HAINTZ, A L

STATE OF TASMANIA v ASHLEY LUKE HAINTZ                                     GEASON J
COMMENTS ON PASSING SENTENCE                                         4 DECEMBER 2019

You appear for sentence today on your plea of guilty to a charge of persistent family violence and pleas of guilty to 11 counts of breaching a police family violence order.  I am dealing with those matters on your application under s 385A of the Criminal Code.

All of those breaches relate to an order made for the protection of the complainant in the matter, the subject of the indictment.

You were 27 at the time of your offending, the complainant was 29 or 30 and the two of you were in a relationship.  I will summarise the matters relied upon by the State in respect of the charge of persistent family violence.  There are six episodes particularised.  The first occured between January and October 2017 in an hotel in Ulverstone. There you assaulted the complainant by punching her and slapping her.  A member of the public witnessed the assault and asked the complainant if she required help.  She denied that the assault had occurred.  You then left the hotel together, taking the complainant to bushland at the back of Sheffield.  There you locked the vehicle you had travelled in, preventing her from leaving it. You commenced banging her head against the front passenger window.  You held her there against her will for a number of hours.  Eventually, you dragged her from the vehicle, grabbed her by the throat and choked her to the point where she believed she was going to die.  You left the area in the early hours of the morning.  The complainant reported the incident to a friend but she did not seek medical assistance.

The second occasion relied upon by the State occurred on a date between the 1 June 2017 and 28 June 2017.  You were in the bedroom of the complainant’s residence.  You struck her to the face causing her to fall to the ground.  Whilst she was on the ground, you grabbed her head and banged it into the wall causing a laceration to the left side of her head.  She subsequently attended at the Latrobe Hospital with bruising to her eye and swelling to her face.  It was suspected that she had sustained a facial fracture but she did not attend follow-up appointments for fear of being questioned about her injuries.

The third occasion, occurred on or about 4 October 2017. You arrived at the complainant’s residence and an argument began.  In the course of the argument you became enraged and slapped the complainant to the face a number of times causing her to feel dizzy.  You grabbed her left wrist, twisting it and causing a cracking noise.  At the time the complainant was holding her daughter in her arms, an aspect I treat as an aggravating feature of this offending.

When her daughter wanted to go to the toilet, instead of allowing that to occur you locked the complainant and her daughter inside the loungeroom, removing the door handle so there was no means by which they could leave.  After some time, you opened the door and told the complainant to take her daughter outside.  She did that, taking the opportunity to go next door from where she requested police assistance.  You attempted to follow her but could not gain access to that property.  By the time police arrived you had left.  Police observed her injuries but again she declined medical assistance.  She told police that you had said words to the effect that if her daughter had not been present you would have killed her “on the spot”.

On 16 October 2017 you appeared in the Magistrates Court in Devonport on unrelated matters and you were remanded in custody.  You agreed to participate in a record of interview in relation to this assault, admitting that you were at the complainant’s address in breach of a family violence order, that you had pushed her onto the couch whilst she was holding her daughter, but claimed that you had no knowledge of any injury to her arm or wrist.  You  admitted having previously made threats to kill her.  You were proceeded against by way of summons in relation to that matter but I note that the summons was not generated until June 2018, despite the fact the interview with police occurred on 17 October 2017.  Needless to say, your violence towards the complainant continued in the intervening period.

The fourth occasion: On or about 19 January 2018, and after another argument with the complainant, she told you that she would call police.  However when they arrived she told police that you had left.  You were in fact hiding inside the house.  After they left, the argument resumed.  She went outside and you followed her.  You kicked her to the side of the stomach.  A neighbour saw this occur and reported it to police.  You left the scene.  You returned to her residence later that night and when the police called the complainant again said that you were not there.  They entered anyway and found you inside.

Again you were advised that you would be charged by way of summons for breaching the police family violence order, a procedure I regard as regrettable in the circumstances of the assault reported by the neighbour that very day, and your breaches of the family violence order.  In my view, you should have been taken into custody that day.

The next occasion occurred on or about 28 April 2018. You and the complainant walked to your residence in Spreyton.  On the way an argument began. When you arrived your mother was present.  Apparently the complainant made an offensive remark to your mother which angered you.  The complainant decided that she would leave but you did not want her to go.  You grabbed her phone and you threw it to the ground.  You then grabbed and you threw her to the ground.  She pleaded for assistance from your mother.  You grabbed her by the hair and dragged her outside.  You took her down into a paddock at the rear of the property.  She continued to scream for help.  You assaulted her by hitting her and you kicked her and you hit her with sticks.  You punched her.  She believed that she was going to die.  She attempted to escape by running away.  When she did you grabbed her legs and you tackled her to the ground.  She made further attempts to stand but you pushed her over each time.  Pleading with you to stop, you refused, and placing your hands on her throat you choked her until she lost consciousness.  When she awoke you were still present and you told her that you were going to kill her.  After about another hour you took her back to your residence and you placed her in a cold shower because she was covered in blood.  She was in significant pain and she was coughing up blood.  She contacted emergency services and requested an ambulance.  She had significant bruising to the ribs and suspected fractures.  Her right hand was broken.  She had follow-up x-rays but did not keep all of her medical appointments because she feared reprisals from you.

The sixth occasion occurred on or about 14 June 2018 in the late afternoon, when you attended her residence at Ulverstone.  You asked her to go with you to another address but she did not want to go.  You pushed her forcefully causing her to fall into a wall.  She fled to the laundry for safety. When she believed it was safe to do so, she emerged but more words were had between you.  You placed your hands on her throat and again you choked her.  You continued to apply pressure to her throat as you forced her back into the lounge room. You pushed her down onto a couch and you continued to choke her, sitting on her, and pinning her arms rendering her defenceless.  You told her that you would kill her if she kept talking.  When she was released from your hold she went to the bathroom and commenced undressing to have a shower. She was partially undressed when you entered the bathroom and grabbed her around the neck and dragged her to the bedroom.  Again you started to choke her.  You slapped her face approximately ten times with an open hand.  She begged you to stop but you continued.  You grabbed a pillow and you told her you were going to suffocate her.  She noticed that she had lost a tooth and her mouth was bleeding.  She felt dizzy.  You began punching her to the stomach with such force she felt the need to vomit. You continued to punch her to the stomach multiple times with a clenched fist.  You then obtained a vacuum cleaner and threatened to hit her in the face with it, if she did not bend over.  When she obeyed you struck her to the legs multiple times telling her over and over that you would kill her.  You the punched to the lower part of her body.  You then directed your assaults to her upper body and punched her to the ribs.  She yelled in pain as her ribs had not healed from the previous assault.  You continued to punch her, telling her that if she spoke “there will be murder tonight”.  Eventually she managed to escape and she ran naked along the street stopping at the first house where she saw a light on.  She requested police assistance.  When assisted by paramedics they believed she had fractured ribs and she presented with further bruising to her face and body.

On 15 June 2018 at the Devonport police station, you participated in a record of interview admitting breaches of the family violence order, and saying that you had become angry with the complainant. You denied trying to take her phone or pushing her.  You terminated the interview before the other allegations I have outlined could be put to you. You have been remanded in custody since your arrest on 15 June 2018.

I have regard to the matters put on your behalf by Mr Heerey, noting that you identify alcohol and drugs as the triggers for your behaviour.  It seems to me that you are an inherently violent person.  The consumption of intoxicating liquor and drugs causes that trait to emerge with dangerous consequences, indeed, potentially life-threatening consequences.  The process of choking can cause death very quickly and it a hallmark of the conduct I have outlined today.  It goes without saying that that aspect is a further aggravating feature of your offending.

It is put to me in mitigation that you have completed the Holyoake program and I have regard to that.  I note that you propose undertaking the EQUIPS aggression program.  The sentence I am about to impose will afford you plenty of opportunity to do that and it is vital that you do in order to deal with your anger.  It is regrettable that you have not taken it upon yourself to obtain any assistance for your behaviour, including your excessive alcohol and drug consumption, before now.

I have received a reference.  Its contents are of little help to me against the significant weight of your admitted behaviour.

I have considered the victim impact statement.  The complainant has suffered considerably at your hands and she continues to do so.  She has suffered scarring, she has lost teeth, she cannot open her mouth fully because of injuries to her jaw, and she suffers panic attacks. She has suffered economic consequences as well having been forced to move a number of times in order to protect herself from you.  I have regard to the fact that you have pleaded guilty and in doing so spared the complainant the need to give evidence.  However yours was not an early plea, and I cannot apply the full discount I might otherwise have applied.  I will discount the sentence I would otherwise have imposed by 10% in recognition of the utilitarian benefit of your plea.

I note that some of the offences involving breaches of the police family violence order occurred with the apparent consent of the complainant.  Because of the multitude of circumstances, including emotional vulnerabilities which typically attend relationships such as this one, I do not approach breaches said to have occurred with the consent of the victim as mitigated by reason of that fact.  They are breaches of a court order designed to protect the vulnerable.  Unless enforced through the imposition of penalties for their breach, the efficacy of the system of family violence orders is eroded. I have approached the fixing of penalty on that basis, notwithstanding the way I have ultimately framed that penalty.  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 penalty, subject of course to the principles of totality which are engaged in a case like this.  The nature of the offending to which you have pleaded guilty is insidious.  It is difficult to detect because it occurs in the home and the ease with which powerful, physically strong and dominant people can inflict serious physical and other harm upon their partners in private requires sentences which deter such behaviour and demonstrate that the courts will not tolerate it.  General deterrence therefore looms large in framing a sentence.  Your conduct occurs in the face of court orders intended to protect the complainant and as I have noted, that is aggravating. Your conduct was protracted and unprovoked. It involved choking.  The complainant was unable to defend herself.

I respectfully agree with the approach to sentencing for the offence of persistent family violence articulated by Acting Justice Porter in the matter of Burgess.  On that basis you are to be sentenced as though the identified acts of family violence was separately charged and committed in a context of a regularity of similar offending.  As his honour said, that approach is subject to the moderating factor of totality and proportionality.  I have regard to those considerations in fixing sentence.  I will do that by imposing a global penalty, because it offers a convenient means of applying those principles to sentencing.

You are not a youthful offender.  Your conduct has caused serious physical and mental harm to your victim.  The sentence that I now impose is intended to vindicate her, to deter you and others from behaving in a similar fashion and reinforce the real and justified community concern about violence in relationships.  Your conduct was vicious and persistent and cowardly.

You are convicted on all matters.  The appropriate sentence is 5 years’ imprisonment.  I have determined that suspension of any part of that sentence will defeat the sentencing objectives to which I must have regard in fixing penalty.  I order that you are not to be eligible for parole until you have served 3 years and 6 months of that sentence.  In fixing that period I have determined that to be the minimum period necessary to afford you time to address your behaviour and make any progress to rehabilitation.  The sentence I have just imposed will take account of the time that has been served, but will remove from that period the 2 months which was attributable to other matters.

I make a family violence order in the same terms as the last order which was in place.  That order will continue until revoked and it will not record the complainant’s address.  I make that order pursuant to s 36 of the Family Violence Act.  I will also record these as family violence offences.

The effect of the sentence that I have just imposed is that in respect of all matters you are sentenced to 5 years’ imprisonment and you may not make application for parole until you have served 3 years and 6 months of that sentence.  I have directed that time served in custody on these matters, but not the two months served for other matters, is to be taken into account.