STATE OF TASMANIA v TODD ANDREW TATNELL ESTCOURT J
COMMENTS ON PASSING SENTENCE 3 APRIL 2020
Todd Andrew Tatnell has been found guilty by a jury of one count of assault upon his wife, Nikita Anne Maree Bond, by grabbing her by the throat and choking her, pushing her onto a bed, sitting on her and holding her down and striking her to the face with a hand, all on 7 October 2018.
He was acquitted by the same jury of two subsequent counts of assault alleged to have occurred successively, and quickly following the first, and each other.
The significance of that is that the only reasonable basis for acquittal, given the defendant’s admissions to police, was that the defendant used reasonable force in self-defence on those two occasions.
It follows that in respect of the guilty verdict on the first count the jury must have either rejected self-defence or found that the accused used excessive force.
Consistently with the jury’s verdict I find that the defendant did not believe that it was necessary to use force to defend himself in order to achieve his objective of leaving the house. He could have walked away or shaken loose of the complainant.
It is clear that the jury were satisfied beyond reasonable doubt that the defendant choked the complainant. I am so satisfied that he did, given the evidence of the marks on her throat and the presence of petechial haemorrhages on and around her eyelids, all of which confirm the complainant’s own evidence. The other particulars are made out consistently with the defendant’s own admissions, with the exception of striking the complainant to the face with a hand. I am satisfied to the requisite standard that he did so strike the complainant, despite the absence of any mark left on the complainant’s face. The medical evidence was that the application of force does not always result in bruising and I am satisfied that the defendant so struck the complainant in retaliation when she struck him in a similar fashion after he had choked her.
The defendant is 33 years old and has previously been of good character. He has no relevant prior convictions. He has provided excellent character references. It is clear that he lost his temper on this occasion and acted out of character.
Nonetheless as I said in Director of Public Prosecutions v Foster [2019] TASCCA 15, in recent times Courts have recognised the need to condemn family violence and have emphasised the importance of deterrence, denunciation, punishment and the protection of victims and the community in the sentencing process. Significant deterrent sentences are warranted as family violence offences inherently involve a breach of trust and are typically committed against vulnerable complainants. I have read and take into account the victim impact statement made by the complainant.
As was acknowledged by the High Court in R v Kilic [2016] HCA 48, 259 CLR 256 at [21], sentencing practices for offences involving domestic violence may “depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations”. This has occurred in recent years and is now well understood in the community.
Lest it be thought that grabbing the complainant by the throat and applying pressure is somehow less insidious than punching or kicking, it has been noted in an article by Heather Douglas and Robin Fitzgerald entitled “Strangulation, Domestic Violence and the Legal Response”, published in the (2014) 36(2) Sydney Law Review 231, that strangulation is a form of power and control that can, as is the case here, have devastating psychological long-term effects on its victims and a potentially fatal outcome.
Choking can cause loss of consciousness and can cause death quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days which causes airways obstruction and death may be delayed.
Taking all matters into consideration, including all that has been relevantly said on his behalf by his counsel, the defendant is convicted and sentenced to 12 months’ imprisonment. I wholly suspend that sentence on condition that he commit no offence punishable by imprisonment for a period of two years.
I also make a Community Correction Order with an operational period of two years from today, that order contains, in addition to the statutory core conditions, a special condition that the defendant must within the next two years satisfactorily perform community service as directed by a probation officer or a supervisor for a period of 140 hours.
I make a Family Violence Order for a period of two years.