MLVT

TASMANIA v MLVT                                                                                     3 MARCH 2021

COMMENTS ON PASSING SENTENCE                                                       PORTER AJ

 The defendant has pleaded guilty to one count of indecent assault, one of assault and one of rape. The three charges arise out of an incident on 7 June 2019, and involve the defendant’s ex-partner, who I will call AB. At the time, both were in their early 30s. They commenced a significant relationship in 2013 while living in Queensland. AB had one child from a previous relationship, aged 9 at the time, and they had two children between them, a son aged 4 and a daughter aged 2. AB described the relationship as a volatile one, with the defendant struggling to control his anger. In September 2016, they moved to Tasmania in order to be closer to family support. After arriving in Tasmania, the relationship continued to deteriorate. The couple separated on about 14 March 2019 when the defendant moved out. He continued to go to the home at specified times to help with child care arrangements. On the day before the incident, the complainant was with the children in a motor vehicle. She saw the defendant in front of a hotel and stopped as the children wanted to speak to him. He was intoxicated. He was due to look after the children the following morning and, concerned that he would not be in a fit state, the complainant told him she would make arrangements for her mother to care for them. She then left. At about 10am the next day, the defendant came to the home while the complainant was getting ready for work. The children were there. He suggested he stay and look after them. The complainant agreed and continued getting ready for work. The defendant went into her bedroom with a laptop computer and sat on the bed. After a time, when the complainant was in the bedroom, the defendant said words to the effect “I just want you to know that you’re my woman and I’m your man, and that is it.”  She said that that was not how it was. The defendant became frustrated and despite not feeling this way, the complainant suggested there may be a future for them. The defendant expressed concern about her entering into a new relationship and suggested that if she were to find another man, there would be 10 people “going to flog him”. In further discussion, the defendant made comments of a possessive and sexual nature. The complainant told the defendant that she was not his woman, at which he became angry. He stopped her from leaving the room, grabbed her, pulled her towards him, forced her to kiss him on the lips and, when she refused his demand for her to do so, took her right hand and put it on his penis over his clothing. That is count 1. His penis was erect and he demanded that she “take care of it”.  At this time the 4 year old came into the bedroom and became upset. The complainant had to tell him that they were only playing around and to go into his brother’s room. The defendant continued to push the complainant’s hand onto his penis. He became angry at her rejection. In grappling, they both fell to the ground, and ended up on the bed. The defendant told the complainant she could do it the hard way or the easy way, he was going to take what was his. The youngest child came into the room at this time. She was persuaded to leave. The defendant remained on top of the complainant pinning her body with his. He continued to threaten to take what was his, making sexual suggestions to her. The complainant begged him to stop and not to touch her. When struggling, the defendant grabbed her to the throat with one hand on two occasions. This was forceful but not restricting. The complainant continued to struggle; the defendant became increasingly angry. He again grabbed the complainant by the throat with one hand and squeezed, this time impeding the complainant’s ability to breath. She started to panic, believing she was going to die. That is count 2. The complainant continued to kick at the defendant and he let go. She then complied with a demand for her to expose her breasts and to move further up the bed. The defendant then pulled her skirt, stockings and underwear to around her ankles and the complainant complied with the demand to assist the defendant inserting his penis into her vagina. She did this because she was scared, fearful of further violence and did not want to do anything to attract the attention of the children. The defendant had vaginal sexual intercourse with complainant for about a minute before ejaculating. He did not wear a condom. During the intercourse, the complainant was crying and repeatedly asking him to stop. The defendant continually said such things as “you are mine”. Afterwards, the defendant told the complainant to get up, get dressed, to get on with it and to go to work. He made threats of sexual activity that night, suggesting that if she did not co-operate he would do it anyway. When dressed, the complainant said she would take the children to her mother’s as planned, and then left with them. On the way, she telephoned her mother and outlined what had happened. When she arrived, her mother telephoned the police and arrangements were made for the complainant to be interviewed. During the afternoon the defendant rang the complainant asking her if she understood how things had changed, that he was the boss, and that he would “get it, when he wanted it”. Later that night the defendant was arrested and interviewed. He made some admissions about physical and sexual contact, but said the sexual intercourse was consensual. He denied making any aggressive or vulgar comments before, during or after the intercourse. The defendant was granted bail on 8 June 2019 and has spent no time in custody.  I have a victim impact statement from the complainant. She describes changing from a bubbly, outgoing and positive person to someone with none of those attributes. She is withdrawn and has lost friends, a job and general motivation. She has had medical and psychological assistance, but she is constantly on edge, generally anxious and scared. She has nightmares. She has been prescribed antidepressants and sedatives. The complainant also describes how the children’s life has been made more difficult in the absence of seeing their father. She says she is constantly sad and angry and has lost faith that life can exist without extreme pain. She says she is robbed of her dignity, of her love for life, and at times the will to live. She has lost all trust.

The defendant is now 32 years old. He has no prior convictions to speak of. He suffers from spastic quadriplegia, a form of cerebral palsy which affects his entire body; a condition he has had from birth He does have full function of speech and limbs, but has little strength on his right side and walks with a limp. He regularly uses a wheelchair for assistance. He completed year 12 schooling but has only held employment for a few months in the tele-marketing industry. It seems he had that at the time of this offending. After being bailed he returned to Queensland and has not had employment since. He lived with his mother on his return, and she remains supportive. I was told that his condition has led him to substance abuse in the past. This relates to both prescription and non-prescription medication. He was prescribed antidepressants in February 2019. I was told that when he started on these medications his behaviour changed markedly in the sense, as I understand it, of erratic and irrational behaviour but not extending to increasing violence. In December 2020, his drug and alcohol abuse reached the stage where he participated in a residential treatment program for about two months. This seems to have had a beneficial effect. As to the offending, I was told that he cannot clearly recall the events and cannot recall much of what the complainant says he did to her, but he accepts that he behaved in the way the complainant says he did. I was told that he had no idea why he did what he did, and cannot explain any of it. I was told he is deeply ashamed and sorry for what he has done. Counsel pointed out to me that since the incident, the complainant and the defendant have had some contact in relation to the children’s upbringing. That seems to have presented no difficulties. That reached a point at which the complainant sought a variation of bail to permit the defendant’s return to Tasmania, but being opposed, it was ultimately not pursued.

This incident must be regarded in a very serious light. Assault by choking in a domestic context is of itself very serious. The assault and the rape were accompanied by comments of a possessive, controlling and degrading nature. The conduct amounted to a serious breach of trust and an assertion of dominance and power. It is a matter of significant aggravation that the three children were present in the house at the time, two of whom came into the room at different times during the relevant events and had to be manoeuvred out. The long-term emotional effects on the complainant have been significant. I take into account the defendant’s personal circumstances. I note that it was not suggested that imprisonment would cause him any particular difficulty beyond that which might be experienced by a prisoner without his disability. As to the pleas of guilty, they were made after a jury was empanelled and after the trial had been adjourned for a day without starting in any real sense. That was to enable instructions to be taken. The State was put to the expense of flying a witness support person to Queensland, and the complainant had been fully briefed and was expecting to give evidence on the day the pleas were entered. In those circumstances there is little mitigatory weight to be attached to the pleas, except to the extent of simple utilitarian value, and to the extent that the complainant has been vindicated and was in fact spared the ordeal of giving evidence albeit it was to be by video link.

[MLVT], I have set out what I see to be the relevant factors in your case. This sort of domineering sexual violence cannot be tolerated. I repeat that it amounted to a very serious breach of the trust of the relationship which you maintained for the sake of the children. There is little to be said in your favour. You are convicted of the crimes and sentenced to four years and three months’ imprisonment to commence on 16 February 2021. I order that you not be eligible for parole until you have served one half of that term. I order that the offences be recorded as ones of family violence.  I am not satisfied that you do not pose a risk within the meaning of the Community Protection (Offender Reporting) Act but I think the relevant period does not need to be of any great length. I order that your name be placed on the register of offenders under that Act, and that you comply with the reporting obligations for two years upon your release.

I make a family violence order for a period of two years. That will be in the same terms of the interim order dated 24 June 2020 except for the following:

1. In condition 3 c), all words after “children” are deleted.
2. Conditions 4, 5, 6 and 7 are deleted.