STATE OF TASMANIA v SHANE MICHAL EMMERTON 2 JULY 2021
COMMENTS ON PASSING SENTENCE GEASON J
Mr Emmerton you have pleaded guilty to three counts of assault, all of which crimes were committed upon a person with whom you were in a relationship.
The complainant resided at Campania and you moved in with her at the start of your relationship. She described that relationship as one which was deteriorating in its final few months. As a result of your behaviour you were asked to move out, which you did, moving in with a friend of yours at Midway Point. However on 20 May 2020 you sent the complainant a message on Facebook apologising for your behaviour, and you invited her to meet and to speak with a view to recommencing your relationship. About a week later you went to her home and you apologised to her. You confirmed your desire to recommence the relationship and you promised that you would stop using drugs. She accepted what you said, and went with you and your friend to Midway Point. After 4 or 5 days she told you she needed to go home to Campania to do some work for her on-line business and get some clothing.
You told her she could buy more clothes and use your parent’s house for her business. She indicated that she wanted to leave, but you restrained her by grabbing her face with your hand and smacking her to the head.
On 21 June she packed her bags to leave. When she told you she was leaving you said to her “you’re not going anywhere” and pushed her down on the bed and held her there. You held her down pressing on her chest and shoulders with enough force to leave bruising and marks. Whilst you were holding her down you were verbally abusing her calling her a “filthy slut”. You hit her face with your right hand. You told her that she could not leave. She remained in the bedroom and eventually she fell asleep.
The following morning she told you again that she wanted to leave. You told her she could leave but that she would have to wait until the injuries to her face healed. The friend with whom you were staying at Midway Point heard arguing. He heard thumping and stomping and he decided to intervene. He opened the bedroom door and saw the complainant with blood on her face and chest. You also had some blood on you. He tried to intervene, but you closed the door and kept the complainant in the bedroom. You continued assaulting her by restraining her and forcing her onto the bed. You pushed her to the chest and shoulders.
Your friend tried again to intervene and managed to get into the bedroom, moving the complainant away from you. He drove her to his mother’s home where she remained for a number of hours before she was taken home. Police were called and attended. They observed she had bruising to her upper chest, arms and neck. She had scrapes and marks on her face and a large lump on the back of her head. She had a sore neck, sore left ankle and left wrist.
You were arrested that afternoon. You told police you wanted to be taken away and that you were feeling suicidal. You told them that you had bashed your partner because you were “coming off Ice”. You were taken to Sorell police station, cautioned and asked a number of questions which were recorded. You told police that you had had an argument with the complainant and that you had lost it and hit her about the head a few times with an open hand. You failed to provide any other details stating simply that you could not recall.
In her victim impact statement, the complainant says that she thought you were going to kill her, that she was petrified and that she hid inside herself. She suffers flashbacks and panic attacks. She describes your face darkening with rage. She says that she is timid and frightened, and afraid of ever seeing you again. She is undertaking counselling.
You are 31 years old. You appear before me with a record of prior convictions which includes breaches of family violence orders and a common assault. The assault charge was not a family violence offence. You are not of course to be punished again for those offences, which occurred in October 2014, and June 2015. Since then you have not been convicted of an offence involving violence. There is some drug offending noted in your record, some of which does not constitute a prior conviction for the purposes of sentencing. Its relevance is limited but there is a pattern of drug use in your history. You claimed to be coming off Ice at the time of this offending.
I have been assisted by the submissions made on your behalf by Ms Baumeler. I have regard to your personal circumstances generally. What cannot be avoided however, is the fact that this is another example of wanton cruelty and violence upon a female in the context of a relationship. It is a serious family violence offence. You persisted in your conduct, restricting the complainant’s right to leave, and enforcing that restriction through the use of violence and cruelty. You are not to be sentenced on the basis of what might have happened, but I am concerned that but for the intervention of the third party, matters could easily have become worse. It is very fortunate for your victim that he was there to assist her.
I acknowledge your plea of guilty has saved the complainant from giving evidence, and that it has saved the cost of a trial. I afford you a sentencing discount on the basis of those considerations.
The Court has said on a number of occasions that offending such as this must be marked by a penalty which serves to deter the perpetration of violence in a domestic context. Occurring behind closed doors, it is often difficult to detect, and unless it is widely understood that such conduct will attract strong punishment, there is a real risk that perpetrators will make a calculated decision to cause harm to a victim in the belief that the crime will be undetected. This risk underscores the importance of general deterrence as a sentencing consideration to the intent that the potential for harsh punishment operates at some level to deter such behaviour before it occurs.
In addition to general deterrence the Court has an obligation to punish you, and to vindicate your victim. The penalty that I impose today is intended to achieve all of those sentencing outcomes.
I have concluded that a term of imprisonment is necessary to do that. Having regard to the nature of the offending, and that it represents a course of conduct, I intend to impose a single penalty on the indictment. The penalty I impose is backdated to 1 December 2020.
I convict you. I sentence you to 16 months’ imprisonment. I direct that you are not to be eligible for parole until you have served 10 months of that sentence. I direct that these crimes are to be recorded as Family Violence offences pursuant to s 13A of the Family Violence Act.