AEP

STATE OF TASMANIA V AEP                                                                      ESTCOURT J

COMMENTS ON PASSING SENTENCE                                                      31 JULY 2019

The defendant, now aged 32 years, has pleaded guilty to one count of persistent family violence, contrary to s 170A of the Criminal Code.

The defendant and the complainant, now aged 29, had been in a significant family relationship for 10 years and had been living together for the past 7 of those years. They were in a significant relationship within the meaning of s 4 of the Relationships Act 2003 (Tas). They had a son born on 21 December 2016 and they lived together in South Hobart.

In respect of the occasions constituting the crime of persistent family violence:

Occasion One: About five years before the most recent occasion (on 7 October 2018), that is to say in about October 2013, when the parties were living together in New Town, the defendant grabbed the complainant and put her into a headlock, the parties fell to the floor. The defendant’s knee made contact with the complainant’s face, injuring her nose. The complainant was reluctant to seek medical assistance as she did not want to disclose that she had been assaulted by her partner. An x-ray conducted shortly after 7 October 2018 revealed that the complainant had a previous break to her nose which had healed.

Occasion Two; On another occasion while the parties were living at New Town, while the parties were inside the house, the defendant  grabbed the complainant by the neck or throat and slammed her head against a brick wall, she fell to the floor, and the defendant  put his foot onto the complainant’s face and held her down. The complainant was able to get up and run out of the door and away. The complainant suffered lumps to her head and felt bruised to the area.

Occasion Three; On an occasion between about January – March 2018 the complainant was in the kitchen holding their son. The parties were arguing with each other. The defendant shoved the complainant, grabbed her by the throat and pushed her against the fridge. The complainant struggled to breathe and could feel the pressure closing in. The complainant was unable to remove his hand as she was holding their son.  The defendant held her by the throat for 10-15 seconds.

The complainant lost consciousness and next became aware that she was on the floor in a squatting position against the fridge (as though she had slid down) with her son in her arms. The complainant felt very dizzy and disorientated.  Her eyes felt sore and her ears were ringing. She felt terrified and numb. The complainant states that the defendant became concerned at her condition and appeared panicked. The defendant expressed surprise when the complainant stated that she had blacked out, commenting that her eyes had remained focused on him, which he found disturbing.

Occasion Four; In about April 2018 the parties were in the lounge room with their son, who was playing. The complainant was cornered between a gap in the couch and the computer table when the defendant became agitated and began arguing with her. The defendant grabbed the complainant by the throat with his hand. The complainant tried to pull his hand away using her hands and to push him away from her but was unable to do so. The defendant held the complainant by the throat and squeezed, the complainant struggled to breathe and felt pressure closing in on her. The complainant suffered a seizure and was unable to move voluntarily and began shaking uncontrollably. The complainant, blacked out for a couple of seconds. When she regained consciousness she observed the defendant to prepare the fold out couch for her, which she lay on and continued to shake for about 15 seconds. She felt weak and was unable to get up. Their son became distressed at the sight of his mother’s seizure. The defendant asked the complainant if she wanted to go to hospital but she was concerned that she would have to explain what had happened and was fearful that the police would become involved. The complainant feared that if the police were involved and the defendant was not taken away, that he would be angry and this would lead to more violence.

The complainant felt light headed, dizzy and unsteady on her feet. She felt weak all over. The feeling lasted for about 1.5-2 hours.

Occasion Five; On 7th October 2018, at approximately midday, the complainant was at home with her son and the defendant.  The complainant let the cat outside and then took their son outside to play. About half an hour later the complainant returned to the house with their son. The defendant was leaning over the railing and calling out to her. The defendant was annoyed that in her absence, the cat had returned to the house and he had had to get up and let it in. This angered the defendant  who started calling the complainant names and was derogatory to her calling her “retarded” and complaining that he had to “put up with this and that”. The defendant shoved the complainant backwards, and then grabbed her by the throat so that she had difficulty breathing. This lasted for a few seconds. The pair scuffled and the defendant placed the complainant in a headlock and twisted her inwards towards the defendant. This hurt the complainant’s neck and she tried to push away and wriggle out of his grip. The complainant was unable to do so. The complainant then bit the defendant’s finger in an attempt to get him to let her go.  The defendant let go and screamed in pain the defendant abused the complainant telling her that he was “stuck with a psycho” and that their son would “grow up and want to get away from her”.

The complainant went to the bedroom to read to their son, while the defendant played computer games. The complainant telephoned police at 12.40pm giving her street address in South Hobart but she not providing any other information.

The complainant was terrified as the defendant had often threatened to hurt her and hospitalise her and each time he hit her, she feared that he would do as he had threatened.

In the past the defendant had also threatened to slit the complainant’s throat if she left him.

Police investigations revealed that the likely address of the caller to the 000 line was the complainant’s address in South Hobart. Police attended the address at 2.30pm. Upon arrival police found the defendant playing a computer game. Attending police requested they be able to speak to the subscriber of the telephone, the complainant, and the defendant directed police to a bedroom. The officers attest to the complainant sitting on a bed nursing a young child. She was visibly shaking, her eyes were lowered and she whispered “I’m terrified”. When asked what had happened, the complainant whispered and gestured that the defendant had put his hands around her neck and placed her in a headlock.

Police arrested the defendant.

As to the background to the offending and the relationship, after the pair had been living together for about a year the defendant started to behave aggressively towards the complainant. He would shove her or slap her with an open hand to her face.

The two occasions in New Town were not isolated occasions. Similar behaviour occurred every couple of months. The parties’ son was born on 21 December 2016. At this time the parties resided together at South Hobart. The complainant stated that since the birth of their son, the parties had experienced additional strain on their relationship. This was partly due to the defendant’s frustration at the lack of intimacy in their relationship, while the complainant was frustrated by the defendant’s lack of assistance and lack of work ethic, which contributed to the financial strain that they were under.

The complainant stated that on many occasions the defendant was violent towards her in the presence of their young son, or while he was present in the house.

On one occasion the defendant pushed the complainant while she was holding their son, resulting in her son’s leg hitting the corner of the kitchen and sustaining a bruise. The complainant stated that there had been up to a dozen occasions when the defendant had been violent towards her while she was holding their son.

The defendant’s behaviour deteriorated. The defendant often hit the complainant to the face, upper temple and cheek area with an open hand. On other occasions she was placed in a headlock and hit with a closed fist. The frequency increased from monthly occurrences to weekly ones.

In July 2017, the complainant began recording the incidents by photographing her injuries. The photographs I have seen attest to numerous occasions between July 2017 and August 2018 when she was severely bruised by the defendant’s actions. These included kicking her, punching her in the face, pushing her into something or hitting her, grabbing her by the throat and or grabbing her by the arms or torso. On one occasion the complainant tripped and fell after being pushed by the defendant, which caused her foot to get stuck in the gap under the fridge, causing her a lot of pain. Damage was also caused to a wall where the complainant had been pushed by the defendant.

The following occasions when the complainant sustained injuries can be identified from the dates of the photographs supplied; at times with bruising still apparent from previous attacks compounded by bruising from later attacks, the complainant appears to be covered in bruises over her face, throat, arms, torso, legs, feet and toes.

The photographs depict the following;

  • In late July 2017; the defendant struck the complainant causing injuries to her arm;
  • On or before 11 July 2017 the defendant assaulted the complainant causing dark bruising to her right upper arm, bruising to her chin, and finger marks to her left upper arm;
  • On or before 15 October 2017, the defendant assaulted the complainant causing bruising to her left knee and left foot, and right buttock;
  • On or before 5 and 6 and 13 November 2017, the defendant assaulted the complainant causing bruising to her right calf, left lower leg, redness to her left foot, bruising to her left forearm and marks to her neck;
  • On or before 20, 23 and 25 November 2017, the defendant assaulted the complainant causing bruising to her right upper arm, hip, upper left thigh, marks and bruising to her cheek and neck, left shoulder, right upper thigh, lower left leg and left bicep;
  • On or before 8 December 2017, the defendant assaulted the complainant causing bruising below her right knee and shin, left outer calf and left foot, left cheek, chest, right bicep, and finger marks on her upper left arm and right forearm;
  • On or before 19 February 2018, the defendant assaulted the complainant causing bruising to her left shin, right thigh, chest and right breast, right outer thigh, left leg above the knee and right eye and cheek;
  • On or before 8 and 9 and 11 May 2018, the defendant assaulted the complainant causing bruising to her left foot and toes, upper left thigh, left upper arm and right upper arm;
  • On or before 13 and 14 June 2018, the defendant assaulted the complainant causing injuries to the wall of the home and bruising to her neck;
  • On or before 12 August 2018, the defendant assaulted the complainant causing bruising to her right upper calf, scratch marks to her right rib cage and bruising to her left forearm and left shin;
  • On or before 22 August 2018, the defendant assaulted the complainant causing redness to her neck and bruising to her right rib cage, right thigh, and left lower leg.

The defendant would also often grab the complainant around the chin and mouth in a pistol grip which hurt her jaw, gums and teeth for a couple of hours at a time. The defendant would also put the complainant into a headlock. The complainant also reported that the defendant often pushed her into walls or slammed her head into walls holding her face in a “pistol grip”.

On four or five occasions, the defendant picked the complainant up and put her headfirst on to the ground. On these occasions the complainant was unable to cushion her fall with her hands. The complainant reported that on these occasions she suffered pain to her neck and back. This behaviour occurred regularly over the two year period ending in October 2018

The defendant was interviewed at the Hobart Police Station on 7 October 2018. Amongst other things he said:

  • I know sometimes when I snap I go and grab whatever’s nearest, near the mouth or chin.
  • It has happened more than once or twice.
  • It’s me losing my temper, it’s me not knowing what I’m thinking about.
  • I don’t have enough control as I need to, it’s something I’ve always struggled with.
  • There had been fighting over the past ten years.
  • He had grabbed her on other occasions and he regretted it.
  • He had “grabbed her on a few occasions over the years and hit her on a few occasions over the years”.
  • He had lost his temper and hit her in the leg before.
  • He asks her if she will forgive him and she says that she has on each occasion.
  • That he has stuck her face with an open hand “which I horribly regret, I don’t know what to say, I’ve made some really shitty mistakes, it has been a two way thing, I have lost my temper and done things that I should not have”.
  • That when arguments get really bad sometimes he doesn’t remember what has happened in the argument.
  • That it was incremental, he loses self-control for a short period of time, he doesn’t know what he is doing at the time, then his brain says stop. He doesn’t know what he does when he loses his temper “it’s a reactive thing”, “it might be a punch to the wall, kick something across the room, there is too much bottled up and I need to find a way out on some small avenue…in some instances the target is the complainant if the arguments come from her”.

At the conclusion of the interview the defendant was charged and detained for court. He appeared in the Hobart Magistrate’s Court on the 8 October 2018 and was remanded in custody. He has been in custody since 7 October 2018.

The defendant pleaded not guilty on his second appearance on 24 October 2018 and was committed to appear in the Supreme Court on 4 February 2019. An indictment was filed for one count of Persistent Family Violence on 31 January 2019, and the defendant shortly thereafter entered his plea of guilty.

The defendant has no prior convictions

I have received two reports from clinical psychologist Grant Blake which I have carefully considered. Mr Blake has diagnosed the defendant with what was formerly, diagnostically and is still commonly known as high functioning autism or Asperger’s syndrome.  He states that is established that the symptoms of autism impact interpersonal functioning and impair the autistic person’s capacity to make calm and rational decisions in states of heightened stress and anxiety. He states that the defendant was reportedly experiencing heightened stress and anxiety at the time of the assaults, and he lacked appropriate coping skills to manage these feelings. He states that the defendant’s thought processes also feature an aversion to probabilistic reasoning, in that he requires black/white answers to keep him calm. This causes him stress and anxiety, which appears to have affected his ability to make calm and rational choices.

Also relevant to Verdins considerations, Mr Blake has stated that the defendant’s autism and anxiety cause a reduction in a capacity to cope with the interpersonal and environmental stressors of a prison environment.

The defendant is 32 years old, he was bullied as a child and suffered anxiety as a result.  He has had suicidal ideation.  The relationship with the complainant was an unconventional one.  There was no family violence until 2014.  Life events, including the death of a pet, caused violence to creep into the relationship between the defendant and the complainant.  The birth of their son was also stressful.  It was suspected that he had cancer and the possibility was something that he has never really recovered from.  He is remorseful and ashamed and it is put that his plea of guilty is an expression of contrition, which I accept.

While in prison on remand he has undertaken a horticultural course and an IT course and he wishes to engage with Parenting Australia.

I have received a Victim Impact Statement, pursuant to s 81A Sentencing Act 1997. Still today the complainant suffers physically and emotionally because of the defendant’s violence. She was trapped and alone.  She feared leaving due to fear of repercussions.  She feared not leaving.  The violence completely, gradually, stripped her of her self-confidence and self-worth until she was paralysed.

The complainant, at one point during the violence, genuinely thought she might die (occasion three).  She couldn’t stop the defendant from tightening his grip around her throat which was highly distressing.  She felt powerless.  From that point on she was very wary of being in arms reach of him.

She was constantly concerned for my baby, she was walking on eggshells all the time.

Being choked (occasion four) caused excruciating pain in her throat.  She felt as though she had dissociated from real life and believed she was going to die during the seizure.  .

As a result of the relationship she suffers from extreme anxiety and poor sleep. The defendant’s behaviour escalated over the five years, and the impact has been long lasting.

She was constantly concerned for her baby, and shocked that the defendant would go to the lengths he did to hurt her even while she was holding her son.  She worried that she would drop him during their arguments.  When her son became upset about anything, she would be terrified that the defendant would react badly and violently. She was walking on eggshells all the time, as I have noted.

This is a family violence offence within the meaning of s 7 of the Family Violence Act 2004. Pursuant to s 13 of that Act, when determining the sentence for a family violence offence, a judge may consider to be an aggravating factor, the fact that the offender knew, or was reckless as to whether, a child was present or on the premises at the time of the offence.  I do, in those cases where their son was present.

Pursuant to s 13A, if the defendant pleads guilty to an offence and the court or judge is satisfied that the offence was a family violence offence, the court or judge is to direct that the offence be recorded on the person’s criminal record as a family violence offence. I do so in the case of the conviction I will record for the crime of persistent family violence.

As to the offence, like the crime of maintaining a sexual relationship with a person under the age of 17 years, it is not necessary that the prosecution establishes in the case of the crime of persistent family violence, the dates on which any of the unlawful acts were committed, or the exact circumstances in which any of the unlawful acts were committed.

Victims of acts of family violence are frequently unable to give particulars of each and every act of violence during a period of prolonged offending. The State has listed the five specific acts of family violence the complainant is able to identify with some precision, but the defendant may be sentenced on the basis that each specific act is part of a course of conduct involving other, sometimes many other, unspecified acts.

As an offence that is less than a year old in its creation under the Criminal Code, no discernible sentencing range is possible. Indeed I am not aware of any other sentence in this Court for this crime. The defendant should however, in my view, suffer the same penalty as would have been imposed if the individual acts of family violence constituting the crime had been charged as separate crimes, such that the sentence is, without losing sight of the totality principle, a just and appropriate response to the measure of the defendant’s total criminality, in the context of a course of conduct involving numerous other unspecified acts.

The specified acts were assaults committed in the context of domestic violence, that is an aggravating factor; see Price v Tasmania [2016] TASCCA 22 at [39], per Estcourt J

As was acknowledged by the High Court in Kilic [2016] HCA 48 at [21], 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”.

Each of the identified incidents involved vicious and cowardly attacks by the defendant on a woman. Less it be thought that grabbing the complainant by the throat and applying pressure is somehow less insidious than punching or kicking, it has been noted in an article entitled Strangulation, Domestic Violence and the Legal Response by Heather Douglas and Robin Fitzgerald published in the Sydney Law Review [2014], 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.

Strangulation can cause death quickly with loss of consciousness as occurred to the complainant.  It has been suggested that it can occur within 7–14 seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days and airways obstruction causing death may be delayed.

In R v Dunn [2004] NSWCCA 41, 144 A Crim R 180 at [47], Adams J noted:

“[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 …”

To that I would add retribution and vindication of the victim.

The defendant has pleaded guilty and has spared the complainant the ordeal of a trial. He is entitled to a genuine discount on an otherwise appropriate sentence.

As to Verdin’s considerations I take into account the fact that symptoms of autism impact interpersonal functioning and impair the autistic person’s capacity to make calm and rational decisions in states of heightened stress and anxiety. However I note that Mr Blake’s view is that the defendant’s mental impairment did not affect his ability to appreciate the wrongfulness of his conduct and did not obscure his intention to commit the crimes of assault.

Moreover Mr Blake reported that regarding perpetrator risk factors, the defendant has intimate and non-intimate relationship problems, a problematic employment record, financial stress, a history of victimisation, diagnosable depression, a substance use disorder, and suicidal ideation. Each of those risk factors he said appeared to be related to the commission of domestic violence. He said that the defendant presented with some cognitive distortions about violence (e.g., chose to escalate the violence to intimidate the complainant out of being violent herself), but generally has negative attitudes about violence and he does not have a personality disorder and he has not engaged in other antisocial conduct.

A court of five judges in Pantazis v The Queen [2012] VSCA 160 at [195] held that an impairment that simply predisposes a person to flawed decisions is not sufficient to invoke the first three Verdins principles. Moreover, while the existence of a mental impairment will almost always be relevant to the sentencing of an offender, and will often result in a lower sentence, such modification is not always the case: GOK v The Queen [2010] WASCA 185 at [58] citing Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68.

I take account of the fact that the defendant’s autism and anxiety cause a reduction in his capacity to cope with the interpersonal and environmental stressors of a prison environment.

A substantial period of imprisonment is called for. Violent behaviour by men towards women in relationships must be condemned and discouraged. 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.

The defendant is convicted of the crime of persistent family violence and is sentenced to four years’ imprisonment backdated to 7 October 2018, and is not to be eligible for parole until he has served half of that sentence.

Were it not for the ameliorating considerations I have mentioned I would have sentenced the defendant to five years’ imprisonment backdated to 7 October 2018 with a non-parole period of 3 years.