STATE OF TASMANIA v NTA 14 JUNE 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr A you have been found guilty of one count of criminal code assault. The victim of your violence was your seven year old son, whom I shall refer to as “T”. The crime occurred shortly after you and T’s mother had separated, and T was staying with you. So too were some of his siblings. You became angry with him because he did not put some socks on when you asked. You grabbed him by one hand to the front of the throat, and dragged him across the room to a suitcase and demanded he put his socks on. The assault did not result in significant injuries but T’s breathing was affected during the time you were applying pressure to his throat. It was a relatively short-lived incident.
Whilst, of course, you are only to be sentenced for this act of assault the violence you displayed towards T was not isolated or an aberration in character. The evidence on the trial, which I accept, suggested you would often be harsh in your treatment of T. T’s mother described, in reference to the manner in which you would discipline T, the following:
“He would either grab him by the shoulders and pin him down to the floor, or the couch and he would scream in his face. He would smack him over and over, or he would drag him up to his bedroom by his arm. He used to pinch him.”
I also note in March 2022, I sentenced you following your plea of guilty to one count of persistent family violence. That crime was committed against T’s mother over a ten year period, between January 2010 and February 2020. Particulars of the persistent family violence charge included you assaulting T’s mother by placing your hands around her neck and applying pressure to her throat. It seems this manner of assault, which of course is an inherently dangerous one, is not unfamiliar to you. Applying pressure to a person’s throat, even if only for a short period of time, can often very quickly result in unintended and unexpected consequences. Underlying injuries can be caused which may not manifest immediately.
The fact T was so young and so vulnerable makes this a serious assault in my view. T speaks in his victim impact statement of being shocked, scared and confused by your behaviour. It is also relevant that T was exposed to some of the family violence you perpetrated upon his mother. Because of what he had seen you do to his mother, he must have been very scared when you turned your violence upon him.
I take into account your personal circumstances and history. They are outlined in my Comments on Passing Sentence dated 1 March 2022 and it is not necessary that I repeat them. Since the imposition of that sentence you have been in custody. Whilst in custody you have undertaken some courses. I have been provided with a report indicating that you have successfully completed the EQUIPS domestic abuse group programme, and you have also completed the Circle of Security parenting programme. Both reports speak positively in terms of your engagement with the programmes and suggest that you have developed some insight into the wrongfulness of your behaviours and have a willingness to address your difficulties. I accept that you are endeavouring to use your time in custody productively, and undertake whatever courses are available to you in order to better yourself. You continue to maintain the support of your new partner and you have employment prospects upon your ultimate release. With appropriate, long term assistance in respect to your anger management issues, your prospects for reform appear positive.
I note that you have a limited, although relevant, criminal history. In 2019 you were convicted of common assault. The victim was your mother. That assault involved you grabbing her by the throat, holding her down on a couch and punching her to the head and body. In assessing the relevance of your criminal history it is also necessary to bear in mind the violence you perpetrated against T’s mother continued for a period of approximately 10 years.
The sentence imposed upon you in March 2022 was a ten year period of imprisonment, with eligibility for parole after you have served one half of that sentence. When a sentencing judge is required to impose a sentence upon an offender who is currently serving a sentence of imprisonment, the sentencing judge is required to have regard to the total sentence to be served if the new sentence is to be served cumulative upon the existing sentence. The total of the sentences must remain proportionate to your overall criminality, but equally must reflect that this crime was committed against a separate complainant, at a different time and caused separate psychological harm, at least, to T. In sentencing for this matter, I am also obligated to ensure that you are not subject to a crushing sentence, not in conformity with your criminal history and your prospects of reform. That being said, the totality principle does not operate to justify an adjustment of an otherwise appropriate sentence downwards to a point where it fails to adequately reflect the gravity of the crime committed.
You are not entitled to a discount on sentence that would flow from a plea of guilty. T was required to give evidence and his account was challenged in cross-examination. Whilst your assault upon T was relatively short lived, and caused no physical injury, it was committed against your young and vulnerable son. As your child he was entitled to your care and support but instead of providing that, you assaulted him in a serious manner. Moreover, it is likely he has been deprived of the opportunity of sharing any loving parental relationship with you into the future because of the impact this assault has had upon him.
In my view, a period of imprisonment must be imposed. The sentence must operate not only as a deterrent to you and to others, but also to denounce the mistreatment of children within our community. It is appropriate that the period of imprisonment be served cumulatively to the period of imprisonment you are currently serving, so as to acknowledge the separate harm you have caused to T. However, because of the operation of the totality principle, the sentence I impose will be far more lenient than if I were sentencing this crime in isolation.
Mr A, you are convicted of the crime of assault and sentenced to a period of imprisonment of six months. That period of imprisonment will be served cumulatively to the period of imprisonment you are currently serving. You are not eligible for parole until you have served one half of that period of imprisonment.