STATE OF TASMANIA v BRODIE NORMAN BARWICK 12 JUNE 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to one count of assault. I am also dealing with related summary offences, being four charges of breaching a police family violence order, unlawfully entering premises, two charges of destroying property and one each of refusing to undergo a breath test and refusing to submit to a breath analysis. All of these charges arose out of an incident on 16 March 2019 at the home of the complainant, the defendant’s former partner, Ms Woolley. The two had been in a relationship for over nine years. They separated for two years before recommencing the relationship in October 2018, but again separated in January 2019. They have a 3 year old child who lives with Ms Woolley. In February 2019, a 12-month police family violence order was made in respect of Ms Woolley. Conditions of that order included that the defendant not be within 100 metres of Ms Woolley except for the purposes of discussing relationship and child issues, that he not enter her home premises, nor go within 100 metres of the boundary, and that he not damage those premises. In the immediate prelude to the incident, the defendant drove to the area of Ms Woolley’s home and parked a distance away. He sat in the car for about 1½ hours and drank a full bottle of spirits. At 12.30am, he went into the driveway of the home where a vehicle belonging to Ms Woolley’s new partner, Mr MacBeth, was parked. The defendant smashed all the windows of that vehicle. Ms Woolley and Mr MacBeth were woken by the noise, and Ms Woolley called police. The defendant smashed the bedroom window with a metal pole and yelled at Ms Woolley, asking whether her boyfriend was there, and said, “I’m going to fucking kill you, you cunt”. He climbed through the window with the metal pole, and hit Mr MacBeth to the hand, head and back. The two men wrestled and fell into the hallway where the defendant head butted Mr MacBeth, punched him to the head and pushed him. The punch caused a tear to Mr MacBeth’s ear. All of that conduct makes up the assault. At that stage of events, the child woke up and came out of his room. Mr MacBeth restrained the defendant and Ms Woolley took the metal pole. When Mr MacBeth let him go, the defendant yelled at Mr MacBeth, “I’m fucking gunna kill you”. At that time Mr MacBeth was standing next to the child. The defendant grabbed a knife but Ms Woolley pushed the defendant into a laundry where he dropped it. Mr MacBeth fled from the house and ran down the street, hiding in a nearby garden. The defendant then ran out of the front door, got into his car, did what was described as “a burnout”, and rammed his car into Mr MacBeth’s car causing damage to it. That, and the earlier damage to the car make up one of the destroy property charges; the other relates to the broken window. When police arrived, the defendant locked himself in his car and refused entry. Police needed to use batons to apprehend him. He was taken to the police station where he refused to co-operate in testing his breath or providing a sample of breath for analysis. When interviewed the next morning, the defendant made admissions. He said he was not thinking straight and he was pissed off about the other man being there. Mr MacBeth was treated in hospital for injuries which included a broken left hand, fractured nose, and cuts and bruises to an ear. There is nothing to suggest that he has not recovered from those physical injuries.
The defendant is now 26 years old. He has a recorded history of relevant offending, a prominent feature of which is his failure to comply with court orders and directions. These offences include driving while disqualified, evading and resisting police and, in particular, breaches of police family violence orders. He has five convictions for assault ranging from 2011 to 2017, in respect of the last of which the victim was Ms Woolley. That offence was associated with a number of breaches of police family violence orders. In the period, from February 2017 to February 2019, he has been dealt with five times for multiple breaches of police family violence orders relating to Ms Woolley. He has received suspended terms of imprisonment and actual imprisonment by way of terms imposed and activated sentences. In particular, in September 2018, he was sentenced to one month’s imprisonment wholly suspended on conditions, and again dealt with in February 2019 for three further breaches. The one month was activated, and on the new matters he was sentenced to six weeks’ imprisonment, the execution of which was wholly suspended on conditions. Previously, on a charge of dangerous driving, in March 2018 he had been sentenced to six months’ imprisonment, three months of which were suspended The Crown has applied for the activation of those terms of three months and six weeks. I note that he had only been out of gaol in respect of the last sentence by two weeks before this present incident. The defendant seems to have had a stable upbringing and has a good industrial record. It is alcohol which is his problem and at the heart of his offending. I am told that although there are no real mental health issues, he suffers from anxiety and it is that which has largely contributed to his drinking. He is a qualified painter, having served his apprenticeship and has been employed on a full-time basis by various firms, but has had his present position for about two years. He remains employed in spite of periods in gaol. After being sentenced on the dangerous driving charge, I am told he fully committed to his rehabilitation, and had some success during which the relationship with Ms Woolley was rekindled. When that ended, he was initially told he could see his son, but that promise was retracted and he relapsed into alcohol abuse. The recent breaches of a family violence order involved contact with Ms Woolley. He was in a distressed state about not seeing his son, and it is that which led him to go to Ms Woolley’s home on this particular night. He was uncertain about what to do and so sat in the car drinking for a time. When he went to the house he did not know that Mr MacBeth would be there. He admittedly became enraged when he realised the situation. I am told that he feels disgusted with his behaviour. He wants to undertake anger management and alcohol counselling courses in prison, and is awaiting sentence to start those. The defendant pleaded guilty at an early stage in the Magistrates Court, and has accepted allegations about which he has little to no recollection, for all of which he is entitled to a degree of moderation of sentence. Cause has not been shown in relation to the activation of the suspended sentences, and counsel for the defendant did not argue that activation would be unjust. Given the number of charges and the suspended sentences sought to be activated, I bear in mind the overall effect of the sentencing orders. An aspect of this is that going to the house where Ms Woolley was, and breaking the window, resulted in the four breaches of the family violence order.
Mr Barwick, this sort of possessive and violent behaviour has to be strongly condemned. In a drunken state and in the early hours of the morning, you damaged property, broke into a home, assaulted a man with an implement and generally caused fear. Your young son was present for the last part of that. You continued to behave in a completely unacceptable way to the extent police had to apprehend you, after which you refused to co-operate. Even being at the home was a breach of the family violence order. You have been given many chances. Suspended sentences of imprisonment have had no effect on you. Alcohol may well be the explanation but it is no excuse and, difficult though it may be, you will need to deal with that issue; otherwise you will continue to spend time in gaol. A lengthy term is called for on this occasion. Firstly, I activate the suspended sentence of three months to commence on 16 March 2019. I activate the suspended sentence of six weeks to be served cumulatively. On all of the matters before me, you are convicted and sentenced to two years’ imprisonment, again cumulative to the previous terms. In order to assist with your rehabilitation, I order that you not be eligible for parole until you have served one half of those terms. I order that you be disqualified from driving for a period of two years to commence on the date of your release.