STATE OF TASMANIA v JOE MICHAEL STIVICIC 12 JUNE 2024
COMMENTS ON PASSING SENTENCE WOOD J
The defendant, Joe Michael Stivicic, has pleaded guilty to one count of aggravated burglary and he is to be sentenced for that crime and also for a number of summary offences which arose out of the same circumstances, namely common assault, two breaches of police family violence order, and drive a motor vehicle while exceeding prescribed alcohol limit.
The defendant and the complainant, Sarah Minehan, were married and they separated in approximately 2009. They have a daughter, Molly, who was aged 16 at the time and who lives with Ms Minehan and her partner of 12 years, Andrew Searle.
On 27 October 2023, the defendant was served with a police family violence order which named Ms Minehan as the protected person. The order included a condition that the defendant was not to directly or indirectly threaten, abuse, or harass Ms Minehan.
During the evening of Friday 17 November 2023, the defendant sent text messages to Ms Minehan from approximately 10:00 pm and continued to do so throughout the night. These messages were aggressive, abusive, and threatened violence towards her and her partner. He referred to her in one of the messages as a “dumb slut”, and this message is the subject of one of the charges of breaching the police family violence order. A number of the messages explicitly threatened to harm her partner with a knife. In one of them, he indicated he was coming to the house to “belt the life out of” her partner. The defendant is only to be sentenced with respect to the one message amounting to a breach of the police family violence order, but I take into account that it was not the only abusive and threatening message sent that evening. The messages were such that they would have instilled fear in the complainant and were meant to do so.
Then, on Saturday 18 November 2023 at approximately 8:15 am, the defendant drove from his address to the complainant’s house in Claremont and took a knife with him. He banged on the front door and Ms Minehan opened it to see the defendant holding the knife up next to his head. He demanded to know where her partner was, asking, “Where the fuck is Andrew?”. Then he pushed the door open and walked into the house. He thereby committed the indictable crime of aggravated burglary with intent to commit the crime of assault.
The defendant was holding the knife up next to his head and yelling about Ms Minehan’s partner. Their daughter Molly walked in as she heard her father’s voice and her mother yelling at him to get out of the house.
Ms Minehan picked up a golf club from near the front door and told the defendant to get out of the house, calling out to her partner to call the police. The defendant began to walk towards her, holding the knife, amounting to an assault by threat. She struck the defendant to the head with the golf club and he stumbled backwards. His head began to bleed but he did not leave and continued to hold the knife up in a threatening way.
Molly obtained a pole and struck the defendant with it, and Ms Minehan struck him a second time with the golf club. The defendant then left and drove home.
Ms Minehan’s partner, who was in the bedroom when the defendant entered the house, had called the police and they attended the defendant’s residence at about 9:00 am. He was seated on a couch inside and on the floor in front of him were two large boning knives.
He participated in a video interview with police officers. He admitted going to Ms Minehan’s house, “bashing” on the door, and that he had a boning knife in his hand, but maintained that he did not have any intention of harming anyone. He now admits by his plea of guilty that he intended to commit an assault. In his interview, he minimised and deflected responsibility for his conduct in that he said his former partner pushed him to a point and he snapped. He submitted to a breath analysis which returned a positive reading of 0.132. He was subject to a condition on his licence not to drive with any alcohol in his system.
Ms Minehan has provided a victim impact statement and describes the experience that she and her daughter were subjected to as terrifying and as having an ongoing disturbing impact. Her daughter has been deeply affected and has nightmares and flashbacks. Her schooling and social interactions have been adversely impacted by this incident, which marred the end of her grade 10 celebrations. Because the defendant has been in custody, child support has been non-existent, and this has put a financial strain on the family.
The defendant has been remanded in custody since 19 November 2023. He is 46 years of age and at the time was employed as a Commonwealth public servant. That employment has been terminated as a result of this offending.
He has relevant prior offences dating back to over 10 years ago. He has two prior offences for violence, both committed against Ms Minehan. On 29 October 2009, he was sentenced in relation to an offence of breach of police family violence order and common assault. The assault involved holding Ms Minehan down and placing his arm across her throat. A conviction was not recorded on the basis that he enter into an undertaking to be of good behaviour for two years. On 7 October 2011, just inside that two-year period, he committed an offence of common assault. He was intoxicated and, after a confrontation, he pushed Ms Minehan to the ground and kicked her to the leg. He was convicted and sentenced to a probation order for 12 months.
The defendant is also to be sentenced today for what is his fourth drink-driving offence. In 2005 and 2009, he was convicted of drive a motor vehicle while exceeding prescribed alcohol limit with very high readings. In 2010, he committed an offence of drive whilst disqualified and drive with alcohol in body without authority and was sentenced to a suspended gaol sentence of three months.
The significant lapse of time since committing that third offence and the one before the Court today is noted.
The defendant was not charged with the indictable crime of aggravated burglary initially. He pleaded guilty in November 2023 to summary offences in the Magistrates Court and was remanded for sentence to 5 January this year. A pre-sentence report was ordered. When he appeared in January, a new complaint had been filed and he faced the indictable crime of aggravated burglary.
That new charge was unexpected, resulting in adjournments, but the defendant pleaded guilty at an early stage and is to be given credit for that. This has facilitated the course of justice and meant the complainant and his daughter did not have to experience the stress of giving evidence in court.
His time in custody has been his first experience of imprisonment, and it has had a salutary effect. He has reflected on his conduct and is very remorseful.
I take into account that he has been consulting a psychologist for a number of years. He took this step some five years ago after his parents died when there was a deterioration in his circumstances and his alcohol intake increased. He was making positive progress in that regard but unfortunately, in the lead up to this offending, he relapsed into excessive alcohol consumption.
His consumption of alcohol was a feature of this offending but that is no excuse, especially for this defendant who is well aware that in the past it has led him to making irresponsible decisions that have put others at risk.
He has resolved that when he is released from prison, he will engage with counselling and address his problems, including his alcohol problem, in order to ensure he does not ever behave like this again.
These offences of aggravated burglary, common assault, and the two breaches of the police family violence order are serious offences involving violence and intimidation. The defendant went to the home of his estranged wife and daughter armed with a knife and entered with a violent intention towards his wife’s partner. There was also a degree of premeditation involved, having regard to the text messages he sent earlier that night and his taking of the knife to the house.
These are offences of violence towards a third party, Mr Searle, but they are also family violence offences. He knowingly exposed his estranged wife and daughter to danger and a terrifying experience. He was not deterred by their presence or their physical resistance. In fact, he persisted, and when his wife did what she could to try and stop him, he assaulted her by threatening her with the knife. His conduct blatantly breached the police family violence order designed to protect her.
I give weight to the fact that, fortunately, no one was physically injured, however, there was real potential for grave injury given his intention, his intoxication, and the volatility of the situation he created.
Moreover, the terror and fear instilled in the complainant and her daughter is a form of serious harm in and of itself. As I have mentioned, it has had adverse effects on their lives with the very real prospect of lasting emotional or psychological harm. Everyone is entitled to feel safe and secure in their own home and your conduct showed contempt for that fundamental right.
General deterrence is a very important factor in sentencing in such cases. The sentence needs to make it clear that this kind of violence and intimidation is unacceptable. The courts are intolerant of family violence and are conscious of its prevalence in the community. The sentence must be an effective deterrent in order to protect the vulnerable members of our society, so often women and children, from this kind of violent intrusion.
Aggravating features of the crime of aggravated burglary with intent to commit the crime of assault are that it was committed in the context of underlying domestic conflict, and the defendant brought a knife, a potentially lethal weapon, to the situation. The common assault was committed in the presence of a child, which is also an aggravating feature of this crime.
A heavy sentence is required to reflect the seriousness of the criminal conduct and the harm done, and to ensure the sentence is effective as a deterrent to others so that the Court fulfills its duty of protecting the vulnerable members of our society.
I take into account the defendant’s very early pleas of guilty, that this is the first time the defendant has been to prison, that he is remorseful, and his resolve to address the factors that contributed to his behaviour. The sentence will give weight to these factors by suspending a significant part of the term of imprisonment to be imposed.
I record convictions. In relation to the crime of aggravated burglary, common assault, and charge 5 on the complaint being breach of the police family violence order relating to the assault, I impose a global sentence of two years’ imprisonment backdated to 19 November 2023. I suspend 14 months of that two-year term on strict conditions.
In relation to the breach of family violence order concerning the text message, I impose two months’ imprisonment wholly suspended on the same conditions.
For the drive whilst exceed 0.05, I impose four months’ imprisonment wholly suspended and a period of licence disqualification of two years.
The conditions of suspension in relation to the three suspended terms of imprisonment are that, for a period of 2 years from the date of your release from custody:
- You must not commit any offence punishable by imprisonment; and
- You must comply with all of the conditions of the Community Correction Order I am about to impose.
I make a Community Correction Order for a period of two years from the date of your release. I impose the core conditions which apply for that period:
- You must not commit an offence punishable by imprisonment;
- You must report to a probation officer or supervisor at Community Corrections at 75 Liverpool Street, Hobart, within two working days of your release from custody;
- You must report to a probation officer as required by the probation officer;
- You must comply with the reasonable and lawful directions of a probation officer or a supervisor;
- You must not leave, or remain outside, Tasmania without the permission of a probation officer;
- You must give notice to a probation officer of any change of address or employment before, or within 2 working days after, the change.
In addition to the core conditions, I impose special conditions:
- You must, during the period of two years from the date of your release, attend educational and other programs as directed by your probation officer;
- You must submit to the supervision of a probation officer as required by your probation officer;
- You must undergo assessment and treatment for alcohol and drug dependency as directed by a probation officer;
- You must submit to medical, psychological or psychiatric assessment or treatment as directed by your probation officer;
- You must, if directed by a probation officer, attend, participate in, and complete the Family Violence Offender Intervention Program as directed.
The result is a two-year term of imprisonment of which you must serve 10 months. The suspended periods of imprisonment, in combination, amount to 20 months’ imprisonment which are, as I have said, suspended on strict conditions for two years from the date of your release.
The convictions for aggravated burglary, the breaches of police family violence order and the common assault are to be recorded on your record as family violence offences.
I make the forfeiture order as sought with respect to the knife and attribute its value as being $1.