STATE OF TASMANIA v BLAIR DARCY KAINE 23 MARCH 2023
COMMENTS ON PASSING SENTENCE JAGO J
Blair Darcy Kaine, you have been found guilty by a jury of five counts of assault. The jury found you not guilty in respect to a sixth count. It is my duty, consistent with the verdicts, to find the factual basis for sentencing but given the jury would have needed to be satisfied beyond reasonable doubt as to the truth and reliability of the complainant’s evidence in order to convict, the facts essentially flow from her evidence. Moreover, I found the complainant to be a truthful and reliable witness in all essential respects, and I find that the assaults occurred as particularised in the Indictment..
You were in a significant relationship with the complainant from late 2012, marrying in 2017 before finally separating in October 2020. A son was born to the relationship in 2018. On 28 September 2020, you assaulted the complainant within the family home. You assaulted her on five separate occasions over a period of approximately nearly an hour. It only ended when members of your family arrived at the unit, you having called them.
On 28 September 2020, an argument developed between you and the complainant, seemingly about some messages that she believed you had exchanged with another female. You became angry and picked up a can of Coke and threw it towards her whilst she was standing in the kitchen. It hit her in the eye. This is the first count of assault. You then approached the complainant and pushed her head hard into the wall behind her. I find her head struck the wall with sufficient force that it caused a crack in the plaster. That is the second count of assault. At this time, the complainant was upset and crying. You were screaming at her. You then grabbed hold of her by her throat and pulled her to the ground. You applied pressure to her throat with your hands. You used two hands to do this. The complainant was banging on the drawers in the kitchen trying to convince you to let her go. You applied sufficient pressure to affect her breathing. The complainant was petrified, feared that you might not stop and that she may die. This is the third crime of assault. After letting her go, you kicked the complainant to the torso area before leaving the kitchen. This behaviour amounts to the fourth crime of assault. The complainant went to the bedroom to pack a bag in order to leave. You returned to the bedroom and started throwing items around the room. At one point, you picked up a pair of shoes that were in a wardrobe and struck the complainant hard to the top of her head with the shoes. The blow was delivered with sufficient force that she fell to the ground. That is the fifth act of assault. The complainant was left dazed and felt unable to move. She was bleeding from a cut to the eye where the Coke can had struck her.
Around this time, members of your family attended the unit and you went and spoke with them. The complainant took the opportunity to leave the residence, and went and hid in some nearby bushes whilst she called, and waited for, a taxi. She went to her mother’s home. Upon arrival, the complainant was bloodied and had red marks and bruising to her face and arm. She was described by her mother as being “so scared that she could barely speak”. I am satisfied the complainant was extremely distressed and frightened by the assaults you had perpetrated upon her. I am also satisfied your assaults led to her suffering bruising, general soreness and a slight laceration. The injuries resolved without medical intervention.
Assault by choking is a most serious crime. 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 reflective of the wish to exercise dominance and control and is capable of causing grave psychological harm.
I have seen a Victim Impact Statement and it is clear that these events have had a significant impact upon the complainant. Fortunately, there does not appear to have been any serious or long term physical impacts, but the complainant describes the type of psychological impact, which is to be expected from conduct of this nature. She has had difficulty sleeping, is hypersensitive and remains scared. It was apparent from her demeanour whilst giving evidence in the trial that she found it difficult to recount the experience.
You are now 37 years of age, you were 35 when the crimes occurred. You suffer from an acquired brain injury, which occurred following an accident in your childhood. You also suffer from Attention Deficit Hyper-activity Disorder. Although I accept that generally such conditions make you more prone to impulsive behaviours, there is nothing before me to suggest that there is any direct nexus between these conditions and your criminal conduct. You have denied responsibility for the assaults throughout the trial. I had you assessed as to your suitability for a home detention order. You continued to deny responsibility to the author of that report. You have expressed no remorse and have shown no insight into the severity of your behaviours. You are not entitled to a discount on sentence that is commonly given for a plea of guilty, but equally you are not to be punished for exercising your right to trial.
You have some relevant prior convictions. In June 2016 you were convicted of three counts of common assault and ordered to undertake community service hours. In July 2020 you were convicted of two counts of common assault and fined.
It would be fair to say that the attitude displayed by you to the author of the Home Detention Assessment Report was one in which you endeavoured to attribute blame to the complainant for many of the difficulties that existed within the relationship. You seemed unwilling to accept responsibility for your own behaviour, although I note you did acknowledge that your excessive use of alcohol had been a difficulty throughout the course of the relationship. I am told that over the past 12 months or so, you have abstained from the use of alcohol. You have also sought out assistance from mental health professionals for some long term mental health difficulties that you have experienced. I note you are currently awaiting advice as to further work that you may be able to undertake in respect to your mental health difficulties. You have formed a new relationship which is described as positive and supportive. Your new partner has two children and you undertake a parenting role in respect to those children. Your new partner does not consume alcohol and this supports you in your commitment to abstaining from your use of alcohol.
You have operated your own concreting business for the past ten years. I have read a number of character references relevant to your occupation. You are well regarded. If you are incarcerated, it is likely that business will fold. There is no one else who is in a position to take over the business on your behalf. You have been assessed as suitable for home detention. It is also recommended that you participate in a Community Corrections Supervision Order, including participation in specialised programmes.
Family violence crimes are always serious. They inherently involve a breach of trust and are typically committed against vulnerable complainants. The community rightly condemns such conduct. It is cowardly and damaging and far too common within our community. It is frequently committed in the privacy of the home, as it was here, unseen and often away from assistance. In sentencing such matters, general deterrence, denunciation, punishment and protection of the victims are paramount sentencing objectives.
A significant deterrent sentence is warranted, but on this occasion I am satisfied that I can achieve that by the imposition of a Home Detention Order. The Court of Criminal Appeal has commented that a Home Detention Order has both punitive and rehabilitative aspects. It involves a substantial burden and a material deprivation of liberty.
I make the following orders. The defendant is convicted of all matters upon which he has been found guilty. I impose a Home Detention Order for an operational period of 12 months from today. The order will include the following conditions, which will apply for the whole of the operational period:
- You must not commit an offence punishable by imprisonment.
- You must reside at [address redacted].
- You must be there at all times, except when you are not there for a “relevant reason” as specified in s 42AB ss 4 of the Sentencing Act 1997, this includes going somewhere, including going to your employment, with your probation officer’s permission.
- You must permit a probation officer, a police officer, or other prescribed officer to enter those premises.
- You must permit a police officer to conduct a search of the premises, conduct a frisk search of you and take a sample of any substance found on the premises or on your person.
- You must submit to electronic monitoring, including the wearing or carrying of an electronic monitoring device.
- You must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- You must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring device, including directions relating to the installation, attachment or operation of the device, or system used for the purpose of electronic monitoring, if those directions are given to you by a police officer, a probation officer, another prescribed officer or any other person whose functions involve the installation or operation of a device or system used for the purpose of electronic monitoring.
- You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through that device at all times.
- You must not take any illicit or prohibited substances.
- You must not take any medication containing an opiate, benzodiazepine, buprenorphine, hydrochloride or pseudoephedrine unless you provide written evidence from your medical practitioner that you have been prescribed that medication.
- You must not during the operational period of the order consume alcohol and you must, if directed to do so by a police officer, or community corrections officer, submit to a breath test, urine test or other test for the presence of alcohol.
- You must submit to the supervision of a Community Corrections Officer as and when required by that Officer.
Additionally I impose a Community Correction Order for a period of 12 months from today. The core conditions of that order will be specified in a written document that will be provided to you, but additionally I impose the following special conditions:
- You must, during the period, submit to the supervision of a probation officer as required by the probation officer;
- You must, if directed by a probation officer to do so, attend, participate in and complete the EQUIPS Domestic Abuse Programme; and
- You must, if directed by a probation officer to do so, attend, participate in and complete the EQUIPS Aggression Programme.
Mr Kaine I warn you that if you breach any of the conditions of the Home Detention Order, or the Community Correction Order, you may be brought back to this Court and re-sentenced. I direct that you attend at the office of Community Corrections, Reece House, Burnie for induction into this order by 10am tomorrow, the 24th March 2023.
Pursuant to s 13A of the Family Violence Act 2004 I direct that all crimes be recorded on the defendant’s criminal record as family violence offences. I make a Family Violence Order in the terms of paragraph 1 through to paragraph 10 of the Family Violence Order dated 8 March 2022. That Family Violence Order will operate for a period of two years from today.