STATE OF TASMANIA v BRODIE LINCOLN FRENCH GEASON J
COMMENTS ON PASSING SENTENCE 3 JULY 2019
Mr French, you have pleaded guilty to one count of assault, and you have also pleaded guilty to summary offences that I am dealing with at the request of your counsel pursuant to s 385A of the Criminal Code. They arise, broadly speaking, from the same circumstances as the indictable matter, and include 4 counts of breaching a Family Violence Order.
On 29 September 2018, you were at the complainant’s residence. You were there with her consent, but you were in breach of a Family Violence Order, in place for her protection, by reason of that fact. The consent of the person for whose benefit a family violence order is made is not material to the question of whether there is a breach. Because of the multitude of circumstances, including emotional circumstances, and the vulnerabilities which typically attend broken relationships that have become the subject of protective orders, I do not approach breaches said to have occurred with the consent of the victim as mitigated by reason of that fact. Explained perhaps, but nevertheless serious offences required to be met with a strong response from the Court in order to uphold the protective character of Family Violence Orders. Without such quality they have no efficacy.
Present at the residence at the time was your 16-year-old sister, and the complainant’s daughter. At around 2.30am a verbal argument occurred because you wanted to go for a walk, and the complainant did not want you to leave, apparently due to the state of your intoxication. The argument escalated and the complainant struck you to the face with a glass bottle causing your nose to bleed. Her behaviour was unacceptable but so was your response. You pushed her towards a couch, you placed both hands around her neck and lifted her from the ground. Both her feet were suspended off the ground and her lower back was pressed against the couch. You held her in that position for a short period of time whilst she struggled to break free. She was unable to breathe or talk during this time. Eventually she did break free and she ran into the kitchen. You yelled at her and followed her into the kitchen. You punched her once to the face, connecting with her nose. She fell to the ground and placed her hands over her face. She eventually stood up and told you to leave. You left and your sister followed you outside. You left with her, and although intoxicated, you drove.
I do note in your favour that you voluntarily desisted from the violent conduct you inflicted upon the complainant.
At 3.04am police observed you driving a vehicle approaching the intersection of Burnett Street and the Brooker Highway. The headlights of the vehicle were initially off, but they were turned on as they approached you. Police pulled in behind your vehicle and followed it. After approximately 700 metres, just before the railway round-about, you were intercepted by the police. You were initially non-compliant and handcuffs were applied. You were taken into custody and transported to the Hobart Police Station where you submitted to a breath analysis returning a reading of .123 grams of alcohol in 100 millilitres of blood. At that time you were not the holder of an Australian drivers licence. You participated in a record of interview where you admitted to driving with alcohol in your system and whilst not the holder of a licence; you denied that you became physical with the complainant, though you admitted to being at the residence and engaging in an argument with her. You admitted that you had been living with the complainant since being released from prison in July 2018.
At the conclusion of the interview you were charged, processed and detained for court.
As a result of the assault on the complainant, she was taken by Ambulance to the Royal Hobart Hospital for medical assessment. She sustained bruising and scratches to her neck, a bleeding nose, scratches to her face and pain to her lower back. She spent a number of hours at the hospital but x-rays and CT scanning did not detect any fractures or head trauma.
An aggravating matter is the fact that the assault occurred whilst two children were present in the house. Further, you drove whilst a child was in the car.
The act of choking is a significant aggravating factor as it carries with it the serious risk of harm even death.
It was put to me that the complainant provoked your actions, but I do not accept that submission. Whilst her conduct may explain your initial reaction, it does not justify or reduce the gravity with which I view this prolonged act of violence. You persisted long after that incident could provide any explanation but I emphasise that none of your conduct is excused by her action.
I have received a victim impact statement from the complainant which I have read and considered. She remains in fear of you and is concerned about your future conduct towards her. She is worried about her prospects upon your ultimate release. She has moved house on a number of occasions spending time in women’s shelters with her daughter. She has suffered nightmares and found it difficult to sleep. She has required counselling. All of this has been emotionally draining and financially costly. Those impacts flow directly from your conduct.
Whilst your plea of guilty is proffered as an indication of your acceptance of your wrong-doing, and it is, your criminal history is indicative of an attitude to people with whom you are in a relationship of a controlling, aggressive and angry person. Violence in the context of relationships requires the strongest condemnation by this Court. Violence embraces many different forms, all of which involve a fundamental lack of respect and typically a desire to control others. The nature of this sort of offending is insidious. It is difficult to detect because it goes on in the home. The ease with which powerful, physically strong, dominant people can inflict serious physical and other harm on their partners, and do so privately, requires sentences which deter such behaviour and which demonstrate the Courts refusal to tolerate it.
Your conduct occurs in the face of court orders intended to protect the complainant, and that is an aggravating feature. That is why, in my view, it is usually inappropriate to merely record convictions for breaches of Family Violence Order, even though those breaches may relate to conduct the subject of other charges. The failure to observe a court order intended to protect the innocent victims of abuse involves a discrete element of criminality required to be reflected in the penalty. You have a very poor record of compliance with Family Violence Orders, you have a very poor record of behaviour towards former partners.
I note your plea of guilty and I will discount the sentence to reflect that. On the charge of assault, I sentence you to 2 years’ imprisonment. I direct that you are not to be eligible for parole until you have served 15 months of that sentence.
On the four charges of breaching Family Violence Orders, I sentence you to 1 months’ imprisonment on each count, cumulative to one another, and cumulative to the sentence that I have just imposed.
I have been asked to activate a suspended sentence which related to similar such behaviour. I activate that sentence. I direct that sentence to be served concurrently with the sentences I have just imposed, and I do that in order to reflect requirement to have regard to the totality of the sentences I am imposing.
The effect of the sentence is that you are sentenced to 28 months imprisonment; a 6 month suspended sentence is activated and is to be served concurrently with the 28 months. You can apply for parole after 19 months.
On the charge of driving whilst alcohol was present in your body, you are disqualified from holding or obtaining a drivers licence for 2 years to commence upon your release. You are fined $1340 which is the minimum I am able to impose. You are advised that you have 28 days to pay that sum upon your release from prison.
On the charge of driving at night without headlights, I record a conviction.
On the charge of driving whilst not the holder of a drivers licence, I record a conviction.
On the charge of being a person mentioned in s 6(2) of the Road Safety (Alcohol and Drugs) Act, that conduct embraces the conduct for which I have already imposed a period of disqualification and a fine, and so I simply record a conviction.
I have been asked by the State to make a Family Violence Order in favour of, or for the protection of, the complainant in this matter. The State has also requested that I extend the scope of that order to include the child of the complainant, which I will do. I make a Family Violence Order. The terms of the order will be the same as the interim order with the addition of the complainant’s child and will remain in place until further Order.
I further direct that the assault be recorded as a family violence offence.
The sentence is to be backdated to 30 October 2018.