STATE OF TASMANIA v JOSHUA BLAIR READ 19 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Read, a jury has found you guilty of one count of persistent family violence. The crime was committed against your former partner. You have also pleaded guilty to four related summary charges.
I am required to determine the factual basis of sentencing. It is clear in my view that the jury must have substantially accepted the complainant’s evidence as credible and reliable. The jury was given a direction about the need to carefully scrutinise her evidence before finding you guilty and that it could only find you guilty if satisfied, after such scrutiny, that the evidence was credible and reliable. I also found her to be a credible witness. Further, some important aspects of her testimony were corroborated by independent evidence. Your counsel submitted that I should only find in accordance with the complainant’s version where that version is corroborated by other evidence. As he did in his argument at trial, counsel pointed to various inconsistencies between the complainant’s evidence and the evidence of some other witnesses, and with statements made by her to police, and submitted that, therefore, her evidence taken alone, was unreliable. I do not accept these submissions. The inconsistencies, such as they are, often relate to matters of detail and, in any event are consistent with the complainant recounting events which occurred in sometimes violent and difficult circumstances. Clearly, the jury did not accept these arguments. If the jury had a reasonable doubt about the complainant’s credibility generally, then it is probable that this would have been demonstrated by the verdict and resulted in either a verdict of not guilty or guilt of alternative charges. Further, I note that your denial of these events came only from your police interviews. I found your statements and demeanour during these interviews unimpressive, and inconsistent with the independent evidence. Your version expressed during these interviews certainly does not cause me to entertain a reasonable doubt about the substance of the complainant’s evidence. I intend to determine the factual basis of sentence in accordance with the complainant’s version of events.
In total, the crime was constituted by nine unlawful family violence acts perpetrated by you against the complainant between July and 6 October 2019. The acts comprised seven assaults, one indecent assault and one of unlawful injury to property. My findings in more particularity are as follows.
It is inherent in the jury’s verdict that it was satisfied that you and the complainant had, in the past, been in a significant relationship. Of course, you also have a child together. However, the relationship had ended some years ago. I accept that there must have been some casual contact between you in the period leading up to the relevant events. The first act of family violence took place in a car sometime in July 2019, which was during this period of casual contact. Mr Southern, a friend of both, was driving you and the complainant to a store. I accept the truth and accuracy of Mr Southern’s evidence. I do not accept your suggestion that he had conspired with the complainant to give false evidence about that incident. I find that you became angry with the complainant and kicked the back of her head rest a number of times. You then pulled her hair with both hands. The driver pulled over due to concern about your conduct. When he did, you threatened to bash him if he did not keep going. You are not to be punished for this threat, but it is indicative of your anger. This was a petulant display of anger by you, which caused physical pain, as well as indignity and embarrassment, to the complainant.
In early August 2019, you arrived uninvited at the complainant’s residence. She was living in a share house with others. You had without her permission or knowledge nominated her address as your residence for the purpose of a condition of a bail order. You did this because you had been evicted from your previous residence, and had nowhere else to go. The complainant did not want you at her house. She was no longer in a relationship with you and your presence in her house threatened her ability to have contact with her children, who were then in the care of child safety services. It also threatened progress she had made in her relationship with that department with respect to having the children returned to her care. When she told you that you could not stay and resisted your attempt to enter her house, you assaulted her by pushing her against the wall and then forcibly marching her into a room. This was an act of intimidation designed to overbear her will and ensure that you got what you wanted. You stayed in the house despite the complainant’s opposition, until you were removed by police in circumstances which I will describe in a moment. Your ongoing presence was difficult for the complainant, because its consequence was that the child safety authorities terminated her contact with the child. This does not seem to have concerned you, rather you went on to commit a number of further acts of family violence.
Sometime later the same or the next day as your arrival, an argument developed between you and the complainant when she expressed to you that she was upset that you had not arranged to alter the bail condition so that you did not reside at her house. During the argument, you assaulted the complainant by pulling her to the ground and holding her down by putting your knee on her chest. This caused significant pain to her and a large bruise on her breast. Her confusion about which breast the bruise was on does not detract from its existence, which can be clearly seen in the photographs. In your favour, when she told you that you were hurting her, you desisted. On 11 August, the night before an important meeting between the complainant and child safety, you used a lighter to burn the complainant’s hand several times. This happened while she was trying to sleep. You did this because you were annoyed that she had called you a drug addict. Again, the commission of this act is consistent with marks on the complainant’s hands depicted in photographs. The following morning, you continued to torment the complainant. While she was in the bathroom getting ready for the meeting, you assaulted her by putting her in a headlock from behind and squeezing her neck with your arm. You pulled her off the ground, and the resulting pressure on her throat restricted her breathing. While you were doing this, you told her that she deserved to die. She kept saying that she was sorry, in an attempt to have you release her, which you eventually did. She suffered bruising and swelling on her neck as a result of this attack.
The final unlawful act relevant to these premises occurred when you damaged the complainant’s bedroom door when you were trying to break into her room. Police were called and you were arrested and taken away from the premises. It seems that you were held in custody and the bail condition requiring you to live at the complainant’s residence was removed.
After this, the complainant moved to another share house. You did not live there with her, but it is clear that you and she continued to have some consensual contact, notwithstanding the existence of a family violence order prohibiting same. The final three acts of unlawful family violence which constitute the crime, were committed at those premises on 6 October 2019. Your counsel has submitted that I should reject the complainant’s evidence concerning the first two acts, and conclude that there was only one act and one incident of violence that day. I do not accept this submission. Although the testimony of the complainant’s mother differed to some extent in terms of detail and sequence to that of the complainant, it did not, in my view, do so in a way which causes me to entertain a doubt about the substance of the complainant’s version. Although the complainant’s mother spoke of two outings that day, her evidence was clear that complaint was made by the complainant concerning your conduct relevant to earlier violence, during the last outing before the final incident. Further, the fact that the complainant returned to her room after the trip out with her mother knowing that you would be there, is not something I find to be particularly remarkable or inconsistent with the earlier commission of family violence. It is, however, consistent with a relationship that was clearly toxic. The fact that the complainant may not necessarily have always responded by immediately breaking away from the relationship as a response to individual acts of violence is not inconsistent with the Court’s understanding of the insidious nature of family violence and its presence in an ongoing relationship. In any event, I am satisfied that you committed each of the acts described by the complainant in her evidence.
Those acts are as follows. You and the complainant were in her room in the morning. I accept that you were there with her consent. You committed an act of indecent assault during an attempt to initiate sexual relations. You put your hand into and under the complainant’s underclothing and, to use her word, scraped her vagina with your fingers. You did this despite the complainant making it abundantly clear to you that she did not want to have sex with you and that you did not have her consent to sexual contact. I note however that it would appear that you did not persist with your advances and attempts to initiate sexual contact after that one episode. Shortly after this, you became angry with the complainant and grabbed her neck from behind, pushed her face-first into her mattress and held her head down with your hand. She struggled and attempted to break free. She was able to move onto her back. You then grabbed a bag, which she believed contained methylamphetamine and pushed the bag into her mouth. This caused some physical injury to her, including an abrasion to her lip. That injury can be seen in photographs. She also believed that the action chipped one of her teeth, although there was no independent evidence of this. Later that day, when the complainant returned to her room after a trip out with her mother, you became angry over the contents of her telephone, which had been left with you while she went out. You told her that you would have to kill her and that she was a rat and a police informant. You then grabbed her by the neck and started to strangle her. She struggled, and you both fell to the floor from the bed. You then got on top of her, put your hands around her neck and continued to choke her. She had difficulty breathing. You only desisted because her housemates, who had been disturbed by the noise of your actions, banged on the door. You left the house immediately and were arrested by police shortly after.
I am satisfied that this last assault involved an unrestrained attempt at asphyxiation. A medical examination of the complainant at the hospital later that day noted tenderness and pain around the neck, a hoarse voice and petechiae around the eyes, all of which is consistent with attempted strangulation. It is not clear how far you would have gone if you had not been disturbed by the complainant’s housemate. I do not think that you had any particular intention, other than acting in a rage, to harm the complainant. Whatever your intention might have been, I have no doubt that this was a terrifying, painful and demeaning experience for the complainant, and it was also, in actual fact, very dangerous. It is well-known that applying pressure to the neck in the way that you did can easily and quickly result in serious injury or death. Further, the danger is compounded by rage and anger, which negates any real capacity to judge or moderate the force being used in the attack. This act constitutes a very serious example of family violence.
The summary offences to which you have pleaded guilty relate to the events of 6 October. In addition to the breach of the family violence order constituted by being in the complainant’s presence, which I accept was consensual, the violence on the last occasion also constituted a further breach of the order and thereby a breach of a condition of bail. There is also a breach of bail relating to a curfew condition. I do not accept your counsel’s submission that any of these offences should be dismissed on the basis that they are subsumed within the crime. Your commission of the crime involved the commission of other offences, with a separate element being the breach of the relevant orders. Of course, you will not be punished twice for the same conduct, but I will take into account that not only was your conduct of itself a crime, it also constituted a breach of the said orders.
You were 30 years of age when you committed these crimes and you are now 31. You have a lengthy criminal history, commencing when you were 19 years of age. It includes a variety of offences, but predominantly relates to drug offences. In 2016, you were convicted of breaching a family violence order. Otherwise, you have no prior convictions for offences involving family violence.
Consistent with your criminal history, and indeed with the circumstances of this offending, it would seem that you have had a drug problem for a considerable period of time. However, your counsel tells me that you have now ceased taking drugs and you have behaved well in prison. You have a reasonable work history, and have qualifications and experience in more than one area of employment.
Your crime, when considered as a whole, involved a course of conduct which was arrogant, intimidating, cruel and violent. The complainant suffered significant physical injury, as well as humiliation, indignity and anxiety. Your conduct was largely concerned with intimidation and control. Although there is little evidence as to any other violence committed during the relevant period, I will take into account that the impact of the crime is increased by the fact that it was constituted by a course of conduct which thereby imposed a protracted period of suffering on the complainant. Further, the fact that despite your relationship with the complainant having ended, you inserted yourself into her life and then treated her in this appalling way is relevant to your moral culpability and the impact of the crime upon her. There are no mitigating circumstances and you have not shown any remorse.
Family violence, particularly when perpetrated as a course of conduct on a repeated basis, has no place in our community. General deterrence and denunciation of your conduct are the primary sentencing considerations. The only possible sentence is a significant sentence of imprisonment.
Joshua Read, you are convicted of the crime of persistent family violence and the summary offences to which you have pleaded guilty and sentenced to a global term of 3 years’ imprisonment. The sentence will be backdated to reflect time you have already spent in custody. This is a period of 283 days previously spent on remand but not allocated to a sentence, together with the time from 20 April 2020. On my calculation, to take account of the whole of this period, the sentence should and will be backdated to 12 July 2019. As there is very little prior family violence offending on your record, I will allow for your early release on parole. I think that release on parole would also provide an opportunity for supervision while you are living in the community. Accordingly, I order that you not be eligible for parole until you have served one half of the sentence, which is a period of 18 months calculated from 12 July 2019.
Further, pursuant to s 13A of the Family Violence Act, I direct that the crime of which you have been convicted and counts 3 and 4 on complaint 9382 of 2019 be recorded on your criminal record as family violence offences.
I have been asked to exercise my power under s 36 of the Family Violence Act to make a family violence order. However, a final family violence order is already in place having been made on 22 June 2020. The order is expressed to remain in force for a period of 12 months from that date. The prosecutor has asked me to extend this order indefinitely.
Where a final family violence order has been made by a court of competent jurisdiction subsequent to the events which constitute the family violence upon which the order has been made and also which are relevant to the offending which gives rise or which activates the discretion under s 36, I think a sentencing court should be loath to interfere and make another order, unless the circumstances of the case before it, or the sentence which it imposes suggests that the original order is not appropriate. In this case, the existing order seems to me to respond appropriately to the family violence which constituted the crime of which you have been convicted. The sentence which I have imposed may affect the operation of the order, but only for a limited time. In the circumstances of this case, I do not see the need to extend this order indefinitely particularly when it includes an electronic monitoring provision. I think the appropriate order is to extend the existing order so that it expires 12 months from the date of your actual release from prison. Further, I will add the word “knowingly” at the commencement of condition 3. They are the orders I make. I also make a compensation order in favour of Alexander Slad in the sum of $240.