STATE OF TASMANIA v JOEL LAWRENCE UPTON 12 NOVEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Upton, a jury has found you guilty of one count of assault.
You committed the assault in June 2018, and it was committed against your partner. It is obvious from the jury’s verdict that it acted on the truth of your partner’s police statement, which had been proved to impeach her credit after she said in evidence that she could not recall what you had done. The prior statement was, of course, admissible to prove the truth of the facts asserted in it. The truth of that statement was supported by corroborative evidence, which included injuries observed at the hospital after the alleged assault. I am satisfied beyond reasonable doubt of the truth of the statement and will proceed on that basis in assessing sentence.
The assault happened at the home in Devonport, in which you, your partner and your three-year-old daughter were then residing. You returned to the home sometime in the morning, after having been involved in a minor traffic accident. You were angry and agitated as a result of this accident. It seems that the accident was your fault and you were blaming your partner for your lack of concentration.
You perpetrated the assault as soon as you entered the house. You dragged your partner over a baby gate in the doorway, causing her to fall, and then punched her three times in the lower back. You then kicked her in the left leg. After that, you threw her to the ground again. Your daughter was present in the house during these events. Your partner says in her statement that your daughter had woken from sleep and was crying during the course of the assault. The testimony of your partner’s aunt was that she could hear your daughter crying in the background when your partner telephoned her during the course of an argument. I cannot be satisfied, however, that this was the same incident as the assault. Accordingly, I cannot be satisfied that your daughter actually witnessed the events for which you are to be sentenced, but the mere fact that she was awake and present in the house while you were bashing her mother is, in my view, a significant aggravating factor.
I am satisfied on the basis of the medical evidence that the assault caused some injury to your partner, particularly to her lower back. She attended the Launceston General Hospital about two weeks after the assault, complaining of back pain radiating into her right leg. On examination, she was tender over the spine and lower back. Radiological examination revealed some fractures in the thoracic and lumbar spines. According to the evidence of the doctor at trial, these fractures were consistent with force applied during the assault; that is compression from being thrown to the ground and transverse process fractures consistent with a direct blow. Your partner suggested in evidence that the fractures predated this incident, and she also told nursing staff at the hospital that she had had prior back injury, including fractures. At trial, there was no medical evidence to support that claim.
However, today I have been presented with evidence which is accepted by the Crown, which confirms that three years before these events your partner had been diagnosed with compression fractures in the thoracic spine and to that extent I accept that she did have a pre-existing injury, at least to that part of the spine. However, that evidence does not account for the fractures that were observed on the radiological evidence with respect to the lumbar spine. In any event, it is clear that your assault caused a significant aggravation of prior injury, in addition to fresh injury, being the injuries to the lumbar spine. In either case, the causation of such injury and symptoms associated with it is a significant aggravating factor. I think there is also merit in the prosecutor’s submission that, to the extent that she had a back injury, any knowledge that you had of that pre-existing back injury aggravates your moral culpability in respect of an assault which was directed towards her back.
I am satisfied that in addition to the physical injury, and irrespective of her current feelings towards you, the assault caused significant distress and emotional trauma to your partner. She left you, taking the child, and sought assistance from her aunt and from the police. Her reaction was consistent with a significant assault.
You are 30 years of age. You have a concerning criminal history, which commenced when you were a youth. It consists largely of dishonesty, traffic and drugs offences. There is no prior history of violent offending, including of family violence. I have been provided with a significant amount of information about your background, from your counsel and from the presentence report. I accept that you had a largely dysfunctional childhood, and at a very young age were taken into State care. You have had a serious drug problem for much of your adult life. You were in the grip of that drug problem at the time that you committed these crimes. I have no doubt that your drug taking was closely linked to your commission of this crime. However, that does not, of course, mitigate or reduce your moral culpability nor remove or reduce the need for general deterrence.
On the other hand, your counsel has made submissions about positive action taken by you since the commission of this crime, which he says evidences a developing commitment to rehabilitation. He has provided me with references which support these submissions. He says that you have stopped taking illicit drugs, and are focused on resuming your relationship with the complainant. I note that she is soon to give birth to your child. He has also made submissions about the consequences of incarceration. I accept that there is evidence that you have made a genuine effort to overcome your use of drugs. Your future rehabilitation is an important sentencing factor but I also observe that a true commitment to rehabilitation involves dealing with the consequences of past conduct. Although the use of drugs was involved in the commission of the crime, this crime was actually an act of family violence. There is no evidence that you have shown any real remorse or insight with respect to that conduct, including its nature as family violence offending, nor its effect on your partner and child.
At the time that you committed this crime, you were subject to a suspended sentence of imprisonment which had been imposed on 8 February 2017 in respect of the offences of disqualified driving, obstructing a police officer and failing to appear in court. The sentence of four months’ imprisonment had been suspended for a period of two years and six months. An application has been made by the prosecution to have you dealt with in respect of that suspended sentence, and I am required to activate the sentence unless I am of the opinion that it would be unjust to do so. Your counsel submits that it would be unjust because the suspended sentence was imposed for a traffic offence and there is no evidence that you have repeated conduct of that nature since. He points also to your recent efforts with respect to rehabilitation. However, the statutory condition of suspension was, in fact, that you not commit any imprisonable offence during the period of suspension, not just an offence of the same nature. Given the seriousness of your crime and the lack of any significant mitigating factor, I am not of the opinion that it would be unjust to activate the sentence. Accordingly, it must and will be activated.
A presentence report recommends a period of supervision, and you have been assessed as suitable for relevant programs, including the Family Violence Offender Intervention Program and the EQUIPS Program.
In summary, I regard this crime as a serious example of family violence. You inflicted a brutal assault on your partner. The assault occurred while your child was in the house, and resulted in serious injury and aggravation of injury to your partner. Family violence of this nature is of great and justifiable concern to the community and will not be tolerated by the courts. General deterrence is a significant sentencing consideration. In my view, the only appropriate sentence is one of imprisonment. I will accommodate the need to support and encourage your rehabilitation by allowing for release on parole at an early opportunity, and by making a community correction order which will operate upon your release and will provide an opportunity for you to undertake the relevant courses. I will moderate the length of the sentence to take account of your lack of prior convictions for violence, and the fact that you will, after release, be bound by the community corrections order.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime of which you have been found guilty.
2 The suspended sentence of four months’ imprisonment imposed on 8 February 2017 is activated. This sentence will be backdated and served from the date you were remanded in custody, which is 19 September 2019. You are not eligible for parole until you have served one half of that sentence.
3 For the crime of assault, you are sentenced to a term of 16 months’ imprisonment, which will be served cumulatively upon the activated suspended sentence. You are not eligible for parole until you have served one half of that sentence.
4 I make a community correction 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 the 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 the sentence. In addition to the core conditions the order shall also include the following special conditions:
(a) you must, during the operational period of the order, attend, participate in and complete educational and other programs, including the Family Violence Offender Intervention Program and the EQUIPS Addiction Program, as directed by 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, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
5 Pursuant to s 13A of the Family Violence Act, I direct that the crime of which you have been convicted be recorded on your criminal record as a family violence offence.
6 For the purposes of s 92A(3) of the Sentencing Act, I specify that:
(a) the total term of imprisonment which you are liable to serve in respect of the above sentences is 20 months commencing on 19 September 2019;
(b) the total period that you must serve before you become eligible for parole is 10 months.