STATE OF TASMANIA v KIAMA DECLAN RAMSDALE 23 DECEMBER 2021
COMMENTS ON PASSING SENTENCE JAGO J
The defendant has pleaded guilty to one count of assault. The offence was committed on 3 September 2021. At that time the defendant and complainant were in a significant relationship, although they did not reside in the same premises. At the time of the offending the defendant was 22 and the complainant was 16 years of age. The relationship had been ongoing for approximately 2 ½ years. The relationship was a tumultuous one. There were often verbal arguments, but there had not, prior to 3 September 2021, been any physical violence in the relationship. On the 3rd September the defendant and complainant had been arguing. That calmed, and they went their separate ways, within the house, for a short period before the complainant found the defendant in his bedroom talking to his ex-partner and child via an X-box. A significant verbal argument followed. Issues of commitment and jealousy were raised. They left the bedroom and moved into the hallway of the house. The defendant grabbed the complainant on her neck with one of his hands. He squeezed his hand around her neck. The force of the squeeze was significant, causing the complainant to have breathing difficulties and her eyes began to water. The complainant punched the defendant in an effort to have him release her. The defendant responded by squeezing harder. The complainant believed she would lose consciousness, but fortunately did not. The complainant hit the defendant with a roll of wallpaper causing the defendant to release his grip.
At this point, the complainant says the defendant punched her to the back of the head. The defendant says he grabbed the complainant’s hair at the back of her head and rocked her back and forth. He accepts in doing so he impacted the back of her head several times. It is not necessary for me to resolve whether it was a punch or force applied to the back of the head when the defendant grabbed the complainant’s hair. The fact is the complainant received a series of impacts, some 3 or 4, to the back of the head. Following this, there was a further conversation between the defendant and complainant. The complainant became angry and punched the defendant three or four times. The complainant and defendant eventually left the residence in a car. The complainant went to her mother’s house. Police were called. When police attended they observed scratch marks on the complainant’s neck. The complainant also had general soreness to the back of her head. She did not seek any medical attention.
The defendant was interviewed. In the interview he agreed the complainant was his girlfriend. He agreed on the day he and the complainant had argued. He agreed he grabbed the complainant by the neck, but said it was because she hit him first. He agreed he was angry. He agreed he squeezed the complainant’s neck harder when the complainant struck him. He denied punching the complainant but agreed he had grabbed hold of her hair and accepted it was possible the complainant thought he had punched her. The defendant expressed remorse for what had occurred.
I have read the complainant’s impact statement. She describes being traumatised by the incident and believing she might die when the defendant’s hands were around her throat and she was having difficulty breathing. She says she often thinks about what occurred and has experienced “flashbacks”. She describes being hesitant to enter into new relationships.
The defendant is 22. He has had a disadvantaged and traumatic upbringing. He was not breathing when he was born and required resuscitation and treatment in the neo-natal intensive care unit. At 6 months he was found to be deaf in both ears and had corrective surgery to restore some functional hearing. He displayed some minor developmental delays and from an early age exhibited challenging behaviours. When he was 5 he was diagnosed with a brain injury, secondary it seems to the foetal distress experienced at birth. He was also diagnosed with Attention Deficit Hyperactive Disorder. The defendant attended special education where his behaviour was reported as oppositional, frequently resulting in suspensions. He was unable to read or write at the end of his primary years. His behavioural difficulties continued into high school. He completed grade 10 but his literacy really did not improve to any significant degree. When the defendant was 6, his mother, with whom he has always had a very good relationship, took in a foster care child. Sadly that child suicided in 2014. The defendant had grown close to his foster brother and his death had a significant impact upon him.
The defendant has been subject to a number of assessments relevant to his general intellectual functioning. An assessment conducted in 2017 revealed his general intellectual functioning is in the extremely low range, lower than 99% of his peers. He has a functioning IQ in the 47-67 range. This impairment is consistent with mild intellectual disability. The defendant is in receipt of NDIS support. I was told by the defendant’s counsel that in a report authored in 2020 by forensic psychologist, Mr Damien Minehan, the defendant’s diagnosis of mild intellectual disability was confirmed. In Mr Minehan’s opinion the disability was to the extent that the defendant was unable to exercise appropriate judgment or make calm and rational choices. It was submitted because of this, the defendant ought to be seen as having reduced moral culpability which should be reflected in the sentencing process. It is also submitted, because of the defendant’s intellectual impairment he has reduced coping strategies such that imprisonment will be a significantly more adverse for him than others who do not suffer from such impairments. It is submitted the defendant would be highly vulnerable in the prison environment given the extent of his low intellectual function.
The State contend that I should not strictly apply the Verdins principles because I do not have a report that provides a direct nexus between the intellectual impairment and the circumstances of the assault itself and the impact, the intellectual functioning had at the time of the assault. They do not challenge however, that the intellectual impairment exists and the intellectual impairment is such that it reduces the defendant’s moral culpability in the broadest sense, which in turn has a flow on effect to the role general deterrence and denunciation should play in the overall sentencing process.
The defendant has been in custody since 4 September 2021. During his time in custody he has been assaulted, he has had personal items taken from him by other prisoners. He describes being “stood over and bullied”. I accept because of his limitations he is vulnerable in prison. His time in custody has been a very salutary experience. It is his first time in prison. I accept the time he has already spent in custody has had a deterrent effect upon him. I am told he now appreciates that he needs to undertake some counselling, or the like, in respect to his anger management. It is intended he will take that up with his NDIS provider.
The defendant has a relevant history of criminal offending. In 2017 he was dealt with for three counts of common assault in the Youth Justice Court. No conviction was recorded. He was required to undertake 40 hours of community service. I am told these matters were not family violence related. In March 2018 he was sentenced by this Court for one count of wounding. It involved him using a knife in a school yard fight. When, during the fight, the complainant had the defendant in a head lock, he drew a knife he had taken with him to the fight, and struck the complainant to the knee causing a wound. A conviction was recorded and he received an 18 month probation order. The State appealed that sentencing order. The appeal was dismissed (DPP v R [2018] TASCCA 10). In 2020 the defendant was convicted of four counts of breaching a police family violence order. Those offences related to a different complainant. The breaching behaviour involved him behaving in a violent manner by kicking trolleys in the direction of the protected person, yelling abuse at the protected person and telephoning the protected person some 96 times in a 90 minute period. As far as I can tell from what is revealed in the defendant’s record of prior convictions, there was no actual violence associated with any of the breaches of the police family violence order. He was sentenced to an 18 month community correction order including a requirement to participate in the family violence intervention program.
The objective seriousness of the offending is in my view high. Of particular concern is the application of pressure to the complainant’s throat. The pressure was sufficient to restrict her breathing and cause her eyes to water. When she tried to free herself from the defendant’s hold, he increased the pressure. She believed she might lose consciousness and die. It is well known that pressure to the throat, particularly when it impacts upon one’s capacity to breathe, can result in serious injury or even death after a short time. It has the capacity to cause ongoing physical and psychological consequences. The impact to the back of the complainant’s head is also objectively serious. Any blow to the head area has the capacity to cause serious harm. Here, it is fortunate that the complainant suffered no significant physical injuries and did not require medical assistance. Nevertheless, the risk of serious injury that was associated with the defendant’s behaviour is obvious. Any violence, of this nature, in my view must be condemned by the courts. Family violence, of any form, is simply inexcusable. General deterrence is an important sentencing consideration. That being said, I also acknowledge that a significant factor in the exercise of the sentencing discretion is the defendant’s intellectual impairment. His impaired mental functioning is pronounced and does, in my view, diminish his moral culpability. I think it is necessary to moderate the role of general deterrence in the sentencing process, but it should not in my view, be completely ignored. I note the Court has not been provided with a report, specifically detailing the way in which the defendant’s intellectual disability impacts upon his criminality or reduces his moral culpability. Nevertheless, I am prepared to accept, given the commentary that has been offered, and given common sense, his intellectual impairment is such that it impacts on his capacity to calmly and rationally think through matters and leaves him in a position whereby he exercises poor judgment, particularly in circumstances where emotions are high as was the case here. This was seen by how he reacted to the complainant during the entirety of the incident.
It is noteworthy in my view, that there had not been any violence in the relationship prior to this incident. It is also relevant that the defendant has pleaded guilty and has expressed remorse for the matter. His plea facilitates the course of justice, and importantly, saves the complaint from having to give evidence. He is prepared to agree to a family violence order protecting the complainant going forward. In my view I must impose a period of imprisonment because of the objective seriousness of the behaviour. The defendant’s personal circumstances however are such that I intend to ameliorate the punitive effect of the sentence by partially suspending it.
I make the following orders:
1 You are convicted of the crime to which you have pleaded guilty.
2 You are sentenced to a period of 9 months’ imprisonment, backdated to 4 September 2021.
3 From today, the balance of that sentence will be suspended for a period of 18 months on condition you not commit any offence punishable by imprisonment during that period.
4 Pursuant to s 13A of the Family Violence Act, I direct the offence be recorded on your criminal record as a family violence offence.
5 Pursuant to s 36 of the Family Violence Act, I make a family violence order for a period of 2 years from today’s date. That order will be in the same terms as the interim family violence order dated 4 September 2021.
I explain to you, Mr Ramsdale that if you breach the condition of the suspended sentence it is most likely that you will be required to serve the balance of the period of imprisonment imposed upon you, unless a court considers it unjust.