PDS

STATE OF TASMANIA v PDS                                                 3 SEPTEMBER 2021

COMMENTS ON PASSING SENTENCE                                          ESTCOURT J

The defendant has pleaded guilty to aggravated burglary and to three breaches of family violence order and an account of common assault which I have agreed to deal with under s 385A of the Criminal Code.

The defendant and the complainant were in a relationship between 2012 and 2017.  They have one son who was born 29 October 2015. They do not live together and share care of the child pursuant to an informal arrangement between them.

A dispute began in early 2021 regarding the care of their son. The complainant had stopped the defendant from having access. As a result of an incident between them on 20 May 2021, a Family Violence Order was issued and included conditions that the defendant not directly or indirectly threaten, harass, abuse or assault the complainant, that he not be within 50 metres of, or contact her directly or indirectly and that he not enter her premises or any other place where she might be staying from time to time.

On 6 June 2021, at approximately 3am in the morning, the defendant attended a premises. The complainant was staying at that address with her mother. The complainant was sleeping in the lounge room with her children, including their son, who was asleep on a couch.

The defendant entered the house through an unlocked kitchen window and entered the lounge room and approached the child, who stirred, waking the complainant. She approached the defendant. The defendant then sprayed her in the face with a homemade curry spray that he had in a plastic bottle.

The defendant picked up the child and left the address. Tasmania Police were called and attended the address but they were not at that time able to locate the defendant or the child.

The following day, on 7 June 2021, the defendant attended the Deloraine Police Station.

The Crown asserts that the defendant entered the address as a trespasser with the intention of assaulting the occupants by threatening them with pepper spray if confronted, that that he in fact went on to spray the complainant with the pepper spray.

By entering the address and assaulting the complainant, the defendant also breached the conditions of the Police Family Violence Order an their charges 3, 4 and 5 on complaint 32354 of 2021.

The complainant did not suffer any injuries over and above the discomfort caused from the pepper spray to her face. She did not seek medical treatment. The defendant has some relevant prior convictions although I would say not egregious.

He was at the time hearing rumours about the poor care of his son. The school had been contacting him, Family Services were involved and he was becoming desperate.

He went to the property to remove his son. He made what has been called pepper spray out of water & curry powder which he knew would not cause any lasting injury.

The defendant’s son is now living with him and Family Services are content with that.

The defendant is in employment.

The defendant is convicted of each of the charges to which he has pleaded guilty and I record charges 2, 3, 4 and 5 on complaint of 32354 of 2021 as family violence offences. I impose a single sentence of 12 months’ imprisonment which sentence is wholly suspended on condition that the defendant commit no offence punishable by imprisonment for a period of two years.