STATE OF TASMANIA v KOBI M P T RYAN 16 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE PORTER J
The defendant, Mr Ryan, has pleaded guilty to one count of assault committed on 7 June 2019. The complainant is a woman with whom he was then in a relationship. She came to Tasmania in September 2018 to do seasonal work. Shortly after, she and the defendant met, and in January 2019 the relationship commenced. The complainant was living at a backpackers’ hostel; the defendant was living in a caravan in the backyard of his parent’s property. The two would stay at each other’s place of residence. During the evening of 7 June 2019, the defendant was drinking at a local hotel. At about 9.30, the complainant collected him and drove him home. When they arrived, the two began to argue in the car. The complainant told the defendant that if he did not get out of the car, she would call the police and tell his mother. She then got out of the car and walked towards the front door of the house. The defendant followed and grabbed her from behind, hooking his right arm around her face and jaw. He twice pulled his arm tight on the complainant’s jaw, then hooked his arm under that of the complainant, and pulled his arm tight around her neck so that the complainant was unable to breath. The two fell to the ground. The complainant began to struggle but was unable to speak. She began to bleed from her nose and eyes. The defendant eventually released his grip, at which point the complainant gasped for air and began to cry. The two went to the defendant’s caravan where the complainant stayed the night. She did not contact police as she was fearful of what may happen if she did. It seems that the next day, friends of the complainant saw the effects of the attack and encouraged the complainant to see a doctor. On 11 June the complainant did so, and the doctor reported the incident to police. The formal description of the injuries sustained is large bilateral sub-conjunctival haemorrhages and slight bulging to the eyes. I was given photographs of the complainant. The images of the completely bloodied whites of the eyes are quite graphic and alarming. I am told that due to the swelling, the complainant had initially experienced pain when moving her eyes. On 13 June 2019 the defendant was arrested, and interviewed. He admitted having been in a sexual relationship with the complainant for six months. He said he had drunk about 18 stubbies at the time and was “pretty drunk”. He admitted to choking the complainant and said he had realised he had cut her air off, agreeing that he intended to do that. He accepted that she could not speak as she was choking. He also said that he could not remember a lot due to being drunk, but generally gets really angry and “just snaps”. He expressed some remorse in the sense that he said he would take the incident back if he could. The defendant has been in custody since his arrest on 13 June 2019.
At the time of the offending the defendant was 18 years old, very nearly 19, and has now turned 19. In February 2016 he was formally cautioned for dishonesty offences, and in April 2018, while still a youth, was convicted of drink driving and associated driving offences arising out of the one incident. I heard submissions from counsel in mitigation and I have a pre-sentence report dated 12 September 2019. At the time, the defendant was living with his mother and stepfather, his parents having separated when he was 8. He has lived all his life between the towns of Triabunna and Swansea, and intends to return to live there when he is able to do so. Notwithstanding his parents’ separation, and heart problems for his father, his childhood and upbringing were largely stable. He completed year 10 and at the time of the offending had been employed by a local orchard on a casual basis for about 20 months. He wants to return to that employment and I have a letter from the employer attesting to his suitability as an employee, and confirming that the job remains open to him. The defendant described himself as a “weekend drinker”, but acknowledged that it was not uncommon for him to binge drink. He has identified the connection between his offending behaviour and his misuse of alcohol. According to his counsel’s plea and the report, what may have precipitated the assault is as follows. About two weeks beforehand, the defendant had been drinking at the backpackers’ hostel. Things got out of hand and ultimately the defendant was assaulted by being choked and held in a stranglehold on and off over a period of time. Several people became involved and police were eventually called to the disturbance. Although unable to remember much of the argument with the complainant, the defendant says that while walking to the house, the complainant told him that he had deserved it. He reacted by asking her if she knew what it felt like and/or whether she thought he “deserved this” and then commenced to choke her. The Crown accepts that the defendant is to be sentenced on that basis. The defendant does not offer it as an excuse. He admits that the complainant would have been absolutely terrified. It is reported that he was in a state of shock about what he had done, and still struggles to come to terms with the nature of his actions. Community corrections has assessed him as requiring a high level of intervention and is deemed suitable for supervised probation. Given the limitations imposed by his place of residence, the nature of his offending, and his ability to return to employment, community service is not recommended. I take into account the plea of guilty which was entered on the very first appearance in the Magistrates Court. Of itself that gives rise to a discounted sentence. I accept that the defendant is genuinely remorseful for what he has done. I take into account his age and lack of relevant prior convictions. He has been in custody for just over three months, and this has been difficult for him. At this point, rehabilitation remains an important aim. At the same time, deterrence and denunciation of this sort of conduct are weighty sentencing factors. Choking is a dangerous and particularly nasty form of violence. The force applied was of sufficient strength and duration to cause the whole of the whites in both eyes to be bloodied. There is no suggestion of any ongoing physical difficulty, but no doubt the experience was a very traumatic one for the complainant.
Mr Ryan, your conduct has to be seen in a serious light. All unlawful violence is unacceptable. Violence within relationships is in particular a matter of great community concern. It is often difficult to detect and is an insidious problem within the community. Your conduct was a breach of the trust within the relationship. That you may have been provoked by a comment from the complainant is of no consequence, and correctly, you have not offered that as an excuse. By way of mere explanation, and while what you did cannot be excused or justified in any sense, the fact and nature of the assault seems to have stemmed from your own recent experience combined with the remark made to you, in the context of your drunken state. I take into account the factors that I have mentioned and which operate in your favour. In particular, there is your age, your plea at the earliest opportunity, and your remorse and insight into the nature of what you did. The end result is that I do not think any further immediate imprisonment is necessary. You are convicted and sentenced to 12 months’ imprisonment to commence on 13 June 2019, the execution of the balance of that term from today is suspended on condition that you commit no offence punishable by imprisonment for a period of two years. I make a community corrections order for 12 months commencing on your release. You will have to report to a probation officer at 114 Bathurst Street Hobart within two clear working days of your release. Conditions of the order are that you be subject to the supervision of a probation officer for the period of the order, that you attend educational and other programs, including the Family Violence Offender Intervention Program and the EQUIPS Aggression Program, or otherwise as may be directed by a probation officer, and that you undergo assessment and treatment for alcohol dependency as directed by a probation officer. There will be a further condition that you comply with the reasonable directions of a probation officer in relation to taking up any employment that is open to you, and you must not leave any employment without the prior approval of a probation officer. I direct that the offence be recorded as a family violence offence. I make a family violence order in the terms of the interim family violence order dated 14 June 2019 for a period of 12 months, with the following amendments:
- The words “[the complainant’s address]” be deleted from condition No 4.
- The words “[the complainant’s address] or the boundary” be deleted from condition No 5.