STATE OF TASMANIA v AARON JOHN HARVEY 31 MARCH 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Harvey you have pleaded guilty to two counts of Criminal Code assault, one count of wounding and one count of attempted rape. All crimes were committed against a woman with whom you shared an intimate relationship. You and the complainant met in around June 2021 and shortly thereafter commenced the relationship.
In mid-August 2021, the two of you began housesitting for a friend. On an occasion whilst you were housesitting, the two of you travelled together to visit another friend. Whilst there, you had an argument. The complainant set off to walk home. Upon realising how far it was she returned to her car, which was parked near the friend’s house. She realised you had the keys. She asked you for them. You refused to give them to her unless she gave you a kiss. She did not want to do this. She instead sat in the driver’s seat of the car and started sounding the horn. You stood in the doorway of the car. She pushed you away. You then grabbed her around the throat with one hand and squeezed her neck. The squeeze was with sufficient force that it restricted her breathing and she felt dizzy. This behaviour encompasses the first count of assault on the indictment.
In early October 2021, the complainant left the residence where you were housesitting and returned to her family home for a period of approximately three weeks. During this time you sent her a number of abusive text messages. The messages suggested you were becoming quite possessive of her and sought to control her behaviours. During this time, the complainant tried on multiple occasions to end the relationship with you, but you were insistent that she return to the residence and continue the relationship. She did so in late October 2021. When she returned she discovered extensive damage had been caused to the unit. This led to a further argument about her wishing to end the relationship and you wishing to maintain it.
In the early hours of the morning of 23 October 2021 you became very upset about this. You began crying and begged the complainant to be nice. You asked her for a cuddle. The complainant responded by telling you that you were pathetic and she verbally abused you. You left the room for a period of time. Upon return, you presented as emotionless and told the complainant that she could not leave. You took her phone and car keys. She went to the bedroom. You followed her in and punched her to the face. She tried to push you away but you pushed her to the ground. You then held the complainant on the ground and refused to let her up. You smothered her nose and mouth with both hands so as to prevent her from screaming. You then pushed your fingers into her eyes and scratched at her eyes and her throat. You pulled the complainant from the floor and pushed her into the lounge room. You said to her “If you think I am a controlling boyfriend then I will show you what it is really like to be a controlling boyfriend”. You then proceeded to insist the complainant make you a cup of coffee. You continually changed your mind about which cup you wanted the drink made in. When the complainant did not meet your demands you struck her to the face and to the back of the head. You also made the complainant crawl around on the floor and bark like a dog so she knew what it was like to have a controlling boyfriend. Whilst she was crawling around on the floor you were laughing and attempted to record her on your mobile phone.
You also made the complainant sit on the floor and answer a series of questions about your relationship. If she did not answer in a manner that you considered to be appropriate, you punched her to the face or to the back of the head. The complainant estimates that during this time you punched her to the face, or the back of the head, at least 15 times. The complainant was made to endure this for approximately one hour. Part of this behaviour was recorded by you on your mobile phone. On that recording the complainant can be heard telling you that she was “fucking terrified”.
At one point when the complainant was on the ground you used your foot to stomp on her head and hold her down. You had in your hands a towel. You then used that towel to whip the complainant to the legs on multiple occasions. You then covered her face with the towel, before twisting it and using it as a rope to hold her on the ground by holding the towel firmly over her neck. The pressure you applied to her neck with the twisted towel was sufficient to cause her to fear that you may kill her. She was able fortunately to prise the towel from her neck by pushing her hands through a small gap.
You then forced the complainant to get into the shower. You got in with her. You were yelling at her. You held her face up against the wall of the shower and punched her head twice.
Shortly after this, the complainant was able to escape from the residence. She ran outside and saw an elderly woman coming from a nearby unit. She screamed out for help. You heard that and realised that she had left the residence and went after her. You caught up with her further down the street. Both of you fell to the ground and you ripped the complainant’s shirt from her. A neighbour who was in the area saw you holding the complainant onto the ground and attempted to intervene and calm you down. She heard the complainant yelling “help”. She saw you pull the complainant’s hair, pull at the complainant’s body and kick her. The neighbour observed the complainant to be bleeding from the temple area.
You kept insisting that the complainant return to the residence with you. She refused to do so, fearing that you would kill her. At one point you asked the neighbour to look after the complainant, but soon returned and insisted the complainant return to the residence with you. At one point you asked the neighbour whether she had rung anyone. It seems you feared she may have contacted the police. This led to you punching the complainant yet again. You then picked up a metal duck garden ornament and struck the complainant to the back of the head with it multiple times. It caused a wound and the complainant was bleeding from the back of her head and her mouth.
You then dragged the complainant by her hair and her ripped shirt back into the residence. You were yelling at the complainant that she had to return to the residence or you would “fucking kill her”. By this time the complainant was understandably petrified and fearing for her life.
Upon re-entering the residence, you began threatening the complainant with a knife. You held a knife up towards her throat. You demanded she get back into the shower. You got into the shower with her and poured hand sanitiser onto her face and told her to wash it. The sanitiser on her face caused considerable pain given her open wounds. Whilst you were in the shower with the complainant you again punched her. You punched her at least four times to her stomach and to her side. One of the punches caused the complainant to fall to the ground and she began to dry retch. She was struggling to breathe and begging for you to stop.
When the complainant got out of the shower you asked her to stab you with the knife. She refused to do so. You then turned the knife around and used the knife handle to strike her to the head and to her legs on, at least, six occasions.
Around this time police arrived and began knocking on the door of the residence. By this time, you and the complainant were in the spare room. You had the complainant sitting against a wall. Upon hearing the knocking you pushed her head into the wall and told her to be quiet and sit still so that police would not realise you were inside. You told the complainant that you were not going to go back to gaol. You used the knife handle to poke the complainant in her side. As police continued to knock on the door, you pulled the hood on the complainant’s jumper over her head and moved her so she was facing into the wall. Police were walking around the residence, knocking on the windows. You told the complainant to stay seated and to be quiet. You then said to the complainant that if police entered the residence she should tell them that the two of you were having “kinky sex”. Her fear was such that she agreed she would.
Police forced entry to the residence. When you heard this, you laid down next to the complainant on the floor, pulled your penis from your underwear and pushed the complainant’s head down towards your penis, attempting to penetrate her mouth with your penis so as to portray the image to police that you were engaged in some form of “kinky sex”. Your penis did not, in fact, penetrate her mouth but it made contact with her cheek. This behaviour amounts to the crime of attempted rape.
Police entered the bedroom where you and the complainant were lying on the ground. You were cuddling the complainant. Police observed her to be badly injured and separated the two of you. As soon as the complainant was separated from you, she told police that she believed you were going to kill her.
You told police that you had done nothing wrong. You said to police that you had been “……having sex, fucking doing some weird shit…….like rape play and stuff”. You suggested to police the complainant had wanted to engage in such behaviour. Clearly this was a feeble attempt to avoid responsibility for your appalling behaviour.
The complainant was taken to hospital. She had suffered the following injuries:
- a broken left little finger
- a three centimetre laceration to the back of her scalp, which required surgical staples
- multiple facial contusions with deep tissue trauma to her cheek bone
- a two centimetre laceration to her right eyebrow, which required surgical glue
- a laceration to her right hand, which required surgical glue
- multiple contusions to the front of her neck, and some markings suggestive of strangulation on her neck
- multiple contusions to the right side of her chest, and general rib tenderness
- a dislodged rib
- multiple contusions to her arms and legs and tenderness to her elbows, forearms, hands and fingers
- a superficial laceration to her right ring finger
- a cut inside her mouth and clumps of hair missing
As a result of these injuries, the complainant suffered headaches and jaw pain, had difficulty in walking and breathing, and also experienced general body soreness.
Mr Harvey, your behaviour towards the complainant was cruel, frightening and degrading. You caused her significant physical harm, but beyond that, you treated her with disdain. The fact that you were prepared to rape her in an attempt to avoid responsibility for your behaviour is deplorable. It speaks to the level of disrespect you displayed towards her and the level of dominance and control you were seeking to exert upon her. You exposed the complainant to a terrifying and degrading ordeal and your conduct must be condemned. You betrayed the trust that partners who share intimate relationships are entitled to expect.
You have a relevant prior criminal history. You have eight prior convictions for common assault, six in Tasmania and two in Western Australia. I am told the two in Western Australia did not involve female victims. One was dealt with by the imposition of a relatively substantial fine. In respect to the other, you received a 12 month community based order. As to your Tasmanian convictions, in February 2005 you were convicted of common assault. The victim was male. You received a three month wholly suspended period of imprisonment by way of sentencing order. In April 2017, you were again convicted of common assault. The victim was a male friend of your ex-partner. Again you were given a three month wholly suspended prison sentence. In May 2019, you were convicted of assaulting your then partner. You also were convicted of breaching the terms of a police family violence order. These convictions breached the suspended sentence previously imposed. You were made subject to a further period of suspended imprisonment. In June 2020, you were sent to prison following your conviction for a number of offences of breaching an interim family violence order and two counts of common assault. One of those counts of common assault related to your then partner. It involved you grabbing her top and pulling it around her throat. The second count related to you punching a female who was present when you assaulted your partner. In November 2021, you were convicted of assaulting your partner by punching her to the face and dragging her along the ground by her hair. It would be fair to say that your record of prior convictions in respect to violence towards females, and particularly females with whom you share an intimate relationship, is poor.
The complainant in this matter was unable to provide a Victim Impact Statement. That does not mean, of course, that your crimes did not have a devastating effect upon her. Indeed, I am satisfied that throughout the course of the ordeal she was petrified and at times honestly believed that she may die. The injuries you inflicted upon her were serious and took time to heal. I have no doubt she is likely to continue to suffer significant psychological impacts as a consequence of you behaviour for a considerable time yet.
You are now 38 years of age. You were 36 when the crimes occurred. You have a strong industrial history. Following the completion of your schooling you worked in various labouring positions. You then moved into the concreting industry before commencing work as a bicycle mechanic. I am told you pursued this career because you had been a very good cyclist in your earlier years, having the potential to pursue a professional cycling career. This was unfortunately curtailed by injury. You worked in Western Australia as a bicycle mechanic for several years before returning to Tasmania and working in that field up until 2019. You were highly regarded and sought out within that industry.
You lost your employment in 2019 because of your methyl amphetamine addiction. You had been grappling with this I am told since 2016. Your use of methyl amphetamine followed on from a pattern of binge drinking, which had commenced when it became clear your injuries would prevent you from pursuing a career as a professional cyclist. You replaced heavy alcohol consumption with methylamphetamine use. I am told your methylamphetamine use affected you badly. You became paranoid and controlling within your relationships. You were prone to anger. That is clearly demonstrated by your behaviour here. By way of explanation for the worst of your offending behaviour, I am told that you had been using methyl amphetamine for two days straight and had not slept. You were paranoid, angry and agitated when the violence occurred. That, of course, in no way mitigates your behaviour. It is also noteworthy that whilst the relationship was only short-lived in duration, you subjected the complainant to violence within a short period of time of it commencing, and then again very shortly after she returned from a period of time away from you. Your behaviour cannot be said to be an isolated occurrence.
You were remanded in custody following the commission of these crimes, but part of that time has already been attributed to sentences imposed by the Magistrates Court. It is agreed that any sentence I impose should commence on 16 May 2022. I am told that since being remanded in custody, you have reflected upon your behaviour. You now recognise just how terrible it was. I am told you are embarrassed and remorseful for your conduct. You wish to convey your remorse for your actions to the complainant but recognise it is not appropriate to do so directly. Through your counsel you have conveyed an apology to her. Since you have been in custody, you have undertaken a number of courses in an endeavour to better yourself. You have undertaken alcohol and drug counselling, a course directed at behavioural change and an anger management course. You have also undertaken courses in first aid and hospitality. I am told you have endeavoured to undertake some additional courses but they are not currently available to you whilst held on remand. You have been well behaved within the prison system and have been rewarded with appointment to trusted positions. You have worked on various maintenance crews, have held positions as a wardsman and have volunteered as a peer support worker with the Red Cross Peer Support Programme
Courts have repeatedly emphasised the seriousness of violence within intimate relationships. Such behaviour is inexcusable, it is all too common and is intolerable to the community. On two occasions you assaulted the complainant by applying pressure to her neck. This is a particularly serious form of assault. There are real risks associated with restricting a victim’s breathing. Such can quickly lead to serious injury or death, even if such consequences are entirely unintended. It is also an act which is reflective of a desire to exercise dominance and control. It is capable of causing grave psychological harm.
This was a protracted and persistent episode of violence. Members of the community witnessed some of the violence. Even knowing they had seen it, and may well call the police, you were not dissuaded from your purpose. You used weapons – both a knife and a metal garden ornament. You did not desist from your behaviour, rather it only came to an end because police arrived. It is most fortunate for the complainant that they did, but you had already caused her significant physical injury and anguish. As I have said, your behaviour towards her was cruel, controlling and demeaning. You bear a high level of both moral and criminal responsibility. You are entitled to credit for your plea of guilty. It facilitated the course of justice, but more importantly, the complainant has been spared the additional trauma of having to prepare for trial and give evidence. I accept that your pleas of guilty are reflective of remorse and also an acceptance of responsibility for your behaviour. But for your pleas of guilty the sentence I intend to impose would have been in the vicinity of 20% higher.
There is a need to punish you, condemn your actions and send a very clear message to you and others who may be minded to act within intimate relationships in a similar manner, that such behaviour will not be tolerated. Your concerning record for violence, and violence against females in particular, is also a relevant factor in sentencing. Whilst, of course, you are not to be punished for your prior conduct, the sentence imposed must act as both a personal and general deterrent. The only appropriate sentence is a substantial period of imprisonment. I will allow for parole, however, at the earliest opportunity given I accept you are making endeavours to better yourself and have demonstrated insight into the wrongfulness of your conduct.
Your plea of guilty to the crime of attempted rape attracts consideration of the Community Protection (Offender Reporting) Act. Given the circumstances in which that crime was committed I do not consider it necessary to make such an order under the Act.
You are convicted on all matters to which you have pleaded guilty. I impose one sentence. You are sentenced to imprisonment for a period of five and a half years, commencing on 16 May 2022. I order that you not be eligible for parole until you have served one half of that sentence.