STATE OF TASMANIA v BWT 28 FEBRUARY 2023
COMMENTS ON PASSING SENTENCE BRETT J
BWT, I am dealing with you for serious crimes, most of which were committed during a course of completely unacceptable violence towards a person you meant to care for, your former girlfriend M. At the time of this offending, you were 15 and M was 17 years of age. You and she had known each other for some years, and started a relationship in April 2021. It seems from the outset of the relationship that you were unreasonably jealous and paranoid about her loyalty to you. None of this had any foundation. It simply reflected your own insecurity.
The relationship with M was also characterised by your attempts to control her, often with threats of violence or actual violence. This seems to be how you deal with problems generally. You have a concerning and lengthy history of violent offending. You were dealt with last year for a number of offences including some assaults on M as well as your grandmother and mother. You have also been dealt with this year for assaults committed while you are in custody at Ashley Youth Detention Centre. At the time of the offending that I am concerned with, you were subject to a restraining order preventing you from approaching your mother or grandmother.
The first offence to which you have pleaded guilty is an assault which you committed against M in March 2021 at a bus stop. In anger, you threw a scooter at her and then a drink can. The scooter missed, but the can hit her on the side of the head.
The balance of the offences were committed during a course of violence which occurred at your grandmother’s house over 3 and 4 July 2021. Once again you had become angry and possessive because of ridiculous and unfounded jealousy. The first assault on M during this period occurred when you pushed her and then kicked her to the face causing her to fall backwards. The kick caused a bruise and abrasion to her forehead. Later that day, you continued to argue with M, and used a weapon to brutally bash her. The weapon was a stick wrapped in duct tape with screws protruding from the end, which your grandmother kept in the house for her own protection. You hit M with this stick numerous times, while she cowered on the floor. You hit her with hard blows to the body, legs and feet. She suffered bruising to various parts of her body, and broken bones in her foot. She required treatment after this, including by a cast on her foot and crutches to help her walk.
This attack only stopped when it was interrupted by your grandmother. M was obviously injured at this time, and initially tried to deal with the pain by taking painkillers. You both stayed there that night. During the night, rather than caring for M, you raped her. You did this despite the injuries which were obviously causing her a great deal of pain. You also ignored the fact that she was crying, and continually telling you that she did not want to have sex with you and to stop. You continued the rape until you ejaculated inside her.
You fled from the house the following day, after threatening your grandmother by telling her that you would slit her throat if she told anyone what had happened. You were eventually taken into custody a few days later.
Your background has been outlined in a pre-sentence report. There is history of family dysfunction and neglect in your childhood. You also have a longstanding problem with illicit drugs. I have already commented on your lengthy history of offending and the use of violence. A comment from a psychologist who has spent some time with you identifies a need for intensive therapy. It also expresses the view that your explosive temper and aggressive and violent conduct are significant risk factors, both for you and others.
I have also received a psychological report which confirms and expands on the impact of trauma and neglect in your childhood. The psychologist is of the opinion that a number of disorders which seem to have their origin in your appalling experience as a child and young teenager can be described as a emerging borderline personality disorder. You also suffer from complex post-traumatic stress disorder and ADHD. These descriptions of your mental state come as no surprise given your history as a child. The psychologist suggests that they are causally related to your violent offending in that they are associated with reduced impulse control, poor judgment and hypersensitivity to rejection. They are not connected to the sexual offending, which resulted from the effects of methamphetamine and a desire for sexual gratification.
In overview, your use of violence is unacceptable, and all of the evidence suggests that this is and may continue to be a real problem for you. If you do not learn other ways of dealing with your problems, you are going to have a very unhappy life and spend a lot of time in jail. You have a chance at your age to make some decisions about the type of man you want to be, and to work towards becoming such a man. Your use of violence in this case occurred because you wanted to control people, and have them do what you want. That is not how life works. You treated M appallingly. Even though you claimed to care for her, and wanted her to care for you, you treated her as your possession. You raped her and brutally bashed her. This was terrible conduct, and you must never act like this again.
Your age at the time of this offending I think is significant. You were 15 years of age. At that age, the effect on your psychological development of your experience in childhood is in my view significant, and must be taken into account. However, you need to understand that there are limits to the extent to which this can be taken into account particularly as time goes on. In this case, despite your age, you knew what you were doing was wrong, but you did it anyway. As you grow older, these factors will become less significant, and you will be expected to take responsibility for your own conduct.
The matters raised by the psychologist affect the question of whether I should deal with you under the Youth Justice Act, or the Sentencing Act. Clearly, there must be punishment, but I must also take account of your age and psychological condition. I accept the prosecutor’s submission that these are serious crimes. To some extent, your plea of guilty and the fact that you will still experience some punishment and supervision does vindicate M and imposes some real punishment on you for what you have done. However, I think that at your age, your rehabilitation is clearly the paramount consideration. You have reached a point in your life where this is your last chance. You must decide to go in a particular direction. I would be urging you to embrace rehabilitation and ensure you grow into the kind of man who contributes to society and essentially leads a happy life and cares about the people around him. There is no question that the seriousness of these crimes requires a sentence which includes a significant period of time in custody. However, my concern about sentencing you under the Sentencing Act is that you undoubtedly will end up serving your sentence of imprisonment in the adult prison. I think that I need to give you an opportunity to avoid this. I intend therefore to sentence you under the Youth Justice Act. As I have discussed with the lawyers, there are limits to the length of the sentence that I can impose under that Act. That is the legislative scheme and it is there for good reason. It is there effectively, to promote rehabilitation and ensure young people are given a chance to enter adulthood with the opportunity to avoid ongoing incarceration, and that is the direction I am going take in this case. On my calculation, you have now been in detention, since 4 March 2022, and therefore, I cannot impose a sentence which would see you potentially in detention beyond 4 March 2024. One advantage of proceeding under the Youth Justice Act is that after supervised release after your release date, there will be an opportunity for rehabilitative work, both in detention and during supervised release. I will direct that this report by forwarded to the Youth Justice authorities.
The orders I make are as follows:
- You are convicted of the crime and the offences to which you have pleaded guilty;
- You are sentenced to a global term of 18 months detention, which will be backdated to commence on the 4 August 2022. The earliest release date for this sentence is 5 May 2023.
- I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, I am not satisfied of that matter and, accordingly, must make an order. Having regard to your age at the time of offending, the maximum reporting period is 7 years and 6 months. In view of the circumstances of this offending, and you background generally, I think that the risk of further offending is significant. Accordingly, I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of five years.