guilty to murder. Rather, these facts point to the absence of a possible mitigating feature of your crime which would have existed were you to have been willing to accept the true criminality of your conduct."
Just punishment, denunciation and general deterrence were treated as the most important sentencing purposes, with the significance of specific deterrence being reduced in light of Bufton’s age and cancer diagnosis.
Charges: Multiple charges of causing injury intentionally and recklessly, a charge of recklessly causing serious injury, charges of reckless conduct endangering life and endangering person, a charge of making a threat to kill, drugs charges, a charge of criminal damage, and numerous breaches of Family Violence Intervention Orders (FVIO)
Case type: Bail application
Facts: The applicant applied for bail on a number of charges, which arose out of family violence related incidents. The complainants include his former wife and children.
Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.
Held:: The Court refused the bail application as there would be an unacceptable risk that the applicant would endanger the safety and welfare of the complainant and her children, or commit further offences while on bail ([65]). The nature and seriousness of the offending was considered to be the most important matter for the Court. Tinney J described the offending as ‘quite disturbing, with a significant and worrying risk of causing serious injury or death’ ([51]). Some of the alleged violence occurred in the presence of one or more of the children, and occurred in the family home ([54]). Although the applicant’s criminal history was limited, he had been found guilty of assaulting the complainant in the past. Further, he was on an adjourned bond for that assault ([56]), and was also subject to a FVIO at the time of the alleged offending ([57]).
There were many personal circumstances favourable to the applicant. For example, he had a supportive family and was the operator of a company which, in his absence, struggled financially ([58]). According to Tinney J, the applicant’s prolonged drug use had a significant impact on the alleged offending, and would increase the risk of failure to comply with his bail conditions ([59]). The complainant’s attitude to bail was also a relevant consideration. She was afraid of the applicant and did not want him to be released on bail ([60]). His Honour concluded that there were sufficiently compelling reasons to deny the applicant a grant of bail ([63]).
Additional matters of concern included ([64]):
Note: An appeal against this decision to refuse bail was rejected by the Victorian Court of Appeal - Rodgers v The Queen [2019] VSCA 214 (26 September 2019)
Charges: 1 x murder
Case type: Sentence
Facts: The offender pleaded guilty (shortly before the trial was due to commence) to the murder of his former wife, with whom he entered into an arranged marriage when he was 18 years of age. They had 2 children. The murder occurred in the context of an unhappy relationship which had subsisted for many years leading up to her death. The offender claimed that the deceased attacked him with a broken leg of a table and that he took the piece of wood from her and hit her repeatedly. He then used an extension lead to strangle her ([10]). In the aftermath, the offender left the deceased dead on the floor and went to his step-sister’s home where he confessed to the killing. He then fled Melbourne, and was intercepted by Queensland police two days after the killing.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held:: The Court sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years. The offender was 60 years of age and was born in Bulgaria. He had one prior conviction of unlawful assault, but this had limited significance to his case ([33]). Medical evidence indicated that he was diagnosed with Adjustment Disorder, and was likely depressed at the time of the deceased’s death. One expert considered that his Adjustment Disorder contributed to his offending by diminishing his ability to reason and make sound judgment ([45]). The Court, however, noted several deficiencies in this expert’s evidence, such as the fact that he heavily relied on the truthfulness of the offender’s account to him about his relationship with the deceased and that it conflicted with other expert evidence ([86]-[94]). Consequently, the Court did not accept this expert evidence and rejected the defence’s submissions in respect of the Verdins principles to reduce the sentence, other than for the purpose of the hardship of imprisonment ([95], [99]). According to the Court, the offender’s conduct could not be connected to any defect in his reasoning abilities or be characterised as an impulsive crime. He inflicted multiple, forceful blows to the deceased. The ‘shocking and protracted nature of the crime’ indicated that any impairment to mental functioning was not causally connected to the offending, and that he intended to kill her ([96]-[97]). The crime was described as one of ‘extravagant and drawn-out violence committed against a physically weaker person whom [the offender] apparently detested and who had offered some provocation to [him] by striking [him] with the leg of the table’ ([97]).
While the offending was not premeditated, the Court considered it to be at the high end of the range of seriousness. The crime was an extreme overreaction to modest provocation by the deceased and the challenges of their ‘sad and troubled relationship’ ([102]). The Court also found that the offender had not exhibited true remorse ([111]). His prospects of rehabilitation, however, were found to be good ([117]).
Relevant sentencing principles included just punishment, denunciation and general deterrence. The Court found it necessary to make ‘perfectly clear’ that it deplores violent crimes of this nature, particularly those committed against domestic partners. The deceased’s life was ‘precious’, and was brutally and deliberately taken away by the offender as a result of his anger, resentment and frustration. He had full knowledge of the severity and criminality of his actions ([121]-[122]).
Offences: Murder
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male victim and female offender (Stone) had been married for 22-years and had five children together. Evidence tendered during trial was that the male victim had reported an incident of the offender chasing him from the house with a knife. Neighbours also reported sounds of arguing and physical violence coming from the home prior to the incident that lead to the victim’s death. There was evidence that the victim told members of his extended family that he intended to leave the relationship the day of the incident that lead to his death.
The Crown case was that Stone doused the victim with highly flammable enamel thinner and set him on fire. While none of the children saw the victim committing the offence, one of the daughters saw their father engulfed in flames and heard him say that he was going to die. Another daughter saw the trail of debris left by the victim as he ran to the bathroom after being set alight.
The victim was found conscious by paramedics despite sustaining burns to 95% of his body, including his airways. He was placed on life-support and interviewed but did not recover. Both the victim and Stone gave false versions of the events, claiming that the victim had been attacked by three men. Stone provided the names of the alleged offenders but failed to identify them during police interviews and was subsequently arrested herself.
Held: The accused was sentenced to 34 years’ imprisonment with a non-parole period of 28 years. The Court provided that murder is "the ultimate act of family violence", with the offender’s ‘vicious and barbarous’ conduct constituting a "a violation of the security of the sanctity of the home and a massive breach of trust" [32]. With the offender’s conduct being ‘a most serious example of murder’, the Court found the objective gravity of the offence and offender’s moral culpability to be ‘extremely high’. As such, denunciation and deterrence were the primary sentencing considerations along with protection of the community [42].
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to the murder of his mother. The case raises important community issues and the connection between drugs, mental health and family violence. The evidence showed that the offender and his mother had significant mental health issues, which strained their relationship and ultimately led him to stab her to death ([2]). The offender admitted to killing his mother to police, and made further admissions to his father and former partner. Lasry J described the murder as ‘grave and tragic’. The victim was vulnerable and defenceless in the face of the attack, and her death was the culmination of a lengthy history of hostility and family violence between them ([17]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Lasry J noted the offender’s personal circumstances at [21]-[25], and the issue of mental health and substance abuse at [26]-[33]. He started using drugs as a teenager, however remained drug free for several years. His deteriorating mental health and increasing drug use led to the breakdown of his relationship with his former partner and the loss of his job. The offender had also been diagnosed with Delusional Disorder and subject to various treatment orders. A forensic psychiatrist gave evidence of the offender’s long history of major mental disorder and substance misuse, but noted that he had no history of being violent or anti-social other than when he was psychotic or affected by drugs. The offender also suffered from paranoid schizophrenia which was likely precipitated by his cannabis use and aggravated by his methamphetamine use.
The offender pleaded guilty at a relatively early stage of the proceedings. An element of remorse was identified in his post-offence conduct; however his Honour noted that the offender’s hostility towards his mother had not completely abated ([41]-[43]).
Further, the offender had no criminal history and made efforts to improve himself while in custody through education and work opportunities. Lasry J was satisfied that there was some evidence that he was capable of leading a law-abiding and productive life, and that his prospects of rehabilitation depended on his compliance with treatment for his mental health and substance misuse ([44]-[45]).
Lasry J was satisfied that the principles arising from Verdins meant that the offender’s moral culpability was significantly reduced. Community protection was not a significant sentencing consideration provided that his serious mental health issues were properly managed ([53]). The offender was sentenced to 20 years’ imprisonment with a non-parole period of 14 years.
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to murdering the victim. The offender’s partner of around 9 years, Hogan, pleaded guilty to assisting him. The relationship between the offenders involved homelessness, drug use and domestic violence. In 2015, while the offender, Considine, was serving a term of imprisonment, Hogan and the victim met on Facebook and commenced an intimate relationship. When the offender was released from prison, Hogan and the victim ended their relationship, but resumed social media communication in 2017. The offender, Considine, became aware of this relationship. Considine and Hogan arranged a threesome with the victim. The offender became jealous of the sexual activity between Ms Hogan and the victim, and strangled the victim to death. Ms Hogan assisted the offender to dispose of the body.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: The offender, Considine, began consuming alcohol and taking drugs as a teenager. A forensic psychiatrist diagnosed the offender with Borderline Personality Disorder and believed that he likely had an acquired brain injury (ABI). He therefore concluded that it was likely the offender was experiencing severely impaired impulse control at the time of the offending due to his intoxication with multiple substances and Borderline Personality Disorder and probable ABI ([49]). Champion J accepted this opinion at [71]. The offender also had an extensive criminal history, however very few of his convictions involved violence ([52]). The offender’s moral culpability was reduced by various factors, including his intellectual impairment and personality disorder ([71]). The offender’s guilty plea showed a willingness to accept responsibility for the victim’s death and spared the victim’s family and friends from the traumatic effects of a contested trial ([73]). His Honour also accepted that the offender was remorseful for having killed the victim, even though this took some time to develop ([76]). The offender was sentenced to 21 years’ imprisonment with a non-parole period of 16 years ([115]).
Ms Hogan also commenced using drugs at an early age and had a minor criminal history ([56]-[57]). It was submitted that her role in the offending could not be separated from the nature of her relationship with the offender which was ‘marred by domestic violence, control and drug use’. It was also submitted that these circumstances reduced her culpability ([86]). Champion J considered that her experience of domestic violence was a factor relevant to the establishment of her state of mind, and mitigated the circumstances of her offending to some extent ([90]). She also decided to cooperate with the police and offered to plead guilty at an early stage ([94]). His Honour accepted that she was genuinely remorseful for the victim’s death ([96]). Ms Hogan was sentenced to one year and 10 months’ imprisonment ([118]).
Charges: Murder x 1.
Case type: Sentencing.
Facts: The accused ‘[inflicted] his will on a woman [the deceased] by the use of fatal violence in her home’. They had maintained a relationship over several years, which ended as a result of her family’s disapproval. The deceased later remarried and had a child. The accused and the deceased later re-established their relationship, but it was ‘marked by periods of instability’ [8]. In 2017, the deceased became engaged to another man. On 13 July 2017, the accused visited the deceased’s residence, where they ‘apparently had a sexual encounter’ while her child was asleep [10]. The accused killed the deceased by holding her underwater in a bath. The accused then removed her body from the bath, partially dressed her in clothes, and placed the body in his car. He drove the deceased’s body from Melbourne to South Australia, as he intended to deposit it in the ocean. He also purchased 2 knives and inflicted superficial incisions to his wrist. The accused decided to return to Melbourne where he deposited the body in the garage of an unoccupied property that he had previously leased. He confessed to killing the deceased to his friends and family, but said that she had told him to kill her and that he had tried to kill himself. At the police station, the accused gave conflicting evidence on his feelings about the deceased’s relationships with other men.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Lasry J inferred that the appellant’s self-inflicted injuries were not a genuine attempt to suicide, but a means of explaining his involvement in the killing by reference to a ‘suicide pact’ ([14]). By reference to Ron Felicite v The Queen [2011] VSCA 274, his Honour noted that the seriousness of the offending required the imposition of significant punishment ([27]). It represented the accused’s endeavour, through the use of fatal violence, to control the deceased, and to overpower her rejection of their relationship ([23]). Relevant sentencing principles included general deterrence, denunciation and just punishment. His Honour also noted aggravating circumstances, including the fact that the killing occurred in the deceased’s home while her child was asleep in the nearby room, and that he abandoned the child when he drove off with the deceased’s body ([26]).
Lasry J also considered the peculiarity of the accused’s guilty plea. It was given in circumstances which made it difficult for his Honour to determine whether it was a sign of genuine remorse over the deceased’s death. The accused would have derived a greater benefit had he pleaded guilty at an earlier time ([31]-[34]). Personal circumstances of the accused were also considered. He was born in Turkey, raised in an environment of domestic violence, lived in foster homes, did not receive any formal education in Australia, maintained employment since the age of 18, and had no prior convictions for violence ([35]-[37]). The accused’s steady employment throughout his adulthood and lack of prior criminal convictions indicated positive rehabilitation prospects ([38]). The sentence was also determined in light of victim impact statements ([28]-[30]).
His Honour sentenced the accused to 23 years’ imprisonment with a non-parole period of 18 years ([42]). He allowed some discount for the accused’s guilty plea. As his Honour was not satisfied that the accused’s guilty plea reflected significant remorse or acceptance of responsibility for his conduct, only a small discount was made ([44]).
Charges: Attempted murder x 2; intentionally causing serious injury x 1.
Case type: Sentence.
Facts: The offender had maintained an incestuous relationship with his sister since he was 17 years old, and they have a child together. While they were still living together, but after their relationship ended, his sister began an intimate relationship with the first victim. The offender, while intoxicated, entered the first victim’s house which he shared with his mother. The offender found the first victim and his sister asleep in bed together, and stabbed them both repeatedly and also stabbed the first victim’s mother who intervened. The offender pleaded guilty to 3 offences: the attempted murder of the first victim (charge 1) and his own sister (charge 2), and intentionally causing serious injury to the first victim’s mother (charge 3).
Issue: The Court determined the appropriate sentence for the offences in the circumstances.
Held: Beale J sentenced the offender to 19 years’ imprisonment, with a non-parole period of 14 years. The offender was sentenced as a Serious Violent Offender on charges 2 and 3 pursuant to the Sentencing Act 1991.
Notwithstanding the offender’s relative youth, good work history, limited prior convictions and guilty plea, his Honour could not accept the submission that the offender had good prospects of rehabilitation. The violence was extreme and sustained, and the offender had a history of binge drinking. Even though his intimate relationship with his sister had ended, his ability to cope with any future relationship difficulties and to control his drinking was uncertain ([48]).
The offender’s personal history is discussed at [29]-[41]. He was born in the Cook Islands and raised by his grandparents after his parents abandoned him as an infant. He moved to Australia in 2009 with his parents and his sister. Beale J noted the possibility that he would be deported from Australia at the end of his sentence. This was a relevant factor in determining the sentence ([52]).
The mitigating factors of the case were summarised at [56]-[64]. The offender had a difficult childhood which partly caused him to develop an incestuous relationship with his sister. A lack of parental supervision when they were teenagers was also found to be a contributing factor. The offender pleaded guilty at a relatively early stage, showed remorse, is relatively young, and has a limited criminal history and no violent antecedents.
Aggravating circumstances, noted at [65]-[70], were that the offending involved a ‘terrifying’ home invasion; the attack with knives was not momentary, but sustained; the offending against his sister was an instance of domestic violence given their long-term incestuous relationship; the injuries inflicted on his sister and the first victim were life-threatening; and the offender had a prior conviction for incest, which clearly did not lead him to end his intimate relationship with his sister.
A useful table of summaries of various sentencing cases in respect of attempted murder is also annexed to the judgment. In addition to these cases, his Honour also had regard to the Judicial College of Victoria Sentencing Manual’s attempted murder case collection and the Court of Appeal overview regarding intentionally causing serious injury ([54]).
Charges: 1 x murder
Case type: Sentencing
Facts: The accused pleaded guilty to the murder of his wife to whom he had been married for 44 years. The accused was 65 years old and had retired. He had four children with the victim, as well as grandchildren. The accused regarded his relationship with the victim as having ‘broken down’. He shot her twice in the head and then attempted to kill himself. The accused’s sister and their grandson were present at the time of the offending.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held:: To determine the appropriate sentence, Coghlan JA took into account the accused’s personal circumstances. He suffered from depression and anxiety since he was a teenager ([27]). He had stopped working a few years prior to the offending, and experienced financial difficulties ([28]). He was resentful of the amount of time his wife was spending with her parents ([6]), and over time, he started to scrutinise her spending habits, including the cost of caring for their grandchildren and her parents ([29]). Further, the accused and victim had made significant contributions to their local community ([30]-[31]).
The accused’s mental health was a major consideration for the Court. There was medical evidence indicating that he suffered recurrent depressive disorder of moderate severity ([38]), and that aspects of his processing speed, working memory, complex new learning skills, executive and language skills, and impulse control had deteriorated ([40]). There were suggestions by medical professionals that he might have suffered from either frontotemporal dementia or Alzheimer’s related dementia. Another expert suggested that his frontal lobe might have been damaged as a result of his attempted suicide ([43]). It was important to determine the precise cause of the brain damage as his life expectancy differed depending on his diagnosis ([45]). His Honour sentenced the accused on the basis that he had been diagnosed with frontotemporal dementia, which had a life expectancy of 8 years ([51]). This diagnosis affected the weight to be attributed to sentencing principles, such as just punishment, denunciation and deterrence ([52]). As a result of the accused’s ‘complex medical condition’, there was a significant delay in sentencing ([2]), which was also taken into account ([3]).
Coghlan JA was satisfied that the accused’s mental condition would render his prison sentence more onerous than it would for a prisoner without his condition ([54]), and that his moral culpability and the need for denunciation, general and specific deterrence were reduced ([53]). The accused pleaded guilty, had no prior convictions and was found to have led a ‘worthwhile and...blameless life’ ([56]). Taking into account all relevant matters, the accused was sentenced to 15 years’ imprisonment with a non-parole period of 10 years.
Charges: Manslaughter by unlawful and dangerous act x 1.
Case type: Sentence.
Facts: The female offender pleaded guilty to killing the male victim, with whom she had been in a relationship for just over 12 months. By her plea of guilty, she admitted to intentionally stabbing the victim and that she had no lawful excuse for doing so ([2]). The offender and victim were heavy drug users which led to repeated heated arguments about money ([6]). The victim died from a stab wound to the neck in ‘terrible and terrifying circumstances’ ([54]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Emerton J sentenced the offender to 9 years’ imprisonment with a non-parole period of 6 years and 9 months. Her Honour noted that the offender’s personal circumstances were relevant not only to her moral culpability, but also to her sentencing ([56]). She had a long history of substance and drug abuse, and had previously been in a series of dysfunctional and destructive relationships, all of which involved drug use. Two of these relationships produced children and one involved physical violence ([63]). Her Honour described the offender’s relationships with men as those often associated with ‘women who are vulnerable and sad’ ([66]). Even though the victim and offender were engaged in heavy drug use, the victim had no prior history of violent relationships and was reportedly patient and caring towards the offender and her daughter ([67]). Nevertheless, there was evidence of the victim behaving violently towards the offender, described at [17]-[18].
Her Honour did not accept the submission that the offender’s moral culpability for the killing was reduced by reason of it being a response to violence inflicted on her by the victim. Her Honour found that the killing occurred in the context of a dysfunctional relationship characterised by heavy drug use and the resulting disorder and conflict ([70]). However, the offender’s disadvantaged background was found to have diminished her moral culpability to some extent ([78], [86]).
The offender’s upbringing was marked by an absent father and physically abusive mother who was dependant on drugs and alcohol. She had been in relationships with adult men since the age of 14 that were emotionally, physically and financially abusive, and often involved substance abuse. Emerton J recognised that her abusive and dysfunctional upbringing was relevant to the determination of an appropriate sentence. Another important consideration was the fact that the offender is an Aboriginal person and a descendant of a member of the stolen generation ([84]-[85]).
Emerton J considered the offender’s prospects of rehabilitation to be good, given her work history, remorse, absence of previous offending and efforts she made on remand to ‘turn [her] life around’ ([87]-[92]). Nevertheless, her long history of drug use gave rise to a need for specific deterrence ([95]).
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender and victim met while visiting Australia from India, and eventually married. Three months later, the offender killed the victim in a knife attack in their shared home ([3]). On the night of the murder, the offender and victim argued, which ultimately resulted in the offender obtaining a knife and stabbing the victim ([9]-[14]). She suffered 12 wounds to her chest, abdomen, arm and leg. The offender’s actions were described as ‘sustained, purposeful and ruthlessly determined’. Even after the offender was restrained in a head lock and dragged from the bedroom by a man with whom they lived, he returned to the room to resume the attack ([15]).
Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.
Decision and reasoning: Taylor J took into account the offender’s personal circumstances at [26]-[31]. He was 43 at the time of the offending and his work history showed him to be ‘a man of industry’ ([29]). However, his father was an aggressive alcoholic ([28]). Prior to meeting the victim, he had been in two significant relationships, one of which was an arranged marriage ([31]).
The offending was found to be ‘self-evidently extremely serious’, as the killing of a domestic partner violates a fundamental principle underpinning society, namely, that all persons have the right to safety, respect and trust in intimate relationships. Whether or not the marriage was one of convenience, his Honour noted that the offender had voluntarily entered into a relationship in which he owed the victim kindness and safety. Rather, the offender betrayed her trust and the expectation that, even where issues in family relationships arise, violence is not tolerated. Even if the offender was fearful, angry, intoxicated or frustrated, he should have just walked away ([33]). Women should not fear or suffer physical harm because their partner loses their temper. The offender’s actions were found to be at the extreme end of the scale of ‘abominable acts’ ([34]). Aggravating circumstances included the fact that the victim was his wife, that she was murdered in their home, that a knife was used, and that despite the number of wounds already inflicted, the offender continued his attack, even after being physically restrained by another person ([35]-[36]). The public has an interest in matters involving family violence. Principles of general deterrence, denunciation and just punishment are relevant to sentencing ([35]). The objective gravity of the offending and the moral culpability of the offender was also found to be very high ([38]).
The offender pleaded guilty after the committal hearing, demonstrating a willingness to facilitate the course of justice ([39]). He also surrendered himself to the police station and admitted the killing. His remorse was further expressed in a letter of apology to the victim’s family ([40]).
Taylor J sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years ([46]). After the expiry of his sentence, it was noted that the offender would be deported to India. Knowledge of this deportation was said to make imprisonment more burdensome ([41]). Taylor J also noted that the offender would be isolated in custody ([42]). The offender’s prospects for rehabilitation were found to be good, as a result of some positive references indicating his good character and hardworking nature ([43]).
Charges: Murder x 1.
Case type: Ruling as to evidence.
Facts: The prosecution alleged that the accused killed the deceased at their home on the morning of 29 June 2016, put her body in the boot of her car and drove it to Macedon Regional Park where he concealed it between 2 logs in a forest. It was discovered approximately 8 months later. The accused and deceased had been married for over 20 years and had a daughter. There was no prior history of physical violence on the part of the accused. However, he admitted to pushing the deceased on occasions if she ‘got in his face’ during arguments ([34]). The prosecution conceded that the evidence at most supported an inference that their financial difficulty was significant and may have fuelled an argument between them ([24]).
Issue: Whether the prosecution was entitled to rely on evidence of post-offence conduct to prove not only an unlawful killing but also murderous intent.
Held: Beale J noted some similarities with R v Baden-Clay [2016] HCA 35. However his Honour found that the differences between the two cases were ‘more striking’. At [37], his Honour stated -
‘First, there was compelling evidence of a motive for Baden-Clay to kill his wife – a desire to be rid of her so he could be with his lover. Second, the post-offence conduct in that case included lies and other conduct directed at concealing his ongoing extra-marital affair. In other words, the post-offence conduct was intertwined with his motive to kill and thus it is easy to see how the High Court, viewing the post-offence conduct on the basis of the evidence as a whole, reached the conclusion that it did.’
In the present case, the prosecution submitted that the accused’s post-offence conduct was inconsistent with his having unintentionally killed the deceased, as one would expect him to report the incident, and not bundle her body into the boot of a car, drive to a remote location, conceal the body and lie about the circumstances of her disappearance to family, friends and investigators ([35]). Counsel for the accused submitted that he could well have feared that the unlawful killing of the deceased would attract a substantial prison term and cause permanent damage to his relationship with his daughter ([36]). Beale J found that those submissions made it difficult to see how a jury could properly find that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed his wife with murderous intent ([36]).
Beale J held that while the evidence of post-offence conduct referred to in the prosecution’s amended Notice of Incriminating Conduct could be relied on as evidence that the accused killed his wife, it could not be relied on to prove that the accused did so with murderous intent ([31]–[39]).
Charges: Murder x 1.
Case type: Sentence.
Facts: The defendant pleaded guilty to murder of his partner (the deceased) with whom he fathered a daughter. After their daughter’s birth, their relationship became strained. The defendant resented the deceased’s change of employment and her being around other men. He became jealous and constantly concerned about possible infidelity. The deceased’s behaviour became more obsessive and paranoid. He even set up a fake Facebook and Instagram account to contact the deceased’s work colleagues under the fake name to establish if anything was happening between the deceased and her male colleagues ([3]-[11]). After a heated argument in which the deceased expressed her desire to end the relationship, the defendant picked up a dumbbell bar and hit her multiple times to her face and head. The blows, forceful and vicious, killed her immediately. After committing the offence, the deceased rang his mother and admitted to his actions. His mother rang the police ([12]-[19]).
Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.
Decision and reasoning: Champion J sentenced the defendant to 24 years’ imprisonment, taking into account general and specific deterrence, denunciation, rehabilitation and protection of the community. His Honour considered the defendant’s personal circumstances at [39]-43]. The defendant grew up in a close, supportive and loving family. Through his job he was able to buy a home for himself, thus demonstrating his independence and self-sufficiency. Friends and family observed that he became agitated and alienated after his daughter was born.
Champion J did not accept a complete lack of premeditation even though the defendant committed the offence in a highly emotional state. The ‘savagery’ of the assault affected the sentencing. The act in question was terrible and grossly violent. It was not fleeting and involved multiple deliberate blows to the face and head. His Honour noted the defendant’s intention to kill. An aggravating feature was the fact that she was his intimate partner ([65]-[66]). Champion J therefore concluded that his offending was a grave example of murder and above the middle range of seriousness ([67]). However, it was noted that the extreme violence was out of character as there was no evidence of previous domestic violence incidents ([90]).
Champion J discussed his culpability and degree of responsibility at [68]-[73]. The offending occurred in the context of the defendant being extremely jealous, possessive and controlling. At [73] Champion J stated: ‘I note that these features of jealousy, the need to possess, and uncontrollable rage associated with extreme violence emerge too frequently in cases of the murder of an intimate female partner.’ The attack was described as grievously inappropriate and a wildly disproportionate response to the situation. Therefore, his culpability and degree of responsibility was within the higher range. A mitigating factor was the fact that the defendant admitted to killing the deceased very soon after the act, and thus his Honour found that it he should receive the full benefit of that early plea as it facilitated the course of justice and relieved the deceased’s family and friends from having to give evidence and endure the trauma of a trial ([76]). With these factors in mind, his Honour accepted that the defendant has positive prospects of rehabilitation.
Charges: Manslaughter
Proceedings: Sentencing
Facts: Before moving to Australia from America, the victim sent four packages containing firearms to the accused’s parents’ address in Australia. Three of these packages were intercepted by the Australian Border Force. ‘The [female] victim and [male] accused were charged with the importation and possession of firearms and were bailed’ [10]. They decided to ‘go on the run’, packing their belongings and purchasing a caravan to escape in. Arrest warrants were issued after the pair failed to appear in court, but they managed to evade the police [11].
The couple lived in the caravan for a couple of weeks prior to the incident. On the night of the shooting, both the accused and the victim were intoxicated and were arguing. The accused physically assaulted the victim during the argument while the victim was in possession of the loaded firearm. The two struggled for the weapon, with the accused eventually gaining possession and deliberately pulling the trigger. The accused did not aim the weapon or deliberately shoot the victim, although ‘there is no suggestion the firearm was defective in anyway’ [17].
The accused later pleaded guilty to manslaughter.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Decision and reasoning:: The accused was sentenced to 11 years’ imprisonment with a fixed non-parole period of 8 years. Relevantly, the sentencing judge observed at [48]:
The sentence I pass must make it perfectly clear that the Court deplores the use of firearms, all the more so against women in a setting of domestic violence...... The sentence of this Court should bring it clearly home to any person in our community who might be minded to inflict violence of any sort against a domestic partner, particularly with the use of a weapon, that such conduct will be met with strong punishment.
Charges: Murder x 1
Facts: The offender met the deceased, a 29 year old woman with a mild intellectual disability, on an internet dating site. The deceased was particularly vulnerable as she was guarded about her relationships and sometimes did not inform her family as to her whereabouts. Her parents obtained a guardianship order at VCAT because of their concern that she was unable to protect her own interests. The deceased had told her family and friends of the offender’s violent behaviour towards her. The offender often exhibited jealousy, anger and verbal aggression when the deceased interacted with other men. The deceased’s body was found in the offender’s room three days after she was reported missing, with restraint marks on her wrists, bruising to her face and upper body, and a ‘tram track’ mark on her back. She also sustained brain injuries, indicating multiple blows to the head. Her wrists were bound and her neck and face were wrapped in tape. An autopsy revealed that she consumed the drug GHB prior to her death. It was entirely plausible that the deceased was alive, albeit unconscious, when the offender left the premises.
Issues: Sentencing
Decision and Reasoning: The offender was found guilty of murder and sentenced to 25 years’ imprisonment with a non-parole period of 20 years. The jury rejected the offender’s defence that the deceased’s death was caused solely by her consumption of GHB. At the time of the incident, the offender regularly abused drugs, and suffered from personalty disorder and long-term anger management problems which may have affected his judgment and ability to make calm and rational decisions ([24]). The deceased was also in a particularly vulnerable position due to her intellectual disability. His Honour considered the offender’s personal circumstances which included his parent’s separation, his upbringing which was characterised by substance abuse and family violence, his experience in several foster placements in which he exhibited violent behaviour, and his diagnoses of ADHD, oppositional defiant disorder and conduct disorder. His involvement in the criminal justice system began when he was a minor, and his violent offending included numerous convictions of assault. Given his history of mental health problems and violent prison incidents, his Honour accepted that he should remain in conditions more restrictive than those of other prisoners.
Charges: Charges including false imprisonment, recklessly causing injury, unlawful assault, aggravated burglary, theft and threat to kill.
Proceeding type: Bail application.
Facts: The applicant and complainant were married for 13 years and have three children. The complainant claimed that the marriage ended because of the applicant’s controlling and intimidating behaviour. From the time of the separation, a series of interim and final Family Violence Intervention Orders (FVIOs) were in place restraining the applicant from contacting the complainant. The applicant breached many of the FVIOs. It was alleged that the applicant, armed with items intended to incapacitate the complainant, unlawfully entered her premises, interfered with a CCTV camera which might have recorded his subsequent conduct, and then waited for her. He grabbed her from behind, forced her to the ground, sought to bind her wrists and gag her, pushed her into her own home, and again forced her to the ground, binding her ankles. He threatened her in a graphically and frightening manner whilst she was bound and helpless. The children returned home from school and heard the complainant screaming. The complainant eventually escaped ([46]). The applicant submitted that a combination of a number of matters demonstrated a compelling reason that justified a grant of bail (see [34]).
Issues: Whether bail should be granted; Whether there was a compelling reason why the applicant’s detention in custody was not justified; Whether the applicant presented an unacceptable risk of committing further offences, endangering the safety or welfare of the complainant and interfering with witnesses.
Decision and reasoning: Section 4AA of the Bail Act 1977 (Vic) sets out circumstances in which a two-step test applies to the consideration of a grant of bail. Step 1 requires the existence of exceptional circumstances and compelling reasons. Step 2 mandates that the Court must apply the unacceptance risk test. In considering whether or not the applicant established compelling reasons that justified the grant of bail, the Court must take into account the surrounding circumstances (see s 4C and s 3AAA of the Act). The Court was required to assess ‘the nature and seriousness of the alleged offending, including whether it is a serious example of the offence’ (see s 3AAA(1)(a)).
There was no question that the offending alleged was serious. It was pre-meditated and involved the use of equipment to incapacitate the complainant. Only the escape of the complainant prevented a continuation of the offending. The Court found that the applicant’s lawyer’s reliance of an ‘arguable defence’ was ‘somewhat optimistic’ ([48]). The Court also considered the applicant’s criminal history and the extent of compliance with conditions of earlier grants of bail. Although his criminal history was limited and there was nothing to indicate previous breaches of bail, the Court noted two factors, namely, that the applicant failed to accept the breakdown of his marriage, and that he refused to respect the orders of the Magistrate Court in relation to the complainant. A significant matter was the fact that, at the time of the alleged offending, the applicant was approximately six weeks into a six month adjourned bond which he received for his multiple breaches of the FVIOs. Matters pursuant to s 3AAA(1)(g), (j), (k), (l) were also considered.
At [57], his Honour noted that the risk of further violence or intimidation by the applicant towards the complainant was significant and entirely unacceptable (see s 4E of the Act). The application for bail was therefore refused as the applicant failed to establish a compelling reason that would justify the grant of bail. The circumstances suggested that the applicant should be held in custody pending trial.
Charges: Murder x 1.
Proceeding type: Ruling as to the admissibility of evidence.
Facts: The accused allegedly murdered the victim (her defacto partner) by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The prosecution sought to lead evidence from the deceased’s mother as to the nature of the relationship between the accused and the deceased. That evidence included 1) that the mother observed instances of verbal and physical abuse between the deceased and accused over a number of years; 2) that in 2010, the mother observed a particular argument between the deceased and the accused in which the accused physically assaulted the deceased before the deceased’s brother intervened; and 3) that in November 2016, the mother received a phone call from the deceased, claiming that he was fearful for his own life. The prosecution filed a Hearsay Notice with respect to the ‘November 2016 incident’. Sections 65(2)(b) and 66A of the Evidence Act 2008 (Vic) were relied upon as the path to admissibility.
Issues: Whether the deceased’s mother’s observations of instances of verbal and physical abuse between the accused and the deceased were admissible; Whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused; Whether the representations made by the deceased to his mother concerning an earlier incident with the accused are admissible.
Decision and reasoning: The prosecution argued that the deceased’s mother’s evidence was admissible as relationship and context evidence in that evidence of the poor relationship between the accused and the deceased could rationally affect the assessment of the probability of the existence of the question in issue, namely whether the accused killed the deceased. The accused argued that the relationship evidence was not relevant and that the evidence of the November 2016 incident failed to satisfy the tests specified in s 65(2)(b) and s 66A of the Act ([7]).
On an analysis of the particular evidence, Taylor J made the following observations:
Charges: Murder x 1.
Proceeding type: Ruling as to the admissibility of evidence.
Facts: The accused allegedly murdered the victim by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The Prosecution filed a Notice, pursuant to s 19 of the Jury Directions Act 2015 (Vic), of its intention to adduce evidence of incriminating conduct, namely, the lies told by the accused in describing the circumstances of the deceased’s death, and the accused’s authorship of a letter purporting to be under the hand of Amanda Thatcher and which implicated Mr Baxter in the death of the deceased.
Issues: Whether the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Decision and reasoning: The Court held that there was sufficient evidence on which the jury could be satisfied that the accused’s multi-faceted statement as to how the incident took place was deliberately false. The conduct relied on by the prosecution was much more than a bare denial of guilt, and amounted to a detailed account of the deceased’s death. Therefore, the jury could conclude that the only reasonable inference that could be drawn from the evidence was that the accused believed that she committed the offence. Accordingly, the prosecution was allowed to rely on the conduct specified in its notice, namely the lies told by the accused describing the circumstances of the deceased’s death, as evidence of incriminating conduct ([24]-[27]).
Charges: Charges include rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material
Proceeding type: Application for bail
Facts: The complainant was the former partner of the applicant. They have three children. The applicant was charged with 64 offences including rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material.
Issues: Whether bail should be ordered; Whether the applicant discharged his onus of showing compelling reasons why his continued detention is not justified.
Decision and reasoning: The applicant’s application for bail was refused as he failed to show compelling reasons why his continued detention was not justified. Taylor J noted that if he had been satisfied that a compelling reason existed justifying the grant of bail, he must apply the unacceptable risk test. In considering s 5AAAA(2)(a) of the Bail Act 1977 (Vic), Taylor J considered that there was a risk that, if released on bail, the applicant would commit family violence. His blatant disregard of the court orders and the effect of his behaviour on the complainant, was exemplified by the 1200 text messages he had sent to the complainant between September 2017 and March 2018. His preparedness on two occasions to continue a sexual offence notwithstanding his knowledge that his actions were being audio-recorded further indicated a complete indifference to the complainant, as well as a sense of entitlement ([57]). His prior convictions for matters of family violence demonstrated continuous disregard for the authority of the court and the complainant’s safety and wellbeing. If released on bail, the risk of family violence would not be able to be sufficiently mitigated by the imposition of a bail condition requiring compliance with existing FVIOs ([59]).
Charges: Negligence claims.
Case type: Application for summary dismissal.
Facts: The plaintiffs, a woman and her three children (who identify as Aboriginal), were the victims of family violence by the children’s father. They alleged that police officers and senior officers owed duties of care to them as victims of family violence, and that they suffered psychological harm as a result of breaches of those duties. The plaintiffs also asserted that the officers acted in breach of the plaintiffs’ human rights and obligations as public authorities under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ([40]). The defendant submitted that the alleged duties cannot arise at law and that the proceedings should be summarily dismissed ([41]). Alternatively, the defendant sought a strike out of the allegations of a common law duty of care pleaded in certain paragraphs of the plaintiffs’ amended statement of claim on the basis that no cause of action had been disclosed ([3]). The plaintiffs contended that the current law in Australia regarding the application of duties of care to police officers is ‘in a state of development’ and that, as a result, the court ought not summarily dismiss the proceedings ([87]).
Issue: The State of Victoria sought either a summary dismissal of the case or that the Court strike out the claims alleging that a common law duty of care was owed.
Held: Dixon J dismissed the application, stating that the defendant’s contention that the proposed duties of care have no real prospect of succeeding had not been established ([174]). Dixon J held that a summary dismissal is an ‘extreme measure’ and would ‘forever shut out’ the plaintiffs from seeking to prove their claim at trial ([169]). Although the case was ‘fact rich and fact intensive’, the defendant did not persuade his Honour that no duty of care could arise ([171]).
Duty of care
Dixon J stated at [170]:
‘Australian common law has not affirmatively recognised that a police officer can never owe a duty of care… In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevail in respect of domestic violence at the relevant time.’
As outlined in Kuhl v Zurich Finance Services Australia Ltd [2010] HCA 11, the existence of a duty of care is determined by considering reasonable foreseeability and the salient features of the relationship between the plaintiffs and the defendant ([168]). The plaintiffs argued that the police officers owed them a duty of care to prevent breaches of several Intervention Orders (IVOs) by the father due to the existence of a relationship of proximity between the police officers and the plaintiffs, arising from various salient features, including that:
The defendant argued that some of the pleadings in the plaintiffs’ amended statement of claim were too broad. The submission was that these duties were that, ‘every’ police officer owed a duty to ‘every’ affected family member named in any and ‘every’ extant IVO ([53]). In response, the plaintiffs argued that the duties were ‘owed by police officers at stations local to the plaintiffs’ homes, by reason of their status as family violence victims’ or, alternatively, as ‘victims of a recidivist family violence offender known to police’ ([58]). Dixon J accepted the plaintiffs’ submission that the duty was not pleaded in unnecessarily broad terms ([59]).
Salient Features
Dixon J noted that as the existence of a novel duty of care was alleged, the court must apply the salient features approach in Crimmins v Stevedoring Industry Finance Committee[1999] HCA 59 ([90]). A determination of the existence of a duty of care requires ‘[a] close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury’ ([91]).
The plaintiffs submitted that the salient features of foreseeability, knowledge, control and responsibility applied ([129]). They challenged the defendant’s reliance on Hill’s Case [1989]AC 53, emphasising that the salient features of proximity, knowledge and control were absent in Hill’s Case. Dixon J held that Hill’s Case was distinguishable, even if it was good law in Australia ([94]-[95]). The plaintiffs also emphasised the dissenting judgment in Michael v Chief Constable of South Wales Police [2015] UKSC 2, which viewed proximity as the determinative factor ([102]). The plaintiffs submitted that NSW v Spearpoint [2009] NSWCA 233 was analogous, and that it was persuasive authority for their submission that the proceedings could not be summarily dismissed ([114]-[115]).
In relation to the factor of control, Dixon J accepted that the relevant focus was on control of the risk not the offender, and that the issue of control is ‘fact sensitive and a matter for evidence’ ([135]). The plaintiffs suggested that the police officers exercised control by having the father in a police vehicle and dropping him within the zone identified in one of the IVOs ([137]).
Charges: Manslaughter based on an unlawful and dangerous act x 1
Proceeding type: Sentence to be imposed
Facts: The female offender was in a relationship with the male victim, with a history of illicit drug use and domestic violence. In April 2015, the victim grabbed the offender around the throat and threatened to harm and kill her. In October 2015, the victim pushed the offender. She armed herself with a knife and returned to the bedroom to confront him. He grabbed her by the throat, and verbally and physically assaulted her. She was pregnant at the time with his child. In December 2016, there had been a heated verbal argument between the parties. She stabbed him in the chest with a kitchen knife. The offender pleaded guilty.
Issues: Sentence to be imposed.
Decision and Reasoning: Taylor J took into account victim impact statements ([20]-[21]), and the offender’s prior criminal history ([22]-[26]) and personal history ([27]-[41]). The offender had been sentenced to a term of imprisonment for a charge of recklessly causing injury by punching and stabbing a former partner. She had experienced trauma at an early age as she was raped by two of her brother’s friends. She was diagnosed with post-traumatic stress disorder and excoriation disorder. Her psychological condition did not warrant the application of the principles in R v Verdins [2007] VSCA 102. Her Honour accepted that there had been a history of domestic violence at the hands of the victim and that, on the balance of probabilities, physical violence had occurred the morning of the victim’s death. The gravity of her offending was to be assessed in the context of her history of family violence and her perception of a physical threat. At [48], her Honour stated –
‘Family violence is insidious. It need not find expression in physical violence to be described as grave or create a mindset in its victims of fear and helplessness. That mindset arises from all forms of violence experienced by victims and is not triggered only at the time of a physical assault…’
Her Honour accepted that her plea of guilty was an expression of genuine remorse, and that her time in custody would be more burdensome due to the separation from her children, as well as her diagnosed psychiatric illnesses. Specific deterrence was considered a significant sentencing factor, as well as general deterrence and denunciation. At [58], her Honour acknowledged that ‘This Court must pass a sentence that denounces your behaviour and deters others from resorting to the use of knives or other sharp objects during conflicts.’ The offender was sentenced to nine years’ imprisonment, with a non-parole period of seven years.
Charges: Contravention of family violence intervention order x 1; Intending to cause harm or fear x 1; Unlawful assault x 2; Home invasion x 1; Aggravated burglary x 1; Theft x 2.
Case type: Application for bail.
Facts: The applicant was arrested for a family violence incident and an unrelated home invasion ([1]). The family violence incident occurred between the applicant and the victim, who were in a relationship for 4 years and had a 22-month-old son ([7]). The applicant accused the victim of changing his Centrelink account details and cheating on him. He grabbed the victim by her arms, pushed her to the ground, and hit her face, head and hands. The victim left the house and called for help with a payphone ([8]-[9]). The applicant pleaded guilty to one charge of assault and one charge of breaching a family violence intervention order.
Issues: Whether bail should be granted. Because the home invasion charge involved the use of an offensive weapon, the applicant was required to show cause why his detention in custody is not justified, pursuant to s 4(4)(c) of the Bail Act 1977 ([23]).
Decision and Reasoning: Bail was granted.
Champion J considered the following factors in favour of the applicant:
Champion J considered the following factors against the applicant:
Champion J considered that the applicant has shown cause why his detention in custody is not justified ([62]). His Honour remarked that while the level of violence towards the victim was unacceptable, it did not involve the use of a weapon, threats to kill or the infliction of significant physical injury ([64]).
Charges: Murder.
Case type: Ruling on relevancy of evidence.
Facts: The female accused Lo was charged with murder and perjury. It is alleged that AB shot the deceased and that the accused Lo assisted, encouraged and directed AB in those actions. The accused was a Chinese national living with the deceased prior to the murder.
The central issue of this trial was whether the evidence provided by a marriage celebrant was relevant. The marriage celebrant provided evidence that he visited the deceased’s home in relation to proposed plans for him and the accused to marry. The Defence submitted that this confused the jury, and that it was counter-intuitive to the Crown’s case. It was also submitted that if the evidence was put before the jury, there would be a risk that the jury would be misled into thinking that the deceased wanted to marry the accused because he loved and cared for her. This would require the Defence to adduce evidence to show an alternative scenario that the deceased had been actively seeking to marry a young Asian woman and had told others of his willingness to facilitate such a person getting an Australian visa through such an arrangement ([3]-[6]). The Defence submitted that consideration of this issue would be time-consuming and distracting for the jury, and the evidence of the marriage celebrant was not sufficiently relevant to allegations of the accused’s complicity in the murder ([7]).
Issues: The Court was required to determine whether the evidence of the marriage celebrant was relevant.
Decision and reasoning: Under the Evidence Act 2008 (Vic), evidence is prima facie admissible if it is relevant. In order to exclude the evidence, the defendant bears the onus of showing that the danger of unfair prejudice outweighs the probative value. Dixon J held that the marriage celebrant’s evidence was relevant and admissible as context and relationship evidence ([22]), and that the Defence should be entitled to adduce evidence supporting a counter-narrative that the deceased had been interested in marriages with other women prior to the murder ([27]). Her Honour was of the view that evidence as to the events in the house the night before the murder, and evidence of the complex nature of the accused’s and deceased’s relationship was relevant. Any unfair prejudice arising from the jury learning about a planned marriage of convenience between the accused and deceased did not outweigh the probative value of the evidence ([25]). The marriage celebrant’s evidence was found to have significant relevance to the issues in the trial ([27]), and to be admissible relationship evidence.
Charges: Manslaughter x 1.
Case type: Sentence.
Facts: The defendant and deceased were in a relationship for 2 years. There was a history of arguments, physical violence and cannabis and methylamphetamine use ([2]-[7]). On the day of the offence, the defendant and deceased argued for 3 hours, during which the defendant tried to leave the house, and the deceased dragged her back inside ([9]). The defendant stated in later interviews that the deceased would not let the defendant leave and goaded her into stabbing him ([25]). By the time the police attended, the defendant had stabbed the deceased ([11]-[12]).
Issues: Sentence to be imposed.
Decision and Reasoning: Hollingworth J imposed a head sentence of 7 years’ imprisonment with a non-parole period of 4 years ([50]).
Her Honour had regard to the fact that the defendant had a limited criminal history and displayed some evidence of post-traumatic stress disorder and major depressive disorder ([40]). Her Honour also reduced the sentence for the defendant’s early guilty plea: the defendant was charged with murder but pleaded guilty to manslaughter a month before her trial was due to begin ([43], [50]). The defendant displayed remorse for her actions ([45]) and had begun counselling in custody ([46]).
Charges: Intentionally causing injury x 3; Recklessly causing injury x 5; Unlawful assault x 3; Contravening family violence intervention order x 3.
Case type: Bail application.
Facts: The applicant and the complainant had been in a relationship for 10 years and had 2 children ([2]). The complainant alleged three events forming the basis of the charges. First, the applicant kicked and punched her, drove her to the hospital, dragged her from the car and left her at the entrance. Second, the applicant chased her in his car, dragged her out of her car, and punched her. Third, the applicant forced his way into her house, urinated on her, and punched her ([14]-[22]).
Issues: The applicant was required to ‘show cause why his detention was not justified’, under s 4(4)(ba)(i) of the Bail Act 1977 (Vic).
Decision and Reasoning: Bail was refused.
The applicant argued that he was entitled to bail because he had stable accommodation, was willing to comply with strict bail conditions, and that the prosecution case was not strong because it relied mostly upon the complainant’s evidence. The applicant intended to challenge the credibility of the complainant ([24]). The prosecution argued that the applicant had a lengthy criminal history including violence, has shown disregard for previous family violence intervention orders, and has committed offences while on bail ([47]-[48]).
Justice Champion at [57]-[59] discussed the applicant’s contention that the prosecution case is weak because it relies on the complainant’s evidence:
… the prosecution points out that cases involving family violence frequently involve ‘word on word’ evidence and that this is often the very nature of these types of cases. The prosecution submits that this circumstance does not of itself warrant the prosecution case as being regarded as weak, or without merit.
It is clear enough that the case will be strongly defended, and that there are arguable issues to be decided. That said, it was not submitted to me that the case should be regarded as inherently weak.
From what I have been able to glean in this application I cannot conclude that the prosecution case is weak.
Charges: Murder x 1.
Appeal type: Sentence.
Facts: The defendant and victim were estranged. The defendant made open threats to kill the deceased, slut-shamed her to her family and friends, nuisance-calling her at work, and following her and her new boyfriend. The deceased took out a protection order against the defendant. Shortly before a Family Court hearing, she was stabbed by the defendant, and was found dead by her sons ([7]). At a pre-trial hearing, relationship evidence was admitted (see DPP (Victoria) v Paulino (Ruling No 1) [2017] VSC 343 (17 June 2017)) After a jury trial, the defendant was found guilty.
Justice Bell referred the case to the Victorian Systemic Review into Family Violence Deaths unit at the Coroners Court. The function of the unit includes identifying risks associated with deaths resulting from family violence. His Honour highlighted features of this case, including that:
Issues: Sentence to be imposed.
Decision and Reasoning: The defendant was sentenced to a period of 30 years with a non-parole period of 25 years.
Justice Bell placed importance on the fact that current sentencing practices being more condemnatory of men murdering women ([25]), the circumstances of stalking and breaches of intervention orders leading up to the murder ([27]), and the murder was premeditated ([29]).
Charges: Contravention of a family violence safety notice intending to cause harm or fear for safety x 1; Destroying or damaging property x 1; Aggravated burglary x 1; Attempted murder x 1; Intentionally causing serious injury x 1; and Recklessly causing serious injury x 1.
Case type: Bail application.
Facts: The applicant attended the house of his former partner and her new partner (the victim), and forced his way in by breaking the window ([7]-[8]). The applicant stabbed the victim’s head and hands with a piece of broken glass, leaving him with permanent injuries ([9]).
Issues: The applicant was required to ‘show cause why his detention was not justified’, under various sub-sections of s 4(4) of the Bail Act 1977 (Vic). For example, the appellant was charged with contravening a family safety notice in which he was alleged to have used violence and, in the previous 10 years, had been found guilty of the same charge (s 4(4)(ba)(i)) ([12]).
Decision and Reasoning: Bail was refused.
The applicant had argued that because he has been given notice that he is an unlawful non-citizen, he would be put straight into immigration detention and therefore would not pose a risk of committing another offence ([14]).
Priest JA held that there was an unacceptable risk that the applicant would commit further offences against his former partners. Most importantly, the applicant had a history of breaching family violence orders ([20]). Therefore, the risk of the applicant committing further violence could not be mitigated by strict bail conditions ([21]). Furthermore, there was no guarantee that the applicant would be put straight into immigration detention ([17], [20]).
Charges: Intentionally causing injury x 1; Recklessly causing injury x 1; Unlawful imprisonment x 1; Unlawful assault x 3; Unlawful assault using an instrument x 2; Unlawful assault by kicking x 1; Threatening to inflict serious injury x 1; Unlawful assault with a weapon (a steak knife) x 1; Making a threat to kill x 2; Kidnapping x 1; Common law assault x 2; Reckless conduct placing a person in danger of death x 1.
Case type: Bail application.
Facts: All charges related to one 12-hour period, where the applicant allegedly assaulted his wife by: banging her head on the floor and striking her with an iron; punching, kicking and strangling her with a lamp cord; and threatening to take her somewhere to be raped, and threatening to kill her while holding a steak knife ([6]).
Issues: Since the applicant was charged with an indictable offence involving the use of a weapon, the issue was whether he could ‘show cause’ why his detention was not justified (s 4(4)(c) Bail Act 1977 (Vic)) ([3]).
Decision and Reasoning: Bail was granted, with strict conditions. Significant factors against granting the applicant bail included: the charges are serious; and it could not be said granting bail would pose no risk to the complainant ([14]). On the other hand, significant factors in favour of granting bail to the applicant were: he had no criminal history; and the risk to the complainant could be ameliorated by strict conditions such as requiring him to reside with his mother, engage in drug treatment, and removing his access to firearms ([14], set out in full at [17]). Justice Beach stated: ‘There is considerable merit (and potential benefit for both the applicant and the wider community) in addressing the applicant’s drug, and any mental health, issues now rather than later’ ([15]).
Charges: Manslaughter x 1; Breach of domestic violence order x 1.
Case type: Sentence.
Facts: The defendant and deceased had been in a relationship. After consuming alcohol and methamphetamines, the defendant beat the deceased in their home with punches, kicks, and hit the soles of her feet with a hammer ([5]). The deceased was discharged from hospital, but died of internal bleeding the next day ([8]-[9]). The defendant pleaded guilty to manslaughter.
Issues: Sentence to be imposed.
Decision and Reasoning: Bell J imposed a sentence of 12 years’ imprisonment, with a non-parole period of 9 years. His Honour considered that the contravention of a domestic violence order made it a serious example of manslaughter ([32]).
Bell J at [33]:
“Denunciation and specific and general deterrence are sentencing principles through which the law gives effect to the fundamental purpose of protecting individuals and the community from crime. Ms Cay and all other women have an inviolable human right to life, to equality – not just the appearance of equality but to real equality, to physical and emotional integrity, to respect for their dignity and personal autonomy, to loving relationships with children and others, and to freedom from fear of physical or mental harm. They look to the law for protection from men who would perpetrate crimes of assault or homicide upon them in a domestic setting by reason of failing to control their anger, aggression and rage. While the police cannot be present in every home on every occasion of risk, the values and standards of human behaviour that the criminal law demands are omnipresent. The courts must respond appropriately through the sentencing process when those standards are severely or seriously breached, as they have been in this case, for this vindicates the individual interests of victims in seeing that perpetrators are brought to justice, as well as the general interests of the community in seeing that justice is so done, and also performs the important educative function of positively influencing how the community, and especially men, value, respect and treat women.”
His Honour thought that the defendant had good prospects of rehabilitation, but the defendant’s efforts to stop drinking was not a mitigating factor ([27-[28]).
Charges: Murder.
Case type: Pre-trial hearing.
Facts: The defendant and deceased had been in a relationship, and had two children ([3]). They separated acrimoniously in 2010 ([3]). The defendant was accused of murdering the deceased. The prosecution wished to lead evidence relating to the relationship between the accused and deceased ([4]) in order to establish that the accused’s enmity and hatred towards the deceased was the motive for the murder ([5]). The evidence included: threats made by the defendant; relationship evidence; the fact that the accused had an intervention order taken out against him by the deceased; and the accused’s actions in relation to a pornographic video allegedly depicting the deceased.
Issues: Whether the ‘relationship evidence’ should be admitted.
Decision and Reasoning: Justice Bell set out the relevant principles in relation to the Court’s mandatory duty to exclude evidence where the probative value is outweighed by the danger of unfair prejudice to the accused (see [33]-[36]). In this context, evidence of a poor relationship between the accused and deceased has been admitted where that evidence may be relevant to whether the accused killed the deceased and whether the accused had a motive to do so ([37]).
Threats
The deceased’s statements about her fear of the accused (for example, that if something happened to her, it would be because of the accused) were not admissible. In deciding the admissibility of a victim’s fear of the accused perpetrator, the issue is ‘whether the evidence of the deceased’s fear of the accused was relevant to the probability of the existence of a fact in issue, usually whether the accused had a motive for killing, and actually did kill, the deceased’ ([57]). However, the statements were merely evidence of her subjective state of mind, not the accused’s ([70]). Further, the content and volume of evidence would be highly prejudicial to the accused ([71]).
By contrast, evidence of threats made by the accused to kill the deceased and her family were admissible, because it was relevant to the accused’s state of mind towards the deceased ([76]).
Relationship evidence
Evidence of the defendant’s feelings of hatred and enmity towards the deceased was admissible ([42]-[43]). However, most the evidence of the state of their marriage before 2010 was not relevant ([41], [51]). Bell J held that the jury should be told generally that the marriage was unhappy ([85]-[87]), but not the precise details of the aggressive behaviour of the accused ([88]).
Intervention order
Evidence of the intervention order was admissible as a feature of the relationship leading up to the death of the deceased ([91]). There was a danger of unfair prejudice to the accused, but that could be mitigated by proper instruction ([92]).
Pornographic video
The accused had alleged that the deceased had participated in a pornographic video, and had shown his colleagues and the deceased’s family ([94]). Evidence of the video and the accused’s actions were admissible to demonstrate the extremely negative attitude of the accused towards the deceased ([96]).
Charges: Murder.
Case type: Application to discharge jury.
Facts: The defendant was on trial for stabbing his former partner. His son gave evidence that the defendant usually carried a knife. Defence counsel applied to discharge the jury on the ground that the ‘propensity evidence’ was highly inflammatory and could not be cured by a direction ([2]). The next day, a newspaper article was published about the son’s evidence ([35]-[36]).
Issues: Whether the jury should be discharged.
Decision and Reasoning: Jane Dixon J declined to discharge the jury ([31], [45]). Her Honour considered that any prejudice to the accused could be cured by a direction to the jury ([31]). Her Honour gave two anti-tendency warnings ([35], [43]), and intended to give another curative direction in her Honour’s final address ([44]).
Charges: Murder.
Hearing: Sentence.
Facts: The victim was the male offender’s de facto wife. After drinking 15 beers at their house party, the offender started punching and pushing the victim. A friend tried to intervene but was pushed away. He then picked up a steel-framed chair and hit the victim with such force that that one of the legs went through her skin and bone and penetrated her brain.
Decision and Reasoning: Elliot J sentenced the offender to 21 years and six months imprisonment with a non-parole period of 17 years and six months. In passing this sentence, His Honour made some general observations on domestic violence at [28]-[30]:
‘The courts clearly recognise that they must forcefully condemn domestic violence (See, e.g., R v Earl [2008] VSCA 162, [23]). When domestic violence manifests in murderous conduct, that conduct must be denounced in the strongest terms (Felicite v The Queen (2011) 37 VR 329, [20]; Portelli v The Queen [2015] VSCA 159, [30]).
Moreover, general and specific deterrence have special significance in cases involving domestic violence. In such circumstances, general deterrence is more important as “[t]he victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities” (Pasinis v The Queen [2014] VSCA 97, [57]).
Also, specific deterrence is often more important, as it is in this case, because “women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously”’ (Pasinis v The Queen [2014] VSCA 97, [53]).
Charges: Defensive Homicide.
Hearing: Sentence.
Facts: The defendant was charged with murdering her de facto partner but was found guilty of defensive homicide. She struck the deceased to the head 16 times with an axe. She buried the deceased’s body in the backyard and lied about his whereabouts to family and friends for more than four years, claiming that he had gone interstate. The defendant gave an account of a violent fight which led to the deceased’s death which included the deceased taunting and goading the defendant. She attested to a long history of family violence by the deceased.
Issue/s: The appropriate sentence to be imposed.
Decision and Reasoning: The defendant was sentenced to 8 years’ imprisonment, with a non-parole period of 5 years. In finding the defendant guilty of defensive homicide, the jury had to be satisfied that the killing took place in the context of a serious history of family violence. Hollingworth J noted at [20] that, while there was no evidence that the defendant or her children had ever complained about family violence, this is not uncommon.
The deceased was the dominant person in the relationship. He had a long history of violence and drank heavily. His behaviour towards the defendant ‘over many years, was abusive, belittling and controlling, and involved both physical and psychological abuse’ ([26]). Her Honour noted, ‘The final act or acts of the deceased may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased’ ([32]).
The Court heard (largely unchallenged) expert evidence from Professor Patricia Easteal regarding the complex dynamics of family violence, the reasons why women often do not leave violent partners and the use of weapons by female victims of family violence against male partners ([33]-[34]). Given this evidence, Her Honour noted that while ordinarily, striking 16 blows with an axe in response to a minor physical and verbal attack by an unarmed attacker would seem disproportionate, this may not be the correct conclusion in family violence cases involving a female offender ([36]). However, aggravating factors included the defendant’s deceit and a lack of remorse. Her offending had a large impact on the deceased’s family.
Charges: Murder.
Proceeding: Pre-trial hearing.
Facts: The defendant was on trial for the murder of his de facto partner. He argued that he shot his de facto partner in self-defence. He alleged that his partner perpetrated psychological and physical violence against him over the course of the relationship. He successfully argued that the killing was in self-defence and was thus acquitted.
Issue/s: One of the issues concerned whether evidence of family violence or ‘social framework’ evidence within the meaning of the then s 9AH of the Crimes Act 1958 (Vic) was admissible.
Decision and reasoning: The evidence was admitted. Maxwell P held that family violence was alleged as required by the section. As such, evidence such as ‘the cumulative effect, including psychological effect, on the person or a family member of (family) violence’ was relevant in determining whether self-defence was made out. Significantly, his Honour held that, ‘There will be no basis for an objection on grounds of relevance…’, though there could be other available grounds of objection (see at [16]).
Charge/s: Criminal damage, make threat to kill x 2, reckless conduct endangering life, intentionally causing injury.
Hearing: Sentence hearing.
Facts: The offender and the complainant were married. After an argument, the offender fatally shot the complainant’s dog. He then reloaded the rifle and began chasing the complainant as she ran towards the road yelling, ‘I’m going to fucking kill you…You’re fucked’. The complainant stopped running and tried to negotiate with the offender. She managed to grab hold of the gun and forced the applicant to fire both of the shots from the rifle. The offender then pushed her over and started punching her repeatedly in the head and chest, trying to reach other cartridges he had in his pocket. The complainant managed to get up and flag the attention of a passerby.
Decision and Reasoning: The offender was sentenced to a total effective sentence of four years imprisonment, with a non-parole period of two and a half years. In passing sentence, Bell J noted at [67]:
‘Denunciation of your crimes and general deterrence are powerful sentencing considerations in your case, leading to an immediate sentence of imprisonment. Ms Fuller was your wife. You are guilty of committing appalling domestic violence towards her. Many of your actions were not only violent but calculated to belittle and demean her and place her in abject fear. The double barrel shotgun was a common feature of all five charges and it was loaded when the first four offences were committed. This criminal conduct deserves the strongest condemnation of the court. Others must be made to appreciate the consequences of committing crimes of this nature’.
Charge/s: Intentionally causing serious injury.
Hearing: Sentence hearing.
Facts: The offender and the victim, his wife, came to Australia from Vietnam on tourist visas. After the offender became suspicious the victim was seeing another man, he stabbed the victim multiple times in the chest and abdomen.
Decision and Reasoning: In sentencing the offender, Curtain J took into account the offender’s plea of guilty, his lack of prior criminal history, the fact that the offender would be separated from his children for a number of years, and that the offender was remorseful and distressed by his conduct. Her Honour also accepted that the offender’s prospects for rehabilitation were favourable. However, in opposition to these factors, Curtain J held at [42]-[43]:
‘Against these matters stand the nature and gravity of the offence here committed. This is a serious example of a serious offence. It involves the infliction of serious violence upon your wife which is a gross breach of the trust which reposes between husband and wife. I take into account also the need to pass a sentence which will act in denunciation of your conduct and serve to punish you and also give due weight to special and general deterrence.
Although such considerations are to be sensibly moderated, nonetheless, the sentence imposed must signal to the community that acts of violence, including domestic violence, are not tolerated and warrant condign punishment’.
In the circumstances, a sentence of seven years imprisonment with a non-parole period of five years was appropriate.
Charge/s: Murder.
Hearing: Sentence hearing.
Facts: After being in an ‘on and off relationship’ for some years, the male offender and the female victim separated. One evening, the offender entered the victim’s home and battered her repeatedly on the head with a rubber headed mallet. He then took a dressing gown cord and strangled her to death.
Decision and Reasoning: Osborn J noted that while the killing was not premeditated and it occurred in a state of high emotion arising out of the disintegration of the offender’s relationship with the victim, there were nevertheless five seriously aggravating circumstances associated with this crime. First, the killing was brutal, protracted and vicious. Second, the killing was selfishly callous. The offender knew he was not only taking the life of another individual but also taking away the mother of four innocent children. Third, the killing took place in what should have been the safety of the deceased’s own home. Four, a substantial penalty was warranted in light of the need for general deterrence. As per His Honour at [31]:
‘The Court and the community which it represents cannot tolerate resort to violence, let alone homicidal violence, in circumstances of this kind. The Court must send a clear message to estranged parents that they cannot act as you did and expect to receive other than a penalty which affirms the sanctity of individual human life and condemns in the strongest terms the deliberate taking of another life even in circumstances of strong emotion’.
Finally, the offender displayed a total lack of remorse for his conduct. The offender was sentenced to 20 years imprisonment, with a non-parole period of 15 years.
See also R v Gojanovic (No 2) [2007] VSCA 153 (14 August 2007).
Charge/s: Intentionally cause serious injury.
Hearing: Sentence hearing.
Facts: The female victim ended her relationship with the male offender and gave him money to fly back to London, where he was from. Upon returning to England, the offender felt humiliated and angry and decided to return to Australia to punish the victim. He purchased a rubber mallet to break into the victim’s house and a roll of duct tape. When the victim arrived home, the offender started stabbing her with a knife. She managed to fight him off and called the police.
Decision and Reasoning: This offence was serious. As per Gillard J at [57]:
‘A person in a relationship with another has every right to terminate the relationship and walk away without fear of reprisal. Too often, upon the termination of a relationship, the physically stronger person pursues a course of conduct of harassment and violence towards the other person. That is what has happened here. Your conduct was serious and has had a long-lasting, emotional effect upon the victim. The Legislature views any offence under s16 as serious. The circumstances surrounding the commission of this offence supports that conclusion and you are guilty of a high level of criminality’.
There were a number of factors that aggravated the offending namely that the conduct was premeditated, the offender waited for the victim in her home, his conduct caused the victim terror and fear, and the conduct had a long-lasting emotional effect on the victim. His Honour was satisfied that specific deterrence was not warranted on the facts but that general deterrence was important i.e. the sentence had to send a message to those who are like-minded to use their superior physical strength to punish a partner in a relationship after it has terminated.
His Honour also took into account a number of mitigating factors namely, the offender frankly admitted his involved, he pleaded guilty at the first opportunity, there was no criminal history, the physical injuries were at the lower end of the scale, the sentence would be onerous because the offender was English, the offence was out of character, it was unlikely he would reoffend, and his prospects for rehabilitation were good. The offender was sentenced to six years imprisonment with a non-parole period of four years.
Charge/s: Murder.
Hearing: Sentence hearing.
Facts: The offender and a young woman, Ms Park, had been in a relationship and had a child together, the victim. This relationship was characterised by the offender’s jealousy and possessiveness towards Ms Park and the victim. Eight months after the victim was born, Ms Park left the relationship. The offender resented his obligation to financially support the child and began to deeply resent Ms Park. Four months before the victim’s death, the offender began telling people he was going to kill himself and his son, to take him away from Ms Park. One night, the offender took the child to a hotel and smothered him. He then wrote a letter to Ms Park telling her he had killed the victim.
Decision and Reasoning: In sentencing, Cummins J took into account, as mitigating factors, the offender’s poor family situation, the burdensome quality of imprisonment to the offender, his age, his lack of prior convictions and the rehabilitative courses he undertook while in custody. However, His Honour stated at [25]:
‘Of all the rights of the child, the most fundamental right of all is the right to life. It is necessary that parents and others in charge of children unmistakably understand that child abuse will be met by the full force of the law. The intentional killing of a child by a person without psychiatric illness or other significantly mitigating factor will ordinarily be met with life imprisonment of the offender’.
Cummins J also noted the significant importance of condemnation, punishment, general deterrence and specific deterrence. The offender was sentenced to life imprisonment with a non-parole period of 24 years.
Charges: 11 charges, including rape x 2; destroying or damaging property x 1; causing injury intentionally or recklessly x 1; threats to kill x 3; assault x 3; stalking x 1
Case type: Sentence
Facts: The majority of offending was committed against Ms Burgess (the victim), with whom the male accused was in an intimate relationship ([12]). Their relationship was marred by excessive drug and alcohol consumption, physical and sexual violence and stalking. The accused regularly argued with the victim about his paranoid suspicions concerning her infidelity ([13]). The controlling and obsessive behaviour became more severe over time. On one occasion, the victim threatened to stab him before self-harming, demonstrating the level of stress she was suffering at the time ([17]). The accused’s controlling behaviour continued. He checked her emails and social media accounts, accessed her phone without permission and tracked her location. He also broke her phone after she refused to give it to him ([18]-[20]).
On 5 October 2017, he raped ([23]-[24]) and physically abused the victim ([25], [27]) and threatened to cut her throat ([26]). A week later, he pushed the victim to the ground after she had told him that their relationship was over and demanded him to leave the premises ([29]). After this incident, the accused was arrested, and released on bail with conditions prohibiting contact with the victim ([30]). Despite this order, he continued to text and ring the victim, track her location and loiter near her home. One evening, the victim allowed the accused to enter her house, where he accused her of sleeping with other people, physically assaulted her and grabbed her phone ([34]-[40]). The accused continued to contact the victim, causing further distress and fear, and later threatened to cut the victim’s and a police officer’s throat ([41]-[43]).
There was a significant delay in resolving the matter, and the accused was unrepresented for most of the proceeding, including the plea hearing. His guilty pleas were entered at the commencement of trial ([51]-[52]). The Court held that "the fairest and most appropriate course" was to ensure that he was not punished for adopting a "somewhat uncooperative approach" ([56]), and that his guilty pleas still entitled him to a sizeable reduction in sentence ([57]).
Held: The accused’s personal circumstances and criminal history are discussed at paragraphs [58] to [75]. He abused alcohol and drugs from an early age, and had previously seen doctors for drug dependency, depression, drug psychosis and attempted suicides. Although he had suffered numerous head injuries, a neuropsychologist concluded that he did not have an acquired brain injury ([64]-[65]). He also has a significant criminal history, including past convictions for recklessly causing injury, indecent assault, contravening a family violence intervention order, and making threats to kill ([69]-[70]). He has also been convicted of a number of offences against former intimate partners and has breached a family violence safety notice on several occasions ([71]-[73]).
The Court found that the accused’s conduct was "absolutely appalling". He had "gained [the victim’s] trust and formed an intimate relationship with her only to go on to degrade and demean her at the whim of [his] paranoid obsessions". The rape, assaults and threats to kill demonstrated the kind of behaviour to which she was subject for the duration of their relationship ([85]). The rape was particularly serious, because it was committed in the context of an initially trusting and intimate relationship, and involved the use of force and violence ([86]). The charge of stalking was also serious as the accused went to great lengths to control and abuse the victim in a "pathologically unfeeling" manner. He also knowingly disregarded court orders intended to protect the victim from his conduct ([87]). The Court assessed his moral culpability for the offending as "very high", and accepted the prosecutor’s submission that the physical and sexual violence he inflicted on his partner requires just punishment and strong denunciation ([88]). Further, the accused had prior convictions, indicating a tendency to treat intimate partners violently ([89]). The accused appeared to have some "incipient insight" into his conduct and the necessary steps to address his drug problem and attitude towards women ([92]). Whilst he apologised for his behaviour, the Court did not place a great deal of weight on that assertion as there was no evidence that indicated that he was genuinely remorseful for the harm caused to the victim. The Court was also not confident of his prospects for rehabilitation, but took into account that any sentence imposed must not be crushing ([93]).
Consequently, the Court granted the Crown’s application to have the accused report under the Sex Offenders Registration Act 2004 for the "rest of [his] life" as he poses a real risk to the sexual safety of women ([95]-[101]). He was convicted of all charges (except one count of rape), and was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 7 years ([115]).
Charges: Unlawful assault whilst in the place of another person without that person’s consent x 1; attempted murder committed in the course of an aggravated home burglary x 1
Case type: State appeal against sentence
Facts: The respondent was convicted after trial and was sentenced to 15 years’ imprisonment on the count of attempted murder in the course of an aggravated home burglary and to 3 years’ 6 months' imprisonment for unlawful assault, to be served concurrently such that the total effective sentence was 15 years.
The respondent man and his female ex-partner had been in a relationship for approximately 10 years and had 4 children. They separated in 2017. The respondent had difficulty accepting the end of the relationship, particularly the prospect of his ex-partner dating other men. On the night before the offending the respondent fabricated an incident by texting himself purporting to be from a man who recently had sex with her. The next morning, the respondent broke in to her house and asked her to reconcile. She declined and told him that another man was in her bed (the victim). The respondent took a knife from the kitchen and threw it across the room then left.
Later than morning he returned armed with a knife, assaulted the victim and slashed him across the face causing life-threatening injuries. He also attacked the victim with a screwdriver. The respondent left the house with the knives and began to cut his own wrist with one of them.
The trial judge made the following findings of fact: (1) the respondent did not act in self-defence, but attacked the victim with dangerous weapons; (2) the respondent entered the bedroom with the intention of killing the victim, and this intention was not only momentary; (3) the attack on the victim was premeditated - after leaving the house on the first occasion, he returned with a weapon and entered the house without consent and with an intention to attack the victim; (4) the attack was persistent and violent; (5) the attack resulted in a very serious injury to the victim’s face and was likely to have endangered his life without medical treatment. The victim now has permanent facial disfigurement; (6) the respondent fled the scene and rendered no assistance to the victim; (7) the offending likely traumatised his ex-partner; (8) the respondent did not accept responsibility for his offending and sought to blame the victim; and (9) the respondent displayed limited remorse and victim empathy ([34]).
The respondent had a prior criminal record, including a conviction for domestic violence in relation to his ex-partner so was not a person of previous good character ([36]). He had used drugs since he was 18 years old, experienced marked issues with emotional arousal and regulation, and was diagnosed with ADD as a child. Further, longstanding issues with trust, impulsivity, a sense of betrayal, being made a fool of, perceived injustices and poorly developed decision making and coping skills were relevant factors in his offending. The trial judge did not accept that the respondent's health issues, including ADD and epilepsy, reduced his moral culpability for the offending or reduced the necessity for general deterrence.
Issue: The appellant sought leave to adduce further evidence and appealed his conviction on the basis that the verdict was unreasonable or could not be supported having regard to the entirety of the evidence. He also submitted that the evidence against him was unreliable, inconsistent and not capable of supporting a verdict of guilty on Count 3, and that there was no corroborative evidence in relation to the complainant’s allegations as to how the strangulation occurred. The Crown argued that whilst there were weaknesses in the complainant’s evidence in terms of her reliability, those factors were fairly outlined by the trial judge in the summing up, and that the complainant’s evidence was able to be supported by other evidence.
Ground: Ground: The sentence was manifestly inadequate.
Held: The Court allowed the appeal, and imposed a total effective sentence was 17 years’ imprisonment ([86]). The Court considered the maximum penalty, the statutory minimum penalty, the facts, circumstances and seriousness of the offending (including the victim’s vulnerability and circumstances), the importance of appropriate punishment and personal and general deterrence as sentencing considerations, and all aggravating and mitigating factors. It held that the sentence of 15 years' imprisonment was not commensurate with the seriousness of the respondent's offending, and was substantially less than the sentencing outcome that was properly open to the trial judge ([77]).
S 283(2) Criminal Code was introduced "to ensure that burglars who commit numerous home invasions, which can involve serious violent offences, are incarcerated for longer periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to reflect community abhorrence of such offending" ([56]). Section 6(1) Sentencing Act 1995 (WA) provides that a sentence must be commensurate with the seriousness of the offence ([59]). The respondent’s offending was a serious example of offending of this type. The attack was premeditated, persistent, and was carried out with weapons. The respondent’s intention to kill the victim was not held only momentarily, but was present while he was inflicting the injuries. After attacking the victim, he fled the scene and rendered no assistance to him ([70]). Although his prior criminal record did not aggravate the seriousness of the offending, it indicated that he was not entitled to leniency on the ground that he was of previous good character ([72]). He did not take responsibility for his actions and denied criminal responsibility ([74]). Mitigating circumstances were limited: he had a difficult and problematic childhood, made appropriate concessions at trial which facilitated the administration of justice, showed some remorse and victim empathy, and completed a number of courses and had positively responded to his incarceration ([76]).
Charges: Possessing an offensive weapon in circumstances likely to cause fear to other persons x1; Attempted murder x1;
Appeal type: State appeal against sentence
Grounds: The sentence for the charge of attempted murder was manifestly inadequate having regard to:
Facts: The respondent man pleaded guilty to the charge of possessing an offensive weapon and was convicted following trial of the charge of attempted murder. He was sentenced to 4 years’ imprisonment for possession of an offensive weapon and 9 year’s imprisonment for attempted murder. The sentences were backdated to the day of offending and ordered to be served concurrently, resulting in a total effective sentence of 9 years’ imprisonment. The ground of appeal relates to the sentence imposed on the charge of attempted murder.
At the time of offending the respondent was the subject of a violence restraining order (‘VRO’) which prevented the respondent from contact or communicating with his former wife (Radovic) or any of their three children. The day before the offending, the respondent made an application seeking to vary the terms of the VRO. The former wife was opposed to the changes and the matter was adjourned. The next day, the respondent attended the workplace of Radovic’s brother armed with a samurai sword. Radovic’s brother was not there at the time. Later that day, the respondent went to the unit Radovic’s brother and sister shared, banged on the door and shouted threats to kill them. The Respondent did not know that Radovic and her children lived in the unit adjacent to her siblings’. Some of the children witnessed the display and police were called to the scene. The officers arrived in a marked vehicle and attended Radovic’s unit to take the children’s statements. Radovic arrived shortly after.
The Respondent returned to the unit while police were still there with the samurai sword and began to brandish his sword in a manner that caused fear to those present, constituting the first charge, while threatening to kill them. A witnesses alerted the police and the officers left the unit and approached the respondent. The respondent rushed towards one of the officers with the sword raised, prompting the officer to discharge his taser at the respondent, to no effect. The respondent then swung the sword and forcefully struck the officer’s head. This action formed the basis of the attempted murder charge and caused two lacerations. The respondent was eventually subdued and arrested.
Judgment: The sentence for attempted murder was manifestly inadequate and the respondent was re-sentenced to 13 years’ imprisonment.
None of the previous cases concerned truly comparable offending [60]. There is no tariff or usual sentencing range for a charge of attempted murder, sentences are variable and while all offences are very serious each case will turn on its own facts [61]. This was a very serious example of offending [62]. The Court found the fact that the fact that the victim was a police officer executing his duties was a "profoundly aggravating feature" [64]. They noted that "[p]olice officers are often required to place their safety at risk in carrying out their duty to protect the public. It is vital that the courts impose significant custodial sentences upon offenders who intentionally cause serious injury to police officers acting in the course of their duties" [63]. Personal and general deterrence were thought to have particular importance especially in light of the respondent’s criminal history [66]. In light of the limited mitigation available to the respondent, it was found that the sentence was "substantially less than the sentence open on a proper exercise of the sentencing discretion" [72] because of the seriousness of the offence and aggravating features.
Charges: Being armed in a way that may cause fear x 1; aggravated home burglary x 1; act intended to cause grievous bodily harm or prevent arrest committed in the course of an aggravated home burglary x 1.
Case type: Applications for leave to adduce additional evidence, application for leave to appeal against conviction following guilty pleas
Grounds:
Facts: The appellant was convicted on his guilty pleas of being armed with a dangerous instrument, namely a knife, in circumstances likely to cause fear to any person (Count 1), aggravated home burglary (Count 2), and unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm in the course of the aggravated home burglary, contrary to s 294(1) and (2) Criminal Code (Count 3). On Count 3, the appellant was sentenced to 15 years' imprisonment, and received concurrent terms of imprisonment with respect to the other offences. Count 3 on the indictment was amended on the day of the appellant's sentencing. The appellant claimed that he had not been advised of the nature of the amended charge or that the amended charge carried a mandatory 15 year sentence of imprisonment.
The circumstances of the offending are as follows. In 2016, the appellant and victim met through an online website, and commenced an intimate relationship. Their relationship eventually broke down, and a violence restraining order protecting the victim was served on the appellant in late-2016. In 2017, the appellant breached the restraining order by attempting to communicate with the victim via mobile. He called the victim 243 times in an attempt to contact her. The appellant continued to breach the order by following the victim to her sister’s unit. Once inside the unit, he slashed and stabbed the victim with a knife in a frenzied and concerted attempt to seriously injure her. The victim feared that she was going to die. Family, neighbours and other members of the public intervened in the appellant’s assault, and he was eventually restrained.
Held: Applications for leave to adduce additional evidence granted; application for leave to appeal on ground 1 granted, appeal dismissed; applications for leave to appeal on grounds 2 and 3 dismissed. It is difficult to set aside a conviction based on a guilty plea, because there is a strong public interest in the finality of proceedings. There are 3 well-recognised circumstances in which courts may set aside guilty pleas: (1) the appellant did not understand the nature of the charge or intend to admit guilt; (2) upon the admitted facts, the appellant could not, in law, have been guilty of the offence; or (3) the guilty plea was obtained by improper inducement, fraud or intimidation ([44]-[46]). The appellant alleged that he suffered a miscarriage of justice because had he been informed that he would be liable to be sentenced to a mandatory minimum sentence of 15 years' imprisonment, he would have pleaded not guilty ([50]).
Mazza and Beech JJA rejected the submissions that the appellant did not understand the element of intent in Count 3 ([88]) and the fact that if he pleaded guilty to Count 3, he would be liable to a mandatory minimum sentence of 15 years’ imprisonment ([89]-[106]). The appellant understood the advice which he was given ([97]). Their Honours also dismissed the alleged abuse of process for two reasons: first, there was no abuse in the making of an application to amend the indictment, and second, the amendment was unnecessary and did not prejudice the appellant because he was liable to the minimum term stipulated in s 294(2) regardless of whether the indictment stated that the offence was committed in the course of a home burglary ([111]). After analysing the authorities, their Honours determined that the State was not required to plead that fact in order to make the offender liable to the mandatory minimum penalty in s 294(2) ([123]). Ground 3 was found to have no reasonable prospects of success, as the appellant did not suffer a miscarriage of justice as a result of his counsel failing to seek an adjournment of the sentencing principles ([128]-[129]).
Allanson J agreed with the orders and reasons of Mazza and Beech JJA, but believed that it was not necessary to decide whether the State was required to plead that the offence in Count 3 was committed in the course of conduct that constituted an aggravated home burglary in order to make the appellant liable to the mandatory minimum penalty in s 294(2) of the Code. That the appellant failed to show that he did not understand the indictment, as amended, or the advice given to him, was sufficient reason to refuse leave to appeal on Ground 2 ([133]).
Charges: Aggravated grievous bodily harm x 1; Aggravated assault occasioning bodily harm x 1; Aggravated sexual penetration without consent x 6; Attempted aggravated sexual penetration without consent x 1.
Appeal type: Prosecution appeal against sentence.
Facts: The respondent attended his grandparents’ house. He attacked his grandmother and his half-sister. He punched his grandmother and threw her to the ground. He then attempted and committed acts of sexual penetration on his half-sister including inserting his finger and penis into her vagina and anus performing cunnilingus on her ([34]-[56]).
A circumstance of aggravation was that his relationship with both victims was a family and domestic relationship. In relation to his half-sister, another aggravating circumstance was that he threatened to kill her. In relation to his grandmother, another aggravating circumstance was that she was over the age of 60 ([27]).
The respondent pleaded guilty and was sentenced to a total effective sentence of 6 years 6 months’ imprisonment ([1]-[2]).
Issues: Whether the sentence was manifestly inadequate; whether the total effective sentence infringed the first limb of the totality principle by not reflecting the overall criminality.
Decision and reasoning: The appeal was allowed. All three Justices agreed that the respondent should be resentenced to 12 years’ imprisonment but differed on the appropriate individual sentences.
Mazza and Beech JJA identified the mitigating factors identified by the trial judge (including his pleas of guilty, remorse, prior good record, relatively young age, negative familial experiences and previous bullying) entitled the respondent to some mitigation of his sentence ([93]). However, the individual sentences for each offence were judged to be manifestly inadequate having regard to the maximum sentences and the seriousness of the conduct. Their Honours would have imposed a total sentence of 15 years, but after having a ‘last look’ to ensure that the total sentence measures the respondent’s overall criminality, determined that a sentence of 12 years was appropriate ([115]-[116]).
Buss P would have imposed a total effective sentence of 12 years’ imprisonment without requiring a ‘last look’. His Honour imposed slightly different sentences for each individual count compared to Mazza and Beech JJA ([20]-[21]).
Charges: Grievous bodily harm x 1.
Appeal type: Appeal against sentence.
Facts: In 2017, the respondent, a Walmajarri man, pleaded guilty to, and was convicted of, one count of unlawfully doing grievous bodily harm in circumstances of aggravation. The respondent was in a family and domestic relationship with the victim and the offending occurred when he was in breach of a violence restraining order which prohibited him from contacting or being within 50 metres of the victim. The respondent and the victim had been in a relationship for approximately three or four years, and had one child aged three at the time of the offence. The relationship had ended due to various incidents of domestic violence. On the night of the offence, the respondent was heavily intoxicated. He found the victim engaging in sex with his brother and subsequently violently assaulted her by throwing her to the ground and jumping on her chest, legs and head. He made attempts to hide from the police and initially gave the police a false name. The victim sustained numerous serious injuries resulting in quadriplegia. The primary judge imposed a sentence of three years and 8 months’ immediate imprisonment.
Issues: It was submitted that the sentencing judge fell into error because the sentence was manifestly inadequate on the following grounds:
Decision and reasoning: The Court allowed the appeal, set aside the sentence imposed by the sentencing judge and re-sentenced the respondent. The Court found that the respondent committed ‘a frenzied, savage and relentless attack upon a vulnerable, unarmed and defenceless woman’ ([68]). He inflicted serious injuries despite the victim’s repeated pleas for him to stop attacking her. Their Honours also highlighted that the victim was left permanently disabled with limited prospects of improvement. The respondent had a significant prior criminal history including previous convictions for violent offending against the victim. This history of violence indicated that he should not be afforded any leniency on the ground that he was of good character. Mitigating factors included the respondent’s plea of guilty, his remorse and acceptance of responsibility and the adverse effects of his troubled upbringing ([72]). Although the ongoing effects of his childhood deprivation may have diminished his moral culpability, the consequences of his behaviour rendered him a serious threat to women with whom he is or has been in a relationship. Their Honours therefore held that the initial sentence was not merely ‘lenient’ or ‘at the lower end of the available range’, but was unreasonable and plainly unjust. A sentence of seven years six months’ imprisonment was imposed.
Charges: Aggravated sexual penetration without consent x 5; Attempted aggravated sexual penetration without consent x 1; Threat to harm x 1.
Appeal type: Defendant appeal against sentence.
Facts: The appellant and complainant were in an ‘on again, off again’ relationship. The appellant was controlling, manipulative, and required the complainant to change her mobile phone number so that her family and friends could not contact her. There were two main occasions of sexual offending. On the first occasion, at a time where they had broken up, the appellant was invited to the complainant’s house. He held the complainant down and inserted his penis into her vagina ([11]). On the second occasion, the appellant entered the house uninvited. Over the next 8 to 9 hours, the appellant repeatedly raped the complainant, choked her, and smashed a TV remote over her head ([17]-[26]).
The appellant was convicted of the charges and was sentenced to a total effective sentence of 12 years’ 6 months imprisonment ([1]).
Issues: Whether the total effective sentence infringed the first limb of the totality principle by not reflecting the overall criminality.
Decision and reasoning: The Court held that the sentence did reflect the overall criminality. The Court referred to serious and aggravating factors including the maximum sentences, the repeated nature of the offences, the prolonged nature of the second occasion, the appellant using degrading and insulting threats towards the complainant and the appellant’s refusal to accept the complainant’s ending of the relationship ([52]).
Charges: Making a threat unlawfully to kill x 1; Stealing x 1; Breach of protective bail conditions x 7; Breach of bail x 1; Breach of violence restraining order (VRO) x 8; Possession of property reasonably suspected to be stolen x 1; Fraud x 1; Breach of police order x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and respondent were in a relationship for about 3 weeks ([4]). The appellant had come home to find the complainant having sex with another man, which sparked a confrontation. The police issued the appellant with a police order preventing the appellant from approaching the property and complainant ([5]). The appellant returned to the property the same day and tried to force his way in ([6]). The complainant obtained a violence restraining order (VRO) against the appellant ([7]). Over a period of two days, the appellant called the complainant many times and sent text messages of a frightening nature, including threats to kill her ([15]-[19]). This conduct constituted a breach of the VRO subject of the appeal. The following day, the complainant repeatedly rode his motorcycle past the house while the complainant was inside ([21]). This conduct constituted a breach of the protective bail conditions subject of the appeal.
The sentencing judge imposed a head sentence of 2 years’ imprisonment ([45]).
Issues: There were 4 grounds of appeal:
Decision and Reasoning: All four grounds were dismissed for the following reasons.
For ground 4, the appellant bore the burden of proof in establishing remorse on the balance of probabilities ([58]). While the appellant had expressed some level of responsibility for his actions, he displayed minimal victim empathy ([59]). It was open to the sentencing judge to find that the appellant demonstrated no remorse for the impact of his offending on the victim ([57]).
For ground 1, the breach was a sustained course of conduct and the messages were intended to terrify the complainant ([63]).
For ground 2, the breach was not an isolated breach and was intended to intimidate the complainant ([72]).
For ground 3, the sentence was well within the acceptable range ([87]).
Charges: Manslaughter x 1.
Appeal type: Appeal against conviction and sentence.
Facts: The appellant and the deceased were married. The appellant killed the deceased by striking him with a mallet [1]. The appellant gave evidence that the deceased was violent and controlling, and regularly sexually assaulted her [2]. She had no memory of the night on which she killed the deceased [47]. At trial, she was found not guilty of murder, but guilty of manslaughter [4]. She was sentenced to 4 years’ imprisonment [5].
Issues: The appellant appealed on several grounds including that the trial judge should not have excluded evidence from a social worker about domestic violence [7].
Decision and Reasoning:
All grounds of appeal were dismissed.
Social worker’s risk assessment evidence
The social worker’s risk assessment evidence was in relation to the psychological impact of prolonged exposure to domestic violence (popularly known as ‘battered women’s syndrome’). The evidence was based on a risk assessment which used actuarial risk assessment tools and clinical guides, including the ‘Power and Control Wheel’ (see Chapter 4 Context Statement) ([108]). The Court held that: the evidence did not explain the appellant’s state of mind ([123]-[129]); that the evidence did not quantify the extent of the risk, and did not specifically address the question of the risk of homicide ([130]-[148]); and the actuarial tools had not ‘been accepted by the relevant scientific community’ as defining the risk of homicide ([149]-[154]).
Social context evidence
The Court remarked that there is a body of academic literature that is supportive of ‘social context evidence’ in family violence cases ([160]). This may include evidence about the history of the parties’ relationship, the defendant’s culture, the non-psychological impediments to leaving a violent relationship ([160]-[165]). However, the Court emphasised that in order for contextual evidence to be admitted, counsel must ‘explain precisely and specifically how it is relevant to the issues which the jury are required to decide’ ([166]).
The social worker gave evidence in relation to the dangers of leaving a domestic violence relationship ([169]-[177]) and the exercise of power and control which characterises domestic and family violence ([178]-[183]). The Court held that the evidence was too general, and would not assist the jury beyond the knowledge and inferences able to be drawn by a reasonable person ([177],[183]).
Charge/s: Aggravated assault occasioning bodily harm x 4.
Appeal Type: Appeal against sentence.
Facts: The male appellant, an Indigenous man, and the female partner (‘D’) had been in a domestic relationship. Counts 1-3 involved the appellant, who was jealous of the victim, punching her, strangling her, striking her with a chair in the back of the head, and striking her several times with a crate. Count 4 occurred when the appellant again became jealous of the victim. He verbally abused her and poured a kettle full of boiling water down her back, causing second and third degree burns. He then punched and kicked her. The appellant prevented the victim seeking medical treatment for several days. The appellant was sentenced to 5 years imprisonment on count 4, 1 year and 2 months imprisonment on counts 1 and 3, and 1 year imprisonment on count 2. The sentences on counts 1 and 4 were to be served cumulatively.
Issue/s: The sentence imposed on count 4 was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Newnes and Mazza JJA noted the circumstances in which count 4 was committed at [33]:
‘The pouring of a kettle of boiling water on D was a particularly cruel and senseless act which was plainly capable of causing very serious injuries. In the spectrum of physical injuries constituting bodily harm sustained by D, they were severe. The offence entailed an abuse of the relationship of trust which existed between the appellant and D. D was in a vulnerable position by reason of the greater physical strength of the appellant and the degree to which he had intimidated her by his past acts of violence: as to which we respectfully adopt Mitchell J's statement in Bropho v Hall [2015] WASC 50 [16], which was approved by this court in Gillespie v The State of Western Australia [2016] WASCA 216 [48]’.
Their Honours referred to the fact that this was ‘part of a pattern of serious and ongoing domestic violence against D’. The appellant had no insight into his offending and sought to justify what he did by blaming the victim. His criminal history was poor and showed that he posed a high risk of further serious violent offending against domestic partners. Retribution, deterrence and public protection were important factors on sentence here (see [34]-[35]).
While acknowledging the severity of the sentence imposed on count 4, Newnes and Mazza JJA concluded that, in light of all the relevant circumstances noted above (including the appellant’s plea of guilty and his criminal history), count 4 was an offence of the ‘utmost gravity of its kind’. The sentence could not be said to be manifestly excessive (see [36]).
Charge/s: Aggravated grievous bodily harm, aggravated unlawful wounding, assaulting a public officer, cruelty to animal.
Appeal Type: Crown appeal against sentence.
Facts: The State appealed against a total effective sentence of 2 years and 2 months imprisonment imposed on the respondent in respect of a number of offences. The most significant offences occurred on 5 August 2015 while the respondent was subject to a suspended imprisonment order. The respondent attacked his former female de facto partner and a police officer using a claw hammer. He pleaded guilty to unlawful wounding and causing grievous bodily harm. He also pleaded guilty to assaulting a public officer and cruelty to the officer’s police dog.
Issue/s: One of the grounds of appeal was that the sentence imposed for grievous bodily harm and unlawful wounding was manifestly inadequate.
Decision and Reasoning: The appeal was allowed. Buss J (Mazza JA agreeing) held that the sentence of six months imprisonment imposed for the unlawful wounding offence was manifestly inadequate. This was in light of a number of factors including: the maximum penalty (7 years imprisonment); the seriousness of the offending (including the vulnerability of the victim – his former de facto partner); the general pattern of sentencing for offences of this kind; the importance of appropriate punishment and personal and general deterrence; the respondent’s unfavourable personal circumstances and antecedents (including a prior history of family violence offences); and all mitigating factors (see [27]-[32]).
Buss J also held that 18 months imprisonment for grievous bodily harm was also manifestly inadequate in light of the seriousness of the offending (especially the injuries the victim sustained in trying to defend herself and the fact that the respondent was significantly larger and more powerful than the victim) and all other relevant factors (see [39]-[40]).
In a minority judgment, Mitchell JA also upheld the appeal. This was in light of a number of factors including that His Honour found that the respondent’s offending was a serious example of grievous bodily harm. It was particularly significant that the injury sustained by the victim was a defensive wound, the level of violence was high, the victim did not provoke the attack and she was no threat to the respondent. Mitchell JA also noted that it was a significant aggravating factor that the offence occurred in a family and domestic relationship (see [95]-[96]).
Charge/s: Breach of violence restraining order.
Appeal type: Application for leave to appeal from Supreme Court’s decision to refuse leave to appeal.
Facts: The appellant was convicted of breaching a violence restraining order by sending three text messages to the complainant. He was arrested and participated in a video-recorded interview. Leave to appeal to the Supreme Court against conviction and sentence was refused.
Issue/s: Whether the primary judge erred in refusing to grant leave to appeal against conviction. The appellant was self-represented. The grounds were interpreted as raising issues including that:
Decision and Reasoning: The appeal was dismissed. In relation to ground 1 above, there was no substance to the appellant’s allegations. The labelling of the DVDs was immaterial and even if the discs were blank, the appellant made it clear at trial that he was aware of their contents. There was no issue about the authenticity of the recording, and no challenge as to its fairness (See [8]). Second, the magistrate based his decision on all the evidence before him and indicated that, even without reference to the recorded interview, there was a compelling case the appellant breached the order (See [9]). Third, it was open to the magistrate to be satisfied beyond reasonable doubt that the interim order was still in force at the time of breach. It was implicit in the complainant’s evidence that the interim order was still in force. The appellant made no suggestion to any witness in cross-examination that the interim order was not still in force. Statements in the recorded interview reflected the appellant’s understanding that the order was still in force. Nothing in the evidence suggested the order had been cancelled or amended (See [12]). Finally, the primary judge’s reasons clearly explained why he concluded that none of the grounds had any reasonable prospects of success (See [13]).
Charge/s: Stalking.
Appeal type: Application for leave to appeal from Supreme Court’s decision to refuse leave to appeal.
Facts: The appellant and the complainant went on six dates. The complainant made it clear she did not want to see the appellant again. The appellant repeatedly sent her emails, letters and text messages. She took steps to discourage further communication including obtaining an interim violence restraining order which prohibited contact. But the appellant persisted. The appellant was charged with a stalking offence and fined $3000. Leave to appeal against sentence and conviction was refused in the Supreme Court.
Issue/s: Whether the primary judge erred in finding that none of the grounds of appeal against conviction had any reasonable prospect of success.
Decision and Reasoning: The appeal was dismissed. None of the many and detailed grounds of appeal that the appellant advanced had any reasonable prospect of success. Some of the reasons for this finding included that the magistrate was correct in treating the existence and breach of the interim violence restraining order as relevant to the complainant’s subjective fear and apprehension and assessing whether the communication could reasonably be expected to cause fear or apprehension in the complainant (See ‘Primary Ground 5B/Appeal Ground 6’ [96]).
Additionally, the appellant argued that the objective element of the stalking offence was not satisfied because he could not reasonably have expected his actions to have intimidated a normal person. However, the question was not what the appellant could reasonably have expected but rather whether the manner of his communication with complainant could reasonably be expected to cause her fear or apprehension. Further, the magistrate did not give inordinate weight to the evidence of the complainant because the complainant’s evidence was central to questions of whether the communications occurred, and whether the manner of these communications subjectively caused her fear and apprehension (See ‘Primary Grounds 9A and 9B/Appeal Grounds 9 and 10’ [109] - [110]).
Finally, the magistrate did not err in assessing the complainant to be a reliable witness and did not err in refusing to permit the appellant to ask certain questions. The appellant, an unrepresented litigant, had a ‘tendency to become distracted by, and fixated on, issues not significant to the question of his guilt of the charged offence’. The appellant was entitled to ask questions of the complainant relevant to matters in issue at trial. However, the magistrate had a responsibility to ensure the appellant did not abuse this right by the manner and length of his cross-examination of the complainant (See ‘Primary Ground 16/Appeal Ground 12’ [115]-[118]).
‘The paramount responsibility which a judicial officer presiding over a criminal trial owes to the community is ensuring that the accused person receives a fair trial. However, the judicial officer also owes other concurrent responsibilities to the community. In a case such as the present they include a responsibility to see that the accused does not utilise the proceedings as a vehicle for harassment of the alleged victim. The exercise of that responsibility will require vigilance in confining an accused person to asking questions which are relevant to the issues raised for the court's determination’ (See ‘Primary Ground 16/Appeal Ground 12’ [117]).
Charge/s: Murder (two counts).
Appeal Type: Appeal against sentence.
Facts: The first victim was the respondent’s long term partner. He had an unfounded and delusional belief in her infidelity. He killed her by asphyxiation in their bedroom. After killing her he bound her head and neck with multiple layers of duct tape and wrote derogatory remarks across her forehead. The second victim was the respondent’s long-term male friend and associate. He had an unfounded and delusional belief that his friend was spreading rumours about him. He stabbed him three times and struck him repeatedly to the head with a chrome vehicle component. The respondent had a history of mental illness and had ingested a substantial amount of illicit drugs in the period leading up to the offences. He was sentenced to life imprisonment with a non-parole period of 21 years for each count. The sentences were to be served concurrently.
Issue/s: Whether the non-parole periods were manifestly inadequate.
Decision and Reasoning: The appeal was upheld.
The Court held that these murders were at the upper end of the scale of seriousness. The killings were unprovoked and the first victim was extremely vulnerable as she was smaller in stature than the respondent and isolated in her bedroom. The respondent treated the first victim in a degrading manner and he made no attempt to seek medical assistance. The killing has deprived their children of their parents (see further at [153]). Mitigating factors included his plea of guilty, genuine remorse and good prospects of rehabilitation. However, these mitigating factors were outweighed by the brutal and sustained nature of the attack and the respondent’s entrenched drug abuse. The appellant’s rehabilitation prospects had to be understood in the context of the drug abuse and the difficulty of predicting rehabilitation progress for offenders of that kind. As such, the main sentencing considerations were just punishment and personal and general deterrence. The non-parole period on each count was increased to 27 years.
Charge/s: Murder.
Appeal type: State appeal against sentence.
Facts: The deceased was in a domestic relationship with the respondent. The day prior to the murder, the respondent approached the deceased with a broken bottle and threatened to kill him. The deceased told the respondent he wanted to leave her. The next day the respondent threw bottles at the deceased, threatened to kill him, and chased him wielding a bottle. Later, the respondent and the deceased drank alcohol together. An argument broke out in which the both the respondent and the deceased threatened to kill each other. At some time between that night and the next morning, both the respondent (who was intoxicated) and the deceased returned home. The respondent stabbed the deceased with two knives and assaulted him with an electric frypan, causing his death. In total, there were 14 stab injuries and 26 incised injuries. The respondent cleaned up the premises, changed out of her clothes, and went to a neighbour’s place saying she had found the deceased injured. ‘[The deceased] had been the victim of sustained physical abuse at the hands of the respondent, who the sentencing judge described as bigger and stronger than the 'weak and vulnerable' [deceased]. This case confirms the experience of those who work in the criminal justice system in this State that, particularly in alcohol and/or other drug fuelled dysfunctional relationships and communities, it is not uncommon for a male to be a victim of domestic violence’ (See [15]). The respondent was sentenced to life imprisonment with a non-parole period of 17 years.
Issue/s: The non-parole period was manifestly inadequate.
Decision and Reasoning: The appeal was allowed and the respondent resentenced to a non-parole period of 21 years. The nature and extent of the respondent’s very significant prior record of violent offending underscored the need to give significant weight to the sentencing objectives of punishment, protection of the public and personal deterrence (See [35]). The circumstances of the respondent’s offence placed it at the high end of the scale of seriousness of the offence of murder – she intended to kill the deceased, engaged in a ‘sustained, prolonged, frenzied attack’, used multiple weapons, and went to considerable lengths to cover up the murder. Her long standing alcoholism contributed to the crime. However, of greater significance, was ‘her inability to control her volcanic eruptions of anger, and the regularity and normalisation of her use of violence’ (See [37]). The only mitigating factor was the respondent’s disadvantaged and dysfunctional upbringing.
Charge/s: Criminal damage by fire (4 counts).
Appeal Type: Appeal against sentence.
Facts: The appellant had recently separated from his wife and had commenced discussion relating to the distribution of assets. The appellant lit three fires. Count 1 related to the destruction by fire of the contents of business premises effectively owned and controlled by the appellant and his former wife. Count 2 related to damage caused by the same fire to a neighbouring unit and common property. Count 3 concerned a separate fire causing extensive damage to an investment property owned by the appellant's former wife. Count 4 related to a third fire causing extensive damage to the former family home and a car.’ The total damage was worth approximately $1.5 million. The appellant pleaded guilty and was sentenced to a total effective sentence of 6 years’ imprisonment, taking into account various orders of concurrency and cumulation.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed.
Appeal type: Appeal against parenting orders.
Facts: The appellant father and respondent mother were in a de facto relationship. They separated when the appellant attacked the respondent’s father. The Family Court of Western Australia made parenting orders granting the appellant no time with the children. The appeal centred upon the report of a ‘single expert witness’, a social worker. The expert’s report stated that the children did not wish to spend time with the father due to his violence towards their grandfather and his verbal abuse towards the children themselves ([25]).
Issues: Whether the magistrate erred in law by failing to take into account relevant matters and finding that the single expert witness was qualified as a witness.
Decision and Reasoning: The appeal was dismissed. The Court summarised the principles applicable to Family Court appeals at [61]-[64]. In relation to the evidence of the social worker, the Court held that it was open to the magistrate to admit the evidence: “[although] he was not a clinical psychologist, the nature of his expertise was known to the parties when the court ordered, by consent, that he be the single expert witness in the proceedings” [126].
Charge/s: Grievous bodily harm (GBH) with intent, aggravated assault occasioning bodily harm (aggravating factor – the appellant was in a family and domestic relationship with the victim).
Appeal Type: Appeal against sentence.
Facts: The appellant was in a de facto relationship for 8 years. After they separated, his former partner commenced a new relationship with a work colleague and the appellant reacted poorly. The appellant attended his former partner’s home and pleaded to recommence the relationship. The appellant went with his former partner to their children’s bedroom. In the presence of their children, he demanded to see her phone. He read through her text massages, threatened to kill her and repeatedly kicked her in the shins. He then used his former partner’s phone to lure her new partner to the house. When her new partner arrived, the appellant attacked him by punching him in the face and continued to kick and punch him while he lay on the ground, again in the presence of their child. He dragged her new partner outside. He taunted his former partner and children to look at the injuries that he was inflicting. The appellant forced his former partner to kiss her new partner while he was unresponsive on the ground and used substantial force to do this. He photographed her new partner’s injuries and sent it to her friend. The injuries sustained by his former partner were relatively superficial, but her new partner sustained extremely serious injuries. The appellant had favourable antecedents with no relevant criminal history and was regarded generally as a person of good character. He pleaded guilty and was sentenced to a total effective sentence of 7 years and 6 months’ imprisonment for both offences (six years’ imprisonment for the GBH offence committed against the new partner and 18 months’ imprisonment for the assault offence committed against his former partner).
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Manslaughter.
Appeal Type: Appeal against conviction.
Facts: The appellant and the deceased knew each other for 25 years prior to her death. At one stage, the relationship broke down (at which point the deceased obtained a restraining order against the appellant) but it later improved to the extent that the appellant began to live in a bus on land nearby the deceased’s property. Following a series of escalating arguments (involving the appellant doing things such as throwing objects at the deceased and threatening to kill her), a neighbour found the deceased’s body.
Issue/s: Whether the trial judge’s directions to the jury with respect to the defence of accident (under section 23B of the Criminal Code (WA)) were adequate.
Decision and Reasoning: The appeal was dismissed. Hall J (with whom McLure P and Mazza JA agreed) held that the trial judge made sufficient reference to the evidence of a medical expert. He adequately explained that the jury must have regard to that evidence in considering the severity of the injuries to determine whether the death was foreseeable for the purposes of the defence of accident. In considering that defence, the jury was also obliged to consider the whole of the evidence including that the appellant knew the deceased was vulnerable and the previous history of violence and threats of violence (see at [62]).
Charge/s: Assault causing bodily harm, grievous bodily harm.
Appeal type: Application for an extension of time to appeal and appeal against sentence.
Facts: One of the victims, Ms Lee, was in a family and domestic relationship with the appellant, an Indigenous man. She had previously been in a relationship with the other victim, Mr Hill, and they had 2 children together. Count 1 related to an occasion where Ms Lee, Mr Hill and their children were out walking. The appellant, who had followed them, struck Mr Hill with a stick out of anger and jealousy. Mr Hill suffered bruising to his elbow, a fracture to the ulna bone, bruising to the back and loin, and a laceration and bleeding in and around the kidney. Count 3 occurred when the appellant and Ms Lee were in Ms Lee’s bedroom and he asked her for sex. She refused and the appellant punched her seven to ten times to her face with a closed fist. Ms Lee underwent surgery to repair a fractured eye socket and sustained ongoing psychological trauma. In sentencing, to accommodate the totality principle, His Honour reduced the individual sentence he would have imposed on each offence by six months. The total effective sentence was 6 years’ imprisonment.
Issue/s: The total effective sentence infringed the first limb of the totality principle namely, ‘the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally’ (See [22]).
Decision and Reasoning: The application for an extension of time within which to appeal was granted but the appeal was dismissed. The total effective sentence of 6 years’ imprisonment properly reflected the appellant’s overall criminality having regard to all the circumstances of the case (See [27]). These offences were serious examples of their type. The offences were ‘brutal, sustained and completely without justification’. The victims were defenceless and the injuries they sustained were significant. In count 1, the appellant used a weapon capable of causing serious harm. In count 3, the appellant beat his domestic partner who was in bed and therefore vulnerable. The sentencing judge was correct to emphasise the need for general deterrence. There was very little that could be said by way of mitigation (See [24]).
Appeal type: Extension of time within which to commence the appeal, appeal against decision dismissing application for violence restraining order.
Facts: The appellant originally obtained a restraining order against the respondent in Adelaide in March 2010 which expired in March 2012. The appellant then obtained an ex parte interim violence restraining order (VRO) in Western Australia on 11 July 2012. This was obtained on the basis that the appellant had received telephone calls from the respondent on at least 33 occasions in mid-2012. Prior to final orders being given in relation to the ex parte VRO, the respondent made an application to strike out proceedings on the basis that they were an abuse of process in light of the determination of family law matters in the Federal Magistrates Court. The Magistrate made orders cancelling the July 2012 order in March 2013.
In June 2013, the appellant appealed to the District Court. The respondent brought an interlocutory application seeking orders to have the appeal struck out. The respondent’s application was allowed. His Honour noted, amongst other things, that the appellant (herself a legal practitioner) had chosen not to seek a fresh restraining order on the basis of any actions since July 2012. There was no suggestion that the respondent had telephoned the appellant since July 2012. It was accepted that the original grounds of the 2012 interim VRO were ‘stale’ and ‘sufficiently minor’ so as to not justify the costs of the appeal.
Issue/s: Whether the appellant should be given an extension of time within which to commence the appeal against the decision of the District Court?
Decision and Reasoning: The application for an extension of time within which to appeal was dismissed. In terms of prospects of success, it was arguable that the judge erred by ‘understating the degree of domestic and family violence' evidenced by the 'blocked number' telephone calls, the alleged verbal abuse of the appellant from the respondent in the call she answered, and the failure to take into account incidents which allegedly occurred after July 2012’ (See [34]). However, it was nevertheless not in the interests of justice to grant the extension of time. The Court of Appeal was unable to make orders for the application for a VRO to be heard by a magistrate. Instead the matter would have to be returned to the District Court for a rehearing of that appeal (See [39]-[40]). The length of delay that would result was not minimal. The appellant’s stated reasons for not filing an appeal notice on time were unsatisfactory for a legal practitioner (See [37]). Further, there was no impediment to the appellant seeking a fresh violence restraining order, particularly in relation to any events since July 2012 (See [41]).
Appeal Type: Appeal from the District Court which upheld the respondent’s appeal against the imposition of a violence restraining order.
Facts: The appellant and respondent were in a relationship for six months. The respondent sent offensive text messages which led the appellant to apply for an interim violence restraining order (VRO). This was made a final order. The respondent successfully appealed to the District Court against the imposition of the order. The District Court judge held that the text messages from the respondent to the appellant did not contain any threats, and, more specifically, ‘threats to take, and/or the pursuit of, “legally available procedures” were incapable of constituting acts of abuse’ (under s 11A of the Restraining Orders Act 1997) (see at [46]). The only messages capable of constituting acts of abuse were four offensive text messages, which were not repeated and the appellant apologised for them.
Issue/s:
Decision and Reasoning: The appeal was upheld.
The respondent’s use of ‘legally available procedures’ included making complaints to the appellant’s employer’s regulator (she was employed as a nurse) regarding her professionalism, commencing minor claim proceedings, making multiple interlocutory applications in the VRO application and making a perjury complaint to police. McLure P, (with whom Mazza JA and Chaney J agreed), noted that the use of legally available procedures, of itself, will not normally amount to an ‘act of abuse’. However, if legally available procedures are used or threatened with an improper intent or purpose, this could amount to a tort (such as malicious prosecution or abuse of process) or a criminal offence. Her Honour gave the following examples at [63] –
‘a threat made with intent to cause or compel a person to settle an action is a criminal offence under s 338A of the Code: Tracey v The Queen [1999] WASCA 77 [11] - [16]. See also The Queen v Jessen [1996] QCA 449; (1996) 89 A Crim R 335. Further, the commencement or maintenance of legal proceedings for an improper collateral purpose is a tort: Williams v Spautz [1992] HCA 34;(1992) 174 CLR 509; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 163 ALR 744. A knowingly frivolous and vexatious claim is also an abuse of process.’ Her Honour went on at [65] – ‘To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures. I do not intend to suggest that this is an exhaustive statement of behaviour that is intimidating.’
The Court held that the Magistrate was correct in finding that the respondent’s behaviour of using legally available procedures was intimidating and noted that the excuses given by the District Court judge for the respondent’s behaviour ‘underscore the failure to recognise the impropriety of the respondent’s conduct’ (See at [68]). The respondent’s conduct therefore amounted to an ‘act of abuse’.
Charge/s: Assault, breach of police order.
Appeal type: Appeal against conviction.
Facts: The prosecution case was that the appellant and her de facto partner, the complainant, were travelling in a vehicle when the appellant punched the complainant in the mouth. The appellant stopped the vehicle in the middle of the road and a further altercation occurred between them in which the appellant clawed at the complainant’s face. Police issued the appellant with a 24-hour police order which the appellant breached by sending the complainant two abusive text messages. The appellant was convicted after trial in the Magistrates Court of unlawful assault, and breaching a police order. At trial, the appellant was entitled to the protection of a previously imposed violence restraining order issued against the complainant. The appellant appealed to the Supreme Court but the appeal was dismissed. At every stage of proceedings, the appellant represented herself.
Issue/s: One of the issues was that the trial in the Magistrates Court was unfair to the appellant.
Decision and Reasoning: The appeal against conviction was dismissed. Although the proceedings before the magistrate were not in respect of the violence restraining order issued against the complainant, the existence of the order was relevant to the proceedings because there was likely to be considerable antipathy between the appellant and the complainant, and there was a risk that the presence might intimidate the unrepresented appellant (See [88]). The trial posed difficulties for the unrepresented appellant, particularly with respect to her having to directly cross-examine the complainant (See [90]). However, having regard to the whole of the trial record, the trial was conducted fairly. The magistrate explained the trial process to the appellant. He controlled the complainant and the appellant, intervening when required during cross-examination and when the complainant interrupted the appellant’s evidence (See [91]). Despite arguing to the contrary, the appellant was permitted by the magistrate to cross-examine the complainant about the history of the domestic violence relationship. She declined to do so (See [92]). Further, the appellant was not entitled to use an intermediary for cross-examination. These provisions are only for the benefit of the person being cross-examined (See [104]-[106]).
Charge/s: Aggravated burglary.
Appeal type: Appeal against sentence.
Facts: The female appellant had been in an off and on relationship with the male complainant. Prior to this, the appellant had been in a relationship with her co-offender. The appellant and the complainant had been arguing and the argument became violent. The appellant contacted her co-offender and they formed a plan to assault the complainant. They went to the complainant’s premises and the appellant’s co-offender struck the complainant with a pole approximately 15 times. Amongst other findings, the sentencing judge found that the appellant was not the victim of entrenched domestic violence and could not claim any degree of diminished responsibility. Her co-offender had a history of severe domestic violence against him, his brother and their mother. The appellant was sentenced to 2 years and 8 months’ immediate imprisonment. Her co-offender was sentenced to 2 years and 8 months’ imprisonment, suspended for 2 years.
Issue/s: One of the issues was whether the sentence breached the parity principle.
Decision and Reasoning: The appeal was allowed. McLure P held that the totality of sentencing considerations could not justify the imposition of different types of sentence. The offenders were broadly comparable in terms of their personal circumstances, involvement with the police, and remorse and rehabilitation. McLure P noted that the sentencing judge cast the appellant as a ‘siren’ who manipulated and knowingly misused her ‘childlike’ co-offender and found that this was not justified by the evidence. The sentencing judge incorrectly concluded that the co-offender’s rehabilitation required the incarceration of the appellant (See [48]). Pullin JA also upheld the appeal but for different reasons. His Honour found that the existence of extraordinary disparity in sentences breached the parity principle (See [82]). Mazza JA also provided his own reasons. Mazza JA noted that the disparity in sentences could not be rationally explained by differences in the circumstances of offending or of the offenders. The offences were not markedly different, their personal circumstances were similar, and both were amenable to programmatic intervention for their therapeutic needs (See [113]-[116]).
Charge/s: Murder.
Appeal Type: Appeal against sentence.
Facts: The appellant was in a domestic relationship with the deceased for 12 months prior to the offence and had a 3-month old child. On the day of the offence, the appellant and deceased were drinking alcohol and an argument occurred. The appellant then stabbed the deceased in the chest. The deceased turned away and the appellant stabbed her twice in the back. The appellant witnessed ‘chronic and acute’ (see at [7]) domestic violence in his childhood. He had several prior domestic violence convictions against the deceased and other partners. The appellant was convicted on a plea of guilty. The sentencing judge accepted that the appellant was a high risk of violence in respect of intimate partners and a moderate risk in respect of other people. He was sentenced to life imprisonment with a non-parole period of 18 years.
Issue/s: Whether the non-parole period was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. McLure P (with whom Newnes JA and Mazza JA agreed) held that this was a serious example of offending of this kind. The deceased was unarmed. While the attack was impulsive and not premediated, this meant that the deceased and other people in the house had limited ability to defend her. The offence was committed in front of the deceased’s family including young children. In relation to intoxication, her Honour noted at [15] – ‘The fact that the appellant was heavily intoxicated at the time is not mitigatory. The sentencing objectives of personal and general deterrence weigh heavily in relation to acts of domestic violence that are committed when drunk or sober.’
Charge/s: Aggravated assault occasioning bodily harm, wilfully and unlawfully destroying or damaging property, aggravated burglary, breach of a police order, trespass, breach of bail.
Appeal Type: Appeal against sentence.
Facts: The appellant was in an ‘on and off’ domestic relationship with the victim for about three years. The aggravated assault charge involved the appellant standing over the victim who was on the floor of their living room. The appellant kicked her in the groin, which caused her to cry out and curl up into the foetal position in agony. The damaging property offence occurred the next day. While driving, the victim noticed the appellant was following her in his truck. He called her and sent her text messages as she drove to a shopping centre. She entered the shopping centre. When she returned to her car she found that two tyres had been deflated.
Some months later, the victim arrived home to find the appellant inside. He began shouting at her. She fled and the appellant took a bag containing her passport and other belongings. He was issued with a 72-hour police order. He then breached that order the next day by making numerous phone calls to the victim at her work. The trespass charge involved the appellant entering the victim’s home using a set of keys that he had cut without the victim’s knowledge. The aggravated burglary charge occurred when the victim arrived home, again finding the appellant in the house. He attempted to kiss her and refused to leave. At one point, the appellant threw her onto a bed, ripped a necklace from her neck, struck her to the face and hit her on the head with his knees. Later the appellant entered into a bail undertaking in relation to these matters, which he breached by contacting the victim and asked her to look after him because he was sick. He insisted that she take him back to her home, where he remained until he was taken into custody. The total effective sentence imposed was 3 years 8 months’ imprisonment.
Issue/s: One of the issues concerned whether the sentence infringed the totality principle.
Decision and Reasoning: The appeal was dismissed. The Court found that notwithstanding the appellant’s ‘favourable’ antecedents, he was not truly remorseful, and considerations of personal and general deterrence remain important. The offending was sustained and designed to intimidate the victim physically and psychologically. He was not deterred from further offending notwithstanding the imposition of police orders and bail conditions. As such, the Court held that the total effective sentence did bear a proper relationship to the overall criminality involved, having regard to all the relevant circumstances. A substantial period of imprisonment was required.
Charge/s: Murder.
Appeal Type: Appeal against sentence.
Facts: The appellant’s marriage to the deceased was marred by ongoing arguments. There had been prior minor assaults. The appellant then discovered the deceased was having an affair. The appellant became obsessed about the deceased’s fidelity, was jealous of her friendships with work colleagues and he demanded that she resign from her employment, which she refused. The appellant became aware that the deceased remained friends with the man with whom she had an affair. Before her death, the deceased took leave from work and the appellant monitored her phone calls and prohibited her from returning to work. His unhappiness with the deceased was increased because of her failure to participate in the family’s morning prayer ritual. The appellant then killed the deceased in the living room by hitting her on the right side of a head on at least three occasions with a hammer that he had bought that morning. Mitigating factors included the appellant’s early plea of guilty and good character. He was sentenced to life imprisonment with a 17-year non-parole period.
Issue/s: Whether the non-parole period was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. Buss JA (with whom Mazza JA agreed) found that the seriousness of the offence was demonstrated by (among other things), the brutality and repetitive nature of the attack, the appellant’s intent to kill the deceased, the fact the appellant confronted the deceased when she was alone and vulnerable and the history of domestic violence inflicted by the appellant on the deceased (see further at [40]). The Court upheld the following statement by the sentencing judge in relation to general deterrence –
‘The law is clear that disputes between partners, no matter how emotionally hurtful, must be resolved peacefully. People must understand that marriage is not a licence to treat a spouse as a chattel and violence in the course of a marriage breakdown will be met with deterrent sentences. It is obvious that the minimum term must recognise the high value that the Western Australian community places on a person's life and a person's right to live without violence from their partner. Domestic violence continues to be a significant cause of violent death and serious injury in our community. The courts must impose sentences which continue to reflect the community's abhorrence and intolerance of such offending, particularly where it results in the death of the victim’ (see at [42]).
Charge/s: Grievous bodily harm with intent.
Appeal Type: Appeal against sentence.
Facts: The respondent and the victim were married and had a young daughter. Their relationship ended. When the respondent returned to the victim’s unit to retrieve his property, the victim called police due to his behaviour. He left before police arrived. He then returned to the unit. The victim again called police who issued the respondent with a 24-hour move-on notice. The following evening, the respondent entered the unit using his own key, confronted the victim, struck her on the top of her head, placed his hands around her neck then stabbed her multiple times. The victim managed to exit the unit while the respondent chased after her and continued to stab her in the back. The victim almost died and suffered extremely serious injuries and is disfigured for life. She lost the use of one hand and use of her thumb on the other hand and could no longer look after her daughter on her own. The mental effects were also severe – she became depressed, highly dependent on others, unemployed and ‘cannot stand the sight of herself’ (see at [11]). The appellant had a previous conviction for violence and the sentencing judge noted that he was intoxicated at the time of the offence and had a propensity for violence whilst intoxicated. He was sentenced to 5 years’ imprisonment and was made eligible for parole.
Issue/s: Whether the sentence was manifestly inadequate.
Decision and Reasoning: The appeal was upheld. McLure P (with whom Buss JA and Mazza JA agreed) noted that the offending was premediated, with the respondent having waited more than an hour for the victim to return home. He acted ‘out of hate related to his wife’s attempt to take control of her own life’ (see at [21]). See in particular at [25]-[41] where McLure P provided summaries of all comparable cases. Her Honour described this offending as ‘high on the scale of seriousness just short of the worst category’, noting its premeditated nature, ferocity, the nature and extent of the harm and the tragic effect on the victim. A further aggravating factor was that the respondent intended not only to do her grievous bodily harm but to disfigure her body. This made the sentence manifestly inadequate notwithstanding the mitigating factors and the respondent was resentenced to 7 years’ imprisonment with no change of parole eligibility.
Her Honour discussed the prevalence of domestic violence and the fact that is often connected with conduct in a relationship that, ‘understandably generates high emotion, volatility and associated loss of control.’ Notwithstanding, the fact that violence occurs in a domestic relationship is not a mitigating factor (see at [43]). As to whether it would be an aggravating factor, her Honour stated at [41]– ‘I am not persuaded that the sentencing subtleties are appropriately conveyed by characterising the domestic relationship (whether past, existing or anticipated) setting as itself aggravating the offending’ and at [43], ‘Deterrence is called for in relation to all offences involving serious violence, domestic and otherwise.’
Charge/s: Grievous bodily harm with intent, failing to stop after a car accident, failing to report a car accident to police.
Appeal Type: Application for leave to appeal against sentence.
Facts: The appellant had been in a relationship with the victim for 16 years. They had two children. Both parties claimed to have been the subject of threats and violence by the other. The appellant was served with an interim violence restraining order. He received a call from his children who said that their mother was not home and requested food. While claiming to be driving to a supermarket to purchase food for his children, he saw the victim at a bus stop. Once the victim had alighted from the bus, the appellant drove onto the footpath and struck her with the middle of the bonnet. She was thrown into the air and landed on the pavement, causing serious injuries. He continued without stopping – he claimed he saw her attempt to get up and assumed she was okay. A psychologist’s report indicated that the appellant showed no empathy or remorse, and that rehabilitation would be difficult. Another psychologist’s report indicated that the victim had significant mental health issues and serious difficulties in providing adequate care for her children. A total effective sentence of 5 years’ imprisonment was imposed.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault occasioning bodily harm, making a threat to kill (two counts), arson, possessing a weapon.
Appeal Type: Application for leave to appeal against sentence.
Facts: After consuming alcohol, an argument between the appellant and his current partner ensued. He threw an ashtray which hit her in the back. He used a knife to cut the cord to a vacuum cleaner that she was using. Later, he spat on, grabbed and shook her. He then used the knife to smash a coffee table and stab walls while threatening to kill her, her son and others. He prevented her from leaving the lounge room. She was fearful of him and remained awake all night. After being arrested and released on bail for these offences (assault and threat to kill), the appellant broke into the home of his estranged wife, ignited a lounge chair and again made threats to kill by leaving voice messages on her mobile phone. The appellant had a history of violent offending against his partner and his estranged wife. A psychologist described him as having ‘deep seated rejection fears’ attributable to his traumatic childhood. The total effective sentence imposed was four years eight months’ imprisonment.
Issue/s: Whether the total effective sentence infringed the first limb of the totality principle.
Decision and Reasoning: Leave to appeal was refused. The Court noted the extremely serious nature of arson and the fact that the maximum penalty is life imprisonment. Buss JA (Mazza JA agreeing) provided a summary of sentencing patterns for arson at [48]-[58]. The fire had a potential to destroy the house. His Honour also noted the threats to kill against his partner, ‘occurred in the context of a persistent course of conduct designed to denigrate and humiliate (her) and cause her intense fear and anxiety’ (See at [68]). As such, the sentence was not disproportionate.
Charge/s: Murder
Appeal Type: Appeal against sentence.
Facts: On the day of the offence, the appellant (an Aboriginal man) was intoxicated and had been smoking cannabis. He returned home and an argument ensued relating to his partner’s confession that she had been ‘sexually misbehaving’ (see at [4]). The appellant became angry and attacked her with a knife. The blows were struck mainly in the region of her legs. The sentencing judge held that the fact he mainly stabbed her in the legs, as opposed to, (for example) in the chest was not particularly relevant to establishing the requisite intention – the appellant struck a considerable number of blows randomly with the intention of causing serious harm. The appellant was sentenced to life imprisonment with a non-parole period of 14 years.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
‘This is a case where the protection of the community in which the appellant lives and both personal and general deterrence are very weighty sentencing considerations. The incidence of alcohol and drug fuelled violence within Aboriginal communities is distressingly high. A new generation of children are scarred. The cycle continues. Having regard to all relevant sentencing factors, there is no merit in the claim that the minimum period of 14 years is manifestly excessive.’
Charge/s: Murder.
Appeal type: Appeal against conviction.
Facts: During an altercation, the male appellant slashed his fiancee's arm with a knife (the first injury). Realising the seriousness of the injury, the appellant dropped the knife and applied a tourniquet to her arm. The deceased further goaded the appellant to kill her. The appellant slashed her twice in the neck, causing her death (the second and third injuries). The deceased was a person who frequently consumed excessive amounts of alcohol. During the months prior to the death, the relationship between the appellant and the deceased was characterised by frequent incidents of domestic violence, with the appellant usually being the victim. A few hours after the killing, the appellant was taken into custody and admitted to killing the deceased in a recorded interview. In the 8 years prior to the killing and thereafter, the appellant was admitted to psychiatric hospitals. It was accepted that he suffered psychotic episodes from time to time.
Issue/s:
Decision and Reasoning: The appeal was upheld on ground 1 and a retrial was ordered. The State conceded that the trial judge made an error of law in his direction to the jury on provocation but argued that the error did not result in a substantial miscarriage of justice because the evidence was incapable of supporting the defence of provocation. McLure P (with whom Mazza J agreed) found that the evidence was capable of giving rise to a reasonable doubt as to whether the appellant was provoked to cause all three injuries. There was a resulting miscarriage of justice (See [142]-[143]). Pullin JA in dissent found that while the trial judge erred in directing the jury as to provocation (See [231]), there was no miscarriage of justice as provocation should not have been left as an issue to be decided by the jury. The appellant was no longer deprived of self-control when he caused the third injury (See [238]-[239]).
Ground 2 was dismissed. McLure P (with whom Mazza J agreed) held that it was reasonably open to the jury to fail to be persuaded on the balance of probabilities that the appellant was deprived of the capacity to know he ought not to kill the deceased. There was evidence in the police interview that the appellant was thinking rationally before and after the deceased’s death (See [125]-[126]). Pullin JA, in a separate judgment, also held that while there was unanimous evidence from psychiatrists that the appellant suffered from a mental illness and that suffered from psychotic episodes, whether he was psychotic on the night of the killing and whether he lacked the capacity to know the act of slashing in the neck was wrong was a matter of controversy. Pullin JA was unable to conclude, on the balance of probabilities, that the appellant lacked the relevant capacity (See [219]-[220]). See also Evans v The State of Western Australia [2010] WASCA 34 (26 February 2010) and The State of Western Australia v Evans [No 2] [2012] WASC 366 (9 October 2012).
Charge/s: Murder
Appeal Type: Application for extension of time for leave to appeal against conviction.
Facts: The appellant was convicted of the murder of his de facto partner.
Issue/s: One of the issues concerned whether the trial judge erred by admitting evidence of the relationship between the appellant and the deceased, particularly statements made by the deceased as to the nature of the relationship and previous violence she suffered at the hands of the appellant.
Decision and Reasoning: The appeal was dismissed. The prosecution relied on common law principles in relation to admissibility of the evidence. Martin CJ (with whom Pullin JA and Hall J agreed) at [25] – [41] considered various High Court decisions on the correct test to apply including Wilson v The Queen (1970) 123 CLR 334 and Walton v The Queen (1989) 166 CLR 283. The Court held firstly that the evidence was not hearsay, because it was only used to establish the deceased’s state of mind. The jury could then draw an inference as to the nature of the relationship. The crucial issue was the way the evidence was used. If the jury had regarded the evidence as facts asserted by the deceased and then went onto conclude that the appellant was prone to violence, it would have been prejudicial to the accused. However, the prosecution did not use the evidence in this way and the trial judge directed accordingly. An argument that statements made by the deceased earlier than one or two weeks prior to her death was ‘too remote in point of time’ to be admissible was also rejected. The Court held that while it may be possible for evidence to be so distant as to be inadmissible, this was not the case here. The relationship was relatively short and the statements that were made completely spanned this period. This increased rather than reduced its probative value.
Charge/s: 18 charges of a sexual nature relating to the appellant’s two biological daughters.
Appeal Type: Appeal against conviction and sentence.
Facts: The appellant was charged with various sexual acts relating to his two daughters (see at [22]). He was convicted by a jury of 11 offences of indecent dealing, 4 offences of indecent assault and acquitted of three charges. There was previously an interim violence restraining order (VRO) in place against the appellant. The appellant later breached this order. Evidence of this breach and his subsequent imprisonment for a weekend was inadvertently admitted at trial after one of the complainants mentioned it during cross-examination.
Issue/s: Some of the issues in the appeal against conviction concerned –
Decision and Reasoning: The appeal against sentence was upheld but the appeal against conviction was dismissed.
The appellant submitted that the admission of the interim VRO evidence was inadmissible and so prejudicial it required the trial judge to discharge the jury. The appellant also submitted that this failure to discharge the jury led to further inadmissible evidence concerning other VROs and alleged breaches which compounded the initial prejudice. Mazza J (with whom Buss JA and McLure P agreed) held that the only basis upon which this evidence could be admissible was with respect to the appellant’s character. Generally, evidence of bad character is inadmissible but can be admissible where an accused puts their character in issue, in which case the prosecution is able to call evidence of bad character in rebuttal (see at [144]). In this case, the accused asserted that he was of good character. As such, the prosecution was entitled to adduce rebuttal evidence. The evidence of the VROs could only be admissible for that purpose.
The Court held that in isolation, the making of an interim VRO was not of relevance to an accused’s character. However, the evidence also included the alleged breach of the VRO. Mazza J held that a breach of a VRO ‘amounts to deliberate disobedience of a court order’ and ‘is conduct which is prima facie inconsistent with the usual behaviour of a person of good character. It is evidence capable of rebutting an assertion of good character’ (see at [153]). As such, it was admissible. However, the evidence that he had spent a weekend in jail was not relevant to character and thus inadmissible, but capable of being dealt with by judicial direction. Furthermore, even if the VRO evidence was inadmissible, it was general in nature – ‘There was no detail as to when the VRO was made, who was the protected person, what was the basis for the order and what the appellant did to breach it’ (see at [157]). As such, any potential prejudice could be dealt with by judicial direction.
Charge/s: Deprivation of liberty (two counts), assault occasioning bodily harm, threatening unlawfully to kill.
Appeal Type: Appeal against sentence.
Facts: The first victim (K) was the respondent’s former partner, with whom he had a 2-year old child. The second female victim (C) commenced an intimate relationship with K. The respondent believed that the relationship between K and C had begun before he had separated with K. After the separation, the respondent asked K and C to meet at his home to discuss their relationship with each other. The respondent then left with K, at which point an argument developed. The respondent refused to permit K to leave his car and detained her while he drove her back home. He prevented her from escaping the house. He then armed himself with a spear gun and loaded it with a barbed spear. C then returned to the respondent’s home, whereupon the respondent pointed the spear gun at her, forced her to enter the house and prevented her from leaving. C refused to give the respondent her car keys. In response, the respondent punched C hard in the left cheek which knocked her down. He then picked her up by the throat and lifted her from the ground. He made a number of threats to kill C. C was left with severe injuries and the mental effect has been ‘profound’. She was in fear of her life (see at [47]-[53]). He later reconciled with K. There was no evidence of domestic violence by the respondent towards K before he became suspicious about her relationship with C. He was sentenced to 12 months’ imprisonment (conditionally suspended for 18 months) for both counts of deprivation of liberty, fined $1000 for assault occasioning bodily harm and sentenced to 24 months’ imprisonment (conditionally suspended for 18 months) for threatening to kill. These terms (as well as a fine for unrelated offending) were imposed concurrently which resulted in a total effective sentence of 2 years’ imprisonment, conditionally suspended for 18 months and a $2000 fine.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was upheld in respect of issues 1 and 3.
Buss JA (Mazza JA agreeing) noted that the deprivation of liberty and threat to kill offences were objectively very serious. His Honour disagreed with the sentencing judge and noted that a matrimonial breakdown, reconciliation and the presence of a child in the relationship cannot be regarded as mitigating factors. However, the fact that the respondent’s mental state has improved following therapy could indicate progress towards rehabilitation. Nevertheless, the seriousness of the offending and the associated need for deterrence outweighed other factors such as rehabilitation and mercy. McLure P noted that C suffered greater actual and threatened violence than K, such that it was difficult to understand the sentencing judge’s explanation for suspending the deprivation of liberty and threat to kill sentences.
See also her Honour’s remarks at [3] – ‘The circumstances to which the sentencing judge referred are neither unique nor mitigatory. The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence. The otherwise appropriate penalty should not be reduced because there is a return to the status quo that existed prior to the breakdown of the relationship which precipitated the violence. It is also circular to rely on the return to the relationship status quo as the route to rehabilitation. Moreover, the emphasis on the domestic context marginalises the actual and threatened violence inflicted by the respondent on C.’
As such, these offences warranted immediate imprisonment. A total effective sentence of 18 months’ immediate imprisonment was imposed.
Charge/s: Aggravated burglary (two counts), assault occasioning bodily harm, criminal damage, obstructing a public officer, breaching protective bail.
Appeal Type: Appeal against sentence.
Facts: The complainant was the father of the appellant’s former partner. The appellant attended the complainant’s house and obtained entry. He was confronted by the complainant who demanded he leave. A verbal altercation occurred, at which point the appellant’s former partner came to the aid of the complainant. The appellant then grabbed her by the hand and bent her middle finger which caused it to fracture. One another day, the appellant again obtained entry to the house, this time by throwing a pot plant through a door. His former partner was inside and she barricaded herself and her 2-year-old son in a bedroom with a chest of drawers. The appellant rammed the door with a table which enabled him to unlock the door. She managed to flee the bedroom and the appellant was detained by a neighbour until police arrived. The appellant suffered from depression and anxiety and was intoxicated on both occasions. He had no relevant criminal history. A total effective sentence of 12 months’ imprisonment was imposed.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Murder.
Appeal Type: Appeal against conviction and sentence.
Facts: The appellant was convicted for the murder of the deceased; with whom he had been in a casual sexual relationship for 12 months. The deceased was 22 weeks pregnant with the appellant’s child at the time of her death. The appellant was intoxicated, attended the deceased’s home and stabbed her 21 times in her bedroom. He then walked back to his home, threw away the knife and left the deceased. He destroyed evidence that could implicate him in the murder. The prosecution’s case relied purely on circumstantial evidence. He was sentenced to life imprisonment with a non-parole period of 25 years.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed.
Charge/s: Murder.
Appeal type: Appeal against conviction.
Facts: The male appellant and the male deceased had been in an intimate personal relationship for nearly 25 years. The prosecution case was that this relationship deteriorated particularly because of the development of a relationship between the appellant and a younger man (Mr X). The prosecution argued that the appellant strangled the deceased. The defence case was that the evidence did not exclude that the deceased died of a heart attack not strangulation. The defence further asserted that the State failed to prove the appellant had a motive to kill or intention to kill the deceased. The defence also relied on self-defence against an unprovoked assault. The appellant asserted that the deceased struck his face with the back of his right hand before the strangulation occurred.
Issue/s:
Decision and Reasoning: The appeal was dismissed. First, there was no basis in the evidence for the jury to have entertained the possibility that the appellant reasonably apprehended that he faced death or grievous bodily harm. Assaults committed by the deceased on the appellant in the past were not of a kind to cause apprehension of death or grievous bodily harm, and the deceased striking the appellant with the back of his hand would similarly not be of a kind to cause such fear (See [44]-[49]). Further, the jury could not have entertained the possibility that the only practical means of averting the threat was through application of force to the deceased’s throat. Other options open to the appellant included brushing the deceased off or punching him in the head (See [50]).
Second, there was ample evidence sustaining the inference that the appellant intended to cause some form of injury within the definition of grievous bodily harm. This included the pathological evidence given in relation to the extent of the deceased’s injuries, the evidence of animosity in the relationship, the appellant’s description of the struggle preceding the killing, the appellant’s evidence that when he realised the deceased was dead he thought he must have strangled him, the appellant’s conduct before and after the killing, the appellant’s admissions to Mr X and another man, and a witness’s evidence of lies told by the appellant (See [71]).
Third, the trial judge did not err in his approach to the issue of causation in his direction to the jury. He reminded the jury of the most pertinent evidence on the subject and clearly identified the issue they had to resolve and the manner in which they should resolve it (See [81]-[85]).
Finally, the trial judge specifically referred the jury to all the evidence that was relevant to the intent of the appellant at the time of the death. The evidence was relevant to both the question of intent required to sustain the charge of wilful murder, and the intent required to sustain the charge of murder. The difference between those two intentions was made abundantly clear to the jury (See [106]-[107]).
Note: the High Court refused special leave to appeal (see Hellings v The Queen [2005] HCATrans 255 (27 April 2005)).
Charge/s: Murder.
Appeal Type: Appeal against sentence.
Facts: The appellant had been in a relationship with the deceased for some three and a half years before the relationship ended. The deceased obtained a violence restraining order against the appellant which prohibited him from coming within 100m of her home or work and within 20m of her person. The appellant went to the deceased’s house for the purpose of discussing the restraining order – he wanted to ask the deceased to remove the restraining order because it would be difficult to renew his licence as a car dealer with the restraining order in place. When she yelled at him to get off the property, he hit her with a rubber mallet multiple times until she lost consciousness. He then hit her with a brick. She sustained severe head injuries and she later died. The appellant did not seek medical attention for the deceased. He was sentenced to life imprisonment with a minimum non-parole period of 16 years. The appellant had some history of domestic violence – an ex-partner had obtained a violence restraining order against him after he stalked her and punched her several times.
Issue/s:
Decision and Reasoning: The appeal was upheld in respect of ground 2.
Charge/s: Murder.
Appeal type: Appeal against conviction.
Facts: The male appellant and the deceased woman had been in a seven-month relationship. The police had been involved on at least five occasions including an incident in which the appellant broke the deceased’s hand. The deceased, an alcoholic, was not inclined to cooperate with police and declined to provide a statement on these occasions. The appellant convinced police that he was the victim of the deceased’s aggression. On 13 November 2007, the appellant caused the deceased knife wounds to her right arm, her neck, and her chest near her armpit. After cutting her neck, the appellant pressed on the deceased’s chest, accelerating her blood loss and her death. During an interview with police, the appellant admitted that he killed the deceased. The appellant had a history of mental health problems from August 1999. At trial, evidence was adduced from Ms Maton about conversations she had with the deceased regarding acts of violence perpetrated upon her by the appellant. The two broad issues at trial were whether the State negated the defence of accident and whether the appellant had established the defence of insanity.
Issue/s: Some of the issues included that –
Decision and Reasoning: The appeal was allowed. Wheeler JA (with whom Owen JA agreed) found it unnecessary to deal with ground 1. The respondent accepted that the trial judge erred in her classification of the infliction of the fatal wound as an ‘event’ for the purposes of applying the defence of accident. The appeal would have to be allowed unless there was no substantial miscarriage of justice. Wheeler JA found it unnecessary to undertake such analysis because the appeal was allowed on other grounds (See [46]). On ground 1, McLure P found there had been a substantial miscarriage of justice (See [15]-[17]).
Wheeler JA (with whom Owen JA agreed) allowed the appeal on ground 2. The trial judge failed to adequately direct the jury that the appellant could be found not guilty by reason of insanity, even if the appellant knew what he was doing was contrary to law (See [57]-[58]). Further, the trial judge failed to direct the jury that, when considering whether the appellant was deprived of the capacity to know he ought not to do the act, the issue was whether the appellant was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing (See [61]-[62]). McLure P held that the trial judge failed to direct the jury that a person can lack the relevant capacity even if they know the act is unlawful (See [24]-[27]).
The appeal was also allowed on ground 4. Wheeler JA (with whom McLure P and Owen JA agreed) noted that the evidence of Ms Maton was provided in graphic and striking detail, and had the potential to be significantly prejudicial to the appellant. Not only was the evidence admitted but the trial judge invited the jury to treat the account given by Ms Maton as evidence of the truth of the matters recounted to her. This direction was plainly erroneous (See [72]-[74]). A retrial was ordered. See Evans v The State of Western Australia [2011] WASCA 182 and The State of Western Australia v Evans [No 2] [2012] WASC 366 (9 October 2012).
Charge/s: Stealing a motor vehicle, wilful damage by fire, threat to kill.
Appeal type: Appeal against sentence.
Facts: On a number of occasions, the male respondent threatened the female complainant who he was in a relationship with. The respondent put his face against her, and said aggressively, ‘I’ll do 25 over you. If I can’t have you, no one will have you’. A few days later, the complainant told the respondent she was leaving him, and he said to her, ‘If you think you’re going to walk away I will kill you’. A few days after that, the intoxicated respondent grabbed the complainant’s throat and said, ‘I am going to kill you. If I can’t have you, no one can’. Afraid, the complainant left for a few days. The drunk respondent then stole a motor vehicle and crashed it into a wall at the front of the house. He spread petrol through the house and lit it on fire. The sentencing judge sentenced the respondent to 15 months’ imprisonment on the arson offence, 6 months’ imprisonment for stealing a motor vehicle, and 9 months’ imprisonment for the threat to kill. Her Honour recognised that the offence of threatening to kill took place on a different occasion but thought all sentences should be served concurrently.
Issue/s: Some of the grounds included –
Decision and Reasoning: The appeal was allowed. The respondent was resentenced to an aggregate sentence of 4 years and 9 months’ imprisonment. The sentence of imprisonment was manifestly inadequate. The arson offence required the imposition of a deterrent sentence. The respondent’s personal circumstances carried less weight because this was a case of arson but regardless these did not provide much by way of mitigation. The appellant was a mature age, had an extensive criminal record, and his substance abuse problem could only be offered as an explanation rather than an excuse for his behaviour. This was a very serious case of arson ‘because the respondent’s offending was apparently motivated by revenge, it caused the destruction of a residential building, and it was against the background of a violent domestic relationship’ (See [48]-[51]). Further, the threat to kill was a very serious one. It was made against a history of domestic violence, and the complainant was afraid of the respondent (See [54]-[56]).
Miller JA additionally held that the sentencing judge erred in her application of the totality principle. There was nothing crushing about imposing a cumulative sentence on the threat to kill offence. The sentence on the offence of threat to kill should instead have been lowered to reflect the totality principle (See [58]-[62]).
Charge/s: Aggravated stalking, attempting to pervert the course of justice.
Appeal type: Appeal against sentence.
Facts: After the marriage between the male appellant and female complainant ended, the complainant noticed the appellant following her around. Several items went missing from her home. The appellant then damaged the property of a complainant’s male friend resulting in the imposition of a violence restraining order (VRO). The appellant subsequently breached this VRO. An altercation between the appellant and complainant led to the appellant being charged with assault and damage to property. He was acquitted on the assault charge. The appellant continued to follow the complainant around, telephoned her and would not speak, and made noises around her property at night. The complainant obtained a VRO. Notwithstanding this, the appellant changed a white light bulb at the complainant’s home to a red bulb. Cameras she installed at her property also detected the appellant wearing a gorilla mask and holding a knife in his hand. The appellant also attempted to pervert the course of justice in relation to this incident by requesting his neighbours provide him with an alibi. He received a term of 4 years' imprisonment in respect of the aggravated stalking and 10 months in respect of the attempt to pervert the course of justice, to be served cumulatively. That produced a total effective sentence of 4 years 10 months' imprisonment.
Issue/s:
Decision and Reasoning: The appeal was dismissed. The sentence was not manifestly excessive. The personal circumstances favourable to the appellant (being only the absence of a prior record) could have limited weight in the circumstances, having the regard to the absence of remorse and a clear need for personal and general deterrence. This was determined and persistent pursuit of the complainant, in circumstances where she had obtained a restraining order and where he had been charged with offences arising out of his conduct towards her (See [12]-[13], [16]). Wheeler JA further held that the sentencing judge did not err in making the sentence of attempting to pervert the course of justice cumulative. This was more serious offending than the giving of a false name to police or entering a false recognisance. It was an attempt to pervert the course of justice in relation to an offence of a relatively serious nature and involved the use of innocent and unconnected third parties to engage in criminal conduct (See [17]-[19]). See Gilmour v State of Western Australia [2005] WASC 243 (8 November 2005).
Charge/s: Unlawful detention, assaults occasioning bodily harm (x 2), breach of restraining order.
Appeal type: Appeal against sentence.
Facts: The male applicant struck the female complainant, his de facto partner, across her back with a pole (the first assault). The applicant retrieved a knife from the kitchen but did not use it. The complainant tried to escape out the front door but the applicant prevented this. He began to throttle her (the second assault). The complainant tried to attract attention through the open front door but the applicant shut the door (unlawful detention). The complainant passed out. When she came to, she was again choked by the applicant and lost consciousness. The complainant obtained an interim violence restraining order which the applicant subsequently breached by telephoning her. The sentencing judge imposed an aggregate sentence of 4 years and 10 months’ imprisonment.
Issue/s: Some of the grounds of appeal included –
Decision and Reasoning: The appeal was dismissed. First, the individual sentences were well within the discretion of the sentencing judge. The two assaults were of a different character to each other and were further distinguishable from the unlawful detention offence because this did not cause her bodily harm. The decision to order the sentence on the second assault (throttling) to be cumulative was also appropriate in recognition of its particular seriousness and additional criminality (See [25]-[26]). Second, the aggregate term was not manifestly excessive. Although the applicant was a young man, his criminal history was not as bad as it might have been, he was remorseful, and appreciated that his conduct was largely driven by the effects of his drug abuse, the offences were very serious. The second assault was ‘about as serious an example of this offence as it would be possible to find’. The applicant endeavoured to throttle the victim, she lost consciousness twice, he renewed his attack, he persisted in the attack even after she tried to escape, and he obtained a knife (which he did not use, to his credit). Further, he ignored the terms of the violence restraining order (See [31]).
Charge/s: Breach of violence restraining order.
Appeal type: State appeal against dismissal of charges of violence restraining order.
Facts: The protected person (the former de facto wife of the respondent) obtained a violence restraining order (VRO). The respondent was charged with three offences of breaching the VRO by communicating or attempting to communicate with the protected person. There was no dispute that the protected person had contact with the respondent during the period the VRO was in place. However, there was a dispute between the parties as to how many times there was contact and whether it was made with the consent of the protected person. The magistrate dismissed the charges because he considered all the evidence showed the protected person, by her actions prior to the contact alleged, had consented to the contact.
Issue/s:
Decision and Reasoning: The appeal was allowed on ground 2. Counsel for the appellant argued that there could not be ‘continuing general consent’ given by a protected person to a person bound by a VRO. Barker J noted that this proposition was probably right ‘but whether or not consent has been given to any particular contact must be decided on the facts of each case’ (See [14]). In relation to ground 2, Barker J held that the magistrate erred in finding that the protected person consented to the respondent’s breaches. The evidence did not support such a conclusion (See [57]-[59]). Barker J further stated that, ‘it is not appropriate for a Court, while a VRO is in place, effectively to suspend the operation of a VRO by taking the view that a person protected is inclined to use the VRO as a "walking stick", as the Magistrate in this case suggested’(See [46]). As the protected person explained, it was sometimes easier to tolerate the applicant’s presence and other times it was necessary to call police and enforce the terms of the order (See [42]).
‘It may be recognised that, in many circumstances, the continuing relationship between persons who were once in a close personal relationship will be strained, especially after a VRO has been granted by a Court. Nonetheless, a person who is bound by a VRO must take all appropriate steps to ensure that the terms of the order are complied with. It may well be that, on some occasions, by virtue of a course of conduct, a person bound by the order may feel entitled to approach physically or telephone a protected person. It may be that a prior course of conduct in some cases implies a consent to approach the protected person in that way, at least initially. But if the protected person makes it plain that she or he does not consent to that contact or that initial contact continuing, then it behoves the person bound by the order to back off and strictly comply with the order’ (See [44]).
Charge/s: Assault occasioning bodily harm, threat to kill.
Appeal Type: State appeal against sentence.
Facts: While intoxicated, the respondent, an Aboriginal man, found the complainant (his de facto partner) in bed asleep with another man. The respondent slapped and punched the complainant which woke her. The respondent then pulled her from her bed and dragged her 200m down a street, at which point he hit her repeatedly with a steel stake and ripped her bra off. He then grabbed her throat, threatened to kill her repeatedly and pinned her to the ground. She was in genuine fear for her life. The respondent’s criminal history included serious incidents of domestic violence committed against his former partner and other offences of violence. He was sentenced to 18 months’ imprisonment for each offence, to be served concurrently. A parole eligibility order was not made.
Issue/s: Whether the sentencing judge erred in reducing the length of the sentence to allow for the fact that he did not make a parole eligibility order.
Decision and Reasoning: The appeal was upheld. The Court held that the sentencing judge erred by reducing the sentence on account of not making a parole eligibility order. Jenkins J (with whom Murray and McLure JJ agreed) noted that the sentence imposed at trial was significant, given the respondent’s plea of guilty and the maximum penalties. However, the Court noted the seriousness of the offence and described it at [26] as ‘close to the worst category of cases of this kind’. The offending was aggravated by the repeated use of a weapon and the complainant being humiliated by the removal of her bra which rendered her half naked during the beating. The context in which the respondent found the complainant amounted to ‘some mitigation’ but this was ‘not significant’, given the respondent’s history of domestic violence and having previously undergone counselling in anger management and substance abuse (see at [28]). Indeed, an exchange with the sentencing judge showed that it was unlikely his plea was indicative of true remorse (see at [14]). The sentence was increased to two years’ imprisonment.
Charge/s: Aggravated stalking (x 2), threat with intent to prevent the complainant doing an act she was lawfully entitled to do.
Appeal type: Appeals against conviction and sentence.
Facts: While in a relationship with the male applicant, the female complainant were in a relationship obtained two restraining orders. The relationship ended and she obtained another violence restraining order. The applicant was charged with two counts of aggravated stalking. Further, he was charged with making a threat with intent to prevent the complainant doing an act she was lawfully entitled to do because of a 10-page letter he sent to the complainant. This was ‘abusive in the extreme’ and threatened violence against the complainant if she participated in the court action. The applicant was acquitted of the indictable offence for the first aggravated stalking charge and convicted of the alternative simple offence. He was found guilty in two other trials for the second indictable aggravated stalking offence and for the threatening letter. The complainant gave evidence of the relationship between her and the applicant. On occasions, her answers were unresponsive to questions and rambling but neither counsel made any effort to prevent the complainant answering questions in that way. The applicant was sentenced respectively to 6 and a half years’ imprisonment and 5 years’ imprisonment, cumulative. The applicant sought leave to appeal against these latter two convictions and sentences.
Issue/s: Some of the issues included –
Decision and Reasoning: The appeals against conviction and sentence were dismissed. First, while some of the complainant’s evidence in both the stalking and threatening letter trials was inadmissible or might have been objected to on discretionary grounds, there was no resulting miscarriage of justice (See [34]-[36] and [60]-[63]). The evidence that was inadmissible or might have been excluded was insignificant having regard to the evidence that was admissible relating to relevant aspects of violence and harassment in the relationship (See [34]-[36]).
Second, a direction to the jury regarding the use of the complainant’s relationship evidence as ‘propensity evidence’ was not necessary here. ‘Such a direction will be very necessary in cases where there is a danger that the jury might reason that because an accused person has conducted himself in a particular way in the past towards his victim he might be found to have done so again at the time alleged by the indictment’ (See [39]). This was not the case here as there was no real dispute that the applicant breached the violence restraining order or that his actions fell within the meaning of pursuit (See [37]-[39]).
Third, the discretion not to order parole eligibility did not miscarry in this case. The applicant remained beset by a deep-seated psychological disorder. His aggression was unchecked and his past behaviour showed that if parole eligibility was ordered he would be likely to reoffend (See [85]-[87]).
Finally, the sentences were not manifestly excessive. The stalking offence was of a very serious kind. The offending occurred when the applicant was already charged with an offence of aggravated stalking, he failed to appear on the date for trial, and was eluding authorities. The nature of the stalking itself was serious and persistent with 160 calls over a 22-day period and overt threats being made (See [92]-[97]). Further, in relation to the threatening letter offending, the threats were credible, and ‘serious and graphic’. The purpose of the threat, to prevent a person engaging in lawful activities, significantly aggravated the offending (See [98]-[99]). In terms of totality, the total sentence was not disproportionate to the offending given the persistent nature of the applicant’s conduct, the period of time over which it took place and the serious nature of the offending (See [101]).
Note: the High Court refused special leave to appeal (see Hellings v The Queen [2005] HCATrans 255 (27 April 2005)).
Charge/s: Breach of misconduct restraining order.
Appeal Type: State appeal against dismissal of charge.
Facts: A misconduct restraining order was in place against the respondent which prevented him from behaving in an ‘intimidatory or offensive manner’ towards the complainant. He was charged with breaching that order by intimidating the complainant. The alleged intimidatory conduct included the respondent driving past the complainant’s house and staring at her such that she felt intimidated. At trial, the Magistrate accepted a no case submission made by the respondent’s counsel. The Magistrate concluded that an order which restrained the respondent from behaving in an ‘intimidatory or offensive’ way was not authorised by the Restraining Orders Act 1997 (the Act). The Magistrate concluded that the respondent’s alleged conduct would constitute an offence under the Police Act 1892. As such, because the Act only provides for the restraint of ‘lawful’ activities, an order which purported to restrain ‘unlawful’ conduct would fall outside the scope of the section. The Magistrate was also concerned with the subjective nature of the alleged intimidation. The order appears to prevent conduct which is objectively intimidatory, but the evidence referred to the subjective experience of the protected person.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault occasioning bodily harm, unlawful wounding with intent to cause grievous bodily harm.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant was in a de facto relationship with the complainant and had 1 child. The assault offence occurred after the couple split up. The applicant repeatedly called the complainant. He approached the complainant as she walked to a shopping centre. He then grabbed her by the hair and punched her to the back and head. The applicant made numerous threats to kill the complainant during the assault and she attempted to run away but he dragged her back. The unlawful wounding offence involved the applicant forcing his way into the complainant’s house. He stabbed her numerous times in the chest, back and neck and also attempted to stab her in the face. She pretended to be dead so as to stop the attack. While he was in remand, police officers made a number of telephone calls on the applicant’s behalf indicating that he wished her to visit him. She did not do so and moved into a refuge after her release from hospital. However, her whereabouts was discovered by members of the applicant’s family so she was forced to move. The complainant suffered lasting psychological injuries and her daughter was severely traumatised as the events occurred in her presence. The applicant was sentenced to three years’ imprisonment for the assault offence and 9 years’ imprisonment for the wounding offence, to be served cumulatively such that the total effective sentence was 12 years, with parole eligibility.
Issue/s: One of the issues concerned whether the sentences were manifestly excessive.
Decision and Reasoning: Leave was granted and the appeal was upheld.
The appellant submitted that the 9-year sentence imposed for the unlawful wounding offence was excessive. Malcom CJ (with whom Steytler J and Burchett AUJ agreed) held that this was a vicious, pre-meditated attack which put the complainant’s life in danger. Nevertheless, the sentencing judge’s starting point for the wounding offence (before the applicant’s guilty plea) was 12 years, which the Court held was excessive and that a starting point of 9 years would have been appropriate. It was noted at trial that the appellant remained a high risk of reoffending and prison based alternatives to violence programs to develop more appropriate strategies for resolving conflicts in relationships were recommended. This recommendation was not disapproved by the Court of Appeal. The appellant was re-sentenced to 6 years’ imprisonment for the wounding charge, which resulted in a total effective sentence of 7 years and 4 months.
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against conviction and sentence.
Facts: The appellant arrived home late at night and asked his wife if she had had anyone in the house while he was overseas. She said no, at which point he punched her in the face. She then told him she did have a man in the house. He then started hitting her in the face and head with closed fists. He pulled her by the hair to a chair. He then hit her again and kicked her in the side while on the floor which caused her to black out. She was awoken by her son calling for her. Fearing for her life, she jumped off the balcony which was about three metres off the ground. The appellant tried to drag her up the stairs by the ankles which she resisted. She sustained severe injuries. The defence case was that the complainant’s injuries were as a result of self-harm and she jumped off the balcony by choice. The appellant had no criminal history. He was sentenced to 12 months’ imprisonment with parole.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against sentence.
Facts: The appellant had been told (untruthfully) that his de facto wife of six years had been sleeping with another man. The appellant accused her of doing so and then punched her in the face with a clenched fist multiple times. The complainant fell to the ground and the appellant kicked her in the back. He then grabbed her and carried her to a nearby yard. After the complainant yelled at the appellant to let her go, he released her and raised a wooden fence post above his head in a threatening way. The complainant suffered a broken jaw, facial swelling, various cuts and a sore back. The appellant was sentenced to 18 months’ imprisonment with parole edibility.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault.
Appeal Type: Appeal against sentence.
Facts: The appellant was in a de facto relationship with the complainant. On Christmas Day 1999, the appellant was heavily intoxicated. An argument occurred. The appellant then assaulted the complainant by squeezing her arms and pulling her hair while she attempted to leave the house. The Magistrate also accepted that the appellant had engaged in intimidatory and threatening conduct over the previous two days. The appellant’s evidence differed substantially. The Magistrate found that the appellant’s evidence was contrived and manipulative and sought to paint his actions without fault. The Magistrate noted the protracted and serious nature of the offending. The complainant was left with no substantial physical injuries but there was a significant mental impact. The Magistrate also noted the fact that domestic violence cases are insidious, difficult to detect and have significant implications for the parties and the general community (see at [8]). The appellant was sentenced to 12 months’ imprisonment with parole eligibility.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld.
Miller J disagreed with the Magistrate’s conclusions that deterrence outweighed all other sentencing considerations and that the seriousness of the offence meant that the only justifiable sentence was imprisonment. His Honour noted that this case concerned only one assault, which was the combination of seizing the complainant by the arm and pulling her hair. The Court also held that the Magistrate had placed undue weight on the events leading up to the assault and noted that the appellant had only been charged with one offence. While it was appropriate to take into account the traumatic effect of the assault on the complainant and correct that assaults involving domestic violence call for deterrent sentences, ‘this assault could not be categorised as being of the most serious kind’ and the description of it as such was an ‘over-reaction to the facts of the case’ (see at [17]). Miller J therefore set aside the sentence of imprisonment and fined the appellant $6000.
Charge/s: Grievous bodily harm with intent, attempted murder.
Appeal Type: Appeal against conviction and application for leave to appeal against sentence.
Facts: The appellant and his wife began conversing together with a man online. After some time, the appellant’s wife’s conversations with this man became ‘more flirty and intimate’ and eventually his wife agreed to stop using the internet. She said goodbye to this man and she refused to tell her husband what they discussed in this conversation. The next day, after attempting to discuss the issue with his wife, he stabbed her in the upper back while she was in bed either asleep or attempting to sleep. He then stabbed her again as she attempted to flee. He then unsuccessfully attempted to commit suicide. The appellant was found not guilty of attempted murder but guilty of grievous bodily harm with intent and was sentenced to 8 years’ imprisonment with parole eligibility.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault (eight counts).
Appeal Type: Appeal against sentence.
Facts: The complainant was the appellant’s de facto partner. After returning home intoxicated, the appellant ‘lost the plot’ after discovering that the cat had defecated on the bed. He assaulted the complainant. The following day, there was a further altercation and the appellant assaulted the complainant several times, including by squeezing her throat, throwing coffee and the contents of an ashtray over her and ‘(pushing) up her chin and started spitting into her face’ in the presence of their children. The complainant then obtained a restraining order against the appellant but was unable to particularise many of the assaults due to the length and nature of the incident. The appellant conceded that the assaults were a build-up of frustrations over the last 12 months of the relationship and submitted that he suffered from depression, was remorseful and had never previously been violent towards the complainant. The appellant was sentenced to 9 months’ imprisonment for each count, to be served concurrently.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld. The appellant submitted that notwithstanding the seriousness of the offending, a sentence of imprisonment was not the only option. Counsel for the respondent submitted that while each assault in isolation may have warranted a lesser penalty, the combination of all the counts and the time period over which they were committed aggravated the circumstances of the offence. The respondent also submitted that cases of domestic violence call for a sentence of personal and general deterrence.
Miller J agreed but emphasised that regard must be had to the individual circumstances of the case – ‘I entirely agree with the submissions of counsel for the respondent that in general terms, a deterrent sentence for domestic violence offences will be called for. Much, however, depends upon the extent of the violence. Whilst here there were multiple offences and offences committed over a period of time, the complainant fortunately appears to have escaped injury. Further, seven of the offences appear to have occurred as one group of offences. Additionally, the appellant does not appear to have ever assaulted his de facto in the past, there being no allegation to that effect in the pre-sentence report, statement of facts or elsewhere and there being no victim impact statement from the complainant’ (see at [12]). Miller J noted the pre-sentence and psychological report which suggested the appellant needed counselling in relation to anger. The appellant himself initiated contact with a domestic violence program and was proposing to participate in that program. As such, the Court found that the appellant should have been given the opportunity of a suspended sentence as an inducement for him to reform.
Charge/s: Breach of violence restraining order.
Appeal type: Appeal against sentence.
Facts: The female appellant and the male respondent had been in a relationship for six years. The appellant obtained an interim violence restraining order against the respondent. The respondent was charged with one offence of unlawful assault and four offences of breaching a violence restraining order. The magistrate dismissed the charge of assault and two charges of alleged breach of a violence restraining order. He convicted the respondent of two charges of breach for going into the bedroom of the complainant in the early hours of the morning and communicating with her by telephone on the same morning. The magistrate gave no real reasons for either the acquittals or the convictions he recorded (See [6]). The magistrate also decided to impose no penalty, without giving any reasons for doing so (See [7]).
Issue/s: The magistrate erred in law and in fact in imposing no penalty or sentence.
Decision and Reasoning: The appeal was upheld. The magistrate made no reference to the provisions of the section of the Act allowing for the imposition of no penalty if certain preconditions are met. This constituted sufficient grounds for allowing the appeal. Further, this section also had no relevance in this case. The circumstances of the offence were neither trivial or technical (See [9]-[12]), and it was not unjust to impose a sentence in light of the fact that respondent was 42 years of age, employed with a regular income, and had a prior record of convictions (See [13]). Miller J also noted the clear social importance of the Restraining Orders Act 1997. His Honour provided, ‘protected persons in the community generally must have confidence that restraining orders will be obeyed and complied with … [When] they are not, there must be significant consequences to support the fact that restraining orders mean something … [The] courts [must] ensure that their orders are not ignored’ (See [13]-[15]). Fines of $750 and $250 were substituted. See also Dawes v Coyne [2000] WASCA 134.
Proceeding: Violence restraining order.
Appeal type: Appeal from decision of magistrate to place appellant on violence restraining order.
Facts: The female appellant and the male respondent had been in a relationship for six years. The appellant obtained an interim violence restraining order against the respondent. The respondent was subsequently charged with one offence of unlawful assault and four offences of breaching a violence restraining order. The magistrate dismissed the charge of assault and two charges of breach of the violence restraining order but convicted the respondent of two charges of breach. No penalty was imposed in respect of these breaches. Without warning, the magistrate also placed the appellant on a violence restraining order.
Issue/s: The magistrate erred in placing the appellant on a violence restraining order.
Decision and Reasoning: The appeal was allowed and the violence restraining order set aside. The magistrate’s actions were in every way a complete breach of the Act. The magistrate ‘gave no indication of what it was that he intended to do, failed to alert the appellant to the possibility that an order might be made against her, and made no invitation to her to respond in any way’ (See [10]).
Miller J also noted that the magistrate ‘started by stating that it was a tragedy that ‘domestic matters of this sort get into the criminal court’ and made the observation that ‘both parties had been causing trouble for the police who do not want to be involved in these sort of things’’. These observations were ‘entirely inappropriate’ (See [6]). See also Pillage v Coyne [2000] WASCA 135.
Charge/s: Aggravated burglary and assault occasioning bodily harm
Appeal type: Application for leave to appeal against sentence.
Facts: the applicant and complainant shared a brief sexual relationship, but did not live together. The applicant saw the complainant in a night club in Fremantle. He spat on her and wiped faecal material on her face. She went home. He followed her, without permission. At the house, he punched her repeatedly and kicked her. He also threatened her with a knife. The assault caused significant injuries to the complainant. The applicant pleaded guilty and, at first instance, was sentenced to three and a half years’ imprisonment.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: Application refused. The applicant was self-represented. Chief Justice Malcolm considered that the way in which the earlier assault at the night club had preceded the aggravated burglary showed some persistence in the offending. It also exhibited an element of premeditation. The seriousness of the offending was elevated by the fact that the applicant knew that the complainant was pregnant at the time and the nature of the attack was such that no regard was paid to the safety of the foetus. His Honour said at [28]:
“It is now clear that in cases of domestic violence a sentence which gives effect to both personal and general deterrence will normally be called for. The circumstances may be such as to justify a substantial sentence of imprisonment”.
Charges: Breaching a family violence restraining order x 6; possessing a controlled weapon x 1; aggravated home burglary x 1; deprivation of liberty x 1
Case type: Appeal against sentence
Facts: In February 2020, the applicant man was sentenced to 7 months’ imprisonment following his conviction after guilty pleas to 6 offences of breaching a family violence restraining order (FVRO) and one offence of possessing a controlled weapon. Three days earlier the applicant was sentenced, following a guilty plea, to 3 years’ imprisonment in relation to a charge of aggravated home burglary and deprivation of liberty. These offences occurred at the same time as one of the FVRO offences and the possession of the controlled weapon, and the day before another two of the FVRO offences.
The applicant man and female victim were in a relationship which ended around April 2019. On 26 May 2019, the applicant was served with the FVRO which prohibited him from, among other things, communicating or attempting to communicate with the victim. Approximately 2 hours after being served, the applicant sent a series of 88 text messages to the victim. He was arrested, charged with breaches of the FVRO and released on bail. Several days later the applicant entered the victim’s house, pointed a replica pistol at her, forced her into his car and handcuffed her. That night, the pair discussed their relationship and had consensual sex. The applicant continued calling the victim and told her that he had entered her house again and accessed her Facebook account. He also repeatedly approached the victim on her commute home, including getting into her vehicle with her. The applicant was eventually arrested near the victim’s home, and police searched his premises and located the replica firearm. The applicant had a modest criminal record, including convictions for breaching restraining orders and assault.
Grounds:
It was also argued that the learned magistrate failed to give sufficient weight to his early guilty pleas, his lack of a relevant record and reasonably good antecedents, his efforts at rehabilitation, and his mental health at the time of his offending, which had been treated at the time of sentencing.
Held: Leave to appeal granted, appeal dismissed.
Ground 1 was not established. The applicant’s breaches of the FVRO were not minor or technical. Rather, he repeatedly refused to obey the order which was imposed for the victim’s protection, and flagrantly disregarded both the authority of the court and the rights of the victim ([56]). The offences were serious as they involved the applicant entering the victim’s home on two separate occasions (one of which involved a replica pistol and handcuffs), and following her on the train home. These breaches were terrifying for the victim who believed that she was going to be murdered. The offences were further aggravated by the fact they were committed when the applicant was on bail for earlier breaches of the FVRO ([57]). However, Hill J noted that the Magistrate did not comply with s 9AA(5) Sentencing Act by failing to state the extent of the reduction given for his guilty plea ([70], [85]), but this did not result in the applicant’s sentences being overturned ([71]). Hill J also found that the Magistrate took the applicant's antecedents and mental health issues into account. It was clear that the Magistrate considered that the applicant’s mental health issues were not such that he was an unsuitable vehicle for personal and general deterrence ([74]-[75]).
In relation to Ground 2, Hill J found that the total effective sentence was neither unreasonable nor plainly unjust, and was not crushing ([82]-[84]). Any error made by the Magistrate did not result in a substantial miscarriage of justice ([91]).
Offences: Breach of Police Order x 1; Common assault x 1; Assault causing bodily harm x 1; Being armed in a way that may cause fear x 1.
Proceedings: Bail application
Issue: Whether the applicant might reoffend if released from custody; whether there were conditions that could be reasonably imposed if bail were granted to ameliorate the risk of reoffending.
Facts: The male applicant and female victim were married for 11 years and had three children. The victim also had another child (Ryan) from a previous relationship. One night at the family residence, the applicant pushed Ryan in the chest, causing him to stumble backwards, then punched him in the face. A 72-hour police order was served on the applicant following this incident which prohibited him from entering or remaining within 10 metres of the residence, from going within 10 metres of the victim, and from acting in a violent or intimidating manner towards her. The night following the incident, the applicant entered the residence. An altercation ensued in which the applicant pushed the victim to the ground, punched her in the head and kneed her in the head and body, for which she required medical attention. A Mr Ledgerton was at the residence and intervened to protect the victim. The victim left the house. The applicant then armed himself with a knife and went out to the front drive where he threatened Mr Ledgerton and a neighbour with the knife.
The applicant plead guilty to breaching the police order but not guilty to the remaining charges and was remanded in custody. The applicant applied for bail for the charged offences, but this was refused by the Magistrate on grounds of the seriousness and nature of the alleged offending, the fact that the applicant had breached a police order shortly after it was made, and fears by the victim (and concerns by the police) that the applicant posed a risk to the victim and her children. The applicant subsequently applied for bail again after the victim visited him in custody, but the Magistrate again refused on the basis that the prosecution case was strong and no conditions could be imposed that would ameliorate the risk of offending in a violent manner or interfering with witnesses. The applicant then applied for bail a third time.
Judgment: The judge granted bail subject to several conditions which His Honour stated would "sufficiently remove the possibility of the applicant reoffending" [8]. These conditions included: curfew and reporting conditions; conditions to protect the victim, Ryan, Mr Ledgerton and the neighbour from contact by the applicant; and conditions regulating the applicant’s conduct with his children [20].
The respondent opposed the bail application because there was a risk the applicant would reoffend if released [8]. However, the victim submitted an affidavit to the court stating that she wanted the applicant to be released on bail [7]. The affidavit provided that: the victim did not resile from any of the allegations made; during the relationship, the applicant engaged in controlling behaviours that caused the victim distress; and the applicant continued to telephone her while in custody causing her more stress [16]. However, the affidavit also provided that the applicant’s alleged conduct was out of character and the victim wanted bail to be granted because she was concerned that the applicant’s continued detention would adversely affect his relationship with his children and make it more difficult for her to establish a new life [16].
His Honour had reservations about the victim’s change in attitude [7] but granted bail due to a number of factors including: accommodation and employment arrangements that had been made for the applicant; the likely length of any sentence that would be imposed if he were convicted; the likely time until trial (next year); the incentive he had to abide by his bail undertakings (ie: access to his children); the time since the alleged offending occurred; the victim’s attitude (she expressed a wish that the applicant be granted bail and had visited him in custody with two of her children); and evidence concerning the applicant’s behaviour at the time of the offending (the behaviour occurred in a particular context that no longer prevailed – the applicant now accepted that the relationship was over) [7], [12].
Charges: Aggravated assault causing bodily harm x1;
Appeal type: Application for leave to appeal against sentence
Grounds:
Facts: The male appellant and female victim had been in a domestic relationship for six years and had a child together. At the time of offending, the victim and appellant were arguing in a car while the child was in the backseat. During the argument, the victim pulled over to the side of the road out of fear of the appellant and ask him to get out of the car. The appellant then punched the victim to the upper-left arm and grabbed her and squeezed her arm. He then "punched the victim to her left breast and the left side of her stomach". The appellant continued to assault the victim until he hit her head against a window and strangled her until she could not breathe.
The appellant entered a plea of guilty and was sentenced to 14 months’ imprisonment. The magistrate declined to suspend the term.
Judgment: The first ground was dismissed; as the Magistrate was not discourteous and did not prevent the plea from being made, the contention was without foundation. The second ground of appeal was also dismissed; it was noted that the sentencing judge "carefully reviewed all relevant sentencing factors" and only after doing so correctly concluded that imprisonment was the only appropriate punishment [37-8].
The third ground was also dismissed. McGrath J found the domestic relationship and presence of young children to be aggravating factors and thought the 15% discount afforded for the guilty plea by the sentencing judge was appropriate. After placing minimal weight on the offender’s personal circumstances, such as his age, as mitigating factors, the Court concluded that the sentence was not manifestly excessive.
Charges: Aggravated administration of a noxious thing to another person x 1; Aggravated common assault.
Proceedings: Appeal against sentences
Facts: The appellant and the complainant had, at the time of the allegations, been in a relationship for approximately five years and were engaged to be married. The appellant verbally abused the complainant and threw her onto the bed. The complainant managed to kick the appellant off her and the appellant threw items around the room. The complainant’s attempt to use pepper spray to keep the appellant away only angered him further. He picked the complainant up by her neck and jaw before throwing her back a couple of metres into the fridge. The accused hit the complainant against the fridge again, causing her to drop to the ground in pain. When she stood up again the accused sprayed the back of her neck with pepper spray.
The appellant was sentenced to 12 months imprisonment and was made eligible for parole.
Issues: The appellant appealed on grounds the sentences were manifestly excessive and that the magistrate erred in ordering the sentences be served cumulatively and that the total sentences should not be suspended.
Decision and reasoning:: Jenkins J held that the magistrate had correctly balanced the appellant’s personal circumstances including the domestic relationship with the complainant and repeated significant force against any aggravating factors and that the sentences were therefore not manifestly excessive. The total effective sentence was held to be plainly unjust given the offending was close in time and in one incident, the appellant had good prospects of rehabilitation, and had never been sentenced to imprisonment or convicted of violent offending previously. There was no error in choosing not to suspend the sentences.
Case type: application for review of an interim FVRO
Facts: The respondent was granted an interim FVRO based on allegations in an application, affidavit and oral evidence that his sister(the applicant) was communicating in an intimidating and abusive manner by phone calls, text messages and emails in a manner consistent with the meaning of ‘cyber-stalking’. The communications related to the way in which he was caring for their father, who was in a nursing home. The applicant submitted that the magistrate applied the wrong meaning of the term ‘family violence’ and there was no evidence of any act that could arguably constitute ‘family violence’ within the correct definition under the Restraining Orders Act 1997 (WA), arguing that the magistrate therefore lacked jurisdiction to grant the FVRO, or alternately that her application be treated as an appeal.
Issue: Did the magistrate apply the wrong meaning of ‘family violence’
Held:: The magistrate did not make an error in jurisdiction by applying the wrong definition and the application for review was dismissed. The application, supporting affidavit and oral evidence heard all disclosed matters that were within the definition of "cyber stalking". In any event if the matter were to be reviewed the final hearing on the FVRO would need to be vacated and the matter would be more quickly dealt with by way of final hearing.
[Summary prepared by Lily Philp for Western Australian Magistrates Court]
Charges: 1 x breach of restraining order
Case type: Application for leave to appeal out of time and leave to appeal against sentence
Facts: The appellant man pleaded guilty to a charge of breaching a family violence restraining order. He breached the order by approaching his female former partner outside court immediately following the restraining order final hearing for which he had failed to appear and asking "when am I going to see my kids?" He was sentenced to 7 months' imprisonment. He sought leave to appeal against that sentence. The application for leave to appeal was lodged 12 days after the last date for filing an appeal. An application for expedited hearing had already been granted.
Ground: The learned magistrate erred in finding that it would be necessary to find 'unjust circumstances' in order to suspend the term of imprisonment ([24]).
Held: The breach in question did not involve any actual or expressly threatened violence, however Hall J noted that ‘protected persons can feel intimidated or threatened by being contacted or approached by the person they fear’. The orders intended to provide protection from such fear, as well as the risk of physical harm ([31]).
In assessing the gravity of the offence, Hall J listed relevant factors:
These factors, as well as the appellant’s explanation for and nature of the breach, his early guilty plea and the risk of institutionalisation, led his Honour to find that it would have been inappropriate to suspend the term of imprisonment. Accordingly, there was no substantial miscarriage of justice and the appeal was dismissed ([39]).
Charge/s: 1 x breach of FVRO
Case Type: Application for extension of time to appeal, appeal against conviction following plea of guilty
Facts: On 29 December 2018 the appellant was convicted in the Magistrates Court on his plea of guilty to one offence of breaching a FVRO contrary to s 61(1) of the Restraining Orders Act 1997 (WA). The appellant applied for an extension of time to appeal and for leave to appeal against conviction. The appellant appeals the conviction on the ground that he could not in law, on the basis of the admitted facts, have been guilty of the offence. The appellant was said to have breached the FVRO by ‘harass[ing] the Person Protected by any electronic means, including by using the internet and any social network application (such as ‘Facebook’) to depict or refer in any manner to the person protected’, and appeals on the basis that he was dealt with in the Magistrates Court on the basis that he referred to the person protected and not on the basis he harassed her.
Issue: Is a reference to a protected person in a SMS message not sent to the protected person a breach of the FVRO? Is it a mere reference via electronic means that constitutes a breach, or is it actual harassment?
Held: Application allowed and leave granted. A breach occurs if the person subject to the order ‘harasses’ the person protected. The reference to ‘including by using the internet and any social network application (such as ‘Facebook’) to depict or refer in any manner to the person protected’ serves only as an example of what could constitute harassment, and was not intended by parliament to mean that any electronic reference to the person protected constitutes a breach.
[Summary prepared by Lily Philp for Western Australian Magistrates Court]
Charges: Assault in circumstances of aggravation x 1.
Case type: Appeal against sentence.
Facts: The appellant was convicted on his plea of one offence of assault in circumstances of aggravation. The relevant circumstance of aggravation was that the appellant and the victim, the appellant's wife, were in a family relationship. The assault comprised of the appellant hitting the victim, grabbing her by the throat, and holding her around five seconds until other family members intervened ([6]). At the time of the offence, the appellant held a security officer’s licence and worked as a security officer. The licence was suspended and he resigned from his job before the sentencing hearing ([7]). Having regard to the seriousness of the offence and mitigating factors, the magistrate imposed a fine of $1200 and made a spent conviction order ([1]).
Issues: The appellant appealed the sentence. Submissions included that:
Decision and reasoning: The Court was not satisfied that there was any substantial miscarriage of justice and dismissed the appeal. At [29]-[32], Tottle J noted numerous issues with the appellant’s case. First, as the respondent submitted, reducing the fine imposed on the appellant under $500 would undermine the operation of the Security and Related Activities (Control) Act 1996 (WA). His Honour accepted that this was a case involving a nexus between the offending and the appellant's occupation as a security officer. Security officers must often exhibit self-restraint in the performance of their duties. The offending was contrary to this. Second, there was force to the respondent's submission that the appellant's argument does not rest on the proposition that the fine should be reduced because of the extra-curial punishment constituted by the financial hardship resulting from the loss of the appellant's security officer's licence, but that the fine should be reduced to avoid that extra-curial punishment with the result that the appellant is doubly advantaged in relation to mitigation. Third, the maximum penalty for the offence of common assault in circumstances of aggravation is a $36,000 fine or 3 years’ imprisonment, or both. A fine of less than $500 would not constitute an appropriate sentence. Although the offence was considered to be 'towards the lower end of the scale’, there is no single correct sentence for any offence, and his Honour held that a fine of less than $500 would not be adequate given the seriousness of the offending.
Charges: Breaches of a restraining order and a protective bail condition, stalking.
Appeal type: Appeal against sentence.
Facts: The appellant breached a Family Violence Restraining Order (FVRO) which restrained him from communicating or attempting to communicate with the victim (his former partner) by any electronic means. He was also charged with an offence of stalking, based on repeated calls he made to the victim which had the effect of intimidating her. He also failed to comply with a protective bail condition ([3])-[12]). He pleaded guilty to all the offences and was sentenced to 12 months’ imprisonment. The Magistrate noted that the appellant’s conduct was coercive and controlling, causing fear to his former partner. His behaviour was ‘persistent and intimidatory’, and the breaches showed a repeated disregard of the court orders ([16]).
Issues: The appellant sought to appeal his sentence on the ground that the Magistrate’s sentencing discretion miscarried, and that the sentence was manifestly excessive and contrary to the weight of the evidence.
Decision and reasoning: The Court found that the appellant’s breaches of the restraining order could not be described as ‘minor or technical’ ([33]). Although the breaches did not involve actual or threatened violence, his repeated acts showed a refusal to accept the authority of the order imposed for the protection of the victim. The Court was satisfied that the term imposed for the offences was manifestly long so as to show an error in principle ([35]). The Court considered the personal circumstances of the appellant – he was 36 years old, a self-employed businessman, and had previous convictions for serious breaches of a VRO against the same victim for which he was sentenced to imprisonment ([37]). Consequently, the Court allowed the appeal and resentenced the appellant. A cumulative sentence was found to be appropriate to reflect the additional element of intimidation. The head sentence was reduced to 8 months, and the appellant was eligible for parole ([40]-[41]).
Charges: Aggravated unlawful assault x 2; Aggravated unlawful assault causing bodily harm x 4; Cruelty to an animal causing it unnecessary harm x 1.
Appeal type: Appeal against sentence.
Facts: The appellant and complainant were in a de facto relationship. On multiple occasions over 2 years, the appellant punched or struck the complainant, causing a broken arm ([25]) and a split lip ([26]). On the occasions where he struck her with a hairbrush and mobile phone, her head split open and she required stitches ([18]-[21], [24]). The appellant also kicked her small dog, causing it to become paralysed and die ([29]). Her children were present on most of the occasions. The assaults were unprovoked. While the police were sometimes called by witnesses, the complainant did not feel safe enough to tell the police about all the assaults until she had left the relationship ([31]).
The appellant pleaded guilty and was sentenced to 22 months’ imprisonment ([48]).
Issues: Whether the sentence was manifestly excessive; whether the sentence infringed the first limb of the totality principle; whether a suspended sentence should have been imposed.
Decision and reasoning: The appeal was dismissed.
Derrick J found that the sentence was not manifestly excessive. His Honour stated that “over an extended period of time the appellant engaged in a serious course of criminal conduct comprised of subjecting the vulnerable complainant to a number of significant acts of domestic violence. The fact that the offences were committed in a domestic setting increases the seriousness of what the appellant did” ([73]). Factors such as the appellant’s relative youth and relatively limited prior record provided some mitigatory value.
For largely the same reasons, Derrick J considered that imposing an immediate term of imprisonment, compared to a suspended sentence, was not outside the range of the magistrate’s sentencing discretion ([94]).
Case type: Application for review of Magistrate’s decision not to make a final family violence restraining order and application for stay of proceedings.
Facts: The applicant made an application for a family violence restraining order pursuant to s 24A of the Restraining Orders Act 1997 (WA) (‘Restraining Orders Act’) against her former partner ([9]). The Court made an interim family violence restraining order ([10]). The respondent objected to the interim order ([11]). The next hearing was listed as a 'Restraining Order Final Order Directions Hearing'. The respondent did not attend at that hearing. The Magistrate did not make a final order, and adjourned the hearing ([14]-[17]).
The applicant applied for a review order under s 36 of the Magistrates Court Act 2004 (WA) ([2]), to review the Magistrate’s decision not to make a final restraining order. The applicant also applied for a stay of the substantive hearing.
Issues: Whether the applications should be granted.
Decision and Reasoning: Tottle J granted the review order and the stay of proceedings.
Tottle J set out the principles governing judicial review under s 36of the Magistrates Court Act 2004 (WA) at [4]-[8]. His Honour set out the principles governing when a final order must be made under s 42 of the Restraining Orders Act at [20]-[24]. Tottle J held that it was irrelevant that the hearing was described as a 'Restraining Order Final Order Directions Hearing' even though no hearing of that nature is contemplated or provided for by the Restraining Orders Act (discussing Kickett v Starr [2013] WADC 52) ([27]-[32]). Tottle J was satisfied that the Magistrate made a jurisdictional error by not exercising the jurisdiction conferred on him by the Restraining Orders Act ([33]).
Tottle J set out the principles governing when a stay ought to be granted at [40]. Tottle J granted a stay of the proceedings on the grounds that the applicant’s medical conditions and stress would be exacerbated by having to face the respondent in a contested hearing ([41]-[42]). Tottle J noted that s 10B of the Restraining Orders Act requires courts to have regard to the possibility of re-traumatisation during the proceedings ([43]).
Charges: Obstructing a police officer x 1.
Appeal type: Appeal against conviction.
Facts: The appellant was convicted of obstructing two police officers by resisting arrest ([2]). The appellant was arrested on suspicion of committing an offence by breaching a violence restraining order ([2]). The breach occurred when the appellant attended a dog training class when he allegedly knew the victim would be there ([56]). The victim later reported the incident and the incident was recorded with a Domestic Violence Incident Report (‘DVIR’):
Issues: One issue was whether the police could form a reasonable suspicion that the appellant had breached a violence restraining order by relying on a DVIR ([61](iv))
Decision and Reasoning: Justice Tottle concluded that the officer’s ‘suspicion of a breach of the order by the appellant was reasonable. The narrative section of the incident report read in the context of the DVIR section of the report (that is the allegation of breach assessed against what had allegedly taken place in the past) provide a basis for a suspicion that the appellant had breached the order’ ([70]).
Charges: Breach of violence restraining order (VRO) x 20.
Appeal type: Appeal against sentence.
Facts: The appellant and the victim were married for 14 years but were separated at the time of the offences ([13]). A VRO was granted with the victim as the protected person ([13]). The appellant was prohibited from contacting the respondent except to arrange for contact with his son ([15]). The appellant breached the VRO over a period of 7 months by making a significant number of phone calls to the victim and sending text messages and letters beyond the bounds of the VRO ([18]-[53]). In some instances, the messages included threats to kill the victim and himself. The Magistrate imposed an aggregate sentence of 18 months’ imprisonment.
Issues: There were 6 grounds of appeal:
Decision and Reasoning: Jenkins J dealt with the grounds of appeal in the following manner:
While Jenkins J accepted that ground 2 was made out, the appeal was dismissed because the error did not result in a substantial miscarriage of justice ([184]).
Jenkins J referred to the role of the Restraining Orders Act in deterring domestic violence at [152]:
The long title of the Restraining Orders Act reflects Parliament's intention for the Act to provide for orders to 'restrain people from committing acts of family or domestic or personal violence by imposing restraints on their behaviour and activity'. In order for the Act to be effective, offenders must appreciate that if they breach a VRO they will receive a significant penalty. The community and the courts have [an] intolerance and abhorrence of violence and threatened violence in domestic and former domestic relationships. The penalties imposed for breaches of VROs must reflect that intolerance and abhorrence, in the hope that the penalties deter offenders and protect victims.
Charges: Breach of violence restraining order (‘VRO’) x 1.
Appeal type: Appeal against conviction.
Facts: There was a final VRO in place protecting the applicant’s partner. The applicant’s partner applied for a variation of that order. The applicant was not served with notice of the application to vary the VRO ([10]). The Magistrate granted the application to vary the VRO even though the appellant was not present ([11]). The appellant pleaded guilty to breaching the VRO ([1]).
Issues: Whether the appellant’s conviction upon his own plea was a miscarriage of justice.
Decision and Reasoning: The appeal was allowed ([30]). The variation to the restraining order was a nullity ([16], [22]). It was an essential condition of the jurisdiction to hear the application to vary the VRO under s 48(2) of the Restraining Orders Act 1997 (WA) that the Court be satisfied that the appellant was served with the summons ([23]). Since the Court was not so satisfied, the VRO had no legal force. It was a miscarriage of justice for the appellant to be convicted of breaching the order ([24]).
Case type: Application for leave to appeal against Magistrate’s decision not to grant final violence restraining order (FVO).
Facts: The appellant, BV, and the respondent, TP, were married but separated. BV obtained an interim FVO against TP in the Children’s Court. The FVO was to protect BV and TP’s three daughters, M, N and O ([1]-[2]). At the final order hearing, after BV had given her evidence in chief, the Magistrate interrogated TP’s counsel about the likely content of further evidence proposed to be given by the children. The Magistrate expressed a strong disinclination against exposing the children to cross-examination by the respondent’s counsel. The Magistrate summarily dismissed BV’s application for a final order VRO on the basis that even if their evidence was accepted, it would not be enough to justify an FVO being granted ([7]-[8], [45]).
Issues: Whether the Magistrate erred in law by summarily dismissing the proceedings.
Decision and Reasoning: The appeal was dismissed. Kenneth Martin J held that the Magistrate was correct in expressing concern for the children’s welfare if they were cross-examined ([118]). His Honour held that the Magistrate had the power to summarily dismiss the final order VRO application ([133]-[143]) and that the Magistrate’s discretionary exercise of power to dismiss the proceedings was justifiable ([144]-[147]).
His Honour discussed the Supreme Court’s appellate jurisdiction in the circumstances that the interim order was made in the Children’s Court at [21], [46]-[90] and [149]-[161]. His Honour discussed the principles applicable to children giving evidence in VRO proceedings at [99]-[119].
Charge/s: Breach of violence restraining order.
Appeal Type: Appeal against conviction.
Facts: The appellant pleaded guilty to breaching a violence restraining order in favour of his wife and was fined $500 with costs. The breach arose out of the appellant’s attendance at his wife’s home to retrieve some of his property. He claimed he had misunderstood the terms of the violence restraining order and that if he had known that the order did not permit him to attend the house, he would have attended the police station and asked officers to accompany him while he retrieved the property. The appellant had previously been diagnosed with bipolar disorder and had tendered medical records to the Magistrate.
Issue/s: Whether there was a miscarriage of justice because when the appellant pleaded guilty he was unaware he had an arguable defence of unsoundness of mind.
Decision and Reasoning: The appeal was upheld and a retrial was ordered. The appellant’s affidavit on appeal stated that he was suffering a relapse of his bipolar disorder when he pleaded guilty to the charge. A psychiatrist’s affidavit indicated that it was more likely than not that the appellant was, ‘in such a state of mental impairment so as to deprive him of the capacity to know that he ought not to assault someone or return to his house’ (see at [36]). However, at the time he pleaded guilty, he was not aware that his mental state was not normal. As such, the evidence indicates that he may have had an arguable insanity defence at the time of the guilty plea. Furthermore, when the appellant consulted with a solicitor, there was no discussion in relation to a possible insanity defence, even though the solicitor knew of the appellant’s history of mental illness. There was no available evidence at the time that the lawyer should have considered the availability of a mental impairment defence. Nevertheless, Beech J held that, ‘through no fault of his own, Mr Bacchelli had no practical opportunity to raise the possible defence of insanity, or the facts relevant to it, with his lawyer’ (see at [54]). The appellant had an arguable defence but had no way of knowing of that defence, such that his plea was fundamentally not an informed one. Beech J noted that this does not mean a plea will always be set aside in these circumstances but in this case, the nature of the appellant’s ignorance of the defence resulted in a miscarriage of justice.
Charge/s: Breach of violence restraining order.
Appeal type: Appeal against sentence.
Facts: The appellant pleaded guilty to two breaches of a violence restraining order. He breached the order by living with the protected person and by being within a hundred metres of the protected person (in the same house as her). At the same time, the appellant was also dealt with for an earlier breach alleging that he was within a hundred metres of the protected person (attending and remaining at the protected person’s address). This was a ‘third strike’ case in which the magistrate was required to impose a penalty that is or includes imprisonment. The magistrate imposed a term of imprisonment for six months for each offence. A sentence of six months or less may not be imposed (Sentencing Act 1995 (WA) s86). The day before the hearing of this appeal, the Magistrates Court recalled the sentence and imposed a sentence of 6 months and 1 day.
Issue/s: One of the issues was that the sentence contravened the Sentencing Act.
Decision and Reasoning: The appeal was allowed. If it was not for the error in imposing a sentence of six months, the decision of the magistrate to impose a sentence that included imprisonment would have been within the sound exercise of sentencing discretion. The appellant had breached a VRO repeatedly (See Pillage v Coyne [2000] WASCA 135 at [13]-[15]). The correction of the sentence to 6 months and 1 day was not made in compliance with s 37(2) of the Sentencing Act as the magistrate did not give the appellant the opportunity to be heard. The appellant fell to be resentenced.
A sentence of suspended imprisonment would have been appropriate but for the fact that the appellant had already served 6 weeks in prison. The term of imprisonment was set aside and the appellant fined $1,500. The court took into account a number of factors including that the protected person expressed no fear of the appellant at the time of appeal; it was important to demonstrate to the appellant that he could not disregard the order of the court with impunity; the consent of the protected person was not a mitigating factor but it was relevant in considering the circumstances of the offence; and although there had been repeated breaches of the order, there was nothing to suggest actual violence or threat of violence (See [25]-[28]). His Honour also cited Pillage v Coyne [2000] WASCA 135 where his Honour Miller J described the Restraining Orders Act as social legislation of the utmost importance:
‘…protected persons in the community generally must have confidence that restraining orders will be obeyed and complied with … [When] they are not, there must be significant consequences to support the fact that restraining orders mean something … [The] courts [must] ensure that their orders are not ignored [14].’
Charge/s: Breach of restraining order.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant was subject to a violence restraining order (VRO) in favour of his former partner which prevented him from approaching her and from being within a nominated distance of her premises. He attended her premises in breach of the order. He claimed that he and the protected person were ‘back in a relationship’. His had a history of breaching restraining orders in place against the same protected person. He was sentenced to 8 months’ imprisonment.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was upheld. It seemed that the protected person invited the applicant back to her premises to collect his clothes. Notwithstanding, any breach of a VRO is serious. Justice Kenneth Martin commented on the penalties for the offence and then noted at [78]:
‘Those significant statutory penalties speak loudly as to the seriousness of a breach of a restraining order and dictate how closely and carefully the underlying circumstances of such an offence must be assessed in every case. In the past there have, of course, been well referenced instances where terrible crimes of violence have been committed in the community against protected persons by individuals otherwise bound by a restraining order, but who chose to ignore it. Plainly, the statutory right to apply for a VRO is meant to assist the more vulnerable to protect themselves from violence, especially (but not solely) women who are the victims of domestic violence. Thus, issues of general and specific deterrence concerning offenders are more than usually important in this arena.’
In this case, there had been no threatening or intimidatory behaviour. While an adverse inference could be drawn from the apparent fact that the applicant was hiding when police arrived, the applicant’s actions cannot be seen as a ‘calculated and flagrant’ contempt of the VRO – ‘Ignorance about the strict workings of a VRO, in the face of periods of separation and reconciliation and then heavy alcohol consumption at the end of a long-term relationship, are a more viable explanation for his misconduct, in my view’ (see at [80]).
His Honour expressly stated that he was not meaning to convey that for some VRO breaches which include a ‘flagrant disregard’ for court orders, ‘a term of immediate imprisonment will not present as the only appropriate sentencing option’ (see at [81]). However, in this case the circumstances (including that the penalties imposed upon him for his prior breaches were only fines and the benign nature of the breach) meant that an escalation in punishment from these pecuniary penalties up to a term of 8 months’ imprisonment, was not within the discretion open to the Magistrate. (Note: this position would be altered if s 61A of the Restraining Orders Act 1997 (WA) applied, which provides for a requirement of imprisonment after 2 discrete offences within a 2-year period).
2. This argument was also upheld.
Charge/s: Breach of police order.
Appeal Type: Appeal against sentence.
Facts: The appellant was at a caravan park with his wife and two-year-old child. The appellant and his wife were drinking heavily when a disagreement occurred and police attended. Police issued a 72-hour order under the Restraining Orders Act 1997 (WA) which prevented the appellant from communicating with his wife or approaching within 100 metres of her. The next day, police attended to check on the appellant’s wife and discovered the appellant hiding in the house. The appellant had a minor but relevant criminal history involving two breaches of prior police orders made in favour of his wife. He pleaded guilty, was granted bail and was placed on a ‘domestic violence behaviour change programme’ under the supervision of a Family Violence Court. He completed the majority of the program but was unable to complete it because he was remanded in custody after attending his wife’s home in breach of bail. A progress report about his participation in the program was provided to the Magistrate, which stated that he generally ‘reported as directed and engaged well’ but that he ‘had made no identifiable treatment gains during the programme and was not considered suitable for a further community based disposition’ (see at [16]). He was sentenced to seven months’ imprisonment.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was upheld in respect of ground 3 – the Magistrate erred by not backdating the sentence to give credit for time already spent in custody.
The Court held that it was within the Magistrate’s discretion to refuse to suspend the sentence.
Given error was demonstrated by the failure to backdate the sentence, it was appropriate to resentence the appellant. In that regard, Justice Hall took into account some further steps that the appellant had taken towards rehabilitation, including drug and alcohol programs. Given these circumstances and the time already spent in custody, the prison sentence was set aside and the appellant was fined $1500.
Charge/s: Trespass, Breach of bail (numerous counts).
Appeal Type: Appeal against sentence.
Facts: The appellant’s marriage with his wife (the complainant) ended. The complainant had purchased a new house and the appellant climbed the fence and walked around the property for some time. He had some property including vehicles at the house. The appellant then forced entry and was restrained by the complainant’s male friend who was at the home before police arrived. After being released on bail with conditions that he not contact or attempt to contact the complainant, he breached this bail by attempting to contact her via email 153 times. He also made 126 phone calls or text messages. These communications occurred while the appellant was living in New Zealand. The appellant and the complainant had shared business interests. The appellant also had an interest in the complainant’s home because part of the deposit for the home had been paid from a bank account in which the appellant had an interest. The prosecution accepted that many of the communications related to these business matters. A total effective sentence of 16 months’ imprisonment was imposed.
Issue/s: Whether the total effective sentence did not bear a proper relationship to the overall criminality.
Decision and Reasoning: The appeal was upheld. The appellant submitted that the sentence should have been suspended.
Hall J noted that while the large number of breaches of bail made this offending serious, the personal circumstances of the appellant were exceptional. Given that many of the communications related to business issues, it is difficult to conclude that the communications were intimidatory. As his Honour noted at [39] – ‘The number of the communications could not be viewed in isolation from their purpose and subject matter. There was no evidence that any of the communications were harassing or threatening in tone, content or nature. There was no information regarding communications being at inconvenient times or being deliberately repetitive.’
Furthermore, the evidence indicated that the conduct was out of character. The appellant had previous good character, a solid employment history, surrendered himself to police and fully cooperated. This indicated an acceptance of responsibility and remorse. He was at minimal risk of re-offending so specific deterrence was not significant. While general deterrence is important in sentencing breaches of bail and ‘Compliance is likely to be undermined if breaches are dealt with by derisory penalties’ (see at [43]), this did not mean that the term of imprisonment could not be suspended in this case. As such, the total effective sentence was suspended for 12 months.
Charge/s: Aggravated common assault, breach of a protective bail condition.
Appeal type: Appeal against sentence.
Facts: The appellant, a male Aboriginal man, was in a domestic and family relationship with the female victim. The appellant and the victim had been drinking alcohol with three friends. Their two children were also present. The appellant took exception to a comment made by the victim about his behaviour towards one of her female friends. He grabbed the victim by the T-shirt, causing scratches to the side of her neck. They continued shouting at each other. The appellant punched the victim in the face, causing bruising and swelling to her left eye. The victim moved away but was followed by the appellant and he delivered a further blow to the side of her head. The appellant stopped hitting the victim after their two children told him to stop. The appellant was arrested and entered into a bail undertaking with protective conditions. He breached those bail conditions by attending and remaining at the home of him and the victim. The appellant was sentenced to 15 months’ imprisonment for the aggravated assault and 2 months’ imprisonment for the breach of protective bail condition, served cumulatively.
Issue/s: One of the grounds of appeal was that the sentences imposed for the aggravated assault and breach of protective bail conditions were manifestly excessive.
Decision and Reasoning: The appeal was allowed. The case represented a relatively serious example of the offence of common aggravated assault involving domestic violence, falling within the midrange of these types of cases (See [24]). It involved two circumstances of aggravation. First, the appellant was in a family or domestic relationship with the victim. Mitchell J provided:
‘The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner’ (See [16]).
The second circumstance of aggravation was that children were present when the offence was committed. Mitchell J noted:
‘The facts of this case illustrate a tragic cycle of violence with which the courts are depressingly familiar. A person exposed to domestic violence in his early life goes on as an adult to perpetrate the violence to which he was exposed as a child, damaging members of his community in the same way he was damaged as a child. For that reason, the fact that the appellant's offence was committed in the presence of children was a significant aggravating factor’ (See [18]).
However, following an examination of cases, Mitchell J held that cases where a sentence of 15 months’ imprisonment had been imposed involved a significantly greater level of violence than committed by the appellant here. The sentence was manifestly excessive (See [23], [35]-36]). The appellant was resentenced to an intensive supervision order.
Charge/s: Murder.
Proceeding: Application to adduce certain expert evidence.
Facts: The accused and the deceased were both male. They lived together, but it was not a sexual relationship. The accused was the deceased's assistant and helped with the deceased's drug dealing activities. The accused admitted killing the deceased by shooting the deceased to the head while the deceased was sleeping. The main issue at trial was to be whether he acted in self-defence. The accused sought to call evidence of a psychologist regarding his state of mind. The psychologist was to give evidence, ‘that the accused was in a compromised mental state at the time as a result of being in an abusive relationship with the deceased. The accused is said to have felt powerless in relation to (the deceased), and to have thought that the only way out of the relationship was to kill (the deceased)’ (see at [2]). The State objected to the admission of this evidence on the basis that it was not a recognised psychological condition and that it was not analogous to cases falling within the ‘battered woman syndrome’ (BWS). The state further submitted that the matters to be the subject of the evidence from the psychologist were not outside the ordinary experience of jurors.
The accused described himself as a ‘lackey’, the deceased as ‘possessive’ and that the deceased would threaten violence and control his ‘movements, communications and finances’. The psychologist’s evidence was that the relationship was consistent with the learned helplessness associated with BWS. The psychologist also stated that the syndrome was not confined to females or sexual relationships, and that this relationship was of a sufficient duration to be consistent with the syndrome.
Issue/s: Whether the evidence of the psychologist should be admitted.
Decision and Reasoning: The application was refused. This did not preclude a claim to self-defence, but was relevant to the issue of whether the accused believed his actions were necessary. Hall J held that the psychologist’s evidence was opinion evidence and admissible only if it met the requirements of expert evidence (see at [15]). His Honour noted that BWS is widely accepted as an area of specialised knowledge, but that it is important to pay close attention to what is actually recognised as BWS. He referred to Osland v The Queen (1998) 197 CLR 316 where Kirby J stated that the syndrome should extend beyond females as victims. Hall J held that this relationship differed from a typical ‘battering’ relationship – it was not a long term marriage relationship and was not characterised by ‘recognisable cycles of tension, violence and reconciliation’ (see at [25]). While there were similarities in the ‘assertion of increasing control, emotional volatility and increasing feelings of helplessness’ (see at [25]), his Honour held that the differences between these circumstances and other BWS cases required that, ‘the application of the syndrome to a situation like this is accepted by the majority of experts in the field of psychology’ (see at [26]). There was no evidence of majority acceptance of experts. As such, the evidence was inadmissible. Evidence of the violent and controlling behaviour of the deceased could still be considered by the jury in order to assess whether the accused’s actions were necessary to prevent the deceased from harming him (see at [31]).
Appeal type: Bail application.
Facts: On 4 October 2013, the applicant was charged with assaulting his former de facto partner. He was released on bail. The bail undertaking included a condition that he was not to contact or attempt to contact the victim by any means. While on bail, the applicant committed a further assault on the victim causing her bodily harm. He was arrested and charged with that assault and with failing to comply with a protective bail condition. Bail could not be granted again unless the applicant showed there were exceptional reasons he should not be kept in custody. The applicant’s criminal history showed that he had two prior convictions for breach of protective bail conditions in 2012 and 2013. The applicant was also alleged to have breached protective bail conditions on another occasion but this had not been the subject of prosecution.
Issue/s: Whether there were exceptional reasons why the applicant should not be kept in custody.
Decision and Reasoning: The application for bail was refused. There were not exceptional reasons why the applicant should not have been kept in custody. The applicant had breached protective bail conditions on multiple occasions in the past. While the victim had a conviction for assaulting the applicant, this did not justify the applicant’s failure to comply with protective bail conditions (See [29]-[30]). Although the prosecution case against the applicant could not be said to be overwhelming, it could not be said to be particularly weak. ‘A less than overwhelming case does not provide exceptional reasons to grant bail. If the prosecution case was particularly weak one or there was a high probability of acquittal the position might be different: Bertolami v The State of Western Australia [2009] WASC 269’ (See [32]). Based on the offending conduct, the judge could not accept the applicant’s argument that if he was convicted and imprisoned, the minimum term of any such sentence would be likely to be equal to or less than the time already spent in custody (See [33]). There was a risk that the applicant would commit further offences if released on bail, in particular by breaching any protective bail condition in regard to contacting the victim (See [34]).
Charges: Breach of violence restraining order x 1.
Appeal type: Appeal against conviction.
Facts: The appellant was subject to a violence restraining order which provided that the appellant must not approach within 20 metres of the protected person ([4]). The evidence was that the protected person walked up to the appellant ([6]-[8]).
The magistrate convicted the appellant on the basis that even though the appellant did not ‘approach’ the protected person, it was incumbent upon the appellant to immediately walk away ([12]).
Issues: Whether the verdict was unreasonable and could not be supported.
Decision and Reasoning: The appeal was upheld, and the conviction quashed. Beech J held that the charge should have been dismissed once the Magistrate was satisfied that the appellant did not approach the protected person ([16]). The word “approach” should be construed in its ordinary meaning: “to come nearer or near to (someone or something) in distance or time” ([14]). An obligation to walk away from a protected person cannot be implied into a violence restraining order ([17]).
Charge/s: Breach of violence restraining order.
Appeal Type: Appeal against sentence.
Facts: The appellant had previously been in a relationship with the protected person and they had a 2-year-old child. He sent about 49 text messages and made 31 phone calls on a daily basis in breach of a violence restraining order (VRO). He claimed he was attempting to make arrangements to see his child. He had one prior conviction for breaching the same VRO. The prosecution accepted that the text messages were not threatening and the phone calls were not answered. However, the seriousness of the offence was increased because it occurred immediately after he had been dealt with by the Court for the previous breach. The appellant pleaded guilty to a charge of breaching a VRO. He was sentenced to 7 months’ imprisonment, suspended for 12 months.
Issue/s: Whether the Magistrate erred in imposing a sentence of imprisonment and failing to reduce the sentence to take account of the appellant’s early plea of guilty.
Decision and Reasoning: The appeal was upheld.
Under s 61A of the Restraining Orders Act 1997 (WA), ‘if a person has committed and been convicted of at least two offences within the period of two years before the conviction of the offence for which he or she is to be sentenced, the person is to be sentenced for a 'repeated breach'’ (see at [12]). This did not apply to the appellant. As such, under s 6(4) of the Sentencing Act 1995 (WA) the Court cannot impose a sentence of imprisonment unless it concludes that it is justified by the seriousness of the offence or the protection of the community. This offence was serious (see at [4]). However, Allanson J concluded that a sentence of imprisonment was not the only appropriate penalty. His Honour noted (at [19]) various mitigating factors including the appellant’s youth ([19]) and the fact that no violence nor threats of violence were involved in the offending. Therefore, it could not be said that the protection of the community or the protected person required a sentence of imprisonment. The Magistrate also did not refer to the plea of guilty as a mitigating factor. The sentence was set aside and sent back to the Magistrates’ Court for re-sentencing and his Honour stated at [23] that a community based order may be appropriate.
Charge/s: Aggravated assault causing bodily harm, breach of violence restraining order (x 3).
Appeal type: Appeal against sentence.
Facts: A violence restraining order was obtained by the female victim against the male, Aboriginal appellant. This included conditions prohibiting the appellant from communicating or attempting communication with the victim, from remaining on premises where the victim lived or worked and from remaining within 10 metres of the victim. The first breach of the restraining order occurred at a Native Title meeting where the appellant spoke to the victim. He also assaulted her by hitting her on the back of the head with a jaffle iron. The second breach occurred when the appellant went to the victim’s home and persuaded her to take him to Meekatharra. Finally, the appellant breached the order by ringing the victim on 52 occasions and also by persuading the victim to drive him to Bondini Reserve. In sentencing, the magistrate noted that the appellant had pleaded guilty immediately and was entitled to a reduction of a maximum of 25% as provided for by s 9AA of the Sentencing Act. Her Honour took the maximum penalties as a starting point and reduced these by 25% in imposing sentences. This resulted in a head sentence of 27 months’ imprisonment.
Issue/s: The magistrate erred in the application of the Sentencing Act in particular by construing it as requiring a (potentially) significant increase in the sentence that would otherwise have been imposed and a starting point being the maximum penalty open to the court.
Decision and Reasoning: The appeal was allowed. The respondent conceded that the magistrate's interpretation of s 9AA was erroneous and that the appeal ought to be allowed. That concession was properly made. The magistrate’s application of the Sentencing Act was erroneous and the error resulted in a sentence beyond the range of sentences customarily imposed for offences of this type. The appellant was resentenced.
In resentencing the appellant, Allanson J noted that a sentence of immediate imprisonment was the only penalty appropriate in light of repeated violations of a restraining order and one act of significant violence. His Honour provided:
‘The law is limited in the manner in which it can respond to domestic violence. One important part of that response is by the issue of violence restraining orders. It is essential that those orders are not ignored. When they are repeatedly breached, the need for general and individual deterrence will ordinarily outweigh subjective and other mitigating considerations’ (See [16]).
The offence of assault was a serious example of its kind as it involved a blow to the victim’s head and was committed with an object capable of causing serious injury (See [17]-[18]). The breaches of the restraining order did not in themselves involve acts of violence but it was particularly serious that in each of the last two offences the appellant was breaching the order soon after appearing in court in relation to the first breach (See [19]). The appellant had made some attempt to turn his life around but the mitigating weight of this factor was limited by the nature of the offending and the need to emphasise the importance of complying with the restraining order (See [21]-[22]). Taking these factors into account and with the full benefit of the 25% reduction, Allanson J imposed a head sentence of 12 months’ imprisonment.
Charge/s: Breach of bail (x 2), breach of protective conditions.
Appeal type: Appeal against sentence.
Facts: The appellant was on bail for a charge of common assault in circumstances of aggravation namely, that the appellant was in a domestic relationship with the female complainant. The appellant’s bail was subject to a number of conditions including that he was not to contact or attempt to contact the complainant, he was not to approach within 20 metres of an address at which the complainant was living, and he was not to behave in a provocative or offensive manner to residents at that house. The applicant was subsequently charged with breach of protective bail conditions when he verbally abused and threatened the complainant at Centrelink offices. He was further charged with a number of offences of stealing and aggravated burglary and failed to appear in Court after being released on bail. He was charged with two breach of bail offences.
The appellant pleaded guilty to the breach of protective bail conditions and the two other charges of breach of bail. In sentencing, the magistrate noted: ‘Protective bail is placed on people for a purpose and that is to protect the victim, the person who is protected by the protective bail; and people who breach protective bail, like people who breach restraining orders, in a manner that you did, that is, actually threatening the protected persons, in my view ought be sentenced to a term of imprisonment […] These three offences, in my view, show a total disregard for court orders. There really is nothing that can be said by way of mitigation in relation to this offending. Ms Svanberg has pressed upon me that when you breached your protective bail you were intoxicated, but being intoxicated may explain why you breached your protective bail and why you breached your normal bail undertakings but it doesn't excuse your behaviour. The fact of the matter is you were on protective bail for a reason and you breached it’ (See [17]). The appellant was sentenced to a total effective sentence of 6 months and 1 day.
Issue/s: The appellant did not suggest that the 4-month sentence for the breach of protective bail conditions was excessive. The sentences of imprisonment for the other two offences were manifestly excessive. Further, the total effective sentence was disproportionate to the total criminality and therefore offends the totality principle.
Decision and Reasoning: The appeal was refused. In light of the maximum penalties available, the seriousness of the offences, and the personal circumstances of the appellant the sentence imposed was not manifestly excessive. The total effective sentence was also not disproportionate to the total offending (See [35]).
Charge/s: Breach of restraining order.
Appeal Type: Appeal against conviction.
Facts: An interim violence restraining order was granted which prohibited the appellant from approaching within 5m of any premises where the protected person lived or worked. This order was later made final. The appellant was charged with breaching the order by going to the house of the protected person and placing a letter in the letterbox. She pleaded guilty and was convicted. However, the police later became aware that the order had expired when the offence occurred.
Issue/s: Whether the conviction should be set aside.
Decision and Reasoning: The appeal was upheld. The Court set aside the conviction because the conviction amounted to a miscarriage of justice. Hall J noted the following at [13] –
‘I am compelled to note that this is the second occasion in recent times on which I have been called upon to set aside a conviction for breach of a violence restraining order where the alleged breach has occurred after the order has expired. See Topic v Lynch [2012] WASC 446. It is of course a necessary element of an offence under s 61 of the Act that there be a restraining order in force at the time the breach is alleged to have occurred. It is always possible that a protected person may complain to the police on the basis of a mistaken belief that a restraining order is still in force. Care must be taken to ensure that that is the case.’
Charges: Aggravated assault x 1; Breaching a police order x 1.
Appeal type: Appeal against convictions.
Facts: The appellant was in a relationship with a Mr Michalaros. While driving her car, the appellant punched Mr Michalaros in the face. There was evidence that Mr Michalaros was the subject of a restraining order in favour of the appellant.
The police attended and issued the appellant with a police order, with one of the conditions to not contact Mr Michalaros for a 24-hour period. Mr Michalaros alleged that she sent him threatening text messages in breach of the order.
The appellant was convicted following a trial and was fined a total of $1,300 and granted a spent conviction order.
Issues: Multiple grounds, including that the restraining order was invalid because the police did not serve Mr Michalaros with a copy.
Decision and reasoning: The appellant was a self-represented litigant. The judge rejected all grounds of appeal. In relation to the argument that the police order was invalid the judge stated:
It would be contrary to the purposes of the ROA (Restraining Orders Act 1997 (WA)) if the validity of an order depended upon service on the protected person. There could be circumstances where the police have grounds to issue a police order but where the protected person cannot be located or it is impractical to serve a copy upon him or her. Given the shortness of time for which such orders remain current and the urgent circumstances in which they must often be made, it would produce consequences that are contrary to the purposes of the ROA if an order only became effective when a copy was served on the protected person. This is a procedural requirement only and not one upon which the validity of an order depends.
Charge/s: Aggravated assault
Appeal Type: Appeal against sentence.
Facts: The appellant and complainant were in a relationship for almost three years. They had a daughter. The complainant and daughter were financially and emotionally dependent on the appellant. The appellant returned from work intoxicated. An argument developed. The appellant struck the complainant to the face with a closed fist. No injuries were caused by the blow. The matter was resolved by a plea of guilty, at the earliest reasonable opportunity. When his Honour, Chief Justice Martin, considered the seriousness of the offence he noted at [27]:
“The offence committed by the appellant in this case was serious. Domestic violence is an offence that rightly provokes community condemnation and rightly requires courts to respond to the community abhorrence of such offending by imposing sentences that are commensurate with the seriousness with which the community rightly regards this type of offence.”
Despite those observations, his Honour considered that the 8 month term of imprisonment could be suspended for 12 months for a number of reasons. Firstly, it was in the best interests of the complainant and her child, cohabiting with the appellant, that he not be imprisoned: [33]. Secondly, the appellant had attended eight sessions of a family violence programme: [38]. His Honour stated that the offence was not in the upper range of seriousness: [15].
Charge/s: Aggravated assault occasioning bodily harm.
Appeal Type: Appeal against sentence.
Facts: The appellant was in a relationship with the complainant for about four months. The appellant was intoxicated and following a dispute, he was arrested and ordered not to approach the caravan park where the complainant was residing. After being released, he knocked on the door of the complainant’s caravan and verbally abused her, threatened her and punched her to the face multiple times. He then knocked her to the ground. He stopped her from escaping. She was left with serious injuries. He was sentenced to two years’ imprisonment and was made eligible for parole.
Issue/s: Whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld.
McKechnie J acknowledged the seriousness of the offence especially considering it amounted to a deliberate breach of a police order. This type of violence to women cannot be condoned and as such a sentence of immediate imprisonment was appropriate. However at [11]-[16], his Honour considered various comparable cases and came to the conclusion that the sentence was manifestly excessive. His Honour especially had regard to Messiha v Plaucs [2012] WASC 63 where it was held that an 18-month sentence for aggravated assault occasioning bodily harm (including other charges) was disproportionate to the overall criminality of the offending. Nevertheless, general and specific deterrence and the significant injuries that the complainant suffered remained important considerations. The appellant was re-sentenced to 15 months’ imprisonment with parole eligibility.
Charge/s: Aggravated assault, threat to injure, three counts of aggravated assault occasioning bodily harm (circumstances of aggravation: that the appellant was in a family or domestic relationship with the victim).
Appeal Type: Appeal against sentence.
Facts: The appellant engaged in a verbal argument with his wife. The appellant punched and grabbed the side of her face. She attempted to escape, at which point he threatened to kill her, grabbed her around the neck and stabbed her with a screwdriver. She feared for her life. The appellant then bit her twice and told his son who was attempting to stop the assault to get away several times. The appellant had a serious drug problem and the offending occurred while he was under the influence of drugs. He had prior convictions for violent offences but they did not involve domestic violence. He was sentenced to an aggregate term of 18 months’ imprisonment for all offences.
Issue/s: One of the issues concerned whether the total aggregate sentence infringed the totality principle.
Decision and Reasoning: The appeal was upheld.
The Court firstly noted that the offending was sustained, premediated and ferocious. It occurred in the family home in the presence of two young children.
The appellant submitted inter alia that the sentences should have been made concurrent because they constituted a single course of conduct. The Court rejected this argument and held that the so called ‘one transaction rule’ is a general rule and the operative question is whether the total effective sentence properly reflects the overall criminality involved. In this case, the course of conduct had distinct features which increased in seriousness over time so it was open to the Magistrate to impose some cumulative penalties.
The appellant also submitted that the Magistrate erred by giving the appellant’s criminal record undue weight, given it did not involve domestic violence. This argument was rejected – the Magistrate correctly stated that the record showed a lack of mitigation in that the appellant did not have past good character. Hall J was of the view that there is little merit in distinguishing past violent offending as irrelevant if it is not committed in domestic circumstances. These offences do have relevance, not necessarily as showing a tendency but in showing ‘an absence of mitigation as to past good character’ (see at [31]).
Another issue concerned whether the Magistrate erred by not having sufficient regard to the appellant’s longstanding relationship with his wife, the fact they have dependent children as well as his wife’s wishes. His wife filed an affidavit on appeal indicating that the appellant’s imprisonment was causing her extreme hardship. Her mortgage was in arrears. If the appellant was released, she claimed that there would be the prospect that the appellant would obtain employment so the arrears could be paid. The appellant and his wife were migrants and she had no wider family in Australia. The Court referred to McLure P’s remarks in The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) and held that the wishes of victims of domestic violence for reconciliation has to be seen in context. Offenders cannot expect leniency because their punishment impacts others. While this issue could be relevant in some cases, it should not have been given much weight in this case.
The appellant also submitted that the fact he had successfully completed three community based orders should have been afforded more weight by the Magistrate. This argument was rejected – the Court held that the mitigatory effect of past completion of community orders can be diminished by reoffending. Reoffending can put into doubt whether the order was successful in bringing about attitudinal and behavioural change (see at [37]).
In relation to the presence of the children at the time of the offending, while it was not included as a formal circumstance of aggravation, it was open to take these facts into account (see at [41]).
The Court then noted that there was no history of domestic violence but the offending was serious and justified immediate imprisonment. In applying comparable cases, the Court concluded that the aggregate sentence was particularly high and did not bear a proper relationship to the overall criminality of the offending. In noting that the appellant had apologised, expressed remorse, expressed a wish to assist his wife with the mortgage and children and that he had his wife’s support, the total aggregate sentence was reduced to 15 months’ imprisonment with eligibility for parole.
Charge/s: 113 offences including: Stalking, unlawful installation of a tracking device, breach of violence restraining order (104 counts), breaching a protective bail condition (7 counts).
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant was served with an interim restraining order prohibiting him from communicating with his former partner in any way. In breach of this order, he attended her address and/or workplace, sent her a number of text messages and unlawfully installed a tracking device on her vehicle. This conduct also comprised the stalking offence. Later, the applicant called his for partner 80 times. The Magistrate noted that there were a significant number of offences committed over an extended period which had a considerable impact on the victim. A total effective sentence of 16 months’ imprisonment was imposed which comprised of 8 months’ imprisonment for stalking, 4 months’ imprisonment for unlawfully installing the tracking device (to be served cumulatively on the sentence for stalking) and 4 months’ imprisonment for 15 convictions including breaching bail conditions and the restraining order. All the other convictions for breaching the restraining order were to be served concurrently for the stalking offence.
Issue/s: Whether the Magistrate erred in making the sentence for unlawfully installing a tracking device cumulative upon the sentence imposed for stalking - the conduct which formed the basis of the stalking charge including the installation of the tracking device, such that a cumulative sentence resulted in the applicant being punished twice for the same conduct.
Decision and Reasoning: Leave was granted and the appeal was upheld.
The Court noted the ‘complexities’ involved in this issue and found it was not necessary to be resolved directly because of the application of the ‘common elements principle’ which states ‘when two offences of which an offender stands convicted contain common elements… it would be wrong to punish that offender twice for the commission of the elements that are common’ (see, for example Pearce v The Queen (1998) 194 CLR 610). This principle applied directly to this case. The facts indicated that the conduct which formed the basis of the tracking device charge was the same conduct, ‘which was part of the conduct relied upon to support the stalking charge’ (see at [40]). This falls directly within the common elements principle.
The Court found that there was a substantial miscarriage of justice caused by this error. The application of the common elements principle means that there could have been no additional punishment for the unlawful installation of the tracking device. As such, the 4-month sentence for the surveillance device offence was made concurrent, which resulted in the overall sentence being reduced to 12 months.
Charge/s: Assault occasioning bodily harm.
Appeal Type: Appeal against conviction and sentence.
Facts: The appellant, (an Aboriginal man) engaged in an argument with his de facto partner. He punched her in the head multiple times until she fell over. He dragged her by the hair to a nearby tap to wash the blood off her. The appellant was very intoxicated at the time. He had a significant history of alcohol and drug abuse and violence including prior convictions for violent offences against the complainant. In fact, the offending was committed while he was subject to three suspended sentences relating to offences committed against the complainant. The complainant wished to continue her relationship with the appellant and at one stage indicated that she did not want to proceed with the charges. However, the appellant pleaded guilty at an early stage and was sentenced to 16 months’ imprisonment. He was also re-sentenced for the suspended sentences which resulted in a total effective sentence of 22 months’ imprisonment.
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal against conviction and sentence was dismissed.
Hall J accepted the Magistrate’s conclusion with respect to the seriousness of the appellant’s conduct. His Honour then noted that the attack was ‘prolonged’, instigated by the appellant and aggravated by the fact that it was committed notwithstanding previous court orders imposed for similar offending. This showed a disregard for the law and a need for a personal deterrent. Hall J noted that other than the early plea of guilty, there was little by way of mitigation. Furthermore, the fact that the appellant was intoxicated when the offence was committed was not mitigatory, as the appellant was ‘acutely aware that alcohol was a risk factor in respect of his past offending behaviour’ (see at [41]). In relation to the complainant’s wishes for reconciliation, his Honour noted McLure P’s remarks in The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) and held that, ‘An otherwise appropriate penalty should not be reduced on account of an expression of willingness on the part of the complainant, for whatever reason, to forgive the offender and continue a relationship with him’ (see at [43]).
As such, the Court held that while the one-month sentence was at the higher end of the range for offences of this kind, it was within the Magistrate’s discretion, having regard to the seriousness of the offence and the need for personal and general deterrence. In relation to totality, the Court held that the earlier offences were separate and unrelated to the latest assault. It was appropriate to activate these suspended sentences and orders of cumulation did not make the total effective sentence disproportionate to the overall criminality of the offending.
Charge/s: Aggravated commons assault, breaches of violence restraining orders, breaches of protective bail conditions.
Appeal type: Appeal against sentence.
Facts: The offences related to a female complainant, with whom the appellant had been in a domestic relationship with. The appellant committed 29 breaches of a violence restraining order which prohibited the appellant, amongst other things, from communicating with the complainant. He did so by communicating with her by mobile phone (the ‘VRO offences’). He also committed four offences of breach of protective bail conditions by being 50-100 metres of the complainant on three occasions and by sending her a text message on one occasion (the ‘bail offences’). Finally, the applicant committed one offence of common assault in circumstances of aggravation at the same time as one of the bail offences. The magistrate sentenced the appellant to a total effective term of 12 months’ imprisonment, made up as follows: on aggravated assault 8 months’ imprisonment, one of the bail offences 4 months’ imprisonment (concurrent), 2 of the bail offences 4 months’ imprisonment (cumulative), one of the bail offences 2 months’ imprisonment (concurrent), and VRO offences 6 months’ imprisonment concurrent.
Issue/s: One of the issues was whether the total sentence was contrary to the first limb of the totality principle.
Decision and Reasoning: The appeal was allowed. The total effective sentence in this case was disproportionate to the overall criminality of the offending behaviour. The aggravating circumstances in respect of the assault offence, i.e. the breaches of the VRO and protective bail conditions, called for concurrency between the sentence on that offence and all other sentences. There should have been partial concurrency or a reduction in the length of sentence to avoid multiple punishment for these acts (See [97]-[99]).
Charge/s: Breach of violence restraining order, making threats to injure.
Appeal Type: Appeal against sentence.
Facts: The complainant was the ex-partner of the appellant’s current partner. There was one daughter of that relationship. The appellant’s partner remained principally responsible for the welfare of the daughter. This meant that the appellant and the complainant often had contact with each other. Events at the complainant’s home prompted the complainant to seek a violence restraining order (VRO) on behalf of his daughter against the appellant, to prevent the appellant from committing an act of abuse against his daughter and from ‘behaving in a way that could reasonably be expected to cause fear that the child will be exposed to an act of family and domestic violence’ (see at [4]). The complainant then later obtained another VRO which prevented the appellant from communicating in any way with him. The appellant then made repeated telephone calls to the complainant and threatened to kill him and his daughter, which constituted both the breach and threat to injure charges. He was sentenced to 12 months’ imprisonment on each of the charges, to be served concurrently.
Issue/s:
Decision and Reasoning: The appeal was upheld in respect of issues one and two.
Jenkins J held that it was ‘drawing too long a bow’ to suggest that the appellant’s violent attack on an ATM machine was reason to believe that he may attack people in the future. However, this of itself was not cause to allow the appeal as no substantial miscarriage of justice occurred.
The appellant was re-sentenced to a 12-month intensive supervision order which included programs to address anger management and alcohol abuse.
Charge/s: Aggravated assault causing bodily harm (x 2).
Appeal type: Appeals against conviction and sentence.
Facts: One of the appeals concerned two occasions where the appellant, an aboriginal man, unlawfully assaulted the victim who he was in a family and domestic relationship with. They were living at the Oombulgurri Aboriginal Community, and the victim was pregnant to the appellant. On both occasions, the victim, bleeding, with multiple injuries to her face and head, sought assistance from the police at the police facility. The victim told the police she was afraid of the appellant and wanted to get away from Oombulgurri. The police arranged for an aeroplane to take the victim to another centre for a time. The appellant was sentenced to 8 months’ imprisonment and 15 months’ imprisonment on each charge respectively. In light of the nature and seriousness of the offences, the Magistrate determined an immediate sentence of imprisonment was required.
Issue/s: Some of the grounds of appeal included –
The learned magistrate erred by failing to suspend the terms of imprisonment imposed, when:
Decision and Reasoning: The appeal was dismissed. These were serious offences committed by the appellant, who had two recent convictions of aggravated assault causing bodily harm. The violent conduct towards the victim was repeated less than five weeks later and the victim had a well-founded fear of the appellant. The victim was vulnerable as she was much younger than the appellant, had been in a relationship with him and was pregnant (see at [69], [72]).
‘Violent treatment of women in this fashion cannot be tolerated anywhere in the State, but it is of particular importance that in isolated communities such as Oombulgurri that the punishment of an offender who commits such offences in a short space of time should be such as to demonstrate to all members of the community that that conduct is unlawful and that effective punishment will be imposed in order to deter the general community from the use of violence. Specific deterrence of the individual offender was, in this case, also a necessary and essential ingredient of the sentence’ [72].
A longer term of imprisonment was warranted on the second offence because it was more serious in that it was a repetition of the same unlawful conduct, and it was an unrelated offence.
Charge/s: Breach of violence restraining order, breach of suspended imprisonment order.
Appeal Type: Appeal against sentence.
Facts: The appellant (aged 24) was the subject of a violence restraining order (VRO) in favour of the protected person (aged 52). They had been living together in an ‘off and on’ de facto relationship for about 18 months. The protected person had unsuccessfully applied to the Magistrates’ Court to have the order withdrawn. The breach occurred when the appellant had been living with the protected person for three days. An argument occurred, the police were called and the appellant was arrested. There was a history of violence in the relationship and the order had been breached four times in the past. According to a psychiatric report, the appellant presented with a ‘schizo-affective disorder, an ADHD history, personality disorders and mental retardation’ (see at [11]). Despite the orders being in place, it was the protected person who repeatedly invited the appellant back to live with her which constituted the repeated breaches. The breach of the VRO also constituted a breach of a suspended imprisonment order which had been imposed in relation to a prior breach in respect of the same protected person. He was sentenced to 7 months’ imprisonment for both offences, to be served concurrently.
Issue/s: Whether the Magistrate erred in imposing immediate sentences of imprisonment.
Decision and Reasoning: The appeal was upheld.
At trial, the Magistrate concluded that the psychiatric evidence did not support a conclusion that the appellant’s mental illness or disturbance led to the commission of the offences. She concluded that the ‘non-aggressive resumptions of cohabitation’ (by the appellant) were ‘part of a course of conduct over which the appellant could and should have exercised restraint and control in obedience to the VRO’ (see at [42]). Em Heenan J held that this amounted to an error of fact and that his breaches could ‘to a material degree’ be explained by his history of mental illness (see at [44]). The appellant’s mental health problems, in combination with significant personal stress related to his relationship with the victim ‘impaired his ability to exercise appropriate judgment and his ability to appreciate the wrongfulness of his conduct, so contributing causally to the commission of the offence’ (see at [48]). This reduction in culpability could lead to a reduction in the severity of the sentence and this was not sufficiently taken into account by the Magistrate. The appellant was re-sentenced as follows – no punishment was imposed in relation to the earlier breach. A conditional period of suspended imprisonment for 7 months (wholly suspended for 9 months) was imposed for the later breach.
Charge/s: Breach of a violence restraining order (VRO).
Appeal Type: Appeal against sentence.
Facts: The appellant pleaded guilty to three counts of breaching a VRO. Only the second count was the subject of the appeal. The appellant’s relationship with the complainant had recently ended. He was served with a VRO which prohibited him from contacting her by any means and from entering or being within 200m of any place where she lived or worked. The second breach of the order (the subject of the appeal) occurred when the appellant attended the Karratha Women’s Refuge (where the complainant was staying) and wrote in the dust on the rear window of her car – ‘I am a dead man walking’. He later returned to rub the message off. The appellant had no relevant criminal history. He was sentenced to 8 months’ imprisonment, suspended for 2 years.
Issue/s:
Decision and Reasoning: The appeal was upheld in respect of issue 2.
‘The approach is one recognising that the Act is social legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135 [13] (Miller J); it is essential the courts ensure their orders are not ignored: Kenny v Lewis (Unreported, WASC, Library No 990113, 12 March 1999) (Kennedy J) 10; and violence restraining orders are notoriously difficult to enforce, and the need for general and individual deterrence will ordinarily outweigh subjective or other mitigating considerations: Dominik v Volpi [2004] WASCA 18 [80] (Roberts-Smith J).’
However, this does not mean that a custodial sentence will be appropriate in all cases. Simmonds J found that there are various circumstances which made this offence of a less serious kind. The appellant was surprised that the relationship had ended. There was no indication of any ‘offence or serious misconduct’ that led to the making of the VRO. Furthermore, the appellant made no attempt to enter the refuge and there was no threatening or intimidatory conduct. However, the complainant had recently been hospitalised for heart treatment. The respondent submitted that this as well as the fact that she was living in a refuge was relevant to assessing the seriousness of the offence. Simmonds J found that while these factors would make the offence more serious, evidence of the subjective impact on the complainant would be needed (see at [70]).
The respondent also submitted that the message left on the car might indicate a potential for the appellant to self-harm. His Honour then referred to the equivalent Victorian legislation which defines ‘emotional abuse’ (see at [71]) and accepted that a threat of self-harm intending to or producing the effect of causing distress or hurt to someone is a factor capable of aggravating the offence of breaching a VRO. However, in this case there was no evidence pointing to a threat of self-harm made with that intention or effect. Furthermore, the fact that the appellant’s counsel referred to the protected person as the ‘complainant’ at trial did not of itself show that she suffered distress or hurt (see at [72]). In fact, the Court accepted that this potential for self-harm indicated the presence of a mental condition which contributed to the offending, notwithstanding the absence of a report from any mental health professional. This lessened the weight to be assigned to general and specific deterrence (see at [93] – [94]).
The respondent submitted that the offences occurred in the remote Pilbara region which had the second highest rates of violence against women in the state. There was data before the Court indicating that remote areas have about five times the rate of domestic violence compared to capitals. His Honour responded to this submission at [81] –
‘I accept without deciding that I can take judicial notice of these matters, and that I should regard them as going to the prevalence of offences of domestic violence to which the Restraining Orders Act is part of the legal response. On the relevance of the prevalence of offending of a particular type, see Yates v The State of Western Australia [2008] WASCA 144 [55] (Steytler P), [94] (McLure JA). I also accept without deciding that sentences for the same offending committed in different parts of the state may be affected by differences in the prevalence of that offence in those parts of those magnitudes.’
This could result in the offence being viewed more seriously than otherwise. However, given that there was no element of physical threat or intimidation, the offence remained less serious (see at [82]). The Court held that the main mitigating factor was the appellant’s plea of guilty. Given this and the mental condition as discussed above, the Court concluded that the sentence was manifestly excessive and stated that a community based order was likely to be appropriate.
Charge/s: Aggravated stalking (circumstance of aggravation – that the offence was committed in breach of a violence restraining order), breach of violence restraining order (12 counts), possession of firearm with circumstances of aggravation.
Appeal Type: Appeal against sentence.
Facts: The appellant was in a relationship with the complainant for three years which ended. The appellant then continually sent emails and text messages to the complainant (including at her workplace) and made threats to kill her. The complainant obtained a violence restraining order (VRO) which prevented the appellant from communicating with her by any means. His conduct then continued in breach of the order. He was arrested and Police found a firearm and ammunition at his home. The appellant was sentenced to 12 months’ imprisonment for the stalking charge, a global sentence of 12 months’ imprisonment for the breach offences (cumulative on the sentence for stalking) and 7 months and 2 weeks’ imprisonment for the possession of firearm offence.
Issue/s: Some of the issues concerned -
Decision and Reasoning: The appeal was upheld in respect of issue 1.
Charge/s: Two counts of aggravated assault occasioning bodily harm (aggravating factor: that the applicant was in a domestic relationship with the victim), escaping from lawful custody, failure to comply with bail conditions.
Appeal Type: Application for leave to appeal against sentence.
Facts: The applicant had an argument with the complainant (his de facto partner). The applicant then pushed the back of her head into a window which caused the window to smash and the complainant to fall on the ground. He then dragged her out of a door and kicked and punched her multiple times which caused her head to hit a railing, at which point she passed out. The applicant then evaded arrested for some days. After being granted bail, he phoned the complainant in breach of protective bail conditions. The second assault occurred 6 months later. The applicant became aggressive and dropped the complainant onto the ground and kicked her repeatedly in the rib area. He also used a ring on his left hand to gouge her left eye, resulting in a bruised and swollen eye and a cut to the eyeball. He had long standing problems with drug and alcohol abuse. His criminal history included a violent offence in a previous de facto relationship. He was sentenced to an effective term of 2 years and 2 months’ imprisonment. The sentences for the escaping custody and second aggravated assault offences were made cumulative.
Issue/s:
Decision and Reasoning: Leave to appeal was refused.
Charge/s: Aggravated assault occasioning bodily harm (circumstance of aggravation: that the appellant was in a family and domestic relationship with the victim).
Appeal Type: Appeal against sentence.
Facts: The appellant was in an intimate personal relationship with the complainant after meeting on the internet. The appellant was intoxicated. An argument occurred and the appellant verbally abused the complainant. He then pushed her into a chair, threatened to kill her and grabbed her around the throat almost to the point of making her lose consciousness. He repeatedly slapped her face and choked her for several minutes. He threw her into a bed before dragging her by the arms into another room. The appellant then calmed down and stated that the complainant was free to leave but informed her that he was in possession of two firearms. The complainant made him dinner to pacify him and eventually managed to escape. The appellant later left a message on her phone in which he apologised for hitting her. She sustained various injuries including bruising and swelling. The appellant pleaded guilty and was sentenced to 12 months’ imprisonment with parole eligibility.
Issue/s: One of the issues concerned whether the sentence was manifestly excessive.
Decision and Reasoning: The appeal was upheld in respect of other issues such as the weight given to the plea of guilty and the time already spent in custody and the sentence was reduced by 1.5 months. In relation to the issue of manifest excess, the appellant emphasised the effect of alcohol and prescribed medication which he was taking as well as his prior good character, remorse and progress in rehabilitation. However, McKechnie J held that the Magistrate was not in error. While this was the appellant’s first violent offence, he had a number of previous offences of driving while intoxicated and on the day of the offending he had been fined $8000 for other offences which he had committed while intoxicated. The Magistrate did sufficiently take the appellant’s remorse into account. His Honour also noted that there is no offence of domestic violence. It is a term which ‘euphemistically describes serious criminal conduct’ (see at [10]). In this case, the offending was particularly serious. The sentence was appropriate, taking into account the public interest in general deterrence and just punishment.
Charge/s: Aggravated stalking, breach of violence restraining order, attempt to pervert the course of justice.
Appeal type: Appeal against refusal of bail.
Facts: The decision concerned a bail application arising from three charged offences following the estrangement of the applicant from his second wife. The first alleged offence was the theft of mail from the complainant by the applicant. The second alleged offence was the commencement of a series of events said to amount to stalking. Some of these events included the applicant damaging the property of the complainant’s male friend, and the male friend obtaining a violence restraining order which the applicant subsequently breached. The applicant also became involved in an altercation with the complainant and she obtained a violence restraining order against him. The applicant stole items of women’s clothing from the complainant’s home, stole a security camera the complainant had installed, and was seen in the complainant’s backyard disguised with a mask and carrying a knife. The third offence occurred when the applicant asked his neighbours to provide him with a false alibi for the evening he was seen in the complainant’s yard wearing a mask and carrying a knife.
Issue/s: Whether there were exceptional reasons why the applicant should not be kept in custody.
Decision and Reasoning: The appeal was dismissed. The applicant had not made out exceptional reasons for the grant of bail in this case. The character of factors pointing towards the grant of bail, namely, hardship to the applicant, the applicant’s antecedents, and the likely time before trial, were not sufficient to establish exceptional reasons. This was particularly so when weighed against the strength of the State’s case, the adverse effects on protected persons of a release on bail, the concern for the failure of achievement of the purposes of protection orders in this case, and any difficulties in proving any future breach of a protective order (See [69]). See also Gilmour v The State of Western Australia [2008] WASCA 42 (28 February 2008).
Charges: The Magistrate was satisfied that the respondent committed two acts of abuse against the appellant.
Appeal type: Appeal from a decision of the Magistrate refusing to make a final violence restraining order.
Facts: The appellant appealed a decision of the Magistrate to refuse to make a final violence restraining order against the respondent. The appeal was conducted by way of a rehearing of the application.
Issues: Whether the Magistrate erred in fact in finding that the respondent was not likely, in the future, to commit an act of abuse against the appellant.
Decision and reasoning: The appeal was dismissed. Before the Court’s power to grant a Final Violence Restraining Order (VRO) is enlivened, it must be satisfied that the respondent committed an act of abuse against the appellant and that he is likely to commit such an act again. The Court noted that the Magistrate was not satisfied to the requisite standard that the respondent was likely to commit an act of abuse against the appellant again, or that the granting of either a Family Violence Restraining Order FVRO of an Misconduct Restraining Order (MRO) was justified. As the Court was not prepared to disturb the Magistrate’s finding as to the respondent’s likely future conduct, there was no statutory basis on which the Court could order an MRO (there being no family relationship between the appellant and respondent). Having regard to the issue of the respondent’s likely future conduct in relation to the appropriateness of granting a Final VRO or a MRO, there was no utility in undertaking a consideration of a hypothetical question of whether the Magistrate erred in exercising his discretion to refuse an order in the event that the finding was overturned and the jurisdiction to make an order enlivened ([36]).
Proceeding: Parenting orders.
Facts: The mother and father had two children and sought parenting orders. The mother maintained that she and the children now suffered significant mental health issues because of the father’s alleged physical and psychological abuse. The father denied these allegations and instead claimed that the mother’s own serious mental health issues have harmed, and continue to harm, the children. Each parent sought orders according sole responsibility of the children and allowing the other parent to have limited supervised visits.
The mother’s mental health issues created evidential gaps and several contradictions in the evidence she provided. Sutherland J was satisfied that the mother and the children’s psychologist had effectively coached the children to corroborate her story given their impressionable age.
Issues: What parenting orders are appropriate in the circumstances?
Decision and reasoning: Sutherland J’s reasoning was guided by Part 5 of the Family Court Act 1997 (‘the Act’)and the Full Court’s decision in Goode & Goode [2006] FamCA 1346 and consequently concerned the underlying presumption that ‘it is in the best interest of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section’. Sutherland J provided in relation to this presumption:
‘should I make an order for equal shared parental responsibility then I must also consider the obligations placed upon me by s 89AA of the Act which requires me to then consider whether the child should spend equal time or substantial and significant time with each parent.
In determining the outcome of these parenting matters, I must, pursuant to s 66A of the Act, consider the best interests of the children as the paramount consideration. In determining what is in a child’s best interests, I must consider the matters set out in s 66C of the Act.’ [197]-[198]
Sutherland J ordered that the father was to have sole parental responsibility for the children, for Child A to receive continued therapeutic support from Child A’s psychologist, and for the mother to eventually be allowed supervised visits. The presumption of equal shared parental responsibility did not apply for the following reasons: (1) Sutherland J was not satisfied that the mother experienced any family violence and/or abuse from the father; and (2) the children suffered significant, ongoing psychological harm while in the mother’s sole care and were at risk of further harm if they remain in her sole care.
Proceeding: Parenting orders.
Facts: The parties had one child and sought parenting orders. The mother sought sole parental responsibility and that the child live with her. She also proposed that the child should not spend any time with the father. The father sought orders that the parties have equal shared parental responsibility; that the child live with the mother while gradually increasing the time she spent with the father; injunctions as to the parties’ alcohol consumption; and non-denigration orders. The father was a self-represented litigant while the mother and ICL were represented by counsel.
The parties had a history of family violence and the father had used explicit photos of the mother to blackmail her throughout their relationship. The child was exposed to some of this violence during the relationship and to the father’s denigration of and threats towards the mother after the parties’ separation.
Issues: What are the appropriate parenting orders given the circumstances?
Reasons: The child had a meaningful relationship with the mother and a close and loving relationship with the father. However, the child was at risk of physical and/or psychological harm while in the father’s care. Duncanson J also found that this, along with the child possibly ‘absorbing’ the father’s negative and unhealthy beliefs and confrontational behaviour, formed an unacceptable risk that could not be managed by mere supervision. With the presumption of equal shared parental responsibility being displaced by the family violence between the parties, Duncanson J ordered the mother have sole parental responsibility and that the child live with the mother. It was also ordered that the child spend no time with the father as he posed an unacceptable risk of harm.
Proceeding: Parenting and relocation orders.
Facts: The mother and father had one child and sought parenting and relocation orders. Each party sought sole parental responsibility for the child while the ICL proposed the parties have equal shared parental responsibility for him. The mother and ICL proposed that the mother be able to relocate the child the Europe.
The father had mental health issues and was violent towards the mother. This violence caused the mother to develop severe trauma and a desire to return to her home country to receive the support of her family. The mother described her future in Australia as ‘bleak’ and was of the view her employment prospects would be better back in Europe.
Issues: What are the appropriate parenting and relocation orders given the circumstances?
Decision and reasoning: While the child was exposed to family violence during the parties’ relationship and when they were separated, the father addressed the issues causing his abusive behaviour. As such, Duncanson J found that the child did not need to be protected from harm in the care of either parent at the time of proceedings. This, coupled with the findings that the child had a meaningful and loving relationship with both of his parents which was in the child’s best interests to maintain, led Duncanson J to order that the child must spend time with the father despite relocating overseas. As the mother had been the child’s primary caregiver up until proceedings, Duncanson J ordered that the mother have sole parental responsibility; the child live with her; and that the mother can relocate the child to Europe. The presumption of equal shared parental responsibility did not apply because of the history of family violence.
Proceeding: Parenting and relocation orders.
Facts: The mother and father have one child. The mother was granted leave to proceed on an undefended basis. The mother sought sole parental responsibility for the child and that he live with her. The mother also sought permission to relocate the child to another town; injunctions relating to non-denigration of herself and her sister; and injunctions restraining the father from consuming alcohol while with the child.
At the time of the proceedings, the child lived with the mother and spent time with the father. The child was exposed to family violence – primarily directed towards the mother – and to problems of excessive alcohol consumption while living in the same town as his father. The father was controlling and abusive. He had slashed the tyres of the mother’s car and threatened to place intimate pictures of her on social media. The mother wished to remove the child from this environment and wanted to relocate due to fear for her own safety.
Issues: What are the appropriate parenting and relocation orders given the circumstances?
Decision and reasoning: Although ‘it is to [the child’s] benefit to have a meaningful relationship with the father, this must be balanced against the need to protect [the child] from harm’ [28]. Given the history of family violence and the family violence of the father towards his new partner, there was a need to protect the child from harm while in the father’s care. There is no need to protect the child from harm while in the mother’s care.
The history of family violence rebutted the presumption of equal shared parental responsibility being in the best interests of the child. Duncanson J ordered that the mother have sole parental responsibility for the child; that the child live with the mother and that she is permitted to relocate him to another town as the mother had been the primary caregiver up until proceedings; and that the child spend time with the father at such times and on such terms and conditions that the mother thought fit.
Proceeding: Parenting and relocation orders.
Facts: The parties had one child and sought parenting orders and orders regarding the child’s living arrangements. The mother wished to leave the town where they had lived as a family lived and return to her home town. The father, having come from another country, wished to remain in the town as that was were his only connections in Australia were. The father sought orders for sole parental responsibility and proposed that the child live with him four nights a week and with the mother the remaining three provided that the mother can meet all the child’s needs. The mother sought orders for equal shared parental responsibility and orders permitting her to relocate to her hometown. She also proposed that the child predominately live with her.
There was evidence of domestic violence. The parties were also unable to agree on a form of communication at the time of the proceedings.
Issues: What are the appropriate parenting and relocation orders for the circumstances?
Reasons: The presumption in favour of equal shared parental responsibility did not apply due to the issues of family violence. Thackray CJ, however, still ordered equal shared parental responsibility - with the exception that the mother have sole parental responsibility for issues concerning the child’s physical health – as the child had a meaningful relationship with both parties and was found not to be at risk of harm in either parties’ care. Thackray CJ also ordered that for the next few years the child live with both parents on a ‘5-2-2-5’ roster before eventually transitioning to a week-about arrangement.
In regard to the sought relocation orders, Thackray CJ found that it was in the child’s best interests to remain in the parties’ current town. Thackray CJ considered the dysfunction within the mother’s family in her hometown, the child’s current stability, and the possibility of separating the child from the father to be the main factors supporting this decision.
Proceeding: Parenting orders.
Facts: The mother and father have four children and sought parenting orders. The mother proposed that the children continue to live with her and have no communication or contact with the father. The father sought orders that the children spend time with him. The mother’s proposal was based on the parties’ history of family violence and fear of the children’s well-being. The ICL proposed ‘that the children live with the mother who should have sole parental responsibility for them, although the mother should keep the father informed of all significant health issues’ [36]. The ICL also proposed that the two older children spend time with and communicate with the father as they wished while the younger child spend time with him in accordance with their wishes in consultation with a therapist.
The parties’ relationship was characterised by family violence inflicted upon the mother and the children from the time of their marriage. The mother deposed that the violence directed towards her was both physical and emotional, with the father also often forcing her to have sex against her will. The father was physically abusive towards the children, who were eventually terrified of him. This fear caused psychological harm to the children.
Issues: What are the appropriate parenting orders given the circumstances?
Decision and reasoning: The children had a meaningful relationship with the mother and it was to their benefit that it continued. The children did not have a relationship with the father at the time of proceedings and did not wish to. While there was no need to protect the children from harm in the mother’s care, there was a need to protect them from physical and psychological harm in the father’s care.
The family violence rebutted the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility. Duncanson J ordered that the mother have sole parental responsibility and that the children live with her, but that she inform the father of all significant health issues affecting the children. He found that the mother has the capacity to provide for the children’s needs including their emotional and intellectual needs. Duncanson J also ordered that the father eventually be able to contact the children provided he undertook psychological assessment and subject to the children’s wishes.
Proceeding: Parenting orders.
Facts: Prior to proceedings, the child lived with her paternal grandmother. The child had very limited, if any, contact with the parents. The paternal grandmother sought sole responsibility of the child and for the child to live with her. The orders sought also permit overseas travel, orders for the provision of information and a non-denigration order, and for the child to occasionally spend time with the parents. Prior to the proceedings and the parents’ separation, the father physically assaulted the mother on several occasions, exposing the child to family violence when she lived with them.
Issues: What parenting orders are appropriate given the circumstances?
Decision and reasoning: The proceedings were determined under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects in Part VII ‘ensure that the best interest of the children are met’ [37]. Given the circumstances, Duncanson J paid specific attention to s 60CC(2) which sets out the primary considerations of the ‘benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm’ [42]. Attention was also given to s 60CC(2A) which ‘provides that in applying the above considerations, the Court is to give greater weight to the need to protect the child from harm’ [40].
In reaching his decision, Duncanson J considered that: (1) the child had neither communicated nor seen either parent for a considerable period of time; and (2) while ‘there was not a need to protect the child from harm in the care of the paternal grandmother’, there was ‘a need to protect [the child] in the care of the father, by reason of drug and alcohol use, and his violent and aggressive behaviour towards others’ [42]. There was also a need to protect the child from the mother’s unstable circumstances. Duncanson J consequently affirmed the orders sought by the paternal grandparent as it was in the best interests of the child.
Proceeding: Parenting orders.
Facts: The mother sought sole parental responsibility for the children; an injunction restraining the father from approaching either her or the children within 50 metres; and an injunction restraining the father from communication with the mother and children by any means. The father sought equal shared parental responsibility; an order that the children live with the mother; and that the children spend time with the father.
The parties’ relationship was ‘characterised by significant family violence perpetrated by the father against the mother’ [2], with the father also negatively influencing the mother’s financial position post-separation. The father’s behaviour was partially attributed to the effects of a traumatic head injury which caused loss of inhibitory control, irritability, frustration and verbal aggression.
Issues: What parenting orders are appropriate given the circumstances?
Decision and reasoning: The presumption of equal shared parental responsibility did not apply given the parties’ history of family violence. It was open to the judge to make an order for equal shared parental responsibility if, and only if satisfied that despite the presumption not applying it remained in the best interests of the children that such an order should be made [187]. This led Moncrieff J to turn to the primary and additional considerations set out in s 60CC(3) (Family Law Act 1975 (Cth)). ‘The very real difference between the two classes of considerations is that the additional considerations do not all necessarily apply to each and every case whilst the primary considerations do’ [189]. From these considerations, Moncrieff J concluded that ‘the father is incapable of controlling his behaviour and as such the children remain at risk of psychological harm, if not physical harm, and of being exposed to physical abuse of the mother by the father’ [201] and ordered that there should be no contact between the children and their father. It was ordered that the children consequently live with the mother; the mother have sole parental responsibility; and the father be restrained and an injunction be granted restraining the father from approaching the mother or children within 50 metres.
Proceeding: Parenting and relocation orders.
Facts: The mother and father had one child and sought parenting and, in the mother’s case, relocation orders. The mother sought sole parenting responsibility and for the child to live with her, proposing for the father to be allowed limited visits. The mother also sought an order permitting her to relocate the child to another country. The father proposed equal shared parenting responsibility and for visitation while the child lived with the mother. Both parties sought orders regarding the cost and conditions of travel.
‘During the [parents’] relationship the father was overbearing and aggressive and violent. The mother coped by drinking alcohol and was often intoxicated. The parties’ relationship was marred by incidents of violence mostly perpetrated by the father upon the mother. Both parties abused drugs and alcohol. [The child] was exposed to family violence between his parents.’ [130]
Issues: What would be the appropriate parenting, spend-time and relocation orders given the circumstances?
Decision and reasoning: When dealing with the issue of parental responsibility, Duncanson J found that the child had a meaningful relationship with both of his parents. It was to his benefit that it continues. However, the history of family violence between the parties rebutted the presumption of equal shared parental responsibility, with Duncanson J finding that it would be in the child’s best interests for the mother to have sole parental responsibility. Duncanson J subsequently ordered that the child live with the mother.
Turning to the issue of relocation, Duncanson J considered that while the child did have a meaningful relationship with his father, he had a much deeper relationship with and dependency on his mother. Although it may be initially distressing for the child to be separated from the father if permitted to relocate to another country, the separation would minimise the risk of exposing the child to harm and be in his best interests. The father will still be able to spend time with the child several times a year and will be able to communicate with him electronically.
Proceeding: Parenting and financial orders.
Facts: The parties had two children and sought parenting and financial orders. The father sought orders for equal shared parental responsibility; the children live with both parents on a week about basis; regular telephone communication with the children; and injunctions restraining the parties from denigrating each other. The father also proposed that each party retain their own property and superannuation and for payments from the mother. The mother sought orders ‘apportioning’ parental liability 80%:20% in her favour. She also proposed that the children predominately live with her and sought orders to alter her property interests such that she received half of the father’s superannuation, child support payments and cash payment for the parties’ shared car.
The mother was a self-represented litigant. O’Brien J was satisfied she understood his explanation of the trial’s processes and his obligations.
There were two separate violent incidents between the parties’ post-separation, however there was no evidence to suggest a history of family violence while the parties were married.
Issues: What parenting and financial orders are appropriate for the circumstances?
Reasons: O’Brien J first dealt with the parenting orders sought by the parties and provided that the presumption that equal shared parental responsibility is in the best interests of the child is rebutted if there are reasonable grounds to believe that the child was exposed to family violence.
‘The phrase “reasonable grounds to believe” is not unimportant. The legislation does not require that abuse or family violence be proven for the statutory presumption to be displaced; it is sufficient for there to be reasonable grounds to believe that a party has engaged in abuse or family violence. [59]
O’Brien J found that the presumption did not apply because the two children were exposed to family violence during the second of the two separate violent incidents that occurred post-separation. Despite this, O’Brien J also found that the children were not at any risk of physical or psychological harm in the care of either party. Upon also finding that both parties have the capacity to provide for all of the children’s needs, O’Brien J ordered equal shared parental responsibility and that the children spend equal time with each parent.
In turning to the competing financial orders sought by the parties, O’Brien J stated that
‘the court has a wide discretion conferred by s 79(1) of the Act. That discretion is to be exercised in accordance with legal principle, and without assuming that the parties’ interests in assets, or responsibilities for liabilities, are or should be different from those determined by common law and equity. The court must be satisfied that it is just and equitable to make an order adjusting existing property interests, including equitable interests. That requirement is readily satisfied in most cases, including this one…In determining what orders will be just and equitable, the court’s power is not confined by any ‘steps’ or ‘stages’, let alone a prescribed sequence of such.’ [135]
The parties were found to have a total net pool of -$3,932.00, with most of the liabilities being the joint responsibility of the parties. It was also found that ‘neither party retain[ed] reliable assets of any real value’. O’Brien J consequently ordered that ‘the only just and equitable outcome achievable’ was that each party retained their assets and, considering the mother being currently unemployed, that the father retain responsibility for the liabilities.
O’Brien J then considered the child support orders sought be the mother. O’Brien J declined to provide the orders sought as the mother did not provide sufficient evidence to justify them.
Proceeding: Parenting orders.
Facts: The father and mother had two children and sought parenting orders. The father sought orders for equal shared parental responsibility and for the children to live with their mother while also spending time with him. The mother sought orders for sole parental responsibility, the children to live with her, for the children to not spend time with the father and for the issuing of passports to the children without the father’s consent. The Independent Children’s lawyer (ICL) submitted that the orders which best meet the children’s interests were as set out by the mother.
The children’s parents separated when the children were very young. ‘The relationship between the parties has been described as one of significant conflict and domestic upheaval. Their separation was surrounded by allegations of violence, abuse and aggressive and erratic behaviour, levelled against the husband in particular’ [6]. ‘In the period following separation, the husband’s life descended into turmoil and conflict. There is evidence of significant hostility, anger and threatening behaviour directed by the husband towards a wide range of people and institutions’ [9].
The children were in the mother’s care after the parties separated and had limited opportunity to form a relationship with their father.
Issues: Should the parties have equal shared parental responsibility for the children?
Decision and reasoning:
Walters J provided that
‘[t]he Court’s paramount consideration is the welfare or best interests of two very young girls. The history of this case and the legitimate concerns and aspirations of the parents are matters which must be taken into account – but it is the children’s future, welfare and best interests upon which the Court must concentrate. The Court is responsible for determining what orders best meet their needs and advance their interests – including the need to be protected from the risk of harm… The Court has no interest in or enthusiasm for rewarding one party or punishing the other. Its preoccupation is with, and concentration is on, the best interests of the children…Generally speaking, what parties do, how they behave and the attitudes that they display towards their roles as parents or carers are far more relevant to the decision process in a parenting case, and of much greater significance, than the vague and often highly complex emotion known as love.’ [59]-[105]
Here, the father demonstrated ‘an “entrenched pattern of abusive behaviour over a significant period of time”…The husband seems to have been oblivious to or unconcerned about the real or potential harm he caused or could have caused others’ [109]. Any spend time orders or orders allowing the children to communicate with the father were determined likely to cause the mother ‘significant psychological detriment – and in turn, psychological harm to the children’ [120]. This, coupled with the fact that the mother was deemed to have the capacity to sufficiently provide for the physical, emotional and intellectual needs of the children led Walters J to decide that ‘[i]t [was] not in the children’s best interests to spend any time with the husband’ despite his belief that ‘it is a grave and far-reaching step for a Court to deprive children of a relationship with a parent – or, put another way, to deprive a father of a relationship with his children’ [191]-[192]. Stemming from this belief, Walters J noted that
‘[p]arenting orders are not ordinarily regarded as “final” and immutable. If circumstances change significantly, and in a manner that relates to the best interests of the children, then there is a possibility that the orders I propose to make can be revisited – and, if required in the children’s best interests, varied’ [195].
Proceeding: Parenting orders and property settlement orders.
Facts: The mother and the father had two children and sought parenting and property orders. For the parenting orders, the mother sought sole parental responsibility, for the children to live with her, and proposed that the father be allowed to spend time with the children. The father sought equal shared parental responsibility and for the children to live with both parties on a fortnightly cycle.
For the property orders, the mother sought an order that the father transfer his interest in the former matrimonial home to her and she would refinance the mortgage to Bankwest into her sole name. She also sought to have a car transferred to her, proposing a 7:3 division in her favour. The father proposed to transfer the above home to the mother and refinance the mortgage into her sole name contemporaneously with the transfer. The father also sought for the mother to pay him $250,000 from the transfer. Both parties sought to retain all other assets and superannuation. The property pool was estimated to be around $900,000.
Both children have been diagnosed with medical conditions. The parties did not communicate well and the mother did not keep the father informed of important issues regarding the children’s health. The mother frequently denied the father’s requests to see the children and had a Violence Restraining Order against the father.
Issues: What are the appropriate parenting orders given the circumstances?
Decision and reasoning:
Parenting Orders
The presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child ‘does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.’ Notwithstanding this presumption, [Duncanson J was] of the view that it is in the children’s best interests that their parents have shared parental responsibility for most, but not all long-term issues. In all but medical issues, I think both parties should jointly make the decisions.’ This decision was based on Duncanson J’s findings that the children had a meaningful relationship with both of their parents and it was to their benefit that it continued. The children were not at risk of harm in the care of either parent - although they had previously been exposed to conflict between the parties - and both parties have the capacity to provide for the children’s needs.
Duncanson J ordered an increase in the time the children spent with the father, but predominantly live with the mother during school terms. Keeping in mind the children’s disabilities and anxiety, this increase was to be implemented incrementally.
Property Orders
The proceedings were governed by s 79 of the Act and the decision in Stanford v Stanford (2012) 247 CLR 108. Having regard to the mother’s care of the children, the father’s superior earning capacity and the father’s property entitlement comprising significant superannuation benefits, Duncanson J divided the property in favour of the mother, ordering a 6:4 division.
Proceeding: Parenting and financial orders.
Facts: The mother and father had two children and sought parenting and financial orders. The proceedings primarily concerned whether the children should have any contact with their father. The mother sought sole parental responsibility and orders that the children live with her. The father sought equal shared parental responsibility and shared care of the children.
The father often deceived and manipulated the mother, children and people around him during the parties’ relationship, feigning several severe and terminal illnesses. Through this deception, he spent large sums of the parties’ money for personal use (such as travel and accommodation) under the guise of paying for medical treatment. The father also frequently threatened the mother and occasionally their children, leading the mother to apply for a Violence Order.
Issues: What parenting and financial orders are appropriate given the circumstances?
Decision and reasoning: the presumption of equal shared parental responsibility did not apply because of the father’s psychological abuse of the children. Walters J found that that the father’s psychological abuse of the children displaced the presumption of equal shared parental responsibility. He also found that the father’s behaviour amounted to an unacceptable risk to the children’s psychological and emotional wellbeing. As such, Walters J ordered that the mother have sole parental responsibility and that the children not have any contact with the father.
The parties had a net property pool of $970,381. Upon considering the father’s spending while deceiving the mother along with his limited contributions towards household expenses and the children while the parties were together, Walters J ordered that the mother receive 84% of the net property and superannuation.
Proceeding: Parenting orders.
Facts: The mother and father have two children and sought parenting orders. The father proposes that the older child decides where he lives with a week-about arrangement for the younger children (save for the holidays when they would spend up to two weeks with each parent). The mother sought sole parental responsibility; for the children to live with her; and for the children to only spend time with the father subject to her consent. The ICL proposed that the mother have sole parental responsibility.
The father sought to undermine the children’s relationship with the mother and after the parties’ separation threatened the mother on several occasions. The father’s negative attitude towards the mother influenced the oldest child’s opinion of and behaviour around her, with the child eventually mimicking some of the father’s negative behaviours. While the oldest child did leave the mother’s home to live with the father for two years, he eventually returned and had a hostile relationship with the father until the time of proceedings.
Issues: What are the appropriate parenting orders in these circumstances?
Decision and reasoning: Thackray CJ ‘did not doubt’ that there were great benefits to the children having a meaningful relationship with their mother. ‘She [was] focused on their well-being and has been their primary caregiver. She [was] a stable and steadying influence’ [109]. On the other hand, the father’s conduct towards the mother and children was damaging. ‘[T]he benefit to the children of having a meaningful relationship with their father [was] outweighed by the importance of protecting them from the harm that often arises when they spend time with him’ [110]. Thackray CJ provided that the presence of family violence rebutted the presumption of equal shared parental responsibility and that it was inappropriate for the parents to share responsibility given their inability to communicate.
Thackray CJ ordered the mother have sole parental responsibility for the three children; the children live with the mother; and that the children only spend such time with the father as the mother deemed appropriate.
Proceedings: Interim parenting orders.
Facts: The mother and father had two children. Both parties had criminal histories, mental health issues and problems with drugs and alcohol. The mother previously obtained an interim violence restraining order and a family violence offence had been reported to the police against the father but both matters were dropped. Before the hearing, the parenting arrangements were that the children live with the mother and spend supervised time with the father once a week. The father sought orders for unsupervised time with the children. At the end of the hearing, the Court made immediate orders for unsupervised time between the father and the children.
Issue/s: What ought to be the extent of ongoing time between the children and the father?
Reasoning/Decision: The strict and comprehensive guidelines for determining an interim parenting application were set out in Goode & Goode (2006) FLC 93-286 (see [27]). Magistrate Kaeser cited the Full Court of the Family Court’s decision in Banks & Banks [2015] FamCAFC 36, which provided guidance on the application of these principles. The Court in Banks stated at [48]-[50]:
‘It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial [emphasis in original]. The fact such disputes are commonly dealt with in overcrowded Court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[…]
When it is obvious that the findings made as to some of the s60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it would be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the nondeterminative s60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors’.
Magistrate Kaeser affirmed the orders that the father ought to have unsupervised contact with the children. The presumption of equal shared parental responsibility did not apply given that there was reasonable grounds to believe there had been family violence in the relationship. In these circumstances, the issue of equal time or substantial and significant time did not need to be determined. It was reasonable for the children to spend one overnight occasion with their father every fortnight (see [33]-[44]).
Proceedings: Parenting orders.
Facts: The father was verbally, physically and emotionally abusive towards the mother throughout their relationship. He assaulted her, forced her to have sex against her will, posted comments on Facebook referring to kill her and threatened to kill her. After their first child was born, a safety plan was put in place by the Department of Child Protection (DCP) specifying that the father have no unsupervised contact with the child. Their second child was born. The mother left the home with the children. She obtained a violence restraining order and a filed a Notice of Abuse with the DCP.
Issue/s: What parenting orders were appropriate in the circumstances?
Reasoning/Decision: This case raised significant issues relating to case management in circumstances where the father was a self-represented litigant. The father’s behaviour at trial soon was unmanageable, despite several requests from the court that he refrain from using foul language and despite warnings regarding his conduct. The mother was cross-examined by the father and kept her composure in extremely difficult circumstances (see [43]-[44]). Likewise, counsel for the mother questioned the father in a calm and measured way, despite his behaviour.
Following threats made in the courtroom by the father, the Court took the unusual step of asking counsel for the mother and the Independent Children’s Lawyer to his chambers. He informed them that the trial could not safely proceed with the father present in court. Upon the resumption of the trial the Court made an order that the father attend trial from an alternative venue by way of video link (see [47]-[48]). The father’s behaviour did not improve throughout the rest of the hearing. The Court warned the father on several occasions that if he continued to use foul language the Court would switch on the mute button. After several disruptions, the Court activated the mute button (see [51]-[67]).
Duncanson J stated here at [68] that: ‘The trial was conducted in the most difficult circumstances by reason of the father’s conduct, threats and appalling language. Both the ICL and counsel for the mother conducted themselves properly throughout and are to be commended for their perseverance and tolerance. An order sought by the mother was that the children spend no time with the father. In these circumstances it was important that the relevant evidence be provided to the court and properly tested by cross-examination to ensure that the Court is able to determine all issues and make orders which are in the best interests of the children. It was also important that the Court not allow the father to distract it from those issues’.
In making parenting orders, Duncanson J held that the presumption of shared equal parental responsibility did not apply here because of family violence committed by the father. The mother was given sole parental responsibility for the children. It was also in the best interests of the children that they live solely in the care of their mother as the children would be placed at an unacceptable risk of harm in the care of their father.
Finally, the Court held that the father have no contact with the children. This was appropriate in circumstances where ‘the children’s relationship with the father is not a meaningful one and as such will not be of benefit to them in the future. The children are at risk of both physical and psychological harm in the care of the father. His unrelenting denigration, criticism and vitriol towards the mother could undermine the children’s relationship with her and impact upon her parenting of the children in the future’ (see [184]-[197]).
Proceedings: Relocation and parenting orders.
Facts: The mother was born in England and the father was born in Australia. They had one child together. The mother sought orders to have sole parental responsibility for the child and permission to relocate the child to the UK. Her case revolved around the claim that the father’s sustained emotional abuse towards her transformed her from a strong, independent woman into a nervous wreck who needed the support of her family in the UK (see evidence [31]-[80]). The father sought equal shared parental responsibility and that the child live with the mother in Australia.
Issue/s: What parenting and relocation orders were appropriate in the circumstances?
Reasoning/Decision: First, in relation to the issue of allocating parental responsibility, Thackray CJ noted that the presumption in favour of shared parental responsibility did not apply because of the father’s violence. In the circumstances, it was appropriate for the mother to have sole parental responsibility for the child. His Honour was satisfied that the mother would seek to involve the father in any important decisions about the child and that she would make the right choices for the child (see [157]-[160]).
Second, Thackray CJ turned to the issue of the planned relocation. His Honour noted that this case involved choosing the least bad alternative, as neither of the proposed outcomes was in any way satisfactory. If the mother relocated, the child would effectively be denied a meaningful relationship with his father, at least for some years until the father could afford to see him more regularly. If the mother was not permitted to relocate, there was a serious risk that she would fall into a state of depression, leading to the likelihood of a damaged attachment with her child. This would be extremely damaging to the child in the long term. In His Honour’s view, this factor was of far greater importance than the ‘significant, but not sever grief’, the child would face if not permitted to see his father regularly. The mother was therefore permitted to relocate to the UK to obtain support from her family to recover from the abuse she suffered.
His Honour concluded at [166]-[167]:
Although not a factor I need to take into account, there is potential for the outcome of cases such as the present to have a salutary impact on the behaviour of other parents. Unless the best interests of the child demand otherwise, it cannot reasonably be expected that one party to a relationship can behave in an abominable fashion, cause severe emotional harm to the other party, and then insist that they continue to live nearby so that they can continue to have a close relationship with their child. The strong emphasis given by our law to the importance of protection from violence would be undermined if any different message were conveyed.
Notwithstanding his past conduct, it is impossible not to feel some sympathy for the father who I consider not only has gained some appreciation of the consequences of his behaviour, but wants to do the best he can for his son. His behaviour has been much improved, and he should be commended for that. But, unfortunately, as was put to him in cross-examination, it is a case of “too little, too late”. The damage has been done. All the father can do now, which I am satisfied he wants to do, is to make amends. It is not too late for him to be a good father, but he will have to achieve that by allowing the mother time to recover, which I am persuaded she can only do if she is permitted to go home’.
Proceedings: Parenting orders.
Facts: The mother and the father had two children together, Jack and Helen. The father breached a violence restraining order on four occasions and had been convicted of assaulting the mother. The father sought orders for shared parental responsibility for major long term issues concerning the children. The mother proposed that she have sole parental responsibility for issues concerning the children’s health, education and Jack’s speech and language therapy requirements, but otherwise agreed that there ought to be shared parental responsibility.
Issue/s: One of the issues was should the parties have equal shared parental responsibility for the children?
Reasoning/Decision: In relation to the issue of shared parental responsibility, Thackray CJ was satisfied that the father had engaged in family violence and therefore the presumption of equal shared responsibility did not apply. His Honour noted that just because the presumption did not apply, did not mean that it could not be in the best interests of the children for the parents to have equal shared parental responsibility. However, in the circumstances, equal shared parental responsibility was not an option. The parents had shown no capacity to come to any agreements in relation to significant matters concerning the children and any order requiring them to consult would fail.
His Honour concluded that the mother have sole parental responsibility for all major long term issues concerning the children. This was appropriate in circumstances where she was also to have primary care responsibility for the children and further, she was more in tune with the children’s needs and was better equipped than the father to make decisions for the children’s long term welfare (see [75]-[81]).
Proceedings: Parenting proceedings.
Facts: The mother and the father had two children together and sought parenting orders. The mother proposed that she be given sole responsibility for decisions concerning the children’s welfare while the father sought orders for shared parental responsibility.
Issue/s: One of the issues was whether the parties should have equal shared parental responsibility for the children?
Reasoning/Decision: The presumption of equal shared parental responsibility did not apply here because the father assaulted the mother. However, Thackray J went on to state at [23]-[24]:
‘The fact the presumption does not apply is by no means the end of the matter. Judges in this Court have long taken the view that it is generally appropriate for both parents to have an equal say in major decisions about their children. This is particularly true of cases where the parents have a shared-care arrangement. The fact there has been family violence is clearly an important factor in determining whether it is appropriate for the parents to share parental responsibility; however, the nature of the violence needs to be assessed to determine whether it should have any impact.
It is my assessment that the nature of the violence here was not such, in itself, as to have any real impact on the allocation of parental responsibility. However, I consider there are other reasons why it would not be in the best interests of the children for their parents to be left with shared parental responsibility’.
His Honour held that the mother ought to be given sole parental responsibility in circumstances where the parties had an extremely poor relationship, they did not communicate with each other than by email (which the father used to abuse, annoy and denigrate the wife) and the father was extremely controlling, argumentative and pedantic (see [25]).
