STATE OF TASMANIA v KATRINA JANE CUNNINGHAM 18 DECEMBER 2019
COMMENTS ON PASSING SENTENCE MARTIN AJ
Ms Cunningham, you have pleaded guilty to the offence of assault. You are convicted of that offence.
The assault was committed on 29 April 2018. On that day the victim drove to your address to visit you. She knew you as an acquaintance and had been using her studies of social services to try and assist you in your day to day life as a mother of a small child. When she arrived at your home, the victim got out of her car and found you talking on a mobile telephone. You acknowledged the presence of the victim, and she greeted your young child who was playing outside. Before you finished on the phone, you complained to the victim, and suggested that she had reported you to the Department of Child and family Services. The victim denied being involved and questioned why anyone would do that. You said, “I think it could be you”, after which you approached the victim. While still holding your phone, you punched the victim to her face, and then punched her again causing her to fall to the ground. As a consequence of the fall, the victim sustained a fracture to her forearm. While the victim was on the ground, you kicked her in the area of her neck. While the victim was still lying on the ground, you used your phone to take photographs of her.
The victim tried to leave, but you took her car keys and refused to return them. You yelled toward the victim in a manner which she described as “ranting about life”. You then threw a cigarette toward the victim, who was shaking and frightened. At this stage she realised she was bleeding heavily. You then told the victim to go inside your unit where she took the opportunity to clean the blood from her face. While the victim was inside the unit, your child was nearby, apparently questioning what had happened. The victim did her best to remain calm.
Attempts by the victim to have her keys returned were unsuccessful. Your parents arrived at the unit, and wanting to avoid further drama, the victim lied to your mother when they asked what had happened to her. When her requests for keys were unsuccessful, the victim left and sought assistance from family members who lived nearby.
Later that day a friend of the victim arrived at the unit and recovered her vehicle which you had arranged to be left on the street with the keys on top of the sun-visor.
Ms Cunningham, as a result of your assault on the victim she sustained a fracture to her right cheekbone, a fractured nose and a fractured right arm, with extensive bruising and swelling to those affected areas.
After the victim reported the matter to police on 2 May 2018, police attended at your address and took possession of clothing which appeared to be bloodstained and your mobile phone. On that phone they found photographs of the victim taken after the assault, together with photographs of what appeared to be blood on the concrete path.
In a subsequent interview with police you claimed that the victim arrived in her vehicle at speed and got out with an open contained of alcohol. Your child was playing outside on a bike, and you said that you were concerned about the manner of driving. You admitted you accused the victim of contacting Child and Family Services and that you assaulted her by punching her a number of times. You said you threw a few punches and also kicked her. Although you could not recall kicking the victim to her neck, you considered that you may well have done so. In the interview you admitted that you took the victim’s car keys, but said you did not know why you did so. You admitted taking photographs of the injuries. You claimed that you blanked out and lost it. You accepted that the injuries sustained by the victim were as a consequence of your actions and that the clothing seized by police was clothing worn by you at the time of the assault.
During submissions by your counsel I was told that, initially, you and the victim met in the pharmacy where you regularly attend to collect a dose of medication. It was your impression that the victim was a social worker. A relationship developed, and eventually you became aware that she was not a social worker.
Before the occasion in question, you believed assertions had been made to the Department of Child Safety Services in Tasmania, and the equivalent department in Victoria, concerning the care of your child. Investigations were undertaken which included the removal of clothes from your three year old child to see if there were bruises on the child’s body. There were no bruises and the investigation went no further, but you were distressed by it, and it led to you wanting to distance yourself from the victim. You thought the victim may have been involved in reporting to the Department of Child Safety Services.
Your counsel told me that you maintain the version you gave to police, that the victim drove into your driveway at a speed which you perceived to be too quick and which, from your perspective, was dangerously close to your child. You maintain your view that the victim left the vehicle with a can of alcohol in her hand.
Your version about the speed and alcohol was not accepted by the Crown. I discussed this area of dispute with counsel because, in my view, it would be highly undesirable to require the victim to give evidence. The precise circumstances that preceded your attack are not of such significance to the sentencing exercise as to justify the course of requiring both of you to give evidence. Something caused you to attack the victim. As your counsel put it, “you saw red and lost control”. Even if the victim behaved in the way you described in your interview and through counsel, it did not justify or excuse your conduct in any way, and I am satisfied that you accept that your conduct was not justified or excused. I accept that you now appreciate the extent of the harm you caused, and I also accept that you are remorseful and sorry for causing that harm.
As you know, you caused significant physical injuries to the victim, but your attack had effects beyond the physical injuries. The victim read an impact statement to me, and it is apparent that your attack has caused on-going psychological issues for the victim. She continues to suffer from severe anxiety which has significantly affected her day to day function. She is constantly fearful of people becoming violent and the fear is triggered if she hears yelling or angry people. She experiences panic attacks and lacks motivation and confidence since the assault. The victim continues to experience pain which she believes is a consequence of her injuries.
Ms Cunningham, the victim believes that the effects of the physical injuries are continuing today. It is difficult to make a determination about that question without undertaking a hearing of medical evidence. Ultimately, whether there are continuing physical effects is not a matter of great significance to sentencing. What is clear is that you caused significant physical injuries, and that you attacked the victim who had previously suffered from violence in the context of domestic relationships. As a consequence of her previous experiences, it appears the victim was somewhat susceptible to suffering ongoing psychological symptoms following your attack upon her. Even though the victim was psychologically susceptible, you must take the victim as you find her, and you are responsible for significant and ongoing psychological damage. As I said, I am satisfied that you now appreciate the serious consequences of your attack.
As to matters personal to you, I was told you grew up in the Launceston area with a very supportive family. The family was never involved in the criminal justice system. Your mother and stepfather remain supportive of you, but your stepfather now suffers from prostate cancer and your mother is required to care for him.
Following submissions, I ordered a home detention assessment report. You told the probation officer who prepared the report that you suffered abuse at the hands of your biological father for about five years, commencing when you were aged only five. As the probation officer put it, behind closed doors you endured significant trauma unbeknown to everyone, including your mother. It is unnecessary to discuss the details of that abuse. The probation officer reports that you have alluded to your childhood experiences becoming clearer to you as your rehabilitation progresses. You believe that your drug abuse blocked these memories the majority of your life.
Obviously, your biological father is not here to comment on these matters, but for the purpose of sentencing you, I accept that as a child you suffered in the way you described. Your experiences as a child explain your subsequent descent into drug abuse and other criminal conduct.
Your father’s abuse ceased when the family moved to Tasmania. At the age of 17 you relocated back to Western Australia where you commenced using amphetamine and methamphetamine. You told the probation office that your biological father forced you into abused circumstances which are unnecessary to discuss further.
The probation officer described your return to Western Australia as leading to a downward spiral, eventually resulting in your incarceration in 2000. You committed the serious offence of robbery whilst armed, for which three years’ imprisonment was imposed. Two years of that sentence were suspended.
Ms Cunningham, you have an exceptionally long record of prior offending, commencing in 1999 when you were aged 17. You have committed, what is quite frankly, a staggering number of dishonesty offences in various forms, together with drug offences and associated traffic offences. As your counsel reported, your record of prior offending makes your drug addiction obvious. As is so often the case, you began by using cannabis and progressively moved to harder drugs. Your primary addiction has been morphine, but in the words of your counsel “you have not been overly fussy when it comes to the drugs you consume”.
On your return to Tasmania from Western Australia, your addiction continued and resulted in the appalling record of dishonesty. Most of that offending related to shoplifting or credit card fraud. Numerous custodial penalties did not work, including drug treatment orders and numerous rehabilitation programs. However, there came a turning point with the birth of your child in 2015. The birth was followed by a significant reduction in the frequency of your offending.
I was told by your counsel that after the birth of your child, initially you used cannabis in a sporadic fashion, but that use had now ceased entirely. After the birth only cannabis was used. I accept those submissions.
Importantly, you have successfully undertaken a lengthy period of rehabilitation. The father of your child removed himself from your life, by choice, during your pregnancy. You have always looked after the child, who is due to start kindergarten or primary school next year. You have been in a stable relationship for over two years and your partner, who is unknown to the courts, has assisted in raising your child. Regrettably, your partner has been diagnosed with a number of significant medical conditions which are unnecessary to detail. Unaided, she would not be able to care for your child. If you are in prison, some form of foster caring would be required. You have been realistic about your prospects and endeavoured to ensure that appropriate arrangements are in place if you are sentenced to a period of imprisonment.
Stability in your life has not been easy. You have been seeing the drug and alcohol service in both Launceston and Melbourne on a regular basis. You have been in the program for the past eight years, and regularly complied with it for the last five. Currently you attend every six weeks to obtain your prescription of suboxone, which is the treatment for morphine addiction in the same way as methadone is used for addiction to heroin.
Initially you were required to take one dose a day from the pharmacist and return every single day. Regular drug tests were involved and, after a significant period of compliance, if you were negative to the presence of morphine and other opiates, you were permitted to take away more than one dose. You have reached the stage where you are required to attend only twice a week. Your progress and compliance with the program is confirmed in the report by the Tasmanian Health Services. Importantly, the report confirms that you have reached a degree of stability. Your manner and attitude have improved, and you have demonstrated a willingness to engage more frequently when you feel the need for additional support.
Some years ago you completed the Bridge Program at the Salvation Army, and you remain in contact with the social worker. You have a general practitioner who has treated you over the past seven years. In a recent report, your general practitioner explained that she has been made aware of your drug addiction issues, as well as your forensic history. She reports that from 2012 to 2017 you were “very well and stable” and totally compliant with the drug and alcohol treatment program. The general practitioner reported that she reviewed you on a monthly basis or so. She described you as pleasant to treat and punctual. You have long discussions with your practitioner about your past and engaging in psychotherapy long-term. The practitioner has got to know your partner in the past twelve months, and she has reported being convinced that, together, you can offer your child a stable and loving home. The practitioner reports that you are an excellent mother, which in the view of the practitioner is reflected in the beautiful nature of your child.
Ms Cunningham, it is to your credit that you have established a stable and loving home for your family and that you have made significant progress with your rehabilitation from drug addiction. It is in the best interests of the community that your progress be permitted to continue. However, you must understand that you committed a serious offence of violence which has had serious consequences for the victim. These types of assaults are far too common and cause disquiet within the community. Punishment and general deterrence, that is, deterring others who are minded to commit these types of offences, are importance features of the sentencing process, as is expressing the community’s strong disapproval of this type of conduct. So too is personal deterrence a factor, that is, imposing a penalty which will deter you from offending again. In my view, the biggest deterrent from further offending by you, is your child and your family and the fear of losing them if you are imprisoned. It would become counter-productive to the best interests of the community to interrupt your progress and your family by requiring you to serve a sentence of imprisonment.
I am satisfied you have reached a critical point and that this Court should fashion a sentence which will both punish and promote your rehabilitation which is, in itself, the best way of protecting the public in the long-term. As to the appropriate sentence, in the absence of a home detention order, I would have sentenced you to a term of imprisonment. However, in all the circumstances, I consider it is appropriate to make a home detention order and I am of that view, notwithstanding that the probation officer who prepared the assessment report assessed you as unsuitable for a home detention order.
Let me explain why I am not following the recommendation of the probation officer who, very helpfully, attended Court yesterday and explained the essential reason for his recommendation. Community Corrections recognise the need for offenders to undertake various activities during periods of home detention. Among those activities are courses aimed at education, training, rehabilitation and employment. However, generally speaking, Community Corrections’ view of transporting your child to and from school or kindergarten as requiring a level of flexibility that sits outside the scope of their policies. For this reason the report was adverse to home detention. Significantly, there is no suggestion that the report was adverse because you, personally, are considered not suitable for home detention. In that context I make it clear that I am not of the opinion that there is a significant risk that you might commit a violent or sexual offence during the operational period of the home detention order.
Returning to the issue of home detention, I consider allowing you to transport your child to and from kindergarten or school, and for associated activities, is an important aspect of your rehabilitation. It is part of family life which has been, and will be in the future, of critical importance to you, and it is the primary incentive for you to stay out of trouble.
I make a home detention order. The operative period of the order is 12 months from today. During that period you are to reside at [the address] nominated by Community Corrections. Immediately upon leaving Court today you are to report to the office of Community Corrections at 111 Cameron Street, Launceston for induction into this order and an explanation as to its full terms.
The order is subject to the following terms which all apply during the operation of the home detention order:
- 1 You must not use, consume or deal with any illicit drugs contrary to the Misuse of Drugs Act, nor any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine unless you provide written evidence from your medical practitioner that you have been prescribed the relevant medication.
- 2 You must not consume alcohol.
- 3 You are to be subject to all of the conditions specified in s 42AD(1) of the Sentencing Act:
- You must not commit an offence punishable by imprisonment.
- You must reside at the premises, and you must be at those premises during any particular times that are specified, and that is all the time, except for specific reasons, for example a medical emergency, and in accordance with whatever directions are given to you by your probation officer.
- You must permit a police officer, probation officer or a prescribed officer into the home premises at any time.
- You must permit a police officer to conduct a search, frisk search you or take a sample of any substance found on the premises or on you.
- You must comply with any reasonable and lawful directions of your probation officer or a prescribed officer, that includes directions as to employment.
- You must subject yourself to electronic monitoring for a period of 12 months and must not tamper with the device and comply with any directions given to you in relation to that monitoring.
- You must submit to a breath test, urinalysis or any other test in relation to drugs or alcohol, if directed to do so by a police officer, probation officer or prescribed officer.
- You must comply with any direction of your probation officer or prescribed officer in relation to any treatment, counselling or personal development activity.
- 4 You must submit to the supervision of a probation officer as required.
- 5 You must continue to participate in and comply with the Opiate Pharmacotherapy Program as directed by a member of the Pharmacotherapy Team.
- 6 You must maintain an active mobile telephone service and be available for contact on that service at all times unless directed otherwise by a probation officer and provide that number to your probation officer and a police officer if requested.
- 7 I direct that the operation of the home detention order is subject to the reasonable requirements of transporting your child to and from kindergarten or school for the purposes of attending during kindergarten or school hours, and for attending other associated activities or functions as approved by a probation officer. It is a condition associated with that condition concerning travelling to and from school, that you comply with the directions of a probation officer as to the times during which you may be absent from home for those purposes and as to the localities you may attend for those purposes.
- 8 You are not to contact directly or indirectly the victim in this matter, other than indirectly through your solicitor or a police officer or probation officer.
I make it clear, that if you are required to attend court proceedings at which the victim is also present, you will not be in breach of the order by reason of that attendance.
As I said, home detention is less onerous or less punitive than prison, but as these conditions demonstrate it is still a significant punishment and a restriction on your liberty. In effect, although I have directed that you are to be permitted to take your child to and from kindergarten or school, during kindergarten or school hours, you must comply with directions from the probation officer about the times of where you may go, and you may only take the child to a school or kindergarten for associated activity or function if the probation officer gives the ok. If the probation officer does not permit you to attend, you are not permitted to go.
In effect, the probation officers have total control. You are confined unless the probation officer gives you permission to leave and that is not going to be easy, given your short fuse which you obviously have. You have to keep your temper and your frustration under control even if you believe the probation officer is being unreasonable; and quite frankly, given your reaction to the probation officer over the phone, you nearly blew it. That was a cause of concern to me as to whether you are capable of being able to put up with this restriction on your life, and it will be, for the next twelve months, a significant restriction and at times very frustrating. You have to just put up with that, otherwise you are just going to end up in gaol and who knows what effect that will have upon your family, particularly your child. It is better than prison, but it is a considerable restraint on your life.