STATE OF TASMANIA v JAYDEN STEPHEN DEVERELL ESTCOURT J
COMMENTS ON PASSING SENTENCE 17 MAY 2019
The defendant is Jayden Stephen Deverell now aged 19 years. He has pleaded guilty on indictment to one count of assault on a pregnant woman, and one count of Criminal Code assault. I have also agreed pursuant to s 385A of the Code to deal with the defendant’s pleas of guilty to three charges on complaint of common assault, and four counts of breach of an interim family violence order, and three charges of breach of bail.
The complainant is now aged 17.
The parties commenced a significant relationship in September 2017, and were in it for approximately 1.3 years. During the relationship they stayed together either with the complainant’s mother or the defendant’s mother. They had no children from this relationship at the time, however the complainant was pregnant during the commission of some of the crimes. She has subsequently given birth in late March 2019 to a daughter, and the defendant is the biological father of this child.
I refer firstly to complaint 6019/18 (count 2), common assault. In approximately mid-December 2017, the defendant and the complainant started to argue. Later, the defendant approached the complainant and went to hug her but instead placed her in a figure four choke hold. The complainant did not sustain any physical injuries.
On that same complaint 6019/18 (count 1), is another charge of common assault. On the morning of 29 December 2017, the complainant upset the defendant as he did not like the complainant associating with another person. This led to an argument.
Later, the defendant yelled out to the complainant words to the effect “you’re a fucking slut, it’s over“. The complainant replied “yeah, that’s fine with me, I’m sick of it anyway“. The defendant was in possession of a half empty soft-drink can. He threw this can in the direction of the complainant, and it connected with the left side of the complainant’s forehead and the impact caused her to stumble. As a result of the assault, the complainant sustained a small cut and swollen lump to her forehead. She felt dizzy and nauseous so an ambulance attended the scene. She was transported to the Royal Hobart Hospital and treated for mild concussion.
The defendant was spoken to by police on 19 of April 2018 in relation to these matters. He was cautioned. The defendant was a youth at the time of the commission of the crimes on complaint 6019/18. The Crown accepts that the actions of the defendant in throwing the soft-drink can were reckless, and that he did not have a deliberate intent to inflict harm to the complainant.
Complaint 10138/18 (count 1), is a charge of common assault. On 16 October 2018, the complainant was 17 weeks pregnant and the defendant was aware of the pregnancy. This pregnancy caused tension in the relationship. The parties were in the complainant’s bedroom when they began to argue. The complainant does not recall the nature of the argument. She was sitting on the right hand side of the bed and the defendant was standing up, a metre away from her. The defendant was angry with the complainant and leaned over and punched her to the mouth with his right hand. The defendant then calmed down and as if nothing had happened.
The complainant suffered a small cut to the inside of her bottom lip as a result of this assault. This caused her lip to bleed. She said that the punch did not hurt but “it stung“. She did not seek any medical assistance.
Indictment 166/2019 (count 1), is a charge of Assault on a Pregnant Woman. On 18 October 2018 the complainant woke up around 12:30 pm. and went to the kitchen. The defendant was still in bed. The defendant yelled out to the complainant and said “come back to bed and give me your phone, I want to go on Facebook“. The complainant ignored him and the defendant continued to ask for her phone.
They argued and as the complainant sat down on the right hand side of the bed with her back to him, he grabbed her pony tail and pulled her backwards. As the complainant fell backwards onto the bed she turned onto her side and put her knees up to her stomach. The defendant knelt on the bed in front of her and punched her once to the stomach. Count 2 on that Indictment is a charge of assault. As the complainant was in the bathroom, following count 1, the defendant approached her and again asking for her phone. The complainant did not immediately give the defendant her phone. He then placed one hand around her throat and squeezed. He continued to apply pressure to her throat and said to her “where is your phone?” This caused the complainant difficulty in breathing and lasted about 4-5 seconds.
The defendant then let go and went back to the bedroom and subsequently left the residence.
The complainant attended the Bridgewater Police Station later that day and made a statutory declaration in relation to the incidents from October 2018.
As a result of the assaults on 18 October 2018, the complainant sustained a small red mark to the left side of her neck. She did not experience any complications to the pregnancy.
On 24 October 2018, the defendant was charged, processed and detained for court.
I will now deal with complaint 11389/18, counts 1, 3, 4, 6, 7, 8 and 10, which are four breaches of an interim family violence order and three breaches of bail.
On 24 October 2018, in the Hobart Magistrates Court, an interim family violence order was issued for the protection of the complainant.
On 20 November 2018, the defendant was granted bail in the Hobart Magistrates Court on conditions.
On 1 December 2018, the complainant and Ms S were standing on the front steps of the complainant’s mother’s residence. At approximately 11:20 am. the defendant approached the residence. He walked from the footpath towards the house. The complainant was not expecting him and told the defendant that he was not allowed to be there. The defendant replied that he didn’t care and walked toward the complainant with his arms outstretched as if to hug her.
The defendant grabbed the complainant’s mobile phone out of her trouser pocket and ran from the residence. As he ran away the defendant yelled out to the complainant “if you’re going to cheat on me you slut you won’t get your phone back“. The defendant then ran off . The parties met shortly after and the defendant returned the complainant’s mobile phone. At approximately 2:15 pm. police were conducting a mobile patrol at Gagebrook when they observed the defendant and complainant walking together. The defendant was approximately 3 metres behind the complainant.
Police stopped and arrested the defendant. He was conveyed to the Bridgewater Police Station.
Police seized the defendant’s mobile phone and observed an SMS text message that he sent to the complainant at 2:27 pm which read “I love you so much xxxxx”.
This conduct was in breach, on four occasions, of the terms of the interim family violence order proscribing such conduct, and in breach on three occasions of the conditions of bail proscribing such conduct.
The defendant was charged and he has been remanded in custody since his arrest. Any sentence should be backdated, to 13 November 2018 to take into account two periods in custody in respect of these matters, totalling 185 days.
As noted the defendant was a youth when he committed the first two assaults in December 2017. He was just 18 years old when he committed the remaining offences and crimes. He has no relevant prior convictions.
I have read a victim impact statement from the complainant. She states that at the time of the offending she had already been diagnosed with depression but what happened to her made it a great deal worse. Her anxiety levels also got much worse. The complainant flickered between moods and the way that he treated the complainant made her feel worthless.
Apart from the defendant’s plea of guilty, and his expressed remorse, there is little that is mitigatory. It is fortunate that the complainant did not suffer any serious or lasting injuries from the assaults. Particularly the assault on the complainant constituting the crime of assault on a pregnant woman. Such a crime excites revulsion in the entire community. That the defendant could do such a thing is beyond comprehension.
The defendant’s youth is clearly at the forefront of sentencing, particularly when the assaults while numerous, and causing a very real psychological effect on the complainant, and her loss of self-esteem from which I add, one hopes at her age she might well recover, no lasting physical injuries were sustained.
Clearly a prison sentence is called for, but given the matters I have just mentioned including the absence of prior convictions for violence and the defendant’s youth, it appears appropriate to allow for leniency and to place weight on rehabilitation. See Garcia v Lusted [2014] TASSC 27.
There is a high public interest that young offenders be rehabilitated and the imposition of an actual prison sentence on a youth or youthful offender is often likely to expose them to the influence of confirmed criminals and increase, rather than decrease, the chance of re-offending. A sentence of actual imprisonment should be a sentence of last resort for a youthful offender, and ought be imposed only where alternative punishment is inappropriate
Taking all matters into account I record convictions on all counts and charges including the two counts of assault committed by the defendant as a youth, namely complaint 6019/18 charges 1 and 2. As to those two offences I impose no further penalty. As to the remainder of the counts and charges I impose a single sentence in respect of all of them.
The defendant is sentenced to a term of 18 months’ imprisonment backdated to 13 November 2018 with the balance of that term from today suspended on condition that the defendant commit no offence punishable by imprisonment for a period of two years, and on condition that he comply with the community correction order I am about to make, and with the terms of any order made with respect to him and the complainant that may be enforced from time to time pursuant to the provisions of the Family Violence Act 2004.
I make a community correction order with an operational period of two years from today, which order is to contain, in addition to the statutory core conditions, special conditions that that the defendant must during the operational period, submit to the supervision of a probation officer as required; that the defendant must, during the operational period, attend educational and other programs as directed by a probation officer and that the defendant must, as soon as is reasonably practicable during the operational period, complete to the satisfaction of a probation officer, a course in anger management, which may be the MENS behaviour change program conducted by Relationships Australia, Tasmania Inc. or such other similar program as is approved by a probation officer.
I direct that the offender attend the office of Community Corrections at the corner of Bathurst and Murray Streets in Hobart, Highfield House, within 72 hours from his release from prison. All offences are recorded as family violence offences.