STATE OF TASMANIA v MARCK BARTHOLOMEW LEWIS 15 DECEMBER 2022
COMMENTS ON PASSING SENTENCE BRETT J
Mr Lewis, you have pleaded guilty to one count of assault.
The crime was committed on 1 August 2022. Before I deal with the circumstances of the offending, I think it appropriate to say something about your background. This is necessary to put the offending into its proper context. You are 34 years of age. The material provided to me suggests that you have had a serious problem since childhood with the use of illicit drugs. This problem commenced when you were nine years of age and has continued effectively unabated until at least the time you went into custody. Your history of drug use is consistent with your lengthy criminal record which commences from when you were 15 years of age. That also seems to have continued with very little interruption during the balance of your youth and throughout your adult life. Much of the offending relates to crimes committed to obtain money to buy drugs. These include serious crimes which also have elements of violence such as armed robbery, aggravated armed robbery and aggravated robbery. You also have a number of convictions for assault.
You have been sentenced to imprisonment on many occasions, and have spent long periods of time in prison. However, the courts have from time to time responded to your attempts to rehabilitate yourself, including by making a drug treatment order on two separate occasions. The most recent of those was made on 4 April 2022. It included a custodial period of nine months, and at least as at the time of the submissions were made was is still in force. I am told by your counsel that you were doing well under that order, although you did accumulate some sanction days which you served in prison between 18 and 29 July of this year.
The complainant in this matter is your long-term partner. You and she have been in a relationship for a number of years. You have two children together who are in care on a long-term basis. Your relationship is been described to me as a mixture of mutual support and significant volatility. There have been some family violence offences committed by you, but, considered on a relative basis, you do not have a history of serious family violence. Unfortunately however, substance abuse problems are common to both of you and this has been, and continues to be, a difficult aspect of your relationship.
When you came out of prison on 29 July, you were living with your foster father, with whom you have a close relationship and who is supportive of you. Your partner was not living with you, but on the day that this crime was committed, she was at the house. I have been provided with a report from the complainant’s treating psychiatrist. As she was in court when this was provided to me by your counsel, I will assume that this occurred with her consent. According to the report, the complainant has had “a long history of treatment for a severe psychiatric condition the main features which are emotional dysregulation and panic anxiety”. The treatment has primarily consisted of medication. However, a couple of weeks before the commission of this crime, the complainant discovered that she was pregnant. Her GP modified her medication in order to respond to the pregnancy, but clearly not in a way that would have been advised by the psychiatrist. The result was a “dramatic increase in mood instability with the emergence of extreme levels of irritable mood and anxiety”. According to the facts alleged by the prosecution, on the day of the crime, the complainant became extremely aggressive and verbally abusive to you, and then, while in the grip of emotional dysregulation, caused significant damage to the residence by breaking a number of windows. You attempted to restrain her by holding her and placing her on a couch. However, this was unsuccessful and she threw a metal ladder at you. You responded by grabbing a wooden broom handle and hitting her to the back of the head with it. The blow caused a large hematoma and cut on the back of her head, approximately 7 cm in length.
You have been in custody in respect of this matter since 1 August 2022. You were originally charged with the crime of wounding, but the charge was changed to assault because of the concession by the prosecution that you did not foresee the likelihood of causing a wound. I accept that that you entered a plea of guilty as soon as this change was made.
This was clearly a very serious act of family violence. You hit your partner over the back of the head with a wooden stick, hard enough to break the skin and cause significant injury. Obviously, such force to the head could have had far worse consequences. Family violence of any nature is unacceptable, and particularly so when it involves violence of this nature. General deterrence and denunciation of your conduct are important sentencing considerations.
Having said, this there are some mitigating factors. The complainant has told her psychiatrist that she considers herself to be “largely responsible for this altercation because of the mood state she was in.” The psychiatrist agrees that the level of emotional dysregulation experienced by the complainant would have caused you and your foster father to be in fear. I have no doubt that you reacted to circumstances that you felt were out of control. There was only one blow and you did not persist with the violence. As already noted, your history of family violence is relatively limited. It is put to me that the complainant is supportive of you and wants you to continue to be involved in her and the child’s life.
In my opinion, the objectively serious and dangerous nature of the violence, and the need for general deterrence necessitates the imposition of a sentence of actual imprisonment. I will however moderate the sentence to reflect the mitigating factors. I accept also that you want to reform and are doing your best to deal with your drug problem and generally improve your behaviour. I have considered whether I should add some form of community-based order to the sentence, but I note that the Magistrates Court is yet to deal with the cancellation of the drug treatment order. There is a custodial period associated with that order and the Court will need to make orders in relation to that period. I am not dealing with your drug related offending, but rather with a deliberate act of family violence. I do not have enough information to adequately frame a community-based response. That is clearly something that can be factored into the order by the magistrate. However, in order to facilitate any such response, and having regard to your early plea of guilty and the particular circumstances in which this crime was committed, I will permit the opportunity for release on parole at the earliest possible time.
Marck Lewis, you are convicted of the crime of assault and sentenced to imprisonment for a term of 8 months. That term will be backdated to commence on 1 August 2022. You are not eligible for parole until you have served one half of that sentence.
Pursuant to s 13A of the Family Violence Act, I direct that this crime be recorded on your criminal record as a family violence offence.
I had not been asked by the prosecution to make a family violence order. I am told that such an order has already been put in place by the Magistrates Court. Accordingly, I decline to make any further order.