STATE OF TASMANIA v CHRISTOPHER JAMES BROWN ESTCOURT J
COMMENTS ON PASSING SENTENCE 17 NOVEMBER 2020
The defendant has pleaded guilty to two counts of assault contrary to the provisions of the Criminal Code.
He and complainant were in a relationship for a period of around 5 years, commencing in 2014.
They have a now 4 year old daughter together who was 2 years old at the time of these incidents.
On 17 March 2019, the defendant and complainant argued during the course of the day. The defendant said he wanted to go out for some drinks, and the complainant dropped him off on Rokeby Road and told him not to come home if he was drinking.
The defendant, having come home once with alcohol which he drank, then left again and arrived home around midnight. I accept that the complainant assisted the defendant to gain access to the house and found the defendant very intoxicated with difficulty standing up.
The defendant and complainant got into bed. The defendant was angry and was being loud. The complainant told him to be quiet or he would wake their daughter up. She in fact woke up. The complainant told the defendant to go into the spare room as she wanted to put their daughter in bed with her.
The defendant went into the spare room but continued to be loud, making nasty statements. He told the complainant that he would take their daughter. The complainant became angry and told the defendant to leave the house. He refused.
The complainant pulled on the defendant’s arm and shirt in an attempt to get him out of the spare bed. The defendant resisted the pulling and the complainant lost her grip on him, resulting in the defendant falling backwards and hitting his head on a window sill.
The defendant became angry and then grabbed the complainant to the neck with both hands. He stood up and then pushed her onto the bed by the throat. The complainant fell off the side of the bed onto the floor. The defendant either stood or knelt over the complainant whilst she was lying on the floor, continuing to hold her to the neck.
The defendant squeezed the complainant’s neck for approximately 20 seconds. The complainant felt like she was “choking”. The complainant screamed and tried to push him away. The defendant removed one hand from her neck and grabbed her right arm. He then put that hand back onto her neck. The complainant pushed and kicked at the defendant in an attempt to make him let go.
The complainant saw [their daughter] in the hallway and said “[their daughter] is watching”. The defendant let go of the complainant and the complainant ran into the lounge room to get her phone to call the police, but her phone was not there so she ran into the main bedroom again.
The defendant stood in the doorway, preventing her from leaving the main bedroom. He grabbed her by both arms and pushed her backwards into the room. She was able to break free and ran from the bedroom.
The complainant called 000. When the defendant realised that she was on the phone to police he abused her.
Police arrived shortly thereafter and spoke to the defendant. He stated that he and the complainant had an argument and that the complainant had pushed him so he pushed her back. He indicated that he had consumed around 8 beers.
Attending police also spoke to the complainant and observed red marks to her neck and a bruise to her right upper arm. Photographs were taken at that time, and I have seen those
The complainant attended the police photographic studio later that day and had further photographs taken of her injuries, and I have seen those photographs.
A family violence order was made on 18 March 2019 for a period of 12 months. It has now expired.
I have seen a victim impact statement from the complainant which I regard as sensibly stated. I say that because sometimes complainants are apt to accept the situation that has occurred and allow the potential for it to occur again. I am of the view that that is not so here. The complainant said losing her family had been the biggest impact of the offending and it took this horrible moment in their lives for the defendant to realise he has a drinking problem.
Over the past 18 months she says she has seen big changes in the defendant and he has built up relationships again with her and their daughter. He is sorry for what he has done to the complainant and to her family, and I observe that that could only be latterly so given that this matter was due to go to trial earlier this year.
The complainant now says that he realises that he has made mistakes and wishes that it had not happened. She says that they are back together now and that after this is over, (which is why I say sensibly), he will move in again with them and they will get their family life back. She believes that alcohol addiction made him the way he was the night this happened. She says that she did not think this would ever happen to her but she has good support from family and friends and that has helped her to get through the mental aspect of the defendant’s offending. She says “I’m in a good place now and as a family we are in a good place so I’d like to see that through. We’ve gone from the lowest of the low to now.” I will explain in a moment why that is so.
The defendant is aged 38, born 3 July 1982. He and the complainant are living apart at the moment. They were initially separated by the family violence order, but as I have said, that expired. They complainant wishes to reconcile but the couple have agreed to live separated until these proceedings have been concluded. I regard that as sensible. The defendant is currently working part-time in employment where he is well regarded. I have been provided with a letter from his current employer, Mr Thurlow of Meal Machines, who says that the defendant was completely open and honest about the pending charges he was facing during the interview process for employment. He says that the defendant has shown to be an asset to both of his businesses and has become an integral part of his team. He says he finds it difficult to find skilled workers with the work ethic that the defendant has, and he sees the defendant becoming a senior member in his business in the near future.
To his credit the defendant waited for police to arrive and was cooperative with them. At the time he participated in a record of interview. He said he was hungover but he tried his best to cooperate with the police. Whilst he made statements which were at odds with the complainant’s accounts, he accepts that he can offer no rational explanation as to why he grabbed the complainant to the throat.
He has pleaded guilty, but at a very late stage. He is entitled to some small credit in relation to that nonetheless. However, the complainant would have been put to the ordeal of giving evidence had be not pleaded guilty and the matter, as I have said, was ready for trial earlier this year. That does not evidence extreme remorse in my view and any remorse that may exist must have been latterly obtained.
The following day, that is the day following these offences, the defendant decided, as someone who had abused alcohol for almost 20 years, to become abstinent and he has been so, I am informed, since then. This accords with the material before me in the form of the victim impact statement. This has led to him stop taking antidepressant medication which he had been taking and he now feels no need for it. He now believes that his depressive episodes were caused through excessive alcohol consumption, and due to alcohol abstinence he finds that he no longer needs to use that medication. To achieve alcohol abstinence he attended 12 sessions of alcohol counselling at the Rosny Bayfield Super Clinic.
This offence occurred over 18 months ago and there has been no repeat offending.
Nonetheless, as I said in Director of Public Prosecutions v Foster [2019] TASCCA, in recent times Courts have recognised the need to condemn family violence and have emphasised the importance of deterrence, denunciation, punishment and the protection of victims and the community in the sentencing process. Significant deterrent sentences are warranted as family violence offences inherently involve a breach of trust and are typically committed against vulnerable complainants. Society now well understands this and sentencing attitudes have changed in accordance with societal attitudes to domestic relations.
Lest it be thought that grabbing the complainant by the throat and applying pressure is somehow less insidious than punching or kicking, it is now well understood that strangulation is a form of power and control that can have devastating psychological long-term consequences, but is also potentially has a fatal outcome because choking can cause loss of consciousness and death very quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days, with the result that airways obstruction may cause death at a delayed point.
In this case the assault was aggravated by virtue of the fact that it was witnessed, at least the first of the crimes of assault, by the couple’s infant daughter.
The defendant has a record for violence as a young man. In 1998 aged 16 he was sentenced to 175 hours of community service for causing grievous bodily harm, and aged 21 in 2003 he was sentenced to 18 months’ imprisonment with 9 suspended for assault. However he has not relevantly offended again until this assault, some 16 years between criminal convictions or one-third of his life. And he has not offended at all since.
Taking all matters into consideration, including all that has been relevantly said on his behalf by his counsel, taking into account the considerable success in his self-motivated rehabilitation and his employment in which he is well regarded and promises a future, the defendant is convicted and sentenced to 21 months’ imprisonment which sentence I wholly suspend on condition that he commit no offence punishable by imprisonment for a period of two years.
I record these offences as a family violence offences pursuant to the Act.