STATE OF TASMANIA v ZANE COLIN SENGSTOCK 11 JULY 2022
COMMENTS ON PASSING SENTENCE JAGO J
Mr Sengstock, you have pleaded guilty to one count of assault contrary to s 184 of the Criminal Code. I have also agreed to deal with a number of related summary offences being a further six counts of common assault and one count of breaching a family violence order. At the time of the offending you and complainant had been in a significant relationship for approximately two years. You had experienced considerable periods of homelessness throughout the course of the relationship. On 8 May 2020 a family violence order was made protecting the complainant from you. It was operative for a 12 month period and included a condition that you not go within 50 metres of the complainant. On an unspecified day in March 2021 you were in the company of the complainant at a friend’s home in Ravenswood. This behaviour encompasses the breach of family violence order offence. There is no suggestion anything untoward occurred whilst you were in the complainant’s company.
In May 2020 you and complainant were living with a friend in Devonport. On 15 May 2020 you requested the complainant go to the supermarket with you. When the complainant declined there was an argument. You began to ride away from the complainant on your push bike. When the complainant challenged you about this, given you had just asked her to go to the supermarket with you, you turned around and approached the complainant and punched her to the face. It caused her nose to bleed. This is the first matter of common assault. Police were called but the complainant would not say what had happened to her. Shortly after this incident you verbally abused the complainant. She ran to a neighbouring unit. You followed her inside that unit and began hitting her to the body. This is the second incident of common assault.
On 7 June 2021 you again verbally abused the complainant. The complainant told you that she was “sick of your behaviour and sick of you hurting her”. You responded to her most reasonable request by punching her to the left side of the face. When the complainant challenged you further, you kicked her to the left side of the head. This is the third incident of common assault.
Following this assault the complainant went to a friend’s unit. You demanded she return home and when she refused to do so, you threatened her by telling her you would “snap her neck”. The complainant said she was too scared to even come near you, so you elevated the threat by telling her you would stab her. You then entered the unit and stood over her with a knife as if you were going to stab her. The knife was approximately 30 centimetres long. The complainant believed you would stab her. She was scared and fearful for life. This is the fourth incident of common assault.
Following intervention from another person, you threw the knife away and you and the complainant returned to your unit. When the complainant indicated she was upset and remained fearful of you, you retrieved the knife and again held it at the complainant threatening her that if she ever thought about leaving you, you would stab her. This is the fifth incident of common assault.
On 8 June 2021 the complainant left your unit and went to a friend’s unit. When you awoke and realised the complainant had left, you went to the friend’s unit and dragged the complainant out of that unit by her neck. This is the sixth count of common assault. You then dragged her outside. There was a verbal discussion. The complainant returned to her friend’s unit. You again entered the unit and found the complainant sitting on her friend’s bed. You walked up to her and punched her in the face and back. You also demanded the complainant leave with you. The complainant refused to do so. You then placed both of your hands around her neck, dragged her off the bed and on to the floor, and proceeded to strangle her until she could not breath. The complainant was unable to make any noise because of the pressure on her neck. Eventually you released your grip. It is not known for precisely how long you were strangling the complainant but she could not breathe nor speak. It must have been a terrifying ordeal, particularly given the violence you had already perpetrated upon her to that point. Police were called and arrived shortly after. The complainant was noted as having a number of injuries. These were photographed by police. She had swelling to her left forehead, a bruise like discoloration to both eyes, a scar across the bridge of her nose, red marks around the front of her neck and red mark scratches and scars to her back. She was subsequently taken to the Mersey Community Hospital. The following signs of injury were noted: bruising to the left side of the forehead and on the nose; linear marks on both sides of the front of her neck which were described as “finger marks”; and bruising to the front and back of her right shoulder.
It seems these injuries resolved without medical intervention. I have not been provided with any victim impact statement from the complainant but I have no doubt all of the assaults, and particularly the last one, were a very upsetting and traumatising experience.
The defendant has a number of prior convictions for matters of family violence. In May 2020 he was convicted of two counts of common assault relating to the same complainant. They involved him “pushing and shoving” her and “dragging” her. Additionally he was convicted of three counts of breaching a police family violence order. In June 2020 he was again convicted of two counts of breaching a police family violence order. In September 2020 he was convicted of three counts of breaching a family violence order and two counts of breaching bail conditions which were directed at her protection. In March 2021 he was again convicted of breaching a family violence order. At the time of this offending the defendant was subject to two periods of suspended imprisonment. On 10 December 2020 he was sentenced for the crime of dangerous driving. He was sentenced to a period of 12 months’ imprisonment with seven months of that period of imprisonment suspended on condition he commit no offence punishable by imprisonment for a period of two years. On 30 March 2021 the defendant was further sentenced for the offence of evading police. This offence arose from the same circumstances as the dangerous driving. It seems the application under s 385A of the Code was not made at the time the defendant was sentenced for the dangerous driving, but made shortly thereafter. For that offence he was sentenced to a period of four months’ imprisonment again wholly suspended on condition that he commit no offence punishable by imprisonment for a period of two years. Application is made pursuant to s 27(4) of the Sentencing Act for the two periods of suspended imprisonment to be activated. It is noteworthy that the offending behaviour for which the defendant now stands to be sentenced occurred within three months of the second period of suspended imprisonment being imposed upon him.
The defendant is now 30 years of age. He has had a difficult upbringing and has always experienced difficulties with his reading and writing. It has limited his ability to obtain a drivers licence which in turn has limited his employment opportunities. He has qualifications as a butcher but has had difficulty in obtaining regular employment. I am told that at the time the family violence offending occurred, the defendant was using methamphetamine very heavily. He has had a long term difficulty with drugs. In February 2020 the defendant tragically experienced the loss of one of his children. His use of methamphetamine escalated markedly after that, in response to his grief. In July 2020 he was remanded in custody in respect to the dangerous driving charge. Following his release in December 2020 he attempted to maintain abstinence from drugs and I am told was partially successful in doing so. Then however in early June 2021 his father passed away. He once again returned to the excessive use of methamphetamine, and it was in that context that all of the violence perpetrated against the complainant occurred. The defendant was arrested on 9 June 2021. He was refused bail and was remanded in custody until 29 November 2021. Since his release in November 2021, the defendant says he has not again used drugs. During his time in custody, he gave considerable thought to the negative impact his use of drugs has had upon his life and I am told is now determined to rid himself of drug addiction once and for all. He has been engaged with a counsellor at Holyoake since February 2022. I have read a report prepared by the defendant’s counsellor. It indicates the defendant has been committed in his attendance at counselling sessions and has shown “a real willingness to change his past behaviours by integrating new learned behaviours and strategies.” The report suggest the defendant has shown a commitment towards change. I am told the defendant is motivated and is hopeful that he will shortly obtain employment. He has recently undertaken a recruitment process with a food processor. Whilst of course it is to the defendant’s credit that he is endeavouring to address his drug use, he has made such claims before. I note that in the sentencing comments of Wood J it was noted “it appears that the time he has spent in custody has been effective as a personal deterrent and that Mr Sengstock is motivated to reform and turn his life around and address his drug problem and other difficulties”.
In the hope of encouraging the defendant’s ongoing rehabilitation Wood J gave him the benefit of a period of suspended imprisonment. The encouragement of his rehabilitation was reiterated by the imposition of the second period of suspended imprisonment in March 2021. Mr Sengstock did not embrace the opportunity that was extended to him from such sentencing orders. Within a short period of the March 2021 sentence Mr Sengstock was again re-offending. Whilst I accept the nature of the offending was different, the offending behaviour that occurred in June 2021, in particular, was most serious indeed. The defendant may well have experienced a personal crisis with the passing of his father, but it is noteworthy that he had committed violence against his partner prior to that, as evidenced by his record of prior offending and the violence in May 2020. The defendant’s preparedness to commit acts of violence against his partner coupled with his unwillingness to abide by the terms of family violence orders made to protect her, is in my view concerning. It suggests specific deterrence is an important sentencing consideration.
Family violence crimes are always serious. They inherently involve a breach of trust and are typically committed against vulnerable complainants. Here the act of choking is particularly serious. It is a dangerous act; it can cause the loss the consciousness and death very quickly. The complainant was unable to breath. It is well understood that such acts can cause ongoing difficulties over an extended period of time and underlying injuries may not manifest immediately. The courts have emphasised time and time again, the need to condemn family violence. In sentencing any family violence matter general deterrence, denunciation, punishment and protection of victims are principal sentencing considerations.
I also cannot overlook the fact these offences were committed when the defendant was subject to two separate periods of suspended imprisonment. His use of drugs had been a contributing factor in the commission of the crimes to which those sentencing orders related. It seems he did not address his drug difficulties in any concerted way upon being given the benefit of those suspended periods of imprisonment, and in fact again committed serious crime whilst under the influence of drugs when he committed these assaults upon his partner. Whilst his drug addiction provides a context for his behaviour, it in no way excuses or mitigates it. The law in respect to the activation of suspended sentences upon breach is well settled. The Court must activate the suspended sentence unless of the view it is unjust to do so. It is argued on behalf of the defendant it would be unjust to activate the sentences because of the work the defendant has undertaken recently in respect to his drug addiction. I certainly acknowledge that in more recent times Mr Sengstock has made a concerted effort to address his drug addiction with a view to rehabilitating himself. However such has to be viewed against a background of him having been afforded opportunities to embark upon rehabilitative endeavours since December 2020. It was not until February of this year that he took up that opportunity. The effectiveness of suspended sentences as a tool to encourage rehabilitation and deter re-offending cannot in my view be eroded by courts overlooking the commission of offences, particularly serious offences, committed in breach of an order. Here the defendant did not commit just one offence in breach of an order, there were several. His behaviour in June 2021 was appalling. I am not of the view it would be unjust to activate the periods of suspended imprisonment. Rather, I am of the view that if I do not, the integrity of the sentencing process is at risk of being undermined. Having determined it appropriate to activate such periods of imprisonment, I will of course bear in mind principles of totality in determining the appropriate sentence to be imposed for the new offending. I take into account the defendant’s plea of guilty. It has mitigatory value, not only in a strictly utilitarian sense, but also because it has saved the complainant the ordeal of giving evidence.
I make the following orders. The defendant is convicted of all matters to which he has pleaded guilty. I activate seven months of the period of imprisonment imposed but suspended on 10 December 2020. I backdate the commencement of that seven month period of imprisonment to the 21 January 2022 to take into account time served in custody and not otherwise attributed to a sentencing order. The defendant is not eligible for parole until he has served one half of that sentence. I activate the four month period of suspended imprisonment imposed on 30 March 2022. Three months of that period of imprisonment will be served concurrently with the period of imprisonment just activated and one month will be served cumulatively. The defendant is not eligible for parole until he has served one half of that sentence. For the new offending I will impose a single sentence. The defendant is sentenced to 8 months’ imprisonment cumulative to other periods of imprisonment today activated. The defendant is not eligible for parole until he has served one half of that sentence. Pursuant to s 13A of the Family Violence Act 2004 I direct that the crime and offences be recorded on the defendant’s criminal record as family violence offences.
I make a family violence order in the same terms as the family violence order dated 29 November 2021. That family violence order will operate for a period of two years from today’s date. For the purposes of s 92A of the Sentencing Act, I note the total term of imprisonment you are liable to serve is 16 months. Your service of that period of imprisonment, Mr Sengstock, commenced on 21 January 2022. The total period of imprisonment you must serve before becoming eligible for parole is 8 months.