STATE OF TASMANIA v PATRICK KERRY AINSLIE 14 DECEMBER 2021
COMMENTS ON PASSING SENTENCE GEASON J
Mr Ainslie you have been found guilty by a jury of emotional abuse or intimidation contrary to s 9 of the Family Violence Act 2004.
This unanimous verdict was delivered in the alternative to that charged in the indictment, which alleged persistent family violence. Emotional abuse or intimidation was a particular of that charge.
The allegation relates to the period between 1 January 2019 and 7 July 2019 particularised as a course of conduct that you knew or ought to have known had the effect of unreasonably controlling or intimidating or causing mental harm apprehension or fear to the complainant, Ms Little-John, with whom you were in a relationship. The particulars of the repeated abuse include calling her a slut, a whore and a junkie; threatening to burn down her residence and her parents residence; threatening to kill her and her daughter; damaging her rental property, including throwing things around, hitting walls, punching holes in walls, using knives and hammers on walls and doors and ripping plasterboard off walls and restricting her access to and use of her mobile phone.
The jury was not satisfied beyond reasonable doubt that you were guilty any of the others acts of domestic violence were alleged, seven acts of assault nor that you were guilty of at least three of them for the purposes of establishing that you engaged in persistent family violence.
The findings the Court makes in relation to the matter in respect of which you were found guilty takes account of that.
On the basis of the evidence that I heard during the trial and for the purposes of sentencing you I am satisfied that the jury convicted you for emotional abuse or intimidation by verbally abusing Ms Little-John, threatening harm to her residence, and to her parents residence, to her and her daughter and damaging her property as particularized in particular 8 of the persistent family violence charge. This included damaging the walls, including removing plasterboard and restricting access to use of her phone.
The offending occurred in the context of a relationship, which on the evidence before the Court at trial was characterised by a high degree of volatility. My impression, based on the evidence, is that at times you both exhibited difficulty in managing your frustrations with one another, but that you particularly struggled in that respect to the extent you managed your issues with your partner by controlling her through the threats and intimidation to which I have referred. It appears to me that you exhibit a capacity to sudden outbursts of anger, and that you have difficulty controlling that anger.
This has resulted in some of those threats and the restriction of access to her phone.
This is not inconsistent with the circumstances of a previous domestic violence offence for which you were found guilty. I refer particularly to the comments on passing sentence of Cox CJ in 1998, upon your plea of guilty to three counts of assault on your then partner. In those comments his Honour noted that you burst into the house where she was living, abused her verbally and struck her violently. She fled the scene, and you pursued her and dragged her from a phone box where she was trying to make a call and you insisted she enter your car. Your abuse continued for some considerable time. In particular and relevantly to my point in sentencing you today, his Honour’s comment in that case describe you as having lost your temper and behaved in an unacceptably violent way.
The ultimate point I seek to make by referring to that particular sentence is that issues in relation to the management of your anger remain matters that are of concern to the Court, and which still require attention from you some 20 years later.
It ought not be thought that emotional abuse or intimidation of which you were found guilty, is somehow less serious than physical violence. Your controlling behaviour inflicted considerable harm upon your former partner and that is reflected in the victim impact statement. I acknowledge that statement canvasses matters other than those in respect of which you are found guilty, but it is clear that your behaviour has had a detrimental effect upon her emotional wellbeing. She also had to prepare for trial, and endure the task of giving evidence on more than one occasion.
Whilst I accept that you were found not guilty of certain charges and you are not be penalised for your plea of not guilty, it does not follow that the Court is unable to or precluded from having regard to the effect of that process upon on the complainant.
In recent times the Court has made clear in a number of cases that offences within relationships, whether physical or emotional, will be treated seriously. Such conduct is difficult to detect, and the process of bringing people to justice is one which places considerable burdens on the victims of such conduct. Because it is difficult to detect it is important that the sentence which the Court imposes operates as a general deterrent so that others are deterred from behaving in this way before it occurs. It is only through the imposition of penalties which mark the seriousness of such conduct, that an appreciation of its gravity will form part of the overall consciousness of the community, and it is to be hoped this will discourage such conduct, and reduce the incidence of such behaviour. The seriousness with which the offence of emotional abuse or intimidation is viewed is reflected in the fact that s 9 of the Family Violence Act provide for penalties up to 2 years’ imprisonment for such conduct. The conduct for which you have been found guilty occurred over a period of seven months and that is a significant period over which to endure such behaviour.
Even though the relevant prior convictions involving relationship violence occurred sometime ago, the fact that you are still engaging in such conduct necessitates a punishment which functions as a specific deterrent. Such punishment will serve also to vindicate your victim who has endured suffering at your hands through no fault of her own.
In the circumstances a term of imprisonment is the only sentencing response, which addresses the relevant sentencing considerations. As I say the maximum penalty for an offence such as this is imprisonment for two years or a fine not exceeding 40 penalty units. A fine is a wholly inadequate response to your behaviour. This is a very serious example of such an offence. In those circumstances Mr Ainslie, I sentence you to ten months’ imprisonment backdated to 21 August 2021 being the date you were first taken into custody in relation to these matters.
I turn to consider whether I should suspend some or all of that sentence. I note that you have previously had the benefit of a suspended sentence, and that whilst that was some years ago, such sentencing option failed to encourage you to change your fundamental predisposition to engage in domestic abuse.
Having regard to the seriousness of the conduct its protracted nature, but not ignoring the matters put in mitigation, I have decided that you should serve the whole of that sentence. I encourage you to access programs directed to anger management whilst you are incarcerated. so the effect of that sentencing order Mr Ainslie, is that you have ten months’ imprisonment to serve, that sentence begins on 21 August 2021.