STATE OF TASMANIA v DMB 29 AUGUST 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
DB, the defendant, was arraigned on two counts of persistent family violence, one count of rape, one of assault and one of indecent assault. He pleaded guilty to the assault and on his pleas of not guilty to the balance, a jury was empanelled and the trial proceeded. On the third day, he changed his pleas. I am also dealing with his plea of guilty to a charge of breaching a police family violence order. He is now for sentence on all matters which all relate to four women with whom he was in successive relationships between September 2009 and May 2020. None of the four complainants has given their consent to be identified and I will provide them with first name pseudonyms which I hope are not too offensive. Count 1 concerns “Michaela” with whom the defendant was in a relationship for about two and a half years. The second count concerns “Stella” who was with the defendant for about two years, the third relates to “Nicola” who was with the defendant for about six months and the fourth and fifth counts concern “Melanie” who was with the defendant for nearly a year. The State asserts that there were common features of the defendant’s behaviour in all four relationships. These general features included pressuring cohabitation at an early time, and once achieved, controlling behaviour. This extended to the women’s movements, who they could associate with and their finances. His behaviour included denigration and humiliation, violent outbursts, particularly when intoxicated – which was often, unrealistic expectations as to domestic chores, and demands for regular sexual activity irrespective of the wishes of the other party. Broadly speaking I accept that these features existed in all four relationships. The relevance of this behaviour in relation to the two counts of persistent family violence is that it establishes the true nature of the relationship and shows that the identified occasions relied on were not isolated. In relation to the remaining three more specific counts, it shows that the charged offences were not isolated occurrences and it is also generally relevant as background, providing the context of the relationship in which the offending took place.
I turn to count one, persistent family violence. Michaela meet the defendant through a dating company when she was 32 years old. She and the defendant were in a relationship from September 2009 to May 2012. She had two children and the defendant, one. He convinced her that they could live a happy family life together and he quickly persuaded her into moving in with him. That happened within two to three months. Soon afterwards, the defendant’s behaviour changed. He became controlling, abusive and aggressive. His behaviour made Michaela feel useless and incapable. His behaviour alienated her friends and she disengaged from support networks. He was hyper-critical and regularly criticised her, including in the presence of her children. This related to such things as her cooking, one recalled occasion being when he threw a cooked chicken across the room. He would call her names. He acted violently and unpredictably. He would grab her and throw her against walls or furniture or throw items at her or in her presence. His behaviour was worse after drinking alcohol. Michaela ended up feeling trapped. After bouts of aggression and violence, the defendant would apologise and threaten self-harm or tell her he was broken and that she was the only person who could help him. Her self-esteem diminished and she became hyper-vigilant and on edge around him. The defendant expected sex regularly irrespective of whether she agreed or not and he would regularly engage in sexual intercourse with her when she was not consenting. After a time she stopped protesting or resisting as she found to do so would make things worse. On occasions it appeared to her as though he was encouraged by her verbal or physical resistance. She believed she had no rights in relation to sexual activity. He took away her contraception. He insisted on having sexual intercourse when she menstruating even though this cased her pain and discomfort which she told him about.
Needing only three to make out the crime, the State identified six occasions of family violence offences. The first occasion involves the offence of rape. The defendant went into the bathroom while Michaela was having a shower. He forced her to bend over forwards and had vaginal sexual intercourse with her. This then often happened when she menstruating.
The second occasion involves the offences of attempted rape and rape, anal and vaginal respectively. When the complainant came home from a friend’s house, the defendant became aggressive and abusive and threw a phone at her, striking her to the head. Later, he forced himself on her and pulled down her pants saying he wanted to have anal sex. Michaela said no, but he tried several times to anally penetrate her with his penis before having vaginal intercourse with her, without her consent.
In July 2010 Michaela fell pregnant to the defendant. On 28 August 2010 she attempted to end the relationship due to his violence on that day. She complained to police and charges were laid. An interim family violence order was put in place preventing the defendant from approaching her directly or indirectly and from threatening harassing abusing or assaulting her.
The third occasion also involves the commission of rape. This happened shortly after when the complainant went to see a doctor. The defendant was there and asked if they could talk. She agreed to talk about the relationship and they walked to a nearby bush area. During the time there, the defendant pushed her down and held her while he removed her pants and had vaginal intercourse with her without her consent. He subsequently persuaded her to go to the police with the aim of withdrawing the complaint of assault that previously had been made, and she then resumed the relationship because she felt she had no choice, being pregnant with his child.
On 14 December 2010 the defendant pleaded guilty to charges of assault and injuring property and the proceedings were adjourned for 18 months on his undertaking to appear if called on. A family violence order was made in more limited terms than the previous order. Michaela and the defendant had a daughter in April 2011 and the interim family violence order expired in September 2011.
The fourth occasion involves the offence of assault. The complainant was again attempting to leave the defendant. As she was putting things into her car he scruffed her and abused her. The defendant then called the police. Officers arrived and spoke to the couple separately. Michaela told an officer that she wanted to leave and needed to get her baby, but for some reason was told that she would need to leave without the child. This caused considerable distress and Michaela felt she had no choice but to stay.
The fifth occasion also involves an assault. In early May 2012 Michaela left the defendant for the last time. This happened after a particularly distressing event. He had come home intoxicated and agitated, grabbed her by the throat, pinned her against the kitchen bench and yelled and screamed at her. The complainant pushed him away. He fell into a wall breaking the plaster, then grabbed a kitchen knife and came back at her, holding the knife against her throat and threatening to kill her. He then desisted but threatened to kill himself.
The sixth occasion was a few days later after Michaela had gone. This was also an offence of assault. She was in a supermarket carpark and saw the defendant. She drove off intending to go back to the women’s shelter where she was then staying. The child was in the backseat. When she was stationary at some nearby traffic lights, the defendant, having followed on foot, got into the car. He verbally abused her and physically assaulted her by pulling her hair and scruffing her by the front of her clothing. He broke her mobile phone, told her he would kill her for leaving and demanded she drive him to the shelter so he could collect the child’s belongings. He got out with the child. She went to the shelter and police were called. The defendant was arrested some distance away with the child. Michaela told police she did not want to press charges but a police family violence order was made. On 27 June 2012 the defendant was convicted of breaching that family violence order by repeatedly contacting Michaela. He was fined and a further family violence order was made for a period of twelve months.
I now move to the second count of persistent family violence, and the complainant Stella. She was 50 years old when she met the defendant in early 2014. The relationship became serious very quickly and they would spend days and nights at each other’s homes. In early 2015 he moved into her house in order that he could save money but in late 2015 he received a compensation payout and bought a home of his own in early 2016 at which point Stella moved into that house. She lived there with him until ending the relationship in May 2016. After a few months of being charming and attentive, the defendant’s demeanour changed dramatically. He began monitoring and controlling her movements as to where she was and who she was with. He was distrustful and possessive. He alienated her from her from her family and friends and would denigrate them to her. He made threats to kill her dog. He generally behaved in a demeaning manner, often telling her she was stupid and calling her a slut and a cunt. She felt worthless. He would often act aggressively because of stressors in his life and this would be worse if he had been drinking. He would often push, punch or kick her, throw things at her and destroy things in her presence. Instances were given of pouring petrol over plants she had grown in the garden destroying them, and throwing a crockpot containing food at her, leaving her to clean up the mess. On another occasion he abused her for peeling new potatoes and threw some meat she was cooking for him over the back fence. He insisted on having sexual intercourse irrespective of whether she objected, and expected his demands to be met.
The State particularised five occasions of family violence offences. The first occasion involves an assault. After Stella had gone to bed, the defendant started to pack up her belongings and put them outside the house. She got out of bed and went to leave, but as she bent down to pick something up he threw an unopened can of soft drink at her. It struck her to the top of the head causing her to bleed profusely. The defendant unsuccessfully attempted to stem the bleeding. The complainant drove to hospital with the defendant where the wound was stapled. She had to lie to the medical staff about the cause of the injury saying it was accidental.
The second occasion was the following morning. The defendant committed the offence of rape. He wanted to have sex with Stella but she told him no, she did not want it, she wanted to be left alone. He ignored this and proceeded to have vaginal sexual intercourse with her without her consent. She made it clear to him afterwards that she had not wanted that to happen but with no response.
The third occasion involves an assault. In a course of an argument, Stella pushed the defendant who then pushed her back with considerable force into a piece of furniture, which caused a painful and bruising impact to the lower part of her back. That was later noticed by her sister in-law but Stella lied about how it had happened.
The fourth occasion involves the offence of rape. The defendant had arrived home from a night out drinking. He had a cut to his eye and said that he had been assaulted. He told Stella she needed to attend to the wound for him. She refused but he verbally abused her and she then did the best she could. They were in the bathroom. He asked her to undress him at which point he grabbed hold of her head and put his penis in her mouth. He was unable to sustain an erection and told the complainant that it was her fault.
The fifth occasion also involves the offence of rape. In May 2016, the two went to Launceston for a weekend. They stayed in a hotel. The morning after a night out the defendant wanted sex. Stella agreed. While they were engaged in vaginal sexual intercourse, the defendant told her that he was not satisfied. Stella was lying on her stomach and the defendant put his penis into her anus without warning and without her consent. She protested and told him that it hurt. She was crying and repeatedly asked him to stop it but he did not stop, telling her it would get better. Stella found the pain excruciating and bled afterwards. I was told that this was not the only time forced anal sexual intercourse took place with consequent bleeding, but I was not given any idea of the extent of this.
Later, on the day before Stella left, during an argument over him throwing some of her belongings out, she pushed him and he responded by grabbing her by the throat and throwing her against a wall. The next day, in a car ride home, they discussed the possibility of the defendant going away for a couple of weeks so each could consider the relationship. When they pulled in the driveway the defendant got out, kicked the car door, picked up an axe and told her that he was going to hit her dog with it. She picked up the dog and the defendant struck out at her and when the blunt end of the axe struck her foot she let the dog go. This was followed by a verbal and physical tirade. The police were called but the defendant sent them away, after which the verbal and physical abuse continued. Eventually Stella escaped out of a window after contacting a friend and was taken to the police and to hospital. The defendant was charged with assault and injuring property. An interim family violence order was made on 17 May 2016. He later pleaded guilty to most of the charges but not guilty to one. After a hearing at which Stella gave evidence, on 25 May 2017 the charge was found proved and the defendant was convicted of seven charges of assault, one of injuring property and two breaches of the interim family violence order committed on 21 June 2016. He was sentenced to six months’ imprisonment.
I move to the third count on the indictment, that of the rape of Nicola. This complainant was about 48 years old when she met the defendant. They met on a dating site and commenced a relationship in about October 2018. The defendant pressured Nicola to move in with him about four to five weeks after the initial meeting. After she moved in the defendant became abusive, controlling and possessive. He would question her about who was calling and texting her, and began to alienate her from her friends. He expected her to drive him to work and pick him up every day, and pick him up from bars and hotels late at night. He would not tolerate questioning about where he was going or what he was doing but she had to be constantly available. He allowed her no privacy within the home, making her keep the door open when she used the toilet or the shower. As with the previous relationships, he would belittle Nicola in front of other people, including her children. He would often be critical of the way she prepared meals, and on one occasion throwing a pizza to the floor because he did not like the way she had made it. He was derogatory about her appearance and she ultimately felt belittled, worthless and hopeless. He expected her to engage in regular sexual intercourse with him on his terms, without regard for her wishes or preferences.
The charged conduct happened after Nicola had been at work and returned home late in the morning to find the defendant still in bed. She also got into bed and slept for a few hours. The defendant then woke her wanting to have sex. They started to have vaginal sexual intercourse during which the defendant asked her where her vibrator was, and then grabbed it out of the drawer. He then said words to the effect of “how about taking both up the arse?” The complainant said no, she was not going to do that. The defendant told her to roll on to her stomach which she did, thinking that they would continue to have vaginal sexual intercourse. The defendant then pushed both his penis and the vibrator in her anus simultaneously. The complainant screamed and was able to physically remove herself from the situation. She went to the bathroom and saw she was bleeding heavily. She stayed in the house crying for about half an hour before leaving and telephoning a work colleague to relate what had happened. The defendant then called her and asked her where she was and a short time later Nicola returned home. She was still bleeding later that night and told the defendant, who then made a very offensive remark about what she might tell a doctor, and laughed. As a consequence of the rape, the complainant suffered significant bruising around her vagina and anus. A few days later the defendant pestered her for sex and commented on the bruising, making a disgracefully offensive comment about the extent to which he had “ripped” her anus. Nicola did not seek medical attention as she was too embarrassed. Shortly after, on 7 February 2019, she went to a club where the defendant was drinking and confronted him about his behaviour. He was drunk, became verbally abusive and told her to leave the house and that he would burn anything she left. She returned home. When he got home he told her to leave; he started throwing things and threatened her. Nicola rang the police but the defendant also rang police and told them that he wanted the woman he was living with out of his house. Police came a short time later and she left. She reported the rape on 9 February 2019, and returned to the defendant’s house that night when she was able to pack and leave. When interviewed about the rape, the defendant agreed the incident had occurred but said it was consensual and that he had stopped when she told him to. He agreed that she was severely bruised and claimed he did offer to take her to hospital or ring an ambulance but she had refused. He claimed Nicola had unusual sexual proclivities and all sexual activity between them was consensual. I was told that the complainant later informed police that although she had told the truth, she did not want him charged, just an order to protect her.
Count 4, the charge to which the defendant initially pleaded guilty, is one of assault. Count 5 is one of indecent assault. These charges involve Melanie. She was 40 years old when she met the defendant on a dating website in June 2019. That was within a few months of the defendant’s relationship with Nicola ending. This relationship also developed quickly. They began staying at each other’s homes and the defendant pressured her to move out of her home and to move in with him. By October that year Melanie had moved in with the defendant with her 20 year old daughter. In this relationship also, things were good at the start but she began to notice that the defendant’s behaviour would change when he had been drinking. He began to assert demeaning and control over her in a number of ways, including attempts to control her finances, alienating her from her family, disallowing her privacy, monitoring her menstruation and use of medication, criticising the way she did household tasks, and being generally verbally and emotionally abusive. This included derogatory remarks about her, and making threats against her daughter and her pets. As far as sex was concerned, she says that initially things were fine but when sex became less frequent as the relationship went on, the defendant would be very insistent and “would just try to keep doing it.” In early February 2020, police became involved after an incident during which the defendant threatened Melanie’s adult daughter and a dog with an axe or mallet. A police family violence order was made in Melanie’s favour. That included a condition that the defendant not threaten, harass or assault her. She attempted to leave the relationship but it was difficult to find accommodation that would allow pets. After a few days the defendant persuaded her to return to his home.
Count 4 on the indictment is one of assault. That is the count to which the defendant initially pleaded guilty. On 10 April 2020 Melanie was at home with the defendant and her daughter. She was making curtains and had an iron set up on the floor. The defendant took the iron and waived it near the daughter’s back. Melanie told him to stop it and went back to what she was doing. The defendant then pressed the iron onto Melanie’s back and kept it there whilst pressing the steam function despite her telling him to stop and crying out in distress. Both the complainant and her daughter were telling him to stop it. When he took the iron away he told them that it did not hurt, lifted his shirt and put the iron against his own skin causing him obvious pain. Melanie and her daughter attended to her burn. The defendant insisted Melanie go to the chemist to buy antiseptic cream for his own burn. Melanie did not seek medical assistance but her daughter applied antiseptic cream every day for a number of weeks. It took time to heal and has left a scar.
On the night of that incident, the complainant went to bed in pain. The defendant got into bed and attempted to engage in sexual activity with her and tried to put his hand down her pyjama pants and underwear. Despite Melanie repeatedly saying no and pulling his hand away, the defendant continued with what he was doing. Over her protests he eventually put his fingers on the outside of her vagina underneath her clothing. The conduct stopped only because Melanie got out of bed and went into her daughter’s bedroom. This is count 5 on the indictment, a charge of indecent assault. It was after this that Melanie began to make arrangements to leave with the assistance of an organisation dedicated to that form of assistance. The relationship ended in May 2020 and the complainant reported the matters to police on 18 June 2020. The defendant was interviewed by police. He said that he had been fooling around and the burn was not intentional although he admitted putting the iron on Melanie’s back and holding it there for a few minutes and when he put the iron on himself, it was instant pain. He denied knowing that it was reasonable to assume the iron would burn through clothes. He denied any sexual misconduct. The two crimes involving Melanie were in breach of the police family violence order in place at the time. The defendant was then charged.
As far as the overall investigation is concerned, when Melanie complained, police went back to Nicola who then said she wanted to pursue the matter. Police then contacted Michaela and Stella to make further inquiries. The defendant was subsequently arrested and further charged. He has been in custody since 25 May 2021 and is also entitled to credit for another four days in custody relating to the assault on Melanie.
I have victim impact statements from the four complainants which I will summarise. Michaela explains that even after the relationship ended, there were many times when the defendant went to the women’s shelter trying to find out where she was living. Police were often called. This left her feeling exposed and vulnerable. On one occasion, he went to her eldest daughter’s school pretending to be her parent, and asked the child to tell him where they were living. Before she met the defendant she was undergoing treatment for mild depression. This appears to have been postnatal depression. She has now been diagnosed with complex post-traumatic stress disorder (PTSD) as a result of being with the defendant. This requires regular healthcare consultations aimed to manage trigger events and hypervigilance. She is in a constant state of very high anxiety. She has regular nightmares of being hunted down by him and has regular panic attacks. These can be triggered by males who look similar or show aggression or agitation. She feels overprotected of her children.
Stella has also been diagnosed with a severe PTSD as a result of what she endured with the defendant. She refers to the forced sexual activity with him despite continually voicing her objections. She has been seeing a psychiatrist and a psychologist who have helped her with her coping skills. She says they got her through the darkest periods and taught her how to live again. She says she was once a happy and relaxed person with a big family and a lot of friends but the defendant destroyed this. Most on her mother’s side of the family do not speak to her because of the things he said and did. She has left the work she had and is not comfortable in crowds, mostly staying at home. She has flashbacks and nightmares.
Nicola explains that the effect of the anal rape of her continues. She has bowel problems which she had not had before. She describes how the controlling, domineering and narcissist behaviour of the defendant affected her mentally. She became very reserved, withdrawn and cut-off from people in her life and was treated for PTSD in early 2021. She had to leave Tasmania as she did not feel safe here and needed distance. She still has trouble and difficulty sleeping, experiences nightmares and reacts badly if touched from behind. There are things which happen and trigger the bad memories of when she was with the defendant. She is generally stressed and very nervous and looks around even now when she is out, in case he is there. She feels sick if she sees someone who looks similar.
Melanie has also been diagnosed with PTSD and is on medication to help with symptoms of stress. She says she has to remind herself every morning that her attacker cannot hurt her that day. Her mental health stops her from doing every day activities such as going out in public or she says, even just speaking to someone. Because of her condition, she found it very hard getting back into work. She was in receipt of benefits for a time and ended up drinking excessively.
The defendant is now 46 years old. I have already referred to his convictions for relevant offences relating to Michaela and Stella in 2010, 2012 and 2017 respectively. In addition, he has a bad record for driving offences that includes drink driving matters starting in December 2011. He was ultimately imprisoned in 2019 for an offence committed late the year before. In mitigation, I was told that he was adopted as a baby, as was his sister. The fact of adoption was not hidden from him. He never knew his biological father and by the time he had traced his biological mother, she had died. His adoptive mother died when he was ten with his adoptive grandmother dying some two years later. Accordingly, he was raised by his father who, as the defendant says did his very best, but he says that there was an obvious absence of female role models in his early years. He completed year 11 and went on to work for engineering firms, the last one as a factory hand for about two to three years. When he was 19 he went to work in the mining industry in Queenstown. He was living in a hotel and it seems that it was there that his problem with alcohol commenced. He was associating with older males who were entrenched in a culture of working and heavy drinking. From that time on, alcohol abuse was a feature in his life.
After about a year there, he returned to Hobart to the engineering firm where he was previously employed. He was elevated to a supervisor’s position then left, and did various jobs before starting an apprenticeship as an electrician at the age of 22. He finally completed that apprenticeship when he was about 30. He married when he was 21 years old and the couple had a daughter, who is now 16. During his relationships with Michaela and Stella he maintained contact with that daughter until Michaela made her complaint and there has been no contact since. This, I am told, is a matter of great regret to him. Additionally, in relation to the daughter he had with Michaela, that child was 13 months old when the relationship ended. He had three contact visits after separation, each for an hour, but he has had no contact at all with that child since she was 18 months old. He acknowledges that alcohol use and much time spent with his male friends led to the breakdown of his marriage. I am told that he has attempted at various times of his life to address his alcohol use and he was able to be abstinent for a period of 18 months, which included his time in custody as a result of the charges relating to Stella. After that relationship I was told he was trying to curb his alcohol use and attempting to modify his behaviour as he progressed to the two subsequent relationships. However, it is acknowledged that for the greatest part of the whole of the relevant period, he very frequently drank to excess. In this respect, I note and take into account that for the approximate 12 month period before going in to custody in May 2021 there is no record of offending in any manner. I also note that the defendant is close to his father and knows he will miss out on a significant period of his father’s later years.
In terms of each relationship, counsel put that there were different stressors and different dynamics that applied in each. So much may be accepted, but in my view the broad similarity in conduct in relation to each complainant is rather stark. As to the relationship with Michaela, counsel submitted that the relationship was generally volatile with mood swings on her part. It was also said that during the period of that relationship the defendant was injured; his pain and disability and inability to work exacerbating the situation. As to that, I would take the view that some volatility in any of the relationships cannot excuse the defendant’s behaviour. Additionally, it was suggested that on occasions Michaela at least gave the impression that she was consenting to sexual activity, particularly given her continuation of the relationship after the August 2010 complaints. As to that continuation, in my view the dynamics of abusive relationships are far too complex to safely draw any conclusions as to her motivation. In any event, the proposition was that I could broadly find that in relation to some of the acts there was an element of recklessness or failure to appreciate the lack of consent. Occasion three was specifically identified as an example, that being the rape that occurred after the visit to the doctor. I did not understand this as an assertion of a positive belief about consent, nor that the proposition extended beyond this particular relationship. But either way, there is nothing of any real mitigatory effect in this. I am satisfied that to the varying degrees it has relevance in the four relationships, the defendant either knew the complainants were not consenting, or was reckless in the accepted sense; that is, he recognised the possibility that there was no consent, but it made no difference to him; he did not care whether they were consenting or not.
The defendant pleaded guilty to count 4 at the start of the trial. In relation to the change of pleas during the trial, counsel submitted that the defendant described profound embarrassment by the reality of the allegations as they unfolded in Court and he was confronted by them. I was told that in particular, it was seeing and hearing the evidence of Stella that brought home to him the reality of how terrible his conduct actually was. I was told that due to his alcohol consumption he does not have a particularly good memory of much of his behaviour across all of the relationships and it was submitted that part of the lack of earlier pleas was a reluctance to believe that he could have actually behaved in the way alleged. The ultimate submission was that although the pleas were late in the day, they were significant because of that acknowledgement and realisation as well as being of some utilitarian value. I note that since being in prison the defendant has completed some courses that were available to him. He recognises he needs assistance to overcome his alcohol problem but that is not yet open to him in the prison. One of the courses he completed was directed to developing personal skills in empathy and making respectful choices about personal behaviour. He has applied for enrolment in the sex offender program.
I regard this as an extremely serious case. Over an approximate 11 year period, the defendant moved from one relationship to the next, generally conducting himself in the same manner in all four, although some differences in degree and circumstances existed. It broad terms, he was controlling, demeaning, callous at times brutal, and very prone to violent outbursts. He was sexually demanding, not caring about his partner’s wishes at all, often engaging in sex in the face of clear resistance. He is to be sentenced for the two counts of persistent family violence based on the identified occasions, and for the specific counts on the indictment, and he is not to be punished for crimes for which he has not been charged. I have already explained the relevance of the other material. In relation to the first two counts, as I see it the law is that a person sentenced for persistent family violence on the basis of three or more identified occasions of family violence offending, should ordinarily suffer the same penalty as if the offences were charged separately, subject to the significantly moderating factors of proportionality and totality. The law requires such moderation to avoid completely crushing and disproportionate sentences resulting from simple arithmetical accumulation. If the evidence shows that the extent of the crime goes beyond identified occasions, it is often not possible to do more than make an estimate of that extent, and the court takes into account that the identified offences were part of ongoing family violence. Of course, this principle of totality also applies to any aggregate sentence for all charges faced. The law recognises that the severity of a term of imprisonment increases exponentially as it increases in length.
All unlawful violence is unacceptable but family violence, as defined, within domestic relationships, is a particularly abhorrent issue of great community concern. It is often difficult to detect, frequently involves vulnerable victims, and is an insidious problem of large dimensions. The conduct involves significant breaches of trust. Of course, alcohol provides no excuse whatsoever and, in fact, high levels of intoxication can aggravate a situation because of the real possibility of making the victim more scared and apprehensive about what might happen. In this case, there are aggravating factors. In Michaela’s case, the conduct often occurred in the presence of a child or children. The defendant knew or was reckless about this. Of the identified occasions, the sixth occasion involved the defendant assaulting her and then taking the child. Although the child was very young, that is a grave example. Another aggravating feature is the defendant was charged and later dealt with during this relationship with Michaela, but continued on with similar conduct in his relationship with Stella. Despite being charged and gaoled due to his conduct with her, he carried on with basically the same sort of conduct within the next relationship, and then beyond. He also committed acts in breaches of interim family violence orders and family violence orders, as I have detailed.
Attempting to deter others and condemnation of the conduct are by far the predominant factors in the sentencing process, and in this case, specific deterrence is also important. As to the pleas of guilty, I accept they have some utilitarian value and provide vindication for the complainants, and so work in the defendant’s favour but the mitigatory value, in reality, is slight. Michaela completed her evidence and was cross-examined at length. The pleas saved Stella from being cross-examined, and the other two complainants from giving evidence but they had been extensively briefed in preparation for the trial. The pleas might suggest a willingness to facilitate the course of justice, but it seems to me, having heard and seen Michaela and Stella give evidence to the extent they did, there is present a strong element of “bowing to the inevitable”, to use that traditional phrase. While the true import of his conduct might have finally come home to him, there is no evidence or suggestion of remorse or contrition. The defendant’s criminal conduct has caused long-term harm and suffering to all complainants; all have been diagnosed with PTSD. In the case of Nicola, more than trivial physical injury was caused in a most brutal and degrading way.
DB, I have set out the facts as I find them to be, along with the matters that I need to take into account. I would stress that domestic violence, and rape and sexual crimes in relationships should not be diminished in seriousness to any degree, are completely unacceptable and will not be tolerated. In a background of possessive, controlling and demeaning behaviour, you successively physically and sexually abused and traumatised two people with whom you were in significant relationships giving rise to two counts of persistent family violence. You then successively, again within the context of generally abusive relationships, quite brutally raped your then partner and then in a later relationship cruelly assaulted your then partner and shortly after sexually assaulted her. You used and abused all of these women as you pleased with absolute disregard for their feelings, needs, wishes and wellbeing. As time went on you took no notice of the three instances of court sanctions nor of family violence orders. A very long sentence of imprisonment is inevitable. It is best to deal with all matters on a global basis. You are convicted of the crimes on indictment and the matter of complaint and sentenced to 18 years’ and 6 months’ imprisonment to commence on 21 May 2021. There is sufficient in the material to justify granting you parole eligibility and I order that you not be eligible for parole until you have served 11 years, that being the minimum period I believe you should serve in all of the circumstances. I direct that all matters be recorded as family violence offences. With one exception, the crimes are reportable offences within the meaning of the Community Protection (Offender Reporting) Act. I must make an order unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. I am not so satisfied. I order that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under that Act for a period of 15 years following your release from prison. I make family violence orders as follows. There will be an order in relation to the complainant named in Count 1 in accordance with the terms of the order made in relation to her on 26 May 2021, that order to continue until revoked by a court of competent jurisdiction. I make an order in favour of the complainant named in Count 2 in accordance with the terms of the order made on 20 May 2022, that order to continue until revoked by a court of competent jurisdiction. I make an order in favour of the complainant named in Count 3 in the same terms as the order made on 26 May 2021, that order to continue until revoked by a court of competent jurisdiction.