STATE OF TASMANIA v YARDA BRIAN BROUCEK GEASON J
COMMENTS ON PASSING SENTENCE 2 AUGUST 2019
Mr Broucek you have pleaded guilty to an assault, and some summary matters that I am dealing with under s 385A of the Criminal Code to which you have also pleaded guilty.
In December 2018 you and your partner joined a cruise in Sydney. You were joined on the cruise by your partner’s brother and his partner. In the early afternoon of 15 December, you and your partner were drinking in various lounges on the ship. At about 7.45pm you joined your travelling companions for dinner. During dinner more alcohol was consumed. After dinner you all went to one of the lounges on board where the alcohol consumption continued. You danced and you socialised with other passengers. When your partner took a rest from dancing you continued.
At some point your partner noticed that you and a female passenger you had both met were missing from the lounge. She went looking for you. She was unable to find you. Eventually she asked ship staff to help locate you. You were, in time, located and you returned to your cabin with your partner.
There an argument developed between you. She asked you where you had been and she accused you of cheating. You were angered by her accusation, though in my view you had no right to be. You then pushed her onto the bed and you jumped on top of her. She was on her back looking at you. You grabbed her by the throat with one hand and you punched her to the face with a closed fist with the other. You punched her to the face a further five times, predominantly to the left side of the head and to the left side of her neck. Whilst you were beating her you were saying words to the effect that you did not cheat. Pinned down by you, and by reason of your strength, she was unable to fight back.
You then grabbed her around the throat using both hands and you squeezed her throat. While you held her she managed to say “go on, kill me then”. She stopped resisting and she went limp. You immediately desisted. You started crying. You moved off her and sat on the bed. You moved her, willing her to open her eyes, to wake up. Eventually she did. She got up and said she needed to go to the bathroom. But instead she ran from the cabin and she screamed for help. Her brother’s cabin was next door and he let her in before confronting you. He asked you what you had done to her. You responded by saying that she had attacked you.
Medical staff assisted the complainant. She was observed to have the upper part of her dress ripped off and her face was swollen. Blood was located in the cabin, on the pillows and in the bed sheets.
You were arrested when the vessel docked in Burnie and you participated in a record of interview. It was at the time of your arrest on the vessel that police located two glass vials containing testosterone and boldenone, the subject of the summary matters that I am dealing with.
In your interview you told police that you had been drinking with your partner during the afternoon and evening. You admitted that you went to the toilet with another female that you had met on the dance floor. You told police that after 5 or 10 minutes you left her and went to find your partner. You admitted your conduct to police and by your plea you have accepted that you are guilty of the charge as it has been particularised by the State. You admitted possession of the prohibited drugs and acknowledged that you used them for the purpose of building muscle.
You told police that this sort of violence had never happened before and that it was not like you to behave in the way that you had. That proposition is borne out by the lack of any prior conviction for a crime of physical violence and your partner has told the Court that violence has not been a characteristic of your relationship.
As a result of the assault your partner received bruising to her upper arms, the back of her neck, her right hand and extensive swelling and bruising to her left eye and part of her face. She had sore lips and jaw. It is fortunate for both of you that her injuries were not more serious. I note that she still complains of having an area of discolouration under her eye and a lump in the same spot. She was given a CT scan in Melbourne a couple of days after the assault that revealed a blood clot under her eye which has cleared. On an emotional level of course, her injuries are enduring. As well, your children are confused as to why you are no longer there.
Your actions have impacted many people. You and your victim, your former partner, were in a relationship for approximately 7 ½ years. You have two children together. Much of what might have been has been lost to you, and to her, and to your children because of your conduct.
I have been provided with detailed submissions in mitigation, and with a report prepared by a forensic psychologist, the thrust of which is that the impact of this offending and the consequences of it for you have been such that you are considered unlikely to reoffend. I have regard to the contents of that report. I also observe that you have attended counselling sessions, at least since April this year, directed towards improving your capacity to manage your anger, and that is to your credit. I also accept that by your early plea of guilty you have brought a resolution to this matter at the earliest possible opportunity, and for that reason you are entitled to credit. I also accept that the plea is evidence of your remorse.
It remains the case however that you conduct is serious and warrants a punishment which marks the communities condemnation of violence of this sort. Violence in relationships is difficult to detect and it requires a response from the Court which makes it clear that such behaviour will always result in severe punishment. Criminal conduct that is difficult to detect must be discouraged through sentences which cause potential offenders to pause before acting, and of course as well, the Court’s response to your behaviour must denounce your conduct and vindicate the victim of your crime.
You are 26 years old and you are in gainful employment. At the time of the offending you were a self-described “gym junkie” and this explains your possession of the steroid drugs. I accept that you were unaware that the possession of these drugs was illegal, but of course ignorance of that matter is not an excuse. I am told that you have been subject to a family violence order and that you have observed its terms. The final version of that order permits you to have contact with your children as agreed with the complainant and that has occurred without incident. I do note that you have been subject to a domestic violence order in Queensland but I am told by your counsel that no actual violence was involved and no charges of violence arising from it were involved in that instance. Of course physical violence is only one aspect of domestic violence and the fact that an order has been imposed on you before is a matter of concern, though I know insufficient about that matter to afford it weight in fixing a sentence for these offences.
I also have regard to the character references which have been provided to this Court, they are positive. I have read them and give them weight.
I accept that your conduct was out of character, I accept that it was impulsive and that alcohol has contributed to the gross error of judgment that you exhibited.
Aggravating aspects of your conduct include the fact that it was unprovoked; that the assault involved choking, which carries with it the risk of serious harm; and that you pinned the complainant down, such that she was unable to defend herself while you delivered multiple blows to her head.
As I have said, domestic violence is a matter of grave community concern and it cannot be tolerated. Your behaviour was violent, threatening and domineering and it is clear from the comment made by your victim that she felt vulnerable to the point where she feared for her life whilst you were throttling and striking her. In my view, and notwithstanding the matters put to me by your counsel including the steps taken to address anger management issues and not ignoring the significant financial consequences which have flowed from this conduct including the need to travel to this Court and the cost of reports, your conduct requires a sentence of imprisonment in order to fulfil the sentencing considerations the Court is required to take into account. I do not ignore the short period of time you have already spent in custody in reaching a final conclusion as to the appropriate disposition of this matter.
Mr Broucek, you are convicted on all counts. You are sentenced to 10 months’ imprisonment to commence today. I will suspend the operation of 8 months of that sentence on condition that you are of good behaviour upon your release for a period of 3 years and commit no offence for which a term of imprisonment may be imposed. In respect of the matters of complaint I record convictions.
** On 6 August 2019, being satisfied that the offence was a family violence offence, pursuant to the Family Violence Act, s 13A, I directed that the offence be recorded on the defendant’s criminal record as a family violence offence.