STATE OF TASMANIA v KYE SCOTT JAMES 13 AUGUST 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant appears for sentence, having pleaded guilty in the Magistrates Court to one count of assault under the Criminal Code. I am also dealing with his pleas of guilty to three charges of common assault under the Police Offences Act. The offences were committed during the evening of 21 October 2018. The complainant is Gemma Double, a female with whom the defendant was in a relationship until August 2018. They had been together for about a year, and there is one son of the relationship, aged five months at the time of the offending. At about 5pm on 21 October, the complainant went to the defendant’s house with their son. The intention was to allow the child to spend the night with him. Later in the evening, the defendant and the complainant started to argue. Having told her to fuck off several times, when she actually started to pack up in order to leave, he grabbed her to prevent this happening. He grabbed her by the throat with his right hand, threw her backwards over a shelf or table and onto the floor. This is the first charge of common assault. The child was on a nearby couch at the time. Later, the complainant was holding the child when the defendant angrily grabbed her to the throat and moved his hand upwards, in an apparent attempt to lift her from the ground. The complainant struggled for breath, at which point the defendant let go of her. That is the second common assault. Things seemed to settle down for a time, and the complainant went upstairs into a bedroom with the child. However, when sitting on the bed with her back to the doorway, the defendant came in and hit her to the back of the neck. This knocked her to the floor and she felt an instant headache. That is the third common assault. Lastly, as to the Code assault, at about 10pm, the two were downstairs and arguing. The defendant again told the complainant to fuck off, and that if she did not leave he would do something he would regret. She refused to leave, and the defendant punched her a total of four times to the head. At the time of the last blow, she was protecting herself and the blow broke the middle finger on her left hand. She became upset and the defendant apologised. The complainant stayed the night, left the following morning and went to work, but later that day went to the hospital. Her finger was x-rayed and found to be broken and she had bruising to her index and ring fingers on the same hand. The broken finger was splinted. She suffered pain for a week or two afterwards and experienced difficulty using her finger once the splint was removed. On 31 October the defendant was arrested and interviewed, essentially admitting his conduct. There is no victim impact statement.
The defendant is 21 years old. He received some informal cautions as youth but in 2015, also as a youth, was dealt with for common assault committed. No conviction was recorded, and he was made the subject of an order releasing him and adjourning proceedings for nine months on condition he be of good behaviour. That was not a family violence matter. There is no other recorded history of offending. At the time of this incident the defendant was employed with TasNetworks but was put off about two weeks before Christmas due to a downturn in work. It is possible he may be put back on but is looking for alternative employment. He lives on his own. He looks after the child from time to time for a few hours at a time. There is a police family violence order in place which regulates his conduct towards the complainant and his proximity to her home. He can meet to speak with her with a third party present. His father lives not too far away, but his mother lives in Queensland, the couple having separated before the defendant was born. These are serious matters involving domestic violence. General deterrence and denunciation are important factors, but there are things which operate in his favour. His first appearance in the Magistrates Court on this matter was on 21 December 2018. He appeared unrepresented and pleaded guilty to all charges. He was committed to this Court and appeared on 15 January 2019, again unrepresented, at which time he said that he wanted to have the matter dealt with, that he realised that he should not have done what he did, that he should not take his anger out on other people, and that was not going to do it again. However, his willingness to facilitate the administration of justice seemed to fall away after that. I need to explain the course of events. I adjourned sentencing in order to ascertain whether the defendant was suitable for community service. Although he made initial contact with Community Corrections, they had considerable difficulty in maintaining contact with him, and he failed to attend for the initial interview and three subsequent rescheduled interviews. Further, he failed to appear on 26 February 2019, the date to which the matter had been adjourned. On that day I issued a warrant for his arrest. He was arrested on 6 July 2019, and appeared on 9 July when I remanded him in custody until 12 July when he appeared with counsel. While accepting that these things may not amount to an adequate excuse, his counsel told me the defendant did not understand that he was required to re-appear, thinking that Community Corrections arranged things. Additionally, during the period a probation officer was trying to make contact, he lost his accommodation and was transient, his phone was broken, and there seems to have been some disruption to things generally due to the death of a friend’s mother, and bushfires in the area. All in all, I am satisfied that the defendant was not intentionally seeking to avoid being dealt with by this Court. In the time between his arrest and 12 July, Community Corrections were able to make an assessment, for which I am grateful. That report stated a suitability for community service, subject to a medical clearance, needed because the defendant suffers from Crohn’s disease. That clearance could not quickly be given because the defendant’s usual practitioner retired, and an appointment was required. On 12 July, to enable that clearance to be obtained, the defendant was bailed to appear today. He has now been cleared for community service. I note that his accommodation is again stable, and he is readily contactable.
Mr James, as I have mentioned, your conduct must be seen in a most serious light. Domestic violence is a matter of great community concern. It is often difficult to detect and is generally an insidious problem within the community. You breached the trust involved in the arrangement you had with the complainant about child contact. The child was present during at least one of your assaults. Choking is a particularly evil form of domestic violence. Additionally, you later injured the complainant; fortunately not too seriously. No doubt, she suffered some emotional trauma. At the same time, I take into account your age – you are still a relatively young man – and your lack of prior convictions. I also take into account your insight into your wrongdoing, and your apparent remorse which I am satisfied remains in spite of your conduct after your first appearance in this Court. I note you spent six days in prison and have some understanding of what that means. That was your first time in prison, of course. A term of imprisonment is necessary but you will not have to immediately serve any further time. You are convicted and sentenced to 12 months’ imprisonment to commence on 7 August 2019, the execution of the balance from today is suspended on condition that you commit no offence punishable by imprisonment for a period of two years, and a further condition that you perform 140 hours of community service with a period of 18 months. You will have to report to a probation officer at 114 Bathurst St by 5pm on 15 August 2019.