BURGESS W R

STATE OF TASMANIA v WADE RICHARD BURGESS 30 September 2019

COMMENTS ON PASSING SENTENCE PORTER AJ

The defendant, Mr Burgess, has pleaded guilty to one count of persistent family violence. The offence was committed between on or about 1 August 2017 and 30 January 2018. The complainant is Isabella Kearnan. The couple commenced a relationship in early 2017, and in May of that year together they moved into a rental property in the complainant’s name. The complainant has a son from a previous relationship, who was then 2 years old. In June 2017, the complainant fell pregnant with the defendant’s child. The pregnancy placed a strain on the relationship. The defendant raised concerns with the complainant about her previous relationship, suspecting infidelity. The defendant had a methylamphetamine addiction of some longevity, going back to about 2015. The pregnancy and consequent difficulties coincided with an increase in the defendant’s use of methylamphetamine, as well as increased financial pressure. The relevant course of conduct happened during the complainant’s pregnancy and escalated in late 2017. The violence was usually inflicted while the defendant was affected one way or another by his methylamphetamine use, and became a regular weekly occurrence. In addition to particularising a course of conduct of emotional abuse or intimidation, the Crown has identified 13 occasions on which an unlawful family violence act was committed. The course of conduct of emotional abuse or intimidation caused the complainant to feel actually intimidated and fearful. This conduct included the following. In about August 2017, the defendant was angry that the complainant had been out with her sister. He sent her a message via Facebook saying that he would like to cave her head in and bury her. When the complainant got home, she found the defendant had packed up everything in the house but was not there. He did not answer when she attempted to contact him by telephone. At another time, the defendant was home alone and sent the complainant a video of himself smashing property in the house. In the ensuing exchange of messages, he told her he would tie a bone around her neck because he was sure the dog would give her attention. He called her a “mouth ache” and, calling her a “cheeky mutt”, threatened that if she kept going he would drag her out by her hair. There were general threats. During the course of one of the physical assaults after he had struck her to the legs, he told her to limp down the road so she would get run over. The last instance identified was the defendant putting his faeces on the complainant’s dressing gown after he had gone to the toilet. She told him she did not want him to use the baby wipes for the purpose. In relation to the 13 particularised occasions, three different family violence offences are involved, alone or in combination. There are 4 instances of assault on a pregnant woman, 5 instances of assault and 9 instances of damage to property. On the occasions when more than one offence was committed, it is either an assault on a pregnant woman or assault, along with the offence of injury to property. The offences of assaulting a pregnant woman involve the following:

In a jealous outburst, the defendant was verbally abusive, forced the complainant from a bed towards a clothes rack where he stood over her in a corner, and while abusing her kicked her to the head once and punched her to the face a few times, after which he spat on her. He then smashed three holes in the plaster wall of the hallway. The complainant suffered black eyes and swelling to the lips.
When outside, and after the complainant chastised the defendant about not ruining the child’s belongings, he pushed her and kicked her to the left side of the stomach, causing her to fall to the ground, after which he stood over her and abused her.
When angry with the complainant, the defendant tipped some clothes out of a cardboard box, and put the box over the complainant’s head. After telling her she only looked good in a box, he removed the box and kicked and punched her to the head, spat on her, and told her that she was a “mutt” and a “slut”. He also threatened to blow her brains out. The complainant sustained bruising to the body, a bleeding nose and black eyes.
When the complainant raised suspicions that the defendant had been involved with other women, he punched holes in various doors and plaster walls in the house, then sat the complainant in the corner of the lounge room and kicked and punched her to the head and body a number of times. This was followed by the incident with the faeces on the dressing gown as I have earlier mentioned.

The assaults included the following:

The defendant became angry and punched the complainant to her face a number of times around the eyes.
Later the same night, the defendant woke up and again became enraged. He kicked holes in the plaster walls and punched the complainant to the face a number of times, causing a black eye.
The defendant assaulted the complainant by throwing a perfume bottle at her which struck her lower right leg causing significant bruising, and he then hit her to the face.
After spending two nights away from the home in a hotel, the defendant came home. When he was passed out, the complainant checked his phone and found he had been searching for escorts. Later that day, while the complainant’s sister was present, during an argument with the complainant, the defendant threw a pot plant at the kitchen wall, grabbed the complainant by the hair and dragged her along the hallway, causing the loss of a clump of hair from the back of the complainant’s head.
after directing the complainant to sit in a corner near the fridge and then to go to the bedroom, the complainant refused as she was worried. At this point the defendant hit the complainant to the legs with his hand and spat in her face. It was after this that he suggested she limp down the road so she would get run over, as earlier mentioned. After the assault, the defendant threw the couch at a plaster wall in the lounge room causing a hole, and the next day he generally “trashed” the house except for the child’s bedroom. The damage and mess was extensive, causing the complainant to sit on the floor and weep. At this point the defendant was turning the power on and off, and laughing.

The occasions of injuring property, not previously referred to, involve the following:

The defendant used a blow torch to set fire to the bassinet and clothing for the unborn child, ripped up the 2 year old’s bed, took destroyed items outside onto the driveway and drove over them with his car.
The defendant drove his car into the garden shed causing a dent.
A few hours later, the defendant continued to act aggressively and kicked various holes in the plaster walls causing damage.
Generally, the defendant regularly destroyed the complainant’s belongings and damaged areas of the home. In total, he caused in excess of 18 holes in walls, doors and windows. On one occasion, he threw the complainant’s lamp against a wall, destroying it and damaging the walls. He also smashed a microwave by putting a hammer through it, and smashed a television and various pieces of crockery.

During the period of offending, the complainant was fearful of the defendant, and for that reason did not report the behaviour. She still loved the defendant and was hopeful that he would overcome his drug addiction, and that the situation would improve. For a period of time, she did not have access to a mobile phone because the defendant took the phone and smashed it. However, her sister Brianna gave her a new phone in case of emergencies, which the complainant kept hidden. Brianna had significant concerns about the complainant’s welfare and checked on her daily. She went to police about her concerns in early November 2017, as a result of which officers spoke to the complainant on the same day. While admitting that there were frequent arguments, she denied any physical abuse. She gave the same response when police again spoke to her a short time later after a neighbour had complained. On two occasions, Brianna took photographs of bruising. There is one photograph showing a black right eye, and another photograph showing a significant bruise to the back of the right lower leg. During the course of the pregnancy, the complainant went to the assessment centre at the Royal Hobart Hospital. There were times when she had injuries consistent with assaults. On 8 October 2017 she complained of pain and soreness to the side of her abdomen, and she was observed to have bruising to both upper arms and a black eye. She said that the injuries were caused by the defendant but she was fearful of reporting the matter because of possible child protection intervention. On 8 November 2017 she was seen to have multiple bruises to her legs and, to a lesser extent, her arms. This she attributed to fixing the house. Further small bruises to the arms were seen on 10 November 2017. Ultimately on 16 December 2017 after the last occasion of an offence of assault on a pregnant woman, another sister of the complainant, Rebecca, contacted police. This resulted in the complainant making a statement about the various assaults. At that time she was approximately 28 weeks’ pregnant. I have a number of police photographs showing small marks and bruises over various areas of the complainant’s face and arms, with more significant bruising to the thighs and legs. The defendant was arrested the next day at a different address, following a co-ordinated effort to locate him. When interviewed he made the following comments.

He denied directly assaulting the complainant, saying he had swung doors and they may have hit her, but he did not actually throw a punch or kick.
He suggested the complainant may have inflicted the injuries on herself.
He admitted being verbally abusive and aggressive, and repeatedly calling the complainant and her sister “mutts” and “sluts” and “compulsive liars”.
He admitted to extensively damaging the property, and admitted some of the particular instances I have already outlined.
He admitted the incident with the faeces and the dressing gown.

The defendant appeared in the Magistrates Court on 18 December 2017 and was remanded in custody. He has been in custody since that time, although during that period he served a term of imprisonment, a matter to which I will return. The indictment for one count of persistent family violence was filed on 14 December 2018, and the trial was due to commence on 16 September 2019. The defendant pleaded guilty on that day.

I have a victim impact statement of Ms Kearnan. She describes being scared of the defendant, feeling like she was always walking on eggshells around him. She said she felt like she wanted to die and hated her life, although when he was nice it would make her forget about all the bad times. She said she was always bruised and felt ugly because of the injuries. She felt that she was doing something wrong; she tried hard to help the defendant and make him happy but nothing she did seemed good enough for him. She was worried about what would happen to the unborn child. She had to curl into a ball to protect the child when attacked. Even after the defendant was in custody, she says it took her quite a while to feel safe again. She suffered from low esteem and did not go out. She thought she was being judged. She is now mistrustful and guarded about men. She feels very alone, and says life is still hard for her. She would like the defendant to say sorry for what he has done, and mean it.

The defendant is now 24 years old; he was 22 at the time. At the commencement of the relevant period, he had a few traffic infringement notices, but otherwise no recorded history of offending. However, in October 2016 he was charged with trafficking in a controlled substance. It follows he was on bail for that offence during the commission of the present one. On 29 May 2018 he was sentenced in this Court to 16 months’ imprisonment backdated to 17 December 2017, and it was ordered that he not be eligible for parole until he had served eight months. He was also made the subject of a probation order for 12 months from his release. The defendant seems to have had an unremarkable upbringing. He completed year 11. He has a good industrial record. When he was 13 he started part-time work in a food outlet, working as much as possible. After year 11 he took on a plumbing apprenticeship but left after six months, he found full-time employment but left for a different full-time job as a forklift truck driver. He managed to maintain that employment until March 2017 when he told his employer of the trafficking charge. That resulted in the loss of his job. In 2016 he was in a relationship with another woman. They borrowed to buy a house. The defendant had an undisclosed gambling problem which caused additional financial pressures. By this time he had started using methylamphetamine. He began selling the drug to offset his gambling losses. That relationship ended in early 2017 because of his drug problem. He spent the proceeds of the sale of the house, along with some money from a motor vehicle, to buy drugs. It is put that the chronic methylamphetamine addiction during the course of his relationship with the complainant is the explanation for his conduct. It is not put forward as an excuse. I am also told that he has developed an insight into his offending. He has taken rehabilitative steps while in prison, and that he has completed the EQUIPS Family Violence Course and the Aggression Course. I have reports from the facilitators of both programs. Those reports attest to his proper application to the programs, and speak well of his motivation and developed insights. I take into account the assessments contained in those reports, as I am required to do by s 13 of the Family Violence Act. His child with Ms Kearnan is now 18 months old. He is in minimum security, and his mother brings the child to see him three times a week. When he is released he will live with his parents on their small property at Brighton, and the proposal is that he be employed by his father who runs a small business. I am told that he is a talented Australian rules footballer and wants to go back to playing when his freedom is available to him. Counsel for the defendant submitted that it was appropriate to backdate the sentence of imprisonment to 17 August 2018, being the parole eligibility date in respect of the sentence impose on 29 May 2018, in order to “reflect the tenor and spirit” of the sentence. The Crown’s position is that the sentence should only reflect the granting of a remission on the sentence of 16 months, making the completion date 16 January 2019. The simple facts are that the defendant was refused bail in this Court on 23 February 2018. Because he had no bail, the Parole Board did not consider his eligibility. The Crown points out that he made no further application for bail after his eligibility date, although it is not clear what inferences may be drawn from that. In my view, there would have been a high degree of likelihood of a grant of parole, given his age and lack of significant offending history. In order to be granted parole he would have had to persuade a judge that bail was appropriate on this matter, in the face of s 12 of the Family Violence Act. However, absent the grant of parole he was deemed to be serving his sentence. As parole is a discretionary exercise, I think principle does not allow me to specifically backdate the sentence to the eligibility date. I think the proper approach is to take into account as a contingency, when assessing the length of the sentence to be passed, the real possibility that but for this matter he would have been released on parole on or about 16 August 2018, and hence was in custody on this matter from then.

In my view, the approach to sentencing for the offence under s 125A of the Criminal Code (maintaining a sexual relationship with a young person) should be applied to the crime of persistent family violence. On that basis, the defendant is to be sentenced as though the identified acts of family violence were separately charged and that they were committed in the context of a regularity of similar offending. That is, of course, subject to moderating factors of totality and proportionality. The totality principle also applies in respect of the previous sentence, noting that the defendant has been in custody since 17 December 2017. In terms of other relevant sentencing factors, general deterrence and denunciation are the overriding considerations. Domestic violence is an insidious problem and a matter of great community concern. The abused partner is in a vulnerable position and abuse is a significant breach of trust. The defendant’s conduct was domineering, brutal, vicious, spiteful and cowardly. The defendant is at the margins of the ‘youthful offender’ category, but in any event the gravity of the offending is such that it outweighs the considerations of rehabilitation that have prominence in respect of young offenders. That is not to say, though, that his age and lack of relevant history of offending is of no relevance. By s 13 of the Family Violence Act, it is an aggravating factor that the defendant knew or was reckless as to whether a child was present or on the premises at the time of the offence. I am satisfied that the aggravating factor exists in relation to all of the conduct. It is also an aggravating factor if the offender knew that the affected person was pregnant. I am also satisfied of that matter. The defendant pleaded guilty but that is of limited value. The complainant was extensively briefed over a number of days in preparation for the trial. The plea was not entered until the morning the trial was due to start. He is entitled to some credit for saving the complainant from actually having to give evidence and for facilitating the course of justice by avoiding a trial. But the weight of that is not great. There is no suggestion that it was brought about by remorse and there is no other evidence of any remorse. The defendant denied any physical violence when interviewed by the police. I am however, satisfied that he has developed some insight and understanding of the nature and extent of his conduct, through the courses he has completed in prison.

Mr Burgess, I have set out what I see to be the relevant considerations. Some of them are, of course, competing. Your behaviour was appalling and, as I have said, in breach of the trust that exists within a relationship. You regularly abused that trust over a period of about six months, causing much emotional distress and some physical injury. I have moderated the sentence that I might otherwise have imposed because of the parole issue and the time already spent in custody, your age and lack of a history of violence, and the bare practical value attached to the guilty plea. You are convicted and sentenced to three years and six months’ imprisonment to commence on 16 January 2019. I order that you are not to be eligible for parole until you have served one half of that sentence. I direct that the offence be recorded as a family violence offence.