STATE OF TASMANIA v HARLEY DENNIS LEWIS                                 25 MAY 2023

COMMENTS ON PASSING SENTENCE                                                        PORTER AJ

Mr Lewis, the defendant, has pleaded guilty to one count of assault.  I am also dealing with his plea of guilty to a summary charge of destroy property.  The charges arose out of an incident on 31 October 2022.  The complainant is his then partner, who I will call SA.  At the time of the incident, they had been in a significant relationship for about 18 months.  As to the incident, at about 5.45 pm the two were sitting outside their home drinking alcohol.   An argument developed over the complainant having no tobacco to roll a cigarette.  The argument developed to the point where the defendant grabbed the complainant by the hair and dragged her a short distance across the veranda. As the complainant crouched in a corner of the veranda the defendant repeatedly struck her to the head, face and chest area with closed fists, and also kicked her several times.  These events were witnessed by two members of the public.  Their assessment is that the defendant made striking motions towards the complainant at least 20 times.  During a brief moment of abstinence from the attack, the complainant’s phone fell from her pocket.  The defendant smashed it and it was completely destroyed.  Of note, is that the events were witnessed by SA’s two young daughters, who were then aged 8 and 4.  The incident concluded when the defendant dragged the complainant inside by her hair, at which point the complainant’s mother intervened and the defendant left.  At that point the complainant lost consciousness for a time.  Police arrived shortly after.  After leaving the house the defendant sent the complainant a number of text messages.  Among the statements made were that he had called the police himself, he acknowledged that he was in the wrong and was going to go where he belonged; in prison.  He apologised and said that he did not want forgiveness; he was in pain and regretting anything the girls had experienced.  When police arrived they found the complainant with significant injuries to her face, with her left eye swollen and bleeding.  An ambulance was called and she was taken to hospital.

At about 8.45 pm the defendant was located and arrested.  Over two interviews, he said he had consumed over a litre of wine and, in an argument over cigarettes, he had lost temper.  He had called the police to pick him up as he knew he had done the wrong thing.  At a later interview, he admitted punching the complainant “two or three times” with his fist, and with a scale of force at five to six on a scale of one to ten.  The State does not accept the statement that he only punched the complainant two to three times and there is now no dispute about that.

On examination at the hospital, the complainant was found to have a laceration under her left eye of approximately three centimetres in length, bruising around the left eye socket radiating to the right eye, swelling to the eyes and nose, swelling to several locations on her head, and a fracture to the distal phalanx in the right middle finger.  She has not suffered any permanent injuries. I have a victim impact statement dated 15 March 2023. In that statement, SA reveals that she had previously been in a violent domestic relationship for a long period of time, and that the defendant stood by her during some of the worst parts of her marriage separation.  He helped her with her substance abuse issues, which have now resolved.  She complains of memory difficulties after the assault.  She said she would not feel safe to live with the defendant again; she knows the patterns and said that she does not want to be part of it.  She expresses her love for him but does not feel safe living together with him, unless and until there is some intensive support and outside intervention.  Overall, she wants to continue a life with him and is committed to reconciling and healing when they can, noting her wish for him to undertake rehabilitation programmes.

The defendant is now 30 years old.  He spent an unhappy childhood in Western Australia and moved to Tasmania last year.  He has a history of relevant offending in Western Australia.  He has convictions for carrying an article intent to cause fear of injury or disablement, for assault with intent to cause grievous bodily harm in 2016, and for assaulting a public officer in 2019, for each of which matters he received actual terms of imprisonment, the last being six months.  As to his childhood, I was told that both of his parents were alcoholics and he witnessed family violence from an early age.  In the absence of stability and support he left home at about 13, after completing Grade 7.  He was introduced to methylamphetamine and was a heavy user for about ten years.  After release from his most recent term of imprisonment, he successfully underwent drug rehabilitation and was working full time.  He volunteered to speak in schools to assist in understanding the dangers of drug use.

After coming to Tasmania he was working as a labourer and had full time employment at a sawmill .However, his substance abuse resurfaced in the form of alcohol and, of course, he was heavily intoxicated on the night of the incident.  He has been in custody since the day of the incident.  During that time he has successfully completed the “Strong not Tough Programme”, a programme in resilience run within the prison designed to develop skills in recognising and regulating emotions, taking the perspective of and emphasising with others, and developing strategies for constructive and respectful choices about personal behaviour.  A letter from the programme facilitator shows that the defendant participated in the group to a high standard and made valuable contributions to group discussions. I am told he is remorseful.  That might be indicated by the content of the text messages shortly after the incident.  Counsel did not suggest that the matter would not have come to the police had he not contacted them, but I accept the fact that he did so is significant in that context. Staying with remorse, the plea was not an early one, but there was an early indication that the matter could be resolved subject to a dispute about the facts.  That issue was resolved without the need for a hearing, leading to the plea. It is also put that he saved police time and co-operated with them. Lastly, I was informed that he has expressed a broad apology, which includes the complainant and the police involved. I take those matters into account. I take into account the victim impact statement but to the extent that it expresses any forgiveness that is a matter of no great consequence.

Mr Lewis, all unlawful violence is unacceptable but violence within relationships is a particular matter of great community concern. It is often difficult to detect, frequently involves vulnerable victims and is an insidious problem. It involves, as your conduct did, a breach of trust within the relationship. That aspect seems to be particularly acute in this case because you are said to have assisted your partner in recovering from a previous abusive relationship. You reacted very violently to a trivial issue. Your partner was injured and had to be treated at the hospital. I regard it as a factor that aggravates the level of seriousness of your conduct that the two children were present. SA’s mother was also present and had to intervene. You have a history of violence and of not responding to court sanctions in the form of imprisonment. All of this makes both the need to deter you and others from this type of offending very important factors. On the other hand I note your efforts at rehabilitation and self-improvement and you are entitled to some credit for your immediately expressed remorse and voluntary surrender to police.

You are convicted of both matters and sentenced to 15 months’ imprisonment to commence on 31 October 2022. In light of your capacity to successfully undergo rehabilitation, parole eligibility is appropriate and I order that you not be eligible for parole until you have served 9 months. I direct that the offences be recorded as a family violence offences.