STATE OF TASMANIA v RYAN SEARLE 24 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Searle, you have been found guilty by a jury of one count of assault. At the commencement of the trial, you pleaded guilty to a further count of assault and one count of unlawfully injuring property. I note that you were acquitted of one count of assault and two counts of wounding.
The crimes for which you are to be sentenced constitute significant family violence. You and the complainant were not living together at the time, but you had been in a relationship, and have a daughter, who was then aged 3 years. You committed the crimes over the course of two days, while the complainant and your daughter were staying with you. It is clear from the complainant’s evidence that you had both consumed a great deal of alcohol and probably some drugs during that period. You committed the crimes in anger. The first assault, at least, was committed while you were under the influence of those substances. That assault occurred on 15 August 2018. It is clear that the jury must have accepted the complainant’s description of that crime contained in her statutory declaration. Clearly, the jury did not accept everything she said in that declaration but there is no other basis upon which you could have been found guilty of this crime. Accordingly, I am satisfied that you committed the crime in the following circumstances. The complainant was sitting on the edge of the couch. You suddenly became angry and shoved her off that couch with two hands by pushing her to the chest. This caused her to fall off the couch backwards and she hit the back of her head against the door. You then dragged her by the legs across the room. Your daughter was woken by this and started crying.
The other assault was committed the following day. This is the crime to which you pleaded guilty. I am satisfied that the facts of the crime accord with the statutory declaration. There was some confirmation of that version in the complainant’s evidence before the jury, particularly in relation to the act of strangulation. The degree of violence asserted in the statutory declaration by the complainant is also consistent with the distress observed by police when they met her on the road outside the house after the assault. The fact that she was prepared to leave the house without her daughter demonstrates the extent of her fear and distress consequent upon your conduct. The serious nature of your conduct is also supported by your admissions to police and by what you said during the course of your 000 call. Finally, the complainant’s description of the violence perpetrated by you is consistent with the injuries photographed by police later that day.
You committed this assault after you had been released by police, and had returned to the residence. You tried to get in, but the complainant would not open the door. You became angry and attempted to force entry. Of course, this did not involve trespassing because it was, in fact, your house. However, those events contributed to the development of your anger. Given that you had been in police custody for some hours, I do not think your anger, and consequent conduct on this occasion, can be explained by intoxication.
Eventually, the complainant opened the door. You burst in, grabbed her around the throat and squeezed. She was not able to breathe and stated that you held her in this way for long enough to make her think that she might actually die. A few seconds after you let her go, you grabbed her head and drove it into the mattress that your daughter had been sleeping on. You squeezed the back of her neck with force. You then punched her in the ribs twice to the right side and then in the solar plexus with your right fist. You then punched her in the thigh and around the head. She is not sure how many times you punched her, but there were multiple blows. You did all this in front of your daughter, who was screaming at you to stop. It was at this time that you made the 000 call. You made that call for the purpose of having the police remove the complainant and your daughter from the residence. It is clear to me that you had appreciated the extent of your anger and, I infer, of the violence administered by you. As I have already explained, the police arrived shortly after and met the complainant in a distressed state on the road outside the premises.
The complainant suffered relatively extensive bruising as a result of your assaults. Because of the jury’s verdict, you are not to be punished in respect of the wounds that can be clearly seen in the police photographs. However, I infer that the majority of bruising and other superficial injury was a direct result of the crimes for which you are to be sentenced.
I regard these assaults as very serious. Your conduct is aggravated by the fact that the violence was perpetrated in the presence of your young daughter. Further, the assaults involved brutal and protracted violence. The attempted strangulation is a matter of particular concern. Such conduct is extremely dangerous, and in your angry state you had no real capacity to judge the extent of the force you were using or the possible adverse consequences of your actions. Further, your conduct towards the complainant was extremely demeaning and abusive. All of these aspects place your criminal conduct into a particularly serious category. In my view, there is little, if any, mitigation available to you.
You are 29 years of age. Your criminal history manifests ongoing problems with illicit drugs and alcohol. Prior to the commission of these crimes, you had no prior convictions relating to family violence or violence generally. However, since committing these crimes, you have been convicted of a number of breaches of family violence orders. I am told that these breaches relate to the contravention of conditions which require you not to approach or be in the presence of the complainant. Your counsel emphasised your ongoing problems with drugs and alcohol. However, he also advised me that you have found the time in custody beneficial. In particular, it has provided you with the opportunity to abstain from these substances, and this has assisted you to form a commitment to rehabilitation. You have been assessed as suitable for a community corrections order, which will include participation in the Family Violence Offender Intervention Program and the EQUIPS program. You also hoping to enter residential drug rehabilitation upon your release from prison. These assessments were in fact made in respect of a sentence imposed by a magistrate on 20 February 2019, for family violence offences. That sentence included a community corrections order with an operational period of 12 months. Your counsel submits that the sentence could appropriately include an extension of the operational period of the order.
The primary sentencing consideration in respect of criminal conduct such as this must be general deterrence. Family violence of this nature deserves condemnation and significant punishment. However, I also agree with your counsel that it is appropriate to also provide you with the opportunity to pursue rehabilitation, particularly by participation in the relevant programs.
The orders I make are as follows:
1 You are convicted of each of the said crimes.
2 You are sentenced to a global term of 2 year’s imprisonment, which will be backdated to 3 December 2018. You will not be eligible for parole until you have served one half of that sentence.
3 I make a community corrections order. You must comply with the order for a period of 12 months, and that period shall commence on the day that you lawfully cease to be imprisoned under this sentence. The core conditions of the order require you to report to a probation officer and you shall do so at the office of community corrections in Burnie within three clear days of the day that you lawfully cease to be imprisoned under this sentence. In addition to the core conditions, your order shall also include the following special conditions:
(a) you must, during the operational period of the order, attend educational and other programs as directed by the Court or a probation officer;
(b) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(c) you must, during the operational period of the order, undergo assessment and treatment for drug dependency as directed by a probation officer;
(d) you must, during the operational period of the order, submit to testing for drug use as directed by a probation officer;
(e) you must, during the operational period of the order, undergo assessment and treatment for alcohol dependency as directed by a probation officer;
(f) you must, during the operational period of the order, submit to testing for alcohol use as directed by a probation officer;
(g) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
(h) you must during the operational period of the order, attend, participate in and complete such courses or programs as directed by a probation officer, including the Family Violence Offender Intervention Program, and the EQUIPS program.
3 Pursuant to s 13A of the Family Violence Act, I direct that each crime of assault for which you have been convicted be recorded on your criminal record as a family violence offence.
4 I make a family violence order, which will take effect from today and continue for a period of five years. The terms of that order, which are now binding on you because you are in Court listening to me make this order, will be as follows:
(1) That you are not to directly or indirectly threaten, abuse or assault [the complainant].
(2) That you are not to enter any premises where [the complainant] is living from time to time.