STATE OF TASMANIA v CHRISTIAN NEIL SHEARING 28 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE JAGO J
Mr Shearing, you have pleaded guilty to three counts of assault contrary to s 184 of the Criminal Code. The first count alleges that on or about 1 January 2021, you unlawfully assaulted ME by grabbing her head and shaking it. You admit that assault but dispute the particular that you shook ME’s head. The second count alleges you assaulted ME by grabbing her arm, pulling her to the ground, sitting on her, placing your hand onto her throat and strangling her. Again, you admit the assault but only to the extent that you grabbed her arm and pulled her to the ground. You deny the balance of the particulars. The third count alleges you assaulted ME by grabbing her arm, pulling her to the ground, sitting on her, placing your hand onto her throat and strangling her. Again, you dispute all of the particulars beyond grabbing her arm and pulling her to the ground. Because there was such significant dispute as to the facts, evidence was taken on the sentencing hearing.
ME gave evidence. Her evidence established she was, at the relevant time, in a significant relationship with the defendant. They had been living together at an address in Devonport. Another person, MC, also lived at the residence. ME gave evidence that an argument developed between her and the defendant after she misinterpreted something she heard the defendant say during a phone call to a friend.
ME’s evidence was that she walked away from the defendant when he became angry and went to the laundry. The defendant followed her, grabbed hold of her head by placing one hand on either side of her head, and shook it whilst calling her a “stupid slut”. He then let go of her and left the laundry. ME said both she and the defendant returned to the lounge room, and whilst in the lounge room, the defendant again became angry and approached her, grabbed her arm and pulled her onto the ground between two pieces of furniture. She was laying on her back and he was straddled over her with his knees either side of her legs. She said the defendant had his hands around her throat and was applying pressure. She said she was trying to make a noise but “no words were coming out”. She could not breathe very well. She said the pressure to her throat was “not for a long amount of time”. Eventually, the defendant stopped and walked away and she laid on the ground and cried.
As to the third count, ME said she eventually got up and went to the bedroom. The defendant followed her in there. She said the defendant pulled her onto the ground by her arm and then “slammed her down” onto the floor by grabbing her throat. She said the defendant was crouched beside her on his knees. He started to squeeze her throat. She said her eye sight “went a little bit white” and she felt faint. The defendant let her go after what she thought was about 15-20 seconds, but she could not be certain as to the timing. She described “almost passing out”. She eventually got up and ran outside into the street to obtain some assistance.
ME was cross-examined. She agreed she had been drinking, but denied she was drunk. She maintained the defendant had applied pressure to her throat during the assaults. She maintained that the defendant had shaken her head during the assaults. At one point in the cross-examination, she did become confused as to the sequence in which events occurred. For example, at one point she said after the laundry incident she went directly to the bedroom and did not describe the lounge room incident. I took this as the complainant becoming confused by the questioning and not a retraction of the evidence she had given about the second incident. It was never suggested to her that an incident had not occurred in the lounge room, and in any event, the defendant pleaded guilty to three separate incidents of assault.
ME was also cross-examined about some text messages she had sent to the defendant’s family. She agreed she sent the messages because she “felt bad” and cared about the defendant and did not want to get him into trouble. There was no suggestion in the text messages that she was denying the incidents had occurred as she described.
MC gave evidence. His evidence was of seeing an incident in the lounge room where ME was on the ground near the couch and the accused was “on top of her”, yelling at her and “had her by the collar”. MC said he told the defendant to calm down. In cross-examination, MC agreed he could not say the defendant had his hand around her neck. His evidence was only to the extent his hand was in the vicinity of ME’s collar. Again, I note in terms of any suggestion that there had not been an assault in the lounge room, it was never suggested to MC the incident he described had not occurred. I must say, however, my general impression of MC was that he was trying very hard to say as little as possible.
Evidence was also called on the sentencing hearing from SD. She gave evidence of living next door to the residence where the defendant and ME lived. She said around 8 pm on 1 January 2021 she heard a female yelling and screaming from next door. She went outside and observed ME in the roadway, screaming and very upset. She said she was “bruised and not good”. SD asked whether she was okay and ME replied “I’ve been bashed by my partner”. SD said she took her inside and called the police, who subsequently attended. Tendered on the sentencing hearing was some body-worn camera footage, taken from the camera worn by Constable Skinn. It was apparent from the footage that ME was very upset. She was crying and distressed. She described to police being pushed and choked. On the footage it is apparent ME’s neck is red, and bruising to the arms can be seen. The demeanour of ME, and the redness to her neck, which is visible on the footage is, in my view, entirely consistent with her having been assaulted in the manner she described.
The defendant gave evidence. He said he had been in an on/off relationship with ME for approximately two years. He described that both of them had experienced mental health difficulties during the relationship. He said on the evening in question, he had consumed cannabis. He said ME had also. He said an argument developed following him being on a phone call with a friend. He said ME started yelling at him. He said they ended up in the laundry and because he had received a photo on his phone, from a friend, which was of ME and was suggestive, he grabbed her, put his hands over her ears and said “You’re nothing but a dirty slut….. why would you do that? He’s one of my mates”. He denied shaking her.
I note the existence of the photograph and the comment the defendant made about the photograph was never put to ME during cross-examination. In any event, the defendant said he and ME returned to the lounge room. He again began smoking marijuana. There was an argument over the marijuana. He said she started “mouthing off to me so I cracked it…so I like literally pushed her and that was it… I had her pinned against the couch”. This was the extent of the incident the defendant described as occurring in the lounge room, inconsistent, I note, with his plea of guilty to grabbing her arm and pulling her to the ground.
He said ME then went to the bedroom. He went up there because she was “still yelling”. He said there was a further argument and he “scuffed her and put her to the ground”. He denied that he had his hand around her neck or squeezed her neck at any point.
In cross-examination, his account varied somewhat. He said in the lounge room after he pinned ME against the couch, she “literally went to the ground and started crying”. He said he had nothing to do with her falling to the ground in the lounge room. He agreed MC was present. As to the bedroom incident, he said he grabbed her by the arm and pulled her to the ground. He said he sat beside her. He said he had his hand on the scruff of her shirt, which probably did put force on her neck from the shirt itself, but it was not from him.
I found the defendant’s evidence to be inconsistent, difficult to understand and not at all believable. I reject his evidence. By contrast, I found the complainant’s account to be credible. Save for some confusion as to sequence which I have mentioned, she was consistent in her account. She did not appear to exaggerate her evidence. She was obviously reluctant to be at Court and give evidence. I did not gain the impression that she was in any way embellishing her evidence. Her evidence was supported by her demeanour which others observed, her demeanour on the body-worn camera footage, and the complaint she made to police on the footage. The injuries that can be observed on the footage are also consistent with her account. The evidence of MC is far more consistent with the complainant’s account than it is with the defendant’s account. I am satisfied beyond reasonable doubt as to the truthfulness and reliability of ME’s evidence and I will sentence on that basis. Her evidence does not allow me to be satisfied however that the defendant sat on her on either occasion. In the lounge room, I am satisfied he “straddled” her. In the bedroom, I am satisfied he was beside her, but not on her.
As a consequence of the assaults the complainant suffered bruising to her right arm and soreness to her neck. I have read her Victim Impact statement. She described being traumatised by the incident and believing she might die when the defendant was applying pressure to her throat. She was having difficulties in breathing and her vision was affected. She said she often thinks about what occurred and has experienced flashbacks.
The defendant is now 31 years of age. He has had a difficult upbringing. He suffers from bi-polar and depression. He has also been a regular user of illicit drugs which have exacerbated and complicated his mental health conditions. He has a considerable history of criminal offending, although not a lot for violence. In 2014, he was sentenced for aggravated burglary and stealing and received a wholly suspended sentence. He received another wholly suspended sentence of imprisonment for driving offences in 2019. Later in 2019, he received yet a further period of suspended imprisonment for matters of dishonesty. In February 2020, he received his fourth period of suspended imprisonment, again for matters of dishonesty and driving offences. Clearly, the defendant has received a number of sentencing orders directed at encouraging him to become a law abiding member of the community, but until recent times, they have seemingly been without success. In February 2021, the defendant was sentenced to a period of imprisonment for two counts of common assault and a number of driving offences. A 12 month Community Correction order was also imposed.
Whilst these sentencing orders are obviously not prior convictions, they are reflective of an ongoing attitude of non-compliance with the law. I am told, however, that since the defendant’s release from custody in December 2021, nearly 12 months ago now, he has made a number of substantial changes. He has relocated to Hobart to live with his sister and he has her ongoing support. He has re-engaged with mental health professionals and is seeing a psychologist on a regular basis. He has resumed medication for his mental health conditions and is being compliant with his medication regime. He has ceased his use of illicit substances. He has also, it seems, engaged well with Community Corrections. I obtained an updated report in respect to the defendant’s progress since his release from custody in December 2021. The report indicates that during the supervision sessions undertaken in line with his current Community Correction order, he has engaged well and has been willing to openly discuss his mental health condition. He is described as being polite, respectful and coherent. It is also noted in the pre-sentence report that since his release from custody, he has attended all appointments as directed and has engaged well with his probation officer and external services.
Objectively, these are very serious criminal offences. Of particular concern is the application of pressure, on two occasions, to the complainant’s throat. The pressure was sufficient to cause her breathing difficulties and in respect of the second incident, her vision was affected and she felt faint. It is well known and understood that pressure to the throat, particularly when it impacts upon one’s capacity to breathe, can result in serious injury or even death even after only a short period of time. Such behaviour also has the capacity to cause ongoing physical and psychological consequences. In the context of family violence, it is also an act directed at domination and control.
Here, it is fortunate that the complainant suffered no significant physical injuries and, it seems her injuries resolved themselves without medical intervention. Nevertheless, the risk of serious injury that was associated with the defendant’s behaviour is obvious. Any violence of this nature must, in my view, be condemned. Family violence, of any form, is simply inexcusable and intolerable. General deterrence, denunciation, punishment and the protection of victims and the community at large weigh heavily in the sentencing process.
I take into account the defendant’s plea of guilty although I note its mitigatory value has, to a large degree, been extinguished because of the complainant’s need to give evidence on the sentencing hearing. I do not consider the defendant has shown any genuine remorse. The evidence he gave on the disputed facts hearing was clearly directed at minimising his behaviour and demonstrated he has very little insight into the seriousness of his wrong doing. I say that even noting the comments made in the Community Correction report which indicate the defendant expressed to the author of that report a wish to apologise to the complainant, should he be able to do so.
In my view, given the objective seriousness of the behaviour and the paramountcy that must be given to general deterrence, the only appropriate sentencing order is a period of imprisonment. The quandary for the sentencing court is whether or not that period of imprisonment should be suspended in light of the obvious significant improvements the defendant has made since his release from custody in December 2021. I have given careful consideration to this issue. I have determined that there is a sufficient indication in the Community Correction report of the defendant’s commitment to reform to warrant suspending the period of imprisonment that I intend to impose. Mr Shearing, you should be under no illusion, however, that you came very close to receiving a period of actual imprisonment today.
I make the following orders: you are convicted of the three crimes to which you have pleaded guilty. You are sentenced to a period of 15 months’ imprisonment, backdated to commence 22 November 2022 to take into account time served in custody and not otherwise accounted for. The operation of the balance of that period of imprisonment will be suspended on condition that you commit no offence punishable by imprisonment for a period of three years from today’s date.
I also make a Community Correction’s order for a period of 12 months from today’s date. The core conditions of that Community Correction order will be set out in a written document provided to you. You are required to comply with all of those conditions. I also impose a special condition that you must submit to the supervision of a probation officer for that 12 month period and you must participate in programmes and/or engage in counselling, and/or attend at and participate in psychological or psychiatric treatment as directed by your probation officer. In addition, during the operation of the Community Correction order, you must undergo assessment and treatment for drug dependency as directed by a probation officer. You must undergo assessment and treatment for alcohol dependency as directed by your probation officer. You must also attend, participate in and complete the Family Violence Offender Intervention Programme as directed by your probation officer. You are required to report to Community Corrections in Hobart by close of business tomorrow.
Mr Shearing, you must clearly understand that if you are foolish enough to re-offend and breach the terms of the suspended imprisonment I have imposed upon you, or if you fail to satisfactorily complete the terms of the Community Correction Order that I have imposed- including completing the Family Violence Offender Intervention Programme – then in my view, a period of actual imprisonment is all but inevitable.
Pursuant to s 13A of the Family Violence Act, I direct these crimes be recorded on your criminal record as family violence offences.
I have already made a Family Violence Order on 13th October 2022 pursuant to s 36 of the Family Violence Act. That Family Violence Order continues to operate.