STATE OF TASMANIA v ARJ 11 MARCH 2021
COMMENTS ON PASSING SENTENCE PEARCE J
ARJ, you were found guilty by a jury of persistent family violence. The crime was committed between the beginning of September 2019 and 17 November 2019. It follows from the verdict that the jury was satisfied beyond reasonable doubt that, during that period of about two and a half months, you were in a significant relationship with the complainant, and that you committed an unlawful family violence offence against her on at least three occasions. Subject to that verdict, it is for me to determine the facts for sentence. I may only make findings adverse to you if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in your favour if they are proved on the balance of probabilities.
At trial, the prosecution adduced evidence of nine occasions on which it was alleged that family violence offences were committed. It was the prosecution case that those occasions occurred within the context of a course of abusive and violent conduct directed at the complainant, driven by your paranoid and controlling behaviour. The prosecution case depended upon the jury being satisfied of the truthfulness and reliability of the complainant’s evidence, in light of your denials, and the evidence adduced by witnesses called by you at the trial. It was the defence case that the complainant’s account was a fabrication, and that the jury could not be satisfied beyond reasonable doubt that any of the violence occurred. In light of the issues at trial, I think it follows from the verdict that the jury was, at least substantially, satisfied of the truth of the complainant’s evidence and did not have a reasonable doubt about her credibility generally. In any event, for reasons I will expand on, I am satisfied beyond reasonable doubt of the truth, in all essential respects, of her account. I find as follows.
You met the complainant through mutual friends in about May 2019. She was aged 25 and you were almost 39. Within a relatively short time you began having sexual relations. She fell pregnant with your child on what must have been about 9 June 2019. Between 16 July 2019 and 26 August 2019 you were in custody. During that time she informed you she was pregnant. About a week or so after your release, you moved into the complainant’s rented house in Launceston where she lived with her two sons, then aged seven and one and a half. The first occasion of violence occurred when you arrived at the house at about 9pm and became suspicious that someone else was there, or had been there, because she had two milkshakes rather than one in her lounge room. As she sat on the couch you struck her thigh at least once with the face of a hammer. When she retreated to the bedroom you followed and struck her with the hammer again, this time on top of her head. The blows were hard, especially to her thigh, and caused pain and bruising. The blow to her head caused her to feel shocked and dizzy. You then removed her pyjama trousers and demanded that she hand you her underpants so you could inspect them.
Two occasions occurred in the shed in the back yard of her house. On one occasion you struck the back of her right shoulder with the plug end of a power cord. On the other occasion you grabbed her around her neck and by her arms and clothing and forced her to the ground on her back. Either in the course of doing so, or as a result of a separate action, you caused the back of her head to strike the concrete floor hard. It caused a big lump and bruising.
At some time during the indictment period you burnt the back of her left hand with a cigarette. When she removed her hand you did it again. I am satisfied that the scars on her hand shown in the photographs taken in November are the result of those acts.
There was an occasion, most likely at about the end of October 2019, in which you were with the complainant in the lounge room at the home and you became angry and accused of her of lying. You pushed or somehow forced her onto her back on the floor and raised your foot as if to stomp on her pregnant belly. You said something like that she wanted an abortion anyway so you would do it for her. She rolled to her right and your foot connected with her above her right hip, causing a large bruise. That constituted assault on a pregnant woman.
The remaining specified occasions occurred during the course of the day or so prior to the arrival of the police at the complainant’s home at about 9pm on 17 November 2019. During the course of the previous evening you arrived home with food and drinks. The complainant was asleep on the couch. You became angry, paranoid that someone had been there. You threw the food at her. You poured the drinks over her. You took pepper from the kitchen and poured it on her head. Then you, with your metal baseball bat, began to strike her left leg. I cannot determine with precision how many times you struck her but I am satisfied that there were multiple blows of considerable force; as the complainant said, less than ten times. You stood over her as she sat on the couch. After you stopped you became fearful that the police would come. You and she, and her youngest child, went for a walk. By this time it was late at night, or in the early hours of the morning. You were out for about 15 minutes but did not calm down. When you returned you were still angry. She somehow ended up on the lounge room floor with her pants off. In her evidence she could not remember how that came to be, but I think it likely that, as she told a police officer the following day, it was because you told her to remove her pants. You then held one of her legs in the air and applied force to her vagina twice with the striking end of the baseball bat. The complainant said that the contact was “hard” and that the end of the baseball bat went into her vagina on both occasions. I substantially accept her evidence. I am not satisfied to the criminal standard that the bat entered her vagina, but I am satisfied beyond reasonable doubt that it penetrated her genitalia at least. Whilst any degree of penetration in such circumstances is significant, I could be satisfied of physical penetration of genitalia to a degree of no more than two centimetres. The crime of rape was committed.
Afterwards, you and she and her youngest child went out again, on foot. While you were out you threatened her by holding a piece of glass towards her. Eventually you were picked up by another man, a friend of yours. While in his car she sat in the front passenger seat and you sat behind her. In the course of the journey you threatened her again with the glass and punched her in the side.
You ended up at the home of your niece. The complainant told her at least something of what had happened. She showed the bruises on her leg. Later, after you returned home you again assaulted the complainant by pulling her hair. It was shortly after that that the police arrived, likely because of a report made to them by your niece.
In all there were 16 unlawful family violence offences committed across the nine specified occasions. There is one rape, one assault of a pregnant woman and 14 assaults. The jury rejected your assertion that no violence occurred. I also reject it. I am satisfied that all of the constituent offences and occasions are proved. The starting point of my reasoning is that I found the complainant to be a truthful witness. Mindful of the need for care in any case in which the prosecution depends substantially on the evidence of a single witness, the complainant’s account was persuasive and compelling. There were some inconsistencies in the accounts she gave over time to the attending police, to the nurse examiner at the hospital, in the statutory declaration she gave to another police officer and her evidence to the jury, but those inconsistencies do not undermine my confidence in her general truthfulness. She was faced with describing highly traumatic events on multiple occasions mostly when she was in stressful and distressing circumstances, and when the specific instances of violence she was asked to identify and detail were, I am satisfied, not the only instances of similar violence she was subjected to during the indictment period. Some confusion or mistake is not inconsistent with the truth of her account.
The complainant’s evidence is supported in various ways by evidence of her complaints, of her injuries, by forensic evidence and by the evidence of her mother about the complainant’s behaviour during the indictment period. Her mother gave evidence that, despite their previous close relationship, the complainant became increasingly distant from her mother and uncommunicative. I find that to be a direct result of the family violence and not, as was suggested by you, her abuse of drugs. I accept her evidence that her use of drugs went beyond a couple of occasions during the indictment period. The complaints to Constable Gunton and to Ms Boutcher, the nurse, were in terms and in circumstances which, in my view, make them more likely to be true and highly unlikely to have been fabricated. I find that the nature and extent of the bruising on her thigh was which was described by the nurse examiner and which was photographed by a police photographer is inconsistent with any reasonable explanation other than that it was caused by the blows with the bat described by the complainant. To me, the appearance of the injuries – the number, location, size and shape of the bruises – is overwhelming evidence of the truth of her account of that assault. Although it was not for you to explain her bruises, the suggestion that these bruises were caused by an earlier fall to the floor, or as an incident of her pregnancy, is so implausible that it can be readily excluded as a reasonable possibility. The strength of the supporting evidence of the truth of those aspects of her evidence also counts to the truth of the other aspects of her account.
In relation to the rape, it was submitted on your behalf that the physical circumstances of the rape described by the complainant were inherently implausible, and that the evidence of semen overwhelmingly likely to be yours on the baseball bat might be explained by transfer. I did not regard the complainant’s evidence as implausible at all. When the forensic evidence is viewed in light of all of the relevant circumstances I think that it provides very strong corroboration of the complainant’s account.
It was also submitted on your behalf that it is unlikely that you would attempt to stomp on the complainant’s stomach when you had supported her pregnancy and encouraged her to consult a medical practitioner. Again, in light of all of the evidence I accept, including of your unpredictable behaviour and drug use, that apparent inconsistency does not lead me to any doubt.
The strength of the prosecution evidence was such that the denials in your interview and evidence do not lead me to entertain any reasonable doubt of the complainant’s account. I, like the jury, found your denials to have been unimpressive. In short, I did not believe you. Your admission that, through anger, you smashed about 10 mobile phones during the short indictment period is one small but weighty indication of the nature of your conduct. Nor does the evidence of your witnesses cause me any doubt about your guilt. I am satisfied that either they were not immediately present at the time of the violence, or if they were, they were either so affected by their admitted drug use as to not notice, or turned a blind eye because, for whatever reason, their loyalty lay with you. To the extent that they may have been present to witness the violence which the complainant described, I do not accept the truthfulness of their denials.
You are now aged 40. You were educated to grade 10 and have a reasonable industrial record. You have seven children, including the most recent, the child with the complainant who was born in March 2020. You are an aboriginal man. You say that you are close to, and have a strong connection to, your family and to your culture.
However, those assertions are to be viewed in light of your behaviour over time. Conduct of this nature is not out of character for you. You have nine prior convictions for assault and one for aggravated assault. In 2000 you assaulted two different females, one by pushing her to the ground and the other by grabbing her head and kneeing her to the face. In 2003 you committed an aggravated assault by pointing a rifle at a man and making threats. That assault was committed in circumstances of relationship breakdown and disputed custody of children. You have committed family violence offences against two other previous partners, one with whom you were in a relationship between 2003 and 2008 and had two children, and another with whom you were in a relationship from 2014 and had four children. As to the first, you breached a police family violence order three times in January and February 2008 by abusive text messages. As to the second, you assaulted her twice on consecutive days in 2014, once by striking her forehead and then by grabbing her throat and striking her to the jaw. Both assaults were in breach of a police family violence order. Of particular relevance to this case is that you assaulted the same female again in April 2016 by striking her with a replica firearm, with the handle of an axe and with a baseball bat, all again in breach of a family violence order. During 2015 and 2016 you committed numerous breaches of police family violence orders, interim family violence orders and family violence orders by those assaults, but more often by contact and non-approach breaches concerning not only your partner but also a child. You have a conviction for resisting police in 2016 when you refused to hand over a child when you were about to be taken into custody.
Your record includes not only family violence offences. You have been to prison many times. As a result of sentences imposed in 2003 and 2005 you were subject to a total term of imprisonment of five years and three months for numerous dishonesty and drug offences, and the aggravated assault. In 2008 you were imprisoned for offences including breaches of a police family violence order. Then, in 2009 you were sentenced to imprisonment for five years for a serious aggravated armed robbery. The sentencing judge recorded that, by then, you had convictions for 60 counts of burglary, 47 of stealing and three for receiving. Those and earlier sentencing comments note your long term abuse of illicit drugs, including cannabis and amphetamine. On your release you continued to offend. A drug treatment order was made in 2014 with a custodial part of 15 months for dishonesty and drug offences, but also for the two 2014 family violence assaults I have already mentioned. The order was cancelled the following year and you spent more time in prison. Then in May 2016 you pleaded guilty to the further family violence assaults and were sentenced to 20 months, half of which was suspended. You breached the suspended sentence, by committing more than 100 breaches of a family violence order, mostly by breaches of non-contact orders. Even activation of that suspended sentence did not stop you. You were released in November 2017 and in July 2018 you were sentenced for four family violence order breaches and two assaults, committed in May 2018 against your former partner and your son with what they thought was a Taser. You were released from a seven month sentence on 10 October 2018 but sentenced to a further five months for more family violence order breaches and other offences. You were released on 20 March 2019. Within two months you had met the complainant. You were fitted with an electronic monitoring device as a result of an offence concerning one of your earlier partners, and the sentence in July and August 2019 was for another family violence breach. You contacted a former partner and threatened to kick her door down. Soon after your release, the violence against the complainant commenced. Although it is not strictly a prior conviction for sentencing purposes, on 24 August 2020 you were sentenced by a magistrate to a term of four months from 17 November 2019 for yet more non-contact family violence order breaches committed from prison in November 2019. You were eligible for release on 16 February 2020 but have been in custody since then, so the sentence I impose will commence on that day.
The seriousness of violence within relationships has been repeatedly emphasised by this Court. It is insidious and a matter of great community concern. You are not to be punished for other acts of violence, but I am satisfied that the occasions identified by the State as constituting the crime were not isolated. By comparison with many other cases, yours was not a lengthy relationship. However your conduct, almost as soon as the relationship started, was characterised by ongoing domineering conduct, torment and the exercise of power, control and intimidation. The frequency and persistence of the violence, and its gratuitous nature, over the course of almost three months, added to the trauma to which the complainant was subject and to your overall criminality. Despite knowledge of her pregnancy you abused the trust inherent in domestic relationships. All of the offences were committed when you were subject to a family violence order, albeit not to protect this complainant, and while you were subject to electronic monitoring, thus displaying your contempt for the law and to court orders. Each of the identified incidents involved the infliction of cowardly attacks on a vulnerable female unable to defend herself, in what should have been the safety of her own home. Some offences were committed while her children were in the house, although I am not satisfied that, on any occasion, they were in the immediate vicinity and so became aware of what was happening to their mother. The oldest child was not present during the most serious offending. The two assaults in the shed were committed in the presence of another person. I regard the offences committed with the baseball bat as of particular seriousness. Even without more, they warrant a significant sentence. Your conduct in standing over your pregnant partner and beating her with a baseball bat is abhorrent. Some indication of the seriousness of that crime is the complainant’s evidence that the fear and distress caused by the rape with the same bat, as appalling as that conduct may be, was not as bad. The rape was demeaning and humiliating. I am not satisfied that anyone else was present at the time. The ongoing impact of your conduct on the complainant is described in her victim impact statement. She describes the type of impact which might be expected from having been subject to violence and abuse of this nature: loss of confidence, interrupted sleep, anxiety and isolation. I think that the effects are likely to be significant and long lasting.
I have taken some trouble to describe your history of committing family violence offences, as well as other serious offences. You are not to be sentenced for your record, and the sentence I impose must be proportionate. I accept that the great majority of the previous family violence offences do not involve actual violence. Most concern non-contact and approach breaches, often with the encouragement or complicity of the persons to be protected and prompted by your close connection to your family. However, some involve actual violence of a very similar nature and committed in similar circumstances. Overall, your record makes absolutely clear that, in addition to the obvious need for punishment, general and personal deterrence and vindication of the victim, protection of the community, women in particular, from your violent and lawless behaviour is now of particular significance. I see little prospect of reform. Earlier attempts at rehabilitation have had little effect. I have no doubt that long term serious drug abuse has contributed to your conduct. At the time of the crime for which I am to sentence you, you were frequently using Ice. However that is not mitigating. You are not entitled to the mitigation a plea of guilty would have attracted, particularly in cases of this nature.
I was not asked to make an order under the Community Protection (Offender Reporting) Act 2005. Persistent family violence is, in my view, not a reportable offence under that Act. I am satisfied that you have committed family violence and may do so again. Accordingly, pursuant to the Family Violence Act, s 36, I may make a family violence order in addition to any other order I may make. The prosecution asks that I make an indefinite order in terms of the interim order made by a magistrate on 18 September 2020 with some additions to protect the complainant’s youngest child. A condition that you be subject to electronic monitoring is not sought at this stage. I accept your counsel’s submission that variation or revocation of an indefinite order may be unfairly onerous. However an order should be made for a prolonged period. Application may be made in due course that it be extended or varied or even revoked.
ARJ, you are convicted. I direct that the offence be recorded on your criminal record as a family violence offence. I make a family violence order to remain in force for seven years from today in terms of the interim order made 18 September 2020 except that condition 3 is amended by insertion, after the name of the complainant, of the name of your youngest child which will be specified in the formal order. I see no reason to amend condition 7. You are sentenced to imprisonment for six years from 16 February 2020. I order that you not be eligible for parole until you have served four years of that sentence.