STATE OF TASMANIA v NICHOLAS PAUL BURNS 2 JUNE 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Burns, the defendant, has pleaded guilty to one count of assault. The complainant is his wife, Felicity Burns. At the time of the crime, the two had been married and in a relationship for about nine years. They have two young children together and shared care of two older children from a previous relationship of the defendant. The crime was committed late at night on 27 June 2020. Earlier in the day, the couple had gone to a birthday party at a neighbour’s house. It is asserted that during the late afternoon and evening, the defendant drank at least six cans of beer, two cans of premixed alcohol and some whisky. He left the party and went home at about 9.30pm. The complainant went home at about 11.30pm to find the defendant asleep in their bed. As she went to get into bed, she noticed that the defendant had urinated in it. She woke him up, stripped the sheets from the bed and took them to the laundry. When she went back to the bedroom, the defendant was once again asleep. Needing to make the bed, the complainant shook him by the arm to wake him up. The defendant suddenly woke, threw himself towards the complainant and punched her in the face a number of times. The complainant tried to get away but the defendant kept hitting her. At this time she had her mobile phone in her hand, and the defendant grabbed it and threw it away. The complainant then lost consciousness momentarily and woke to find herself on her back a few metres down the hallway. The defendant had his hands around her neck, strangling her. The complainant was struggling to breathe and could feel blood running to her head. When she said that she could not breathe and needed help, the defendant let her go. She crawled down the hallway to where her phone was, and called a friend for help. Minutes later the friend arrived and found the complainant sitting on her knees in the hallway, holding her forehead. She was bleeding. There was a large amount of blood on the floor, blood spatters on the hallway walls, with drops of blood along the floor. The defendant was standing next to the complainant. He is said to have appeared quite calm, but was not actively assisting the complainant with her injuries. He kept saying something like, “This isn’t right, this isn’t right”. Further assistance was obtained and the complainant was taken to hospital. Police were called and they arrived at about 1am. When spoken to, the defendant appeared shocked, teary and told police he did not know where the blood in the hallway or on his hands had come from. He was arrested and held overnight due to his level of intoxication. At about midday the next day, he was interviewed. He said he had had a few drinks at the party, but the last thing he recalled was it was dark and he grabbed a can of beer from a friend’s eski, and that was where the night stopped. The next thing he remembered was the police being at his house. He said that he had taken beer and premixed whisky to the party, but at one point had gone home and retrieved a bottle of whisky which was about half full. He could not say how much he had drunk of that amount. In effect, he said he had no memory of what had happened. He said that about once every six months he probably drank to the point where he could not remember parts of the evening. He reported a good relationship, and when told of the allegations, he swore, and said, “None of this sounds familiar, it’s not normal, I’ve never done anything like that before in my life”. As a result of the assault the complainant sustained a cut to her forehead which required three stitches, bruising to her neck, swelling to her left eye socket and reddening to the white of her left eye. She said she found it difficult to eat or drink in the days after the assault. I have a victim impact statement dated 18 March 2021. She says her whole world has changed. She lost her husband and family in the sense that she no longer sees her two stepsons, children she raised since they were 1 and 3 – now 11 and 13 – and has to share their children she has with the defendant. She speaks of the defendant’s persistent heavy drinking, and his annoyance when she would try to remind him about how badly he could behave when he drank too much. The lead-up to this incident of him wetting the bed has happened over a dozen times, but the last thing she expected on this occasion was for him to react by pushing and punching her. She speaks of the physical and emotional pain of the assault itself, and the aftermath of the treatment received. She speaks of the difficulties in explaining to the children what has happened. She has found it exhausting and stressful to have to deal with being assaulted for the first time, and having to speak to the children about violence, in particular violence perpetrated by their father. She says she is sleep deprived, fighting bad memories and has days where it is difficult to concentrate on her job.
The defendant is now 35 years old. He has a lengthy record of traffic offences, including driving while exceeding the prescribed alcohol limit, and driving whilst disqualified, the latter offence attracting a suspended term of imprisonment and community service. There is no recorded history of violence. As to other relevant personal circumstances, in addition to counsel’s submissions I have a psychiatric report from Dr Jordan, and a psychological report from Dr Direen. I also have five references from people familiar with the defendant and with this incident. Evidence from family members establishes traumatic childhood years. His father left his mother before the defendant was born, and the environment in which he and his younger sister were raised was affected by violence and alcohol use. There are descriptions of general neglect, starvation, emotional instability and possibly other forms of abuse during the defendant’s formative years. There is a variety of violent scenarios and other situations that would have caused psychological distress. After about a year he went to live with his grandparents. He took a part-time job with a bakery in third year high school, and after completing his high school education, obtained a full-time apprenticeship in that occupation. He qualified as a pastry chef, working at the bakery for about seven years. He then undertook and completed a building apprenticeship. For about seven years he ran his own building company, before obtaining employment a few years ago as a construction supervisor for a home building firm. He is studying for a degree in construction management. He married his first wife at the age of 23 but they separated about three years later. There are no reports of domestic violence in that relationship. Indeed, one of the references is from his former wife who confirms the absence of domestic violence in that relationship, saying the defendant is a kind and generous person and a good father, who always worked hard to provide for his family. There do not appear to be any symptoms that relate to mental disorder or other symptomology related to his early childhood trauma. The problem is his alcohol abuse which seems to have become a real problem about 10 years ago. His daily use of alcohol, although still towards the milder end in terms of an alcohol abuse disorder, is considered high. There is past evidence of him urinating himself while asleep after passing out due to the effects of alcohol, and previous episodes of post-drinking amnesia although I note, no evidence of seeking to moderate his behaviour. In Dr Jordan’s view, the amnesia during the period of this assault and earlier, is somewhat unusual unless the defendant was more intoxicated than he or others at the party considered. There is unusual behaviour during the assault in terms of the lack of verbal communication and some disorientation. This may not be satisfactorily explained only by alcohol, but there is no evidence of any other cause. Dr Jordan says the assault is considered wholly uncharacteristic. He notes the defendant’s expression of deep remorse, and the absence of any attempt to avoid responsibility for his actions. The report of Dr Direen details a mental health treatment regime starting from September 2020 following a GP referral. What might be symptoms of depression are said to be normal, although distressing, responses to a challenging situation. The information Dr Direen has suggests the defendant has been a hardworking well-functioning member of society throughout his adult life. Again, there is a note of the defendant’s expression of deep remorse. I was told that the defendant is “aghast” at his actions; deeply ashamed and remorseful. He is now living on his own at his sister’s shack a short distance outside Hobart. He continues to see his children and, I was told, has a strong motivation to rehabilitate himself in terms of his alcohol abuse. I note that in the middle of last year he had brief contact with two rehabilitation services but did not persist with engagement citing, in one instance, work commitments. The references speak highly of a responsible, hardworking adult who has overcome significant childhood difficulties. A Community Corrections report states that the defendant is not suitable for home detention or community service due to his work commitments and child care arrangements, but suitable for supervision.
This is properly described as an incident of domestic violence, and deserving of a high level of condemnation. It does seems more of a case of senseless drunken violence committed in a background of alcohol abuse, rather than violence committed in the setting of abusive, possessive and domineering behaviour, but it remains a serious matter. It was a grave breach of trust in the relationship. I accept that domestic violence or violence in any context is quite out of character for the defendant. Nonetheless the sentence needs to be directed towards general deterrence, as well as denunciation as I have mentioned. I take into account the defendant’s background, his good work record and his plea of guilty. I take into account the one day he spent in custody. I am also satisfied that he is genuinely remorseful. That is a relevant factor in that it relates to insight into the offending and thus to specific deterrence.
Mr Burns, I have set out the facts, your personal circumstances and the relevant factors to be taken into account. This was a nasty incident, and it is fortunate your wife was not more seriously injured. The act of strangling is all too commonly encountered in acts of domestic violence and is a highly dangerous thing to do. I think a term of imprisonment is appropriate but in all of the circumstances I propose to suspend the execution of the whole of the term. In addition, I think you need assistance in overcoming your alcohol problem, and it is in the public interest to attempt to achieve that. You are convicted and sentenced to 12 months’ imprisonment the execution of the whole of which is suspended on condition you commit no offence punishable by imprisonment for a period of two years. I should warn you that that expression is to be taken literally, and any offence punishable by imprisonment extends to such offences as drink driving offences. So that the message has greater immediate impact, you will also be fined the sum of $2,000. In addition, I make a community correction order for a period of 18 months. You will have to submit to the supervision of a probation officer, attend educational and other programs as directed by a probation officer, and undergo assessment and treatment for alcohol dependency as directed by a probation officer. You will have to report to a probation officer at 114 Bathurst Street Hobart by 5pm tomorrow. I direct that the offence be recorded as a family violence offence. Lastly, I make a family violence order for a period of 12 months. The terms of that order are in accordance with the family violence order made on 17 July 2020, with the exception that the name “Marlene” should read “Merlene”, and the words, “except when attending the property in accordance with a pre-arranged written agreement with Felicity Merlene Burns or her legal representative”, be added at the end of each of paragraphs 3 and 4.