STATE OF TASMANIA v NOEL WILLIAM HINDS 15 AUGUST 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Hinds, you have pleaded guilty to one count of stalking and one count of aggravated burglary. You have also pleaded guilty to six counts of breaching a family violence order. The latter are summary charges, but I am dealing with them pursuant to s 385A of the Criminal Code.
These crimes and offences arise from your reaction to the breakdown of your relationship with the complainant. That relationship had been over a period of approximately 15 years. You have three children of the relationship, currently aged 11, 10 and 7. You and the complainant separated in July 2017. Since August 2018, a number of family violence orders have been served upon you. The first order was served on 19 August 2018, after an assault on your part which took place on that day. This order prohibited you from, among other things, stalking or contacting your former partner. An order in the same terms was served on you on 18 February 2019. On 27 March 2019, you were convicted of the assault and numerous breaches of the original order, which had occurred between August and January. The breaches related to your ongoing attempts to contact the complainant in defiance of the orders.
The charges with which I am concerned relate to the period between 10 January and 4 April 2019. The stalking charge relates to the whole course of conduct during that time which includes ongoing messages and telephone calls to the complainant’s mobile phone, and the specific events of 3 and 4 April. During the whole of that period, attempted telephone contact averaged 10 times per day but increased in volume to 30 messages per day by April. In the eight days between 27 March and 4 April, you called the complainant’s mobile telephone approximately 300 times, 137 of those calls taking place on 3 April. Needless to say, your constant contact caused the complainant to suffer fear and anxiety. The content of the messages was not threatening but by making constant reference to wanting to get back together with the complainant you were engaging in emotional and mental abuse.
On 3 April, as well as sending 137 such messages, you sent a video recorded message of yourself placing notes on the building of the complainant’s workplace, while she was there. On 4 April 2019, you and an accomplice broke into the complainant’s house while she was not present. You then sent her a photo message showing you inside her bedroom, together with text messages suggesting that your intention was to wait for her return and that you would expect to sleep in the bedroom that night. All of this conduct was in breach of the family violence order. Not only did the order prohibit stalking and contact, but it also prohibited you entering the home.
I regard this conduct as very concerning. In particular, I regard your conduct in breaking into the complainant’s home with an accomplice and then sending the photo and messages as an attempt by you to assert dominance over her and instil fear and apprehension. On one interpretation, it could be seen as a demonstration by you that your partner was not safe in her home despite the existence of the relevant orders. Whether this was your actual intention or not, that was the effect of your conduct, and such conduct was quite frankly reprehensible.
You are 34 years of age. Apart from the convictions recorded on 29 March, your only other criminal history consists of three counts of drink-driving. Your counsel asserts that until shortly before your separation, you were an industrious and loving family man. Approximately two years ago, you suffered an injury in your employment in an abattoir. This injury started a series of events which led to your introduction and eventually addiction to methyl amphetamine. Not surprisingly, your involvement with that drug changed your behaviour and adversely affected your relationship. Despite giving you a number of chances to resolve the addiction, your partner eventually terminated the relationship. Your reaction to the termination of the relationship has manifested in your commission of these offences.
You have been remanded in custody since your arrest on 4 April and have never applied for bail. I am told by your counsel that your time in custody has been a significant wake-up call for you and, perhaps more importantly, the enforced abstinence from drugs has given you a chance to overcome your addiction. You are well aware of the beneficial effect of your time in custody. With the benefit of hindsight, you claim to be remorseful and I will accept that your reluctance to apply for bail and your early plea of guilty provide some evidence of remorse.
In a case such as this, general deterrence is obviously an important sentencing consideration. However, the history of your offending also raises the relevance of personal deterrence. A cogent consideration in this regard is that your behaviour escalated after the sentence was imposed on you on 29 March for similar breaches of the family violence order. It is a particularly aggravating factor that you committed the offences on 3 and 4 April, so soon after receiving this sentence.
On the other hand, your counsel tells me that your insight into your conduct is such that you appreciate that you have, for the time being at least, renounced any real prospect of having ongoing contact with your children. You have the support of extended family, and your plan upon release from prison is to live with members of your family interstate and, with their support, pursue your rehabilitation. If this is truly what you intend and you follow through on the plan, then it will remove any threat to the complainant arising from your release, and will undoubtedly have a very beneficial effect on your own life. However, personal deterrence still has some importance because your departure from the State cannot be mandated. Further, it seems to me that you will need to discharge your obligations pursuant to the community corrections order made by the Magistrates Court before you can leave Tasmania.
When I have regard to all relevant considerations, it is clear that a sentence of imprisonment is appropriate in this case. In my view, a period of actual custody is required as a response to the seriousness of your conduct and to act as a deterrent to you and others who may seek to conduct themselves in such a way. However, I am prepared to suspend part of the sentence to give you an opportunity to pursue the path of rehabilitation which has been laid out by your counsel. The existence of the suspended part of the sentence for a significant period of time will also act as a deterrent to you in relation to the repetition of such conduct. I had considered whether I should make the suspension conditional upon supervision, but this will complicate your plan to leave the State and, further, I think that the order already made by the Magistrates Court will adequately fulfil that function, so far as it is required.
Accordingly, the orders I make are as follows:
1 You are convicted of the crimes and the offences to which you have pleaded guilty.
2 You are sentenced to a global term of 15 months’ imprisonment, which will be backdated to 4 April 2019. The last 9 months of the sentence will be suspended for a period of 3 years from today on condition that you are not to commit another offence punishable by imprisonment during that period. You are not eligible for parole in respect of the custodial part of the sentence, which is a period of 6 months.
3 I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. This is because the crime of stalking is a reportable offence. Having regard to the circumstances of this case, I cannot be satisfied that you do not pose such a risk and, accordingly, must make the order. The maximum reporting period is 15 years. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of five years from the date of your actual release from prison.
4 Pursuant to s 13A of the Family Violence Act, I direct that each crime and offence be recorded on your criminal record as a family violence offence.
5 Pursuant to my power to make a family violence order, I extend the term of the existing order, an order that was made by the Magistrates Court on 18 February 2019 for a period of 12 months commencing from the date of your actual release from prison.