STATE OF TASMANIA v SHAYNE WILLIAM JONES 26 MAY 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Jones, you have pleaded guilty to three counts of assault.
The assaults were committed as acts of family violence against your partner. The first occurred on 12 August 2018. You threw a DVD player at the complainant, which hit her on the head. This caused injury which required surgery. It is common ground that you threw the DVD player in anger. However, your counsel asserts that you did not actually intend to hit the complainant, but were subjectively reckless about this consequence. This is not disputed by the prosecution. You will, accordingly, be sentenced on this factual basis.
The second assault occurred on 1 October 2018. You were angry with the complainant and accused her of infidelity. You deliberately applied a lit cigarette to her right shoulder and dragged it across her skin. As you did this, you said “This is what you get for cheating on me”. When she asked you what you were doing, you said “You know you’ve been cheating on me, you dirty lying slut”. The assault resulted in a burn, with immediate blistering. The injury is clearly visible on a photograph provided to me.
The complainant took refuge in her son’s bedroom. It seems that she slept in there that night. You went into the bedroom and woke her at 5:30 am the following morning. You again accused her of cheating on you, and then punched her to the right side of the face. The punch caused her to feel dizzy and resulted in a large bruise around her eye and cheek. The injury can also be seen in the photographs. As I have already indicated to counsel, I will proceed on the basis that the child was not present in the house when you committed this crime.
The complainant has chosen not to make a victim impact statement. I am told that she wishes to resume a relationship with you when you are released from prison. I have not been told anything about the impact or any risk to her child or children, and accordingly, that is a neutral factor in relation to sentencing.
You are 35 years of age and were 32 at the time of this offending. You have a significant and concerning history of violent offending, which includes the perpetration of serious acts of family violence. At the time that you committed these crimes, you were on parole in respect of a sentence which I imposed on you on 15 December 2017 for a number of family violence offences. You were sentenced on that occasion for acts of violence perpetrated by you against your then partner, not the complainant in this case, which included punching that person to the face on two separate occasions. The assaults took place in front of that person’s children and were committed in the context of your accusations of infidelity against her. In my comments on passing that sentence, I summarised your background and criminal history to that point as follows:
“You are 32 years of age. You have a lengthy and significant record of criminal offending which commenced when you were 14 years of age. This is consistent with the history outlined by your counsel, which included your parents separating when you were 13. It is put to me that you suffered abuse during your interaction with the justice system during your teenage years. A matter of concern in your criminal history includes a number of matters involving violence. As a youth, you were dealt with on several occasions for charges involving assault. You have also been convicted of such offences on several occasions as an adult. In 2010, you were convicted and sentenced to imprisonment in respect of two separate acts of violence, the first committed in 2008 and the second in 2010. The 2008 matter involved the infliction of grievous bodily harm. It is clear from the sentencing comments in respect of both matters that your attacks involved significant and protracted violence. I reiterate that in 2016, you were convicted and sentenced for an assault [the complainant].”
The latter assault had been committed in May 2015. I accepted in my comments that you had used your time in custody to that point well, had completed programs dealing with family violence, and that you were genuinely committed to rehabilitation. I imposed a sentence of two years and six months’ imprisonment but provided for a non-parole period of one half of that term. The provision for early release on parole was intended to encourage your rehabilitation. You were released on parole in respect of that sentence on 23 April 2018. You committed the first of the crimes with which I am dealing today less four months later.
Your moral culpability in respect of this offending is aggravated by the fact that it occurred while you were on parole in respect of a sentence imposed for similar offending. Further, your violent history, and its continuation manifested by these crimes, leads me to conclude that the sentence I impose must address personal deterrence. Your propensity to act violently towards others also requires that consideration be given to the protection of the community, in particular women with whom you may enter into a relationship. This consideration is a factor relevant to the assessment of sentence, and closely related to personal deterrence.
Your counsel submits that you did benefit from the courses you performed in prison before your release on parole. He asserts that the last two assaults, in particular, occurred within the context of a continuous argument, in which both the complainant and you participated equally. He says that you were able to restrain yourself from violent conduct for the majority of the duration of this argument, apart from the two occasions on which you committed the relevant crimes. I assume that these submissions are in support of a proposition that the need for personal deterrence is less then might otherwise appear to be the case, because you were able to exercise some degree of self-control.
I do not accept that your moral culpability or the need to emphasise personal deterrence in the sentence is reduced by these arguments. The infliction of any violence against a partner during the course of an argument is abhorrent to the expectations of society and rightly considered by the community to represent a grave social problem. You are not being punished for arguing, you are being punished for using violence during the course of an argument. Argument, and even the expression of restrained anger, are expected and understandable features of an intimate relationship. Persons in such a relationship are entitled to trust their partner that they will be able to argue safely, and will not be subjected to violence when doing so. The commission by you of these crimes represented a grave breach of that trust.
Further, and in any event, I regard the violence inflicted by you as brutal and cruel. The use of the cigarette involved the deliberate and callous infliction of pain, it seems as a punishment for what you regarded as the complainant’s infidelity. The punch to the face was degrading, brutal and dangerous. The danger arose from the fact that it involved a forceful blow delivered to the head.
I will take into account in your favour the fact that you have pleaded guilty to these crimes. The prosecution has submitted that your pleas were not entered at an early time. With respect to the utilitarian value of the plea, although the avoidance of the trial will mean that the complainant will not have to give evidence, she was required to give evidence at the preliminary proceedings. I am told that you indicated that you would enter a plea of guilty to counts 2 and 3 at an early time, but delay arose from issues relating to the factual basis of count 1. I accept that there was an issue to be resolved in respect of that count, given the prosecution’s acceptance of the mitigatory fact that you did not intend that the thrown item would actually strike the complainant. I think that reasonable allowance should be made for the utilitarian benefit of your plea of guilty. The pleas may also be some evidence of remorse, but the weight to be placed on that consideration is limited, given the demonstrated need for emphasis on personal deterrence.
I will also have regard to the principles of totality. While there is a need to avoid a crushing sentence, it is necessary that the sentence is properly proportionate to the criminal conduct. It is appropriate that you serve your punishment for these crimes separately to the punishment imposed for any other crime.
Shayne Jones, you are convicted of the crimes to which you have pleaded guilty. I impose a global sentence of two years and nine months’ imprisonment. I will provide for your early release on parole, but having regard to the fact that you committed these crimes while on parole for similar offending, and taking into account the circumstances of the crimes and your history of violent offending, I think that the minimum term you should serve in prison is a period of 21 months. Accordingly, I order that you not be eligible for parole until you have served 21 months of the sentence. I am told that you finished serving the sentence imposed by me on 24 October 2019, and have been held on remand since then. I will, accordingly, backdate the sentence I have imposed to 25 October 2019. This backdating does not technically amount to an order that the sentence be served cumulatively upon the previous sentence. I cannot make such an order in any event because you have completed that sentence. Accordingly, the non-parole period relevant to this sentence will commence from 25 October 2019.
I have power to make a family violence order. However, both counsel have requested that I not do so. There is an interim order in place made by a magistrate, and its future will be considered by that court. I am satisfied that this adequately deals with the question of protection of the complainant and her children and, accordingly, I decline to make such an order.
Finally, pursuant to s 13A of the Family Violence Act, I direct that each crime be recorded on your criminal record as a family violence offence.