STATE OF TASMANIA v KURT ALEXANDER FEDOSEJEVS 17 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE JAGO J
The defendant has pleaded guilty to one count of assault, contrary to s 184 of the Criminal Code and one count of causing grievous bodily harm, contrary to s 172 of the Criminal Code. I have also agreed to deal with six related summary matters, being one count of destroy property and five counts of breaching a family violence order.
At the time of the crimes, the defendant and the complainant were married. They had been in a relationship for approximately eight years. There were two children to the relationship, aged four and one at the time of the offending.
The defendant’s excessive consumption of alcohol had caused conflict in the relationship, and in September 2021 an interim family violence order was made protecting the complainant from the defendant. This order was finalised in December 2021. It contained conditions that the defendant must not threaten, harass, abuse or assault the complainant. It also contained a condition that he must not damage the premises of the family home.
On 23 June 2022, the defendant made a number of posts on Facebook, suggesting he was experiencing suicidal ideation. He sent the complainant a number of text messages and made a number of telephone calls to her indicating he had taken an overdose of medication and consumed a large amount of alcohol. The complainant arranged for police to attend. The defendant was taken to the North West Regional Hospital.
On 24 June 2022, the complainant collected the defendant from the hospital and took him to Railton. On route, the defendant consumed alcohol. The complainant left the defendant in Railton and returned to the family home in Devonport. Throughout the afternoon, the defendant made a number of phone calls to the complainant. Eventually, at approximately 4.15 pm, the defendant arrived at the family home. The complainant opened the door and asked the defendant what he was doing there? The defendant sought to be let in. The complainant refused, shut the door and walked away. The defendant kicked in the glass panel next to the front door and gained entry. This conduct represents the destroy property charge and also one count of breach of the family violence order by damaging the premises.
The complainant tried to resist the defendant entering the home. She tried to hold the door shut by placing her weight behind it. Whilst the complainant was endeavouring to keep the defendant out, she was holding her one year old child. The four year old child came and collected the younger child as the defendant forced entry to the house. He locked the two of them inside the bedroom because he was scared. Whilst the entirety of what happened next may not have been seen by the children, I have no doubt it was readily heard by them, and in terms of the 4 year old child at least, he must have been petrified knowing that his mother was being hurt.
The defendant took the complainant to a spare bedroom. He took hold of her hair and began to pull her head back. He then put one of his arms around her neck and began to tighten it. The complainant was unable to breathe and felt as though she might lose consciousness. The complainant begged the defendant to stop hurting her. The defendant brought the complainant to the ground and laid on top of her. He continued to hold his arm around her neck, but loosened his grip. The complainant was able to get to her hands and knees. The defendant stayed on top of her, took hold of one of her arms and threatened to break it. The threat amounts to one count of breach of the family violence order. The complainant yelled out to her eldest child to get help. The defendant responded by putting his arm around the complainant’s neck again and tightening his grip. He stopped when he heard one of the children begin to run around the house.
The complainant tried to leave. The defendant approached her and punched her once to the nose, causing it to bleed. He then proceeded to punch the complainant to the face repeatedly. The elder child distracted the defendant. The defendant started to shout at him. The complainant walked out of the house. The defendant followed her outside and into the garage. He took hold of the complainant and pulled her to the ground. He placed himself on top of her and repeatedly punched her to the face. The defendant got up and allowed the complainant to get up. She walked back into the house and into the laundry area. Again, the defendant followed her. He punched her to the abdomen without warning and said “Yeah, I hope that fucking hurt.” Whilst in the laundry, the defendant continued to punch the complainant to the face and body before kicking her to the body. The complainant was pleading with him to stop. She begged him, in effect, to consider the children and suggested he had inflicted enough pain upon them. The defendant responded by saying “Look at you, you filthy, fucking dog, go and clean yourself up you dirty bitch.” This abusive comment amounts to a breach of the family violence order.
The defendant took a face washer from the laundry and instructed the complainant to wipe her face. As the complainant did this, the defendant again began to punch her to the face. After several blows he repeated his instruction that the complainant wipe her face. She complied, before the defendant again punched her to the face. The complainant wedged herself into a small area between the washing machine and the laundry trough. The defendant continue to punch her to the face and to the head. The defendant instructed the complainant to walk upstairs to a balcony area on the first floor of the house. The complainant had difficulty in doing so because her face was so swollen and her vision was blurred. When she told him she could not walk up the stairs, the defendant said “We will finish this, because I am obviously going to be going to gaol.”
During the entire incident, the defendant repeatedly threatened that he would kill the complainant. Given the viciousness of the assaults, it is entirely understandable that the complainant genuinely believed she would die. During the incident, the complainant lost control of her bladder because she was so scared. The defendant kept telling the complainant that the assaults were “pay back” because she had hurt him.
Police, who fortunately had been called by a neighbour who had witnessed the defendant force entry to the property, arrived. They arrested the defendant. The complainant was taken to hospital for treatment. The two children were found sitting inside a bedroom. The eldest was distressed. Police spoke to the eldest child. He advised police that when the defendant was entering the house, he had taken his younger brother to his mother’s bedroom and locked them in there because he was so frightened.
The defendant was provided with medical assistance because he advised police he had taken an “overdose of pills”. When asked about his swollen hands, the defendant told police it was because of him assaulting his wife. When subsequently interviewed, however, the defendant denied memory of the events.
As a consequence of the assaults, the complainant suffered multiple sub galeal haematomas on both sides of the head, a sub conjunctival haemorrhage of the left eye, peri orbital bruising of both eyes, a fracture of the left nasal bone, orbital floor fractures to both eye sockets, bruising to her ribs, and fractures to three of her teeth. She was discharged from hospital on 27 June 2022 but subsequently returned in July 2022, reporting ongoing headaches, confusion and forgetfulness. She was diagnosed with Post Head Injury Concussion. I have seen photographs of the injuries the defendant inflicted upon the complainant. Quite frankly, it is astounding that the injuries were not more significant. The bruising and swelling to the complainant’s face is nothing short of appalling. The defendant’s behaviour towards the complainant was cruel, frightening and degrading. He caused her physical harm, but beyond that, he treated her with disdain. He also showed no concern for his children who were clearly traumatised by his behaviour.
The defendant has some relevant prior criminal history, although it is not bad in terms of violence. There was a matter of common assault that was dealt with in the Youth Justice Court. There is also a matter of assault for which the defendant was sentenced in 2017. I am told that did not involve family violence. Beyond that, the defendant has a number of convictions for driving offences, drug offences and dishonesty.
I have carefully considered the Victim Impact Statement of the complainant. The defendant’s crimes have had a most devastating effect upon her, and also the children, in particular the eldest child. The complainant was petrified during the protracted attack upon her. She genuinely believed she may die. She worried what might happen to the children. She has been forced to sell the family home because she cannot feel comfortable in there. She continues to experience breathing difficulties and periods of dizziness. She is now beset by constant worry, experiences shame, anxiety and self-doubt. She has been left to raise the two children without the support of their father, and manage the possible psychological consequences which will flow from these crimes.
It is a heavily aggravating factor that this violence was perpetrated in front of the children. The eldest child obviously felt it necessary to lock himself and his youngest brother away, to protect them from the defendant’s violence. It is well understood that exposing a child to family violence in their formative years, can have a significant adverse impact upon their development and psychological well-being. The true extent of the damage these crimes may have caused for the children may not be appreciated for many years yet.
The defendant is now 28 years of age. He has had a difficult upbringing. His biological father was violent. His mother left that relationship and re-partnered. The defendant experienced conflict with his step-father also. He moved out of the family home at the age of 14. He went to live with a friend and became involved in drugs. He was a regular user of methyl amphetamine from the age of about 14 through until 20. To his credit, however, he has ceased his use of illicit drugs. His excessive use of alcohol continues to be a difficulty. It seems he was heavily intoxicated when these crimes occurred. That, of course, is in no way mitigating in the sentencing process.
The defendant suffers from ADHD and epilepsy. In December 2020, he required surgical intervention in respect to his epilepsy. He experienced complications following that surgery. It led to a significant deterioration in his mental health. This, in turn, led to difficulties in his marriage and with his employment. He began to use alcohol excessively. Ultimately, he lost his employment in February 2020 and from that point onwards he was on a downward trajectory; his mental health worsened and his alcohol consumption increased. The defendant has little recall of the incident I am told, but accepts it must have been a traumatic experience for both the complainant and the children. It is to his credit that he has entered an early plea of guilty. It is an acknowledgement of his wrongdoing and importantly has spared the complainant the ordeal of giving evidence. Beyond that, however, there is very little to mitigate the defendant’s behaviour.
Family violence crimes are always serious. They inherently involve a breach of trust and are typically committed against vulnerable complainants. The act of choking is particularly grave. It is a dangerous act and can cause the loss of consciousness and death very quickly. Underlying injuries can often be caused by the pressure applied to the throat, which may not manifest immediately. This was a protracted and persistent episode of violence. The scale of the injuries inflicted upon the complainant are testament to the number of blows which must have been inflicted. Although the State accept the defendant did not intend grievous bodily harm, he was certainly reckless as to the likelihood of that outcome. In my view, it is most fortunate the complainant’s injuries were not worse.
Courts have, on many occasions, emphasised the need to condemn family violence. In sentencing such matters, general deterrence, denunciation, punishment and protection of victims are paramount sentencing considerations. The only appropriate sentencing response is a substantial period of imprisonment.
The defendant is convicted of all matters to which he has pleaded guilty. I will impose a single sentence. That best reflects totality and the fact his behaviour was really a continuing course of intimidating and violent behaviour. The defendant is sentenced to three years’ imprisonment, backdated to commence on 24 June 2022, to take into account time already spent in custody. I order the defendant is not eligible for parole until he has served one half of that sentence. Pursuant to s 13A of the Family Violence Act 2004, I direct that all crimes and offences be recorded on the defendant’s criminal record as family violence offences.
I make a Family Violence Order in the same terms as the Interim Family Violence Order dated 27 June 2022. That Family Violence Order will operate for a period of five years from today.