STATE OF TASMANIA v GEOFFREY PETER FOSTER 16 APRIL 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Foster has been found guilty by a jury of two counts of assault and one count of demanding property with menaces with intent to steal. The complainant in each count was his then partner, Janelle Jacobson, now known by her maiden name of Foster, but there is no family relationship. The crimes were committed in December 2016. My findings of fact are as follows. The two met through a dating website in mid-2016 and the relationship developed quickly. Ms Foster has two children, a son and a daughter, then aged 10 and 7. At about the beginning of November 2016 the defendant moved in with Ms Foster and the children. The defendant soon became very possessive and jealous, controlling access to Ms Foster’s mobile phone, and controlling her movements in the sense that she was compelled to seek his permission to leave the house to do such things as shopping. The defendant has some IT skills and set up her phone so that it was mirrored on his, to the extent that he could see what calls and texts she made. He could also track her phone. This was established by evidence of Facebook Messenger messages which she was later able to retrieve by accessing her account. At the time, the complainant was a fitness trainer. The defendant insisted she no longer have male clients. The defendant started being violent towards her. The jury found the defendant not guilty of three counts of assault, one alleged to have been committed on 19 November 2016, the second between 9 and 16 December 2016, and the third on 29 December 2016.* Of course, I do not take those into account, but I am satisfied that the defendant was violent from time to time during the course of the relationship, ignoring, of course, those three counts of which he has been found not guilty. The level of abuse was such that at some point near the end of the relationship, the complainant wrote out a note and gave it to a female client. She said she needed the client to help her, and needed her to ring the police, explain that she was a neighbour and that she thought that domestic violence was going on. In the note the complainant asked the client not to say anything or to text or ring as the defendant had her phone. The client contacted police in accordance with the request, and two officers went to the house, but the complainant was too frightened to say anything and told police that she thought the client may have heard noise from physical activity. The client to whom the note was given gave also gave evidence of seeing an abusive text from the defendant to the complainant, asking about toilet paper and calling her a cunt. Other abusive texts were in evidence. Of course, the defendant is not to be punished for matters other than the three crimes, but I am satisfied that the assaults were not isolated aberrations, and were committed in the context of an abusive relationship.
The first count of assault of which the defendant has been found guilty happened in the first week of December 2016 in Hobart. The couple had travelled to Hobart so that the complainant could go to a hens’ night. She and the defendant were to sleep at the complainant’s sister’s house, in a downstairs room with external access only. The complainant’s evidence was that the defendant was “quite beside himself in the weeks leading up to this”. Despite the complainant’s assurances to the contrary, he thought there were to be male strippers at the function, and thought that was disrespectful to him. He was jealous and moody about the complainant’s attendance, and told her she had to be home by 9 o’clock. As she was leaving the function she started to get text messages from him saying such things as “don’t forget I’m watching you”, and “I can see where you are”. When she arrived at her sister’s house the defendant began to abuse her, suggesting male strippers had been at the function. He became angry, threw the complainant onto the bed, got on top of her and punched her to the side of the head on both sides. He pushed his knee into her ribs, put his hands around her neck and started to choke her. She became very frightened and feared for her life. The incident was interrupted by the complainant’s brother-in-law knocking on the door to retrieve some bedding. After that happened, the complainant was in bed and the defendant prevented her from moving for a time, causing distress and discomfort as she wanted to go to the toilet.
The remaining count of assault and that of demanding property with menaces form part of one episode that happened on the morning of 30 December 2016. The complainant had contacted the mother of an ex-boyfriend after a man had been seriously injured in a car accident. The defendant noticed the contact and became very angry, accusing her of having an affair. He threw her phone against the door, grabbed her bedsheet and ripped it, before pushing the complainant onto the bed. He got on top of her, punched her to the side of the head and kneed her to the sides of her body. During this, he said he wanted the complainant to give him $10,000 or he would chop her into little pieces and make her family watch, then saying it would be better if he chopped them up in front of her, then he would burn the house. After making the threat the defendant told her to go into the en-suite bathroom. He was still demanding the money and slammed her head against the window frame in the bathroom, put his hands around her neck and stuck his thumb up under her jaw, threatening to kill her by choking. She was trying to fight him off but said that she would give him the money. That seemed to calm him down. The background to the demand for money is that the defendant wanted a bigger motor vehicle. He had sold his and the family was reliant on the defendant’s small car. The two had been looking at car advertisements. There is some further background to this. A little earlier in the month, the defendant had said he wanted to buy a drone and told the complainant that if she loved him she would buy it for him. When the complainant said she could not afford it, the effect of his response was that the abuse would stop if she bought it. She complied. Returning to the narrative, later in the morning the defendant, the complainant and the two children went to a bank and parked outside. The complainant suggested the children go to a nearby toyshop, but the defendant said he would not let them out of the car, saying “you’d better get me the money; remember I’ve got your kids”. The complainant went into the bank on her own. She was seen to be upset and crying. She told the manager that someone was asking for $10,000 and she did not want him to have it. She enlisted the support of the manager to freeze all her bank accounts and to change her passwords. When she went back out she told the defendant that it would take three working days to make up a cheque and clear it. The defendant looked at the complainant’s phone and noticed that the passwords had been changed. He told her to go back into the bank and sort it out, reminding her that she had better come out with the money as he had the children with him. The complainant went back into the bank and explained to the manager that her partner had the children in the car and would not let them go until $10,000 was withdrawn. The manager rang the emergency number and spoke to police, immediately after which the complainant spoke to an officer and provided details. The manager went outside, at which point the defendant drove away with the children. He drove around for a time, during which he rang his ex-wife saying that he had done something very silly and that he was going to gaol for a long time. She made suggestions about what he should do with the children, such as taking them to the police, but he said he would get arrested. She suggested a safe place to which he should take them. In the end, he left them near a park with a phone and told them to contact their grandfather. He drove to another location, parked the car and threw the keys under a bush. He also disposed of the complainant’s phone but he remained in the area until found by the police. He appears to have wiped the data from the phone.
In a victim impact statement, the complainant says that she still suffers with anxiety arising from these incidents. She has difficulty trusting people, especially men. She is in a new relationship, but has taken a long time to settle into that relationship. She is very security conscious and remains concerned that the defendant would harm her. She made arrangements with friends to contact the police if she texted them a code word indicating that the defendant was with her.
The defendant is now 40 years old. He has convictions for offences of violence, including ones of family violence. In March 2003 he was convicted in Western Australia of an assault of his ex-wife, and sentenced to a community based order for 18 months involving community work. In December 2014 he committed a breach of a family violence order which protected that woman, and was heavily fined. In this State, in January 2018 he was convicted of a number of offences, including two charges of assault committed in the same period as the present crimes, one relating to a former boyfriend of Ms Foster. That occurred before the end of this relationship. There are also charges of burglary and stealing – also committed in the same period – which related to the theft of property from his ex-wife. The global sentence for all those charges was a community service order with supervised probation with special conditions relevant to his mental health. The defendant seems to have had a reasonably good work record although at the moment he is in receipt of NewStart allowance pending the resolution of an outstanding workers compensation claim arising from his employment as a removalist. I am told that he has had significant psychiatric issues spanning about two decades. He suffers anxiety and depression, panic attacks, paranoia and there are suggestions of bipolar disorder and borderline personality disorder. He has been reluctant to raise this with mental health professionals, but I am told that he was sexually abused by his parents and others while an infant, and his problems essentially stem from this very difficult background. I have a psychological assessment report from Mr Damien Minehan dated 21 March 2019. Mr Minehan’s opinion is that there is sufficient evidence to support a diagnosis of bipolar disorder. The defendant had a psychiatric admission in 2012 with depressive issues and problems with anger and impulse control, and violent ideation. He was prescribed appropriate medication. In 2018 he engaged in self-harm and has had ongoing contact with psychiatric and mental health services. He self-reports suicidal ideation, and for about eight months has been on a medication regime overseen a psychiatrist. Mr Minehan notes a history of increasing irritability and regulating emotions. His offending behaviour may be a function of a mood disorder or personality dysfunction, and irritability may be a function of a hypomanic or manic episode during which his judgment may be impaired and he is likely to experience behavioural impulsivity. However the operation of these symptoms at the time of the relevant offending is only put as a possibility. Mr Minehan says the defendant will require assessment upon admission to the prison and ongoing support. His medication will have to be monitored. Mr Minehan says that with the defendant’s mental state, he would find adjustment to the prison environment challenging, with a need for ongoing support. I infer the hardship experienced would be greater than ordinarily might be expected. Additionally, imprisonment, Mr Minehan says, would likely lead to a deterioration in his condition. These propositions, I should note, are expressly accepted by the Crown.
As I have said, these offences occurred in the context of possessive, violent and domineering and controlling behaviour. They amount to breaches of trust. Violence and abuse, both in existing and former relationships, cannot be tolerated. Family violence is a matter of great community concern. This case extends to financial abuse, with the jury being satisfied that the defendant intended to take from the complainant a significant amount of money, and keep it, at least for a time given the Code provisions on stealing money. Fortunately, no serious physical injuries were caused by the assaults, but an aggravating feature of the case is that the two children were present in the house during the events represented in the last two counts, although there is no suggestion they saw or heard the assault. They were, however, swept up in the drama surrounding the visit to the bank. I accept that the defendant was good to the children during the relationship, and helped them with various activities. He did not directly threaten or abuse them in any way, the only threats involving them being those made to the complainant. Apart from the effects of imprisonment which I have just mentioned, there is nothing really to justify leniency, although I take into account the defendant’s longstanding mental health issues.
Mr Foster, I have explained what I consider to be the relevant considerations. You have relevant offending history. Attempting to deter you and others from this sort of conduct is of primary importance, but I do not lose sight of your difficulties, and in particular the effect of imprisonment, which does allow for some moderation of penalty. I note you have recently had the benefit of supervised probation with appropriate conditions. You are convicted of the three crimes and sentenced to 16 months’ imprisonment to commence on 10 April 2019. I order that you are not eligible for parole until you have served one half of that sentence. That may well lead to engagement with mental health professionals. I make a family violence order in the same terms as that made on 11 January 2018, and that will operate until it is revoked by order.**
*On 16 April when making these comments, his Honour mistakenly referred to only two counts of assault of which the defendant was acquitted, being the first and second in time. These written comments were corrected before publication on 17 April 2019.
**On 18 April, pursuant to the Family Violence Act, s 13A, his Honour declared that he was satisfied that the three offences were family violence offences, and directed that the offences be recorded on the defendant’s criminal record as family violence offences