STATE OF TASMANIA v LEIGH DOUGLAS MONKS 14 NOVEMBER 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Monks, the defendant, has pleaded guilty to one count of assault. I am also dealing with his pleas of guilty to one related summary charge of assault and four charges of breaching a police family violence order. The complainant is his then partner, Hayley Brown. The two had been in somewhat of a problematic relationship for about two years between 2017 and early 2019. At the time of the offending, they were living with the defendant’s father in a rural township. On 7 January, the defendant was made the subject of a police family violence order in relation to Ms Brown. All of the charges arise out of a course of events on the evening of 18 January 2019 and the early hours of the next morning, after the couple had stayed with a friend in West Moonah. That course of events started at around 5.50pm, with the defendant and Ms Brown agreeing that he would go home with Ms Brown’s brother-in-law to collect some property before returning to stay with the friend for another night. The defendant left, saying that he would be back in 10 minutes to collect her, but failed to return. Ms Brown attempted to contact him numerous times. Each time the phone was answered, the defendant spoke to her in a demeaning way and hung up. Ultimately, the pair met up at a takeaway food place. At about 10pm they went to another friend’s home in Chigwell. Ms Brown went into the laundry at that house to smoke a cigarette and some cannabis. The defendant remained in another part of the house with three men. A short time later, the defendant went to the laundry and told Ms Brown the other men did not want her there and that she had to leave. He was being forceful and tried to hurry her. Ms Brown hugged him at which point he pulled his head back and, after saying, “I’m fucking sick of this”, head butted Ms Brown forcefully to the forehead. That constitutes the summary charge of assault and one of the breach charges. Shortly afterwards, Ms Brown told the defendant she was finding a lift in order to leave the property. They sat in separate parts of the house for a time after which the defendant said he was leaving. At about 1am the next morning, the defendant telephoned Ms Brown and sent her two short text messages. He was abusive and not making much sense. He said he would see her in 10 minutes. Ms Brown went outside where she saw the defendant. He pretended he had a gun using his hands wrapped in a jumper. He pointed at Ms Brown’s head. She said, “just shoot me”. The defendant laughed and then punched her to the left side of the face. Ms Brown abused him and asked him why he had done it. The defendant started yelling and kicked Ms Brown to the legs a few times before walking away. Ms Brown followed him and grabbed him to find out what was wrong. The defendant said, “if you want to punch on or get bashed I’ll do it”. He walked away. Ms Brown followed. The defendant said, “do you want me to kick you in the head”. Those two threats make up one of the breach charges. Ms Brown replied, “just do it”, and the defendant ran at her and kicked her left arm. She recalls hearing her forearm snap. She told the defendant that he had broken her arm and went back into the house. The defendant followed but was told to leave by all present. As he was leaving, the defendant grabbed Ms Brown by her right arm and dragged her down the steps. When she started to cry, the defendant left. The punch to the face, the kicking to the arms and legs, and the dragging down the stairs constitute the Criminal Code assault and one of the breach charges. After coming back to the house and again being told to leave, the defendant sent abusive messages through Facebook. That is the fourth breach charge. The abusive language was interspersed with expressions of his love and being appalled at his behaviour. Ms Brown went to the hospital at mid-morning on 19 January, where she was treated for a fractured left ulna. Her arm was placed in a cast. Bruising to her legs was also observed. The defendant was arrested on 23 January. When interviewed he said that he did not know what had happened; he was just “getting taken for a ride”. He denied causing the fracture, saying he had seen her for about 10 minutes that night and that was all. He said the complainant was “off her head”. I have a victim impact statement of Ms Brown. She says she is paranoid and on edge, and scared to leave the house in case she encounters the defendant. She was reluctant to leave her house. She is jumpy, on edge and cannot sleep properly. She finds she is now very negative towards people and has no trust. In contrast with her previous personality, she is very withdrawn and wary. During the period of the assaults, she did not know if she was going to be seriously injured or even killed. Her confidence to go out and work has been ruined. She says she feels embarrassed to be a victim of family violence. She says it is a very lonely situation to be in and feels that there is not much support or understanding. I note that the two are no longer in a relationship.
The defendant is now 24 years old. He has a record of drug and driving offences, but no recorded history of violence. Recently, in February 2017, he was convicted of driving a vehicle while an illicit drug was present in his blood, and possession of a controlled plant. A reference in the record to the forfeiture of an “ice pipe” would suggest methylamphetamine use. More recently, in November 2018, he was made the subject of a community service order for perverting the course of justice and making a false declaration. As to his personal circumstances, I have the benefit of counsel’s submissions and a home detention assessment report dated 6 November 2019. The defendant is the youngest of 10 children, but is 15 years younger than the eldest of his siblings, and was effectively an only child. He grew up in a rural area and believes he was “somewhat sheltered”. His parents separated when he was 13 years old and the family home was sold. This created issues within the family and the defendant ultimately moved to Glenorchy. It seems that from this time he was involved in illicit drug use in company with several women with whom he had relationships successfully. That included Ms Brown. Alcohol and cannabis use started when he was 13. He was 19 when he started to use “ice”. He acknowledges heavy use and that he is dependent. He initially left school after year 7 to learn the shearing trade but went back and completed year 10, after which he worked at a baker for two years. He then held other forms of employment for short periods. He is now unemployed but does seasonal work with his father on their potato farm. I am told that he is interested in agriculture and is in a position to take over the running of the farm. He has expressed a wish to stop using drugs, his main motivation being his family and employment. I am told that he is sorry and remorseful for his conduct. He told the probation officer that his behaviour was “pretty disgusting” but that there were a lot of issues with his partner involving arguments and constant fighting. He acknowledges his methylamphetamine use contributed to his behaviour, saying it was otherwise very out of character for him. Since being charged he has made attempts to stop his drug use. He has distanced himself from his former drug using associates. I accept that he is remorseful, notwithstanding denials to the probation officer of some of his conduct and the excuse made of self-defence. I am told, without dissent, that he said those things because of shame at being confronted with the details of his conduct, and his inability to cope with what he had done when drug-affected.
I take into account the pleas of guilty for which he is entitled to some credit. I also take into account that he is still a relatively young man, with prospects of rehabilitation. General deterrence and denunciation are prominent sentencing factors. I note that there seems to be no lasting physical effects of the injury, but Ms Brown clearly has suffered, and is suffering, emotionally. The defendant has been assessed a suitable for home detention but not for community service because of compliance issues with the order made in 2018.
Mr Monks, your conduct has to be seen in a serious light. All unlawful violence is unacceptable. Violence within relationships is a particular a matter of great community concern. It is often difficult to detect and is an insidious problem. Your conduct was a breach of trust within the relationship. Family violence orders need to be obeyed. This was a callous course of conduct. In particular perhaps, having broken Ms Brown’s arm, and having been told so, you continued you assault on her. Parliament has made provision for home detention as an alternative to imprisonment, suspended or not. I think that such an order is appropriate in all the circumstances. You are convicted of the offences. On the basis of your consent given to the probation officer, I make a home detention order, the operational period of which is seven months to commence on 15 November 2019. The core conditions of that order are those contained in s 42AD(1) of the Sentencing Act 1997. That will include subs (1)(j) which will apply. These conditions will be specified in the written order that will be given to you. The home detention premises for the purposes of the subsection is [residential address]. The period for which you will the subject of electronic monitoring is the whole of the operational period. In addition I make special conditions as follows:
1 You will have report to Community Corrections at 3 Terry Street, Glenorchy by 4pm tomorrow, 15 November 2019.
2 You must not consume alcohol during the operational period, as recommended by the probation officer.
3 You must maintain in operating condition an active mobile phone service, provide the details of that to your probation officer or prescribed officer and be accessible for phone contact at all times.
I also make a community corrections order for a period of 12 months from today. The core conditions of that order are those contained in s 41AO of the Sentencing Act and also will be set out in the written order given to you. For the purposes of that order, I again specify that you must report to a probation officer at the same address within the same period, that is, 3 Terry Street, Glenorchy by 4pm tomorrow. Special conditions of the community corrections order are that you submit to the supervision of a probation officer as required by that officer, that you attend educational or other programs, including the EQUIPS Domestic Abuse Program, and undergo assessment and treatment for drug dependency all as may be directed by a probation officer. Lastly, I direct that the offences be recorded as family violence offences.