STATE OF TASMANIA v NICHOLAS ANDREW OATES 13 FEBRUARY 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Oates, you have pleaded guilty to one count of Criminal Code assault. The victim of your violence was your son’s 20 year old partner. I shall refer to her as “K”. At the time of the assault, K was in a relationship with your son and was living in your family home. K had a history of eating disorder and weighed approximately 42 kilograms when the assault occurred. On 14 December 2021, at approximately 8:00am, K was in the kitchen area of your home undertaking some studies. She had a TAFE assessment due that morning. You had been in a shed at the rear of the property apparently consuming alcohol. When you entered the kitchen area you asked K to leave the residence. Apparently there had been a discussion the evening prior in which it had been agreed that K would depart the premises that morning. K said she would leave as soon as she had finished her assessment.
At 11:00am you returned to the main residence. K was in the lounge room area, seated in a chair. She had packed all her bags and was on the phone making arrangements to be collected from the house. You became irate when you observed this and the assault occurred. The friend who was on the phone call remained connected during the assault and I have heard the recording. You were threatening and abusive during the assault and K was clearly terrified. You approached K and grabbed her by the jumper and pulled her up and out of the chair. You pulled her with sufficient vigour to lift her from the ground. You then dragged her across the floor, placed her in a head lock and applied pressure to her neck area. You pushed her to the ground with sufficient force that she struck the back of her head on the tiled floor. You placed your knee on her sternum and pinned her there. You struck her with an open hand to the head whilst she was pinned on the floor. She was trying to push you away from her. There was considerable grappling and wresting. During this, your hands and arms came into contact with K’s head on several occasions. K can be heard on the recording begging you to get off her. Several times she can be heard yelling “let go of me”. At one point you threatened K by saying “We’ll end it right fucking now”. K can be heard repeatedly stating that she has had enough and that she will leave. She asks you to stop so she can leave. During the incident, you said things to her like “I told you, I’m going to put you in the fucking middle of Bass Strait” and “This was your only fucking chance and you didn’t fucking listen….if you come back here, your next fucking stop is the middle of Bass Strait. I will fucking dump you there.”
After the tirade of threats and physical violence, K left the residence. She went outside and called 000. Police and ambulance arrived. K was taken to the North West Regional Hospital. Medical notes record that a haematoma and black eye were evident. There were scratches to her neck. There was a slight decrease in visual acuity in the right eye. There was pain on movement of the right eye with some double vision. There was tenderness and swelling of the forehead and cheekbone, below the right eye. There was tenderness to the neck area, particularly at the rear. Her back was also tender over the mid to upper spine area. There was tenderness to the lower right ribs. Concussion and multiple soft tissue injuries was the diagnosis. I have seen photographs of K, taken on the day of the assault. The bruising is quite distinct.
Police subsequently attended your residence and you were arrested. You were found seated in an area of the shed, surrounded by empty alcohol stubbies. Police described you as being “highly intoxicated”.
You are 56 years of age. You have a number of prior convictions for alcohol related offending including breaches of the Road Safety (Alcohol and Drugs) Act. Some of the readings associated with those offences are relatively high. You also have prior convictions for destroy property and threatening behaviour invoking a breach of the peace, although these were many years ago. Your prior convictions are suggestive of someone who has a difficulty with alcohol consumption on occasion. I am told that at the time this crime occurred you were consuming alcohol heavily.
You work in the Maritime industry but in 2021 were unable to work because of the COVID pandemic. This caused you financial stress and also left you feeling depressed and unworthy as you were unable to provide for your family in the same manner as you always had. From your perspective, the background to this matter was that your son was in a relationship with K. In March 2021 your son wanted K to live in the family home. You agreed. K brought with her two rabbits. Those rabbits were kept inside and it led to you having concerns as to hygiene issues. You also considered that K was not contributing to the running of the household, either practically or financially. In August 2021, you insisted that K leave the residence. You phoned police and asked them to remove her. She left and went back to live with her mother for a period. Subsequently, your son convinced you to allow her to return. It is put on your behalf that you agreed only on condition that she help out around the residence and contribute financially. Your belief was that this did not occur and tensions rose between you and K.
The night before this incident, there had been a heated discussion. You told K that she was to leave the residence the following morning. She agreed she would. That morning, you began consuming alcohol early. You went into the residence and saw that K had set herself up on the laptop. You were concerned that she was going to stay. You asked her to leave. She did not do so immediately. When you returned to the residence at 11:00am and observed her still there, you reacted badly and behaved in the manner that I have described. It is submitted on your behalf that your intention was to remove her physically from the home, but you accept that your response was not a reasonable one. Whilst I accept that your desire may have been to remove her from the home, your actions clearly arose out of anger and, I suspect, intoxication. It must have been obvious to you, given her packed bags that she was readying to leave. You had previously had her appropriately removed from the house by calling police. You could easily have done so again. There was no justification in behaving as you did. Your behaviour was not only physically violent, including the very serious and dangerous act of applying pressure to her neck, but also threatening and intimidating. You were bigger than K. You were behaving irrationally and of course the threats you uttered, whilst probably more reflective of anger than true intent, have to be assessed in light of the fact you uttered them whilst you were attacking K. I have no doubt, the situation was very confronting and frightening for her.
I have considered her impact statement. She thought she might die. She remains stressed by the incident and experiences flashbacks and has difficulty in sleeping. She has relapsed with her eating disorder since this event.
Your work in the Maritime industry requires you to hold a MSIC card, which is essentially a security clearance which allows you to access various Australian ports. You will be obligated to bring this matter to the attention of Australian Maritime authorities. I am told that if you are sentenced to a period of imprisonment (including a suspended term of imprisonment) you will become ineligible to hold a MSIC card. I accept continuing to work is important to your long term prospects. This incident arose in the context of you drinking too much alcohol, because you were not at that time working. When you are employed it seems your alcohol consumption is not as problematic, as on many ships alcohol is not permitted. The loss of a MSIC card will prevent you accessing Australian ports, but will not necessarily impact your access to international ports. Much of your work is internationally based. Pursuant to the Maritime Transport and Offshore Facilities Security Regulations 2003, there is a process whereby you can review any cancellation order to the Secretary and then the Administrative Appeals Tribunal if necessary. The end result is the imposition of a period of imprisonment, suspended or otherwise, will limit your work opportunities in Australia whilst any MSIC card is suspended, but will not deprive you of your international employment opportunities. Moreover, there is a process which may lead to the re-instatement of your MSIC card if the relevant authorities consider it appropriate to do so. It is for the Maritime authorities to determine, given the nature of activities conducted at ports, whether a person who has behaved as you did on this occasion, should have the benefit of a MSIC card, and if so, upon what conditions.
It is, of course, pertinent to take this impact upon you into account as it is relevant to the weight that needs to be given to specific deterrence. In my view, this impact, coupled with your lack of prior convictions for violence, means specific deterrence is not a predominant sentencing factor. But of course there are other sentencing considerations which must be reflected in the sentence, including punishment reflective of the seriousness of the offending, vindication and the need for the sentence to deter others who may be minded to act similarly. The sentence needs to reflect a condemnation of the use of violence to resolve grievances, particularly in circumstances, such as here, where your victim was vulnerable.
I take into account your plea of guilty, although it was not an early one and the complainant was required to give evidence at preliminary proceedings. I am told however the charge on the indictment was particularised differently to the original charge. The plea of guilty is reflective of an acceptance of responsibility, although in circumstances where any claim of lawfulness arising from your behaviour was entirely unmeritorious.
I have carefully considered the impact a period of imprisonment may have upon your employment, but I have determined the objective seriousness of your crime requires the imposition of a sentence of imprisonment. The message must be received by both you personally and the broader community that this sort of violence will not be tolerated, and those who choose to participate in such behaviours, can expect strong sentencing responses.
There are good reasons, which weigh against making you serve that period of imprisonment immediately. In particular, I note your lack of relevant prior convictions, the plea of guilty, your employment and your prospects for reform. A wholly suspended period of imprisonment is appropriate in my view.
Nicholas Oates, you are convicted of the crime of assault. You are sentenced to a term of imprisonment of five months. The whole of that sentence will be suspended for a period of 18 months on condition you are not to commit any offence punishable by imprisonment during that time. I need to explain to you, Mr Oates that if you do, in fact, commit any offence punishable by imprisonment, you can be brought back to this Court and an application made that you serve the period of imprisonment. The law is that a judge must activate the sentence unless it is unjust to do so.
I make an application for compensation in favour of K, the terms of which will adjourn sine die.