STATE OF TASMANIA v RAYMOND MICHAEL HORTON ESTCOURT J
COMMENTS ON PASSING SENTENCE 26 JUNE 2020
The defendant, Raymond Horton has pleaded guilty to assault contrary to s 184 of the Criminal Code.
He and the complainant, Theresa Ann Hillier, aged 35, were in a relationship for approximately 6 years. They have two children together, aged five and three.
As at 5 November 2019, the complainant was 15 weeks pregnant. At that time, the two previous children of the relationship had been removed to the care of Child Safety Services. An older child of the defendant, born to a previous relationship, resided part-time with the couple but was not at the house on 5 November.
On that day the complainant and the defendant were at home together. They had been drinking alcohol throughout the day. At approximately 4pm, an argument commenced when the defendant asked the complainant for money to buy more alcohol, and the complainant refused. The complainant then asked the defendant for a cigarette, and the defendant refused. When that occurred, the complainant decided to ask for a cigarette from her neighbours (Ms Bradley and Mr Mulvaney) and left the house via the front door.
As the complainant left, the defendant closed and locked the door behind her. In response, the complainant pulled a fuse out from the meter box and continued across the road to the neighbours. Ms Bradley answered the door to the complainant, who was crying and the defendant came out of their house, yelling at the complainant “where’s the fuse?”
The defendant approached the complainant, who was standing at the top of three tiled steps leading to the front door, and grabbed her to the wrist, pulling her towards him and downwards with some force. As a result, the complainant fell down the set of stairs, falling onto her left shoulder and hip. She felt immediate pain and began crying and became distressed.
A tussle broke out between the defendant and Mr Mulvaney, during which Mr Mulvaney pushed the defendant toward the front door, causing some damage to it. The complainant, returned the fuse to the defendant to attempt to stop the fighting, and the defendant left. After a further altercation between Mr Mulvaney and the defendant, Mr Mulvaney contacted the police.
The complainant was taken to the Royal Hobart Hospital by ambulance. There, she was found to have a broken clavicle – the shoulder. The broken clavicle was not surgically treated.
I have seen a victim impact statement prepared by the complainant. She says that it has been hard for her to live as a single mum with a new baby after this incident. Financially it has been hard because the defendant was helping her with bills to be paid.
She was advised not to have an operation on her shoulder because she was pregnant. The area of bone from her broken shoulder is still sticking out and it hurts her to lay on her side. The event has mentally hurt her more than anything she states. She feels insecure at home now, because the defendant was her protector. She wants them to be together as a family again but she does not know when that will happen. She states that she knows that the defendant would be “beating himself up a lot over this”.
The defendant has been in custody since 5 November 2019.
He has a history of some violence. His first convictions for violence were on 11 December 2002 – when he was 23 years of age. He received a suspended sentence. He was charged with a number of offences – including several alcohol related offences and assaults.
Some four years later in 2006 – he was convicted of assault and he received a suspended sentence, community service order and probation. I note that was 14 years ago. Thirteen years ago in 2007, he was again convicted of assault, but was dealt with by way of a conviction recorded and a fine.
On 5 December 2008, the defendant was sentenced to a drug treatment order with a 6 month custodial component. He remained on the DTO until 28 July 2010. Although due to graduate, due to further offending, he did not complete the order and was resentenced on 28 July 2010.
On 25 June 2010 he was sentenced to 7 months’ imprisonment for robbery, that was 10 years ago. On 28 July 2010, he was again convicted of assault and sentenced to 14 days’ imprisonment.
None of the above convictions with a relatively minor exception, were of a family violence nature. However, the defendant does have family violence convictions. On 21 May 2013 he was convicted of 8 breaches of an interim family violence order, involving a former partner, not the complainant, and involving phone contact over a two day period. He was sentenced to one month imprisonment wholly suspended. I note that was 7 years ago.
On 7 May 2015, the defendant was sentenced in relation to a common assault and stealing charges. This was not a family violence offence and occurred on a Metro bus. The matters were dealt with at contest mention and 12 months’ imprisonment was imposed. This conviction gave rise to a breach of suspended sentence on the family violence matters – the one month was activated to be served concurrently. That was 5 years ago.
He has a subsequent conviction for breaching a family violence order by being with the complainant, albeit with her consent.
The defendant grew up in Hobart, attending Cosgrove High and completing grade 10. His parents separated when he was two years of age. Following which, he was raised by his mother. His mother was relatively young when she separated from his father and she struggled as a single mother. His mother suffered major depression and consequently, the defendant often stayed with his uncles who were heavy drinkers – alcohol was the norm. He was exposed to family violence which was sometimes directed towards him.
He started drinking alcohol at age 11 years of age, and has been a regular cannabis user throughout his life. He acknowledges alcohol abuse has affected his memory as well as a bicycle accident in 2011, in which he sustained right shoulder, head and leg injuries and was hospitalised.
The defendant has undertaken programs to address his alcohol dependency. He has attended the Bridge Program on several occasions including the residential program approximately 8 years ago.
The defendant has had periods of employment since leaving school. He did obtain his TCE and has worked in various positions including at a recycling depot, on fishing boats, and in the hospitality industry and the salmon farming industry. He held some of those positions for a number of years. He started experiencing memory loss and felt unable to maintain ongoing employment. He was assessed as eligible for a disability support pension some three years ago.
I take the defendant’s plea of guilty into account. He is entitled to a genuine discount on an otherwise appropriate sentence of imprisonment for taking that course.
I accept the submission made by Ms Wiltshire that the defendant should not be sentenced on the basis that he had a desire to cause injury to the complainant, but on the basis of subjective recklessness.
The State makes application pursuant to s 27(4)(a) of the Sentencing Act 1997 to breach the suspended sentence imposed on 11 October 2018. A sentence of 7 days for summary offences of breach of bail and fail to appear. In my view the offending was minor and of an entirely different nature, and it would be unjust to activate that sentence.
The defendant is convicted of assault. I take into account the relevant provisions of the Family Violence Act 2004 and I record this offence as a family violence offence.
The defendant is sentenced to 18 months’ imprisonment with the last six months of that sentence suspended on condition that the defendant commit no offence punishable by imprisonment for a period of two years. The defendant is not to be eligible for parole until he has served eight months of the operative 12 months component of that sentence, which by my calculation is in some 9 days’ time. The sentence is backdated to 5 November 2019.
In addition, I make a community correction order. The defendant should report to Community Corrections at Highfield House on the day of his release from prison. In addition to the core conditions of that order, it is a condition that the defendant must, during the operational period of two years from his release from prison, submit to the supervision of a probation officer as required by the probation officer and the defendant must during the operational period of the order, undergo assessment and treatment for drug and alcohol dependency as directed by a probation officer.