WARREN, K D P

STATE OF TASMANIA v KAYNE DAVID PHILLIP WARREN 18 August 2022

COMMENTS ON PASSING SENTENCE BLOW CJ

Mr Warren has pleaded guilty to a charge of attempting to interfere with a witness, and also to eight summary offences that I will deal with under s 385A of the Criminal Code. Those offences comprise seven counts of breaching an interim family violence order and one count of attempting to do so.

From about October 2020 onwards Mr Warren had a partner named Jemma Bradford. They lived together from time to time in an on-off relationship.

On 5 April 2021 Mr Warren was arrested and charged under the Police Offences Act 1935 with two counts of assaulting Ms Bradford. He pleaded not guilty to both charges. They were listed to be heard in the Magistrates Court on 10 June 2021.

On 6 April 2021 Mr Warren was served with an interim family violence order. Its conditions prohibited him from being within 50 metres of Ms Bradford, and from contacting her directly or indirectly, subject to certain exceptions that are not relevant these charges.

The offences that I am concerned with were all committed during a period from 26 May 2021 to 8 June 2021 inclusive. Throughout that period Mr Warren was a remand prisoner, and the interim family violence order remained in force. Mr Warren was permitted to make phone calls to a limited number of individuals while he was in custody. He entered Ms Bradford’s phone number in the prison phone log but dishonestly stated that it was the number of his sister. The prison authorities would not knowingly have permitted him to phone Ms Bradford. On seven occasions between 26 May and 8 June 2021 he contravened the interim family violence order by phoning Ms Bradford and speaking to her. On 26 May 2021 he made a call which she did not answer, thereby attempting to breach the order. All of his calls were recorded.

The charge of attempting to interfere with a witness relates to things that Mr Warren said during the last two of those calls. Both of those calls were on the afternoon of 8 June 2021, two days before the assault charges were due to be heard. At that stage Ms Bradford was about 36 weeks pregnant with Mr Warren’s child. He tried to get her to commit perjury so that he would not be convicted of assault. In the first of the two calls he said, “It didn’t happen. The injuries are sustained from you coming out of the car….”. A little later he said, “…you’re going to sink me”. In the second of the two calls he said, “I will be in here for a couple of years thanks to you.”

The hearing proceeded on 10 June. Mr Warren was found guilty on one charge but not the other. He was found guilty of assaulting Ms Bradford by punching her to the face, and sentenced to six months’ imprisonment. A three-month suspended sentence was activated. That sentence related to three breaches of a police family violence order relating to a different partner in March 2019. Mr Warren served the two sentences and was released on 5 January 2022. Since then he appears to have stayed out of trouble.

Mr Warren is 31 years old. He has convictions for family violence offences, including assaults, committed in 2008, 2009, 2015, 2016 and 2019. He started going to prison for family violence offences in 2009. He also received short prison sentences for offences of dishonesty in 2011 and 2012.

To his credit, he has been working for an engineering company since 2014 and is regarded as a reliable, safety-conscious employee and a solid worker. He has retained that employment despite periods of imprisonment. In the course of his work he has consistently passed random drug and alcohol tests.

He initially pleaded guilty to all charges in the Magistrates Court. A different charge was laid after he was committed for sentence, and he has pleaded guilty to it at an early stage. His counsel told me that he is disgusted with himself, accepts that he should not have spoken to Ms Bradford as he did, and accepts that he will have to deal with the consequences of his actions. She told me that he was developing insight into his behaviour, and that he had contact with the child who was born to Ms Bradford, facilitated by the child’s two grandmothers.

The magistrate who dealt with the assault cases made a community correction order for a period of 12 months commencing on Mr Warren’s release from prison. He has complied with the conditions of that order.

Because Mr Warren has already spent time in custody as a result of his conduct towards Ms Bradford, and because of his good behaviour since his release from prison and his steady employment, I think it would be preferable for me to make a home detention order rather than sending him back to prison. I have been provided with an assessment report by a probation officer who has concluded that Mr Warren is suitable for home detention, unsuitable for a community service order, and suitable for a further period of community-based supervision. If he had not been considered suitable for a home detention order I would have imposed a sentence of imprisonment, but I probably would have suspended some or all of the sentence.

This is a serious case. Mr Warren attempted to get his partner to commit perjury. He disobeyed a magistrate’s interim family violence order seven times, and tried to disobey it on an eighth occasion.

Kayne David Phillip Warren, I convict you on all charges and make a home detention order for an operational period of 6 months from today. The order will include conditions, all of which apply for the operational period of 6 months, as follows:

You must not commit an offence punishable by imprisonment.
You must reside at [address].
You must be there at all times, except when you are not there for a “relevant reason” as specified in s 42AB(4) of the Sentencing Act That includes going somewhere with your probation officer’s permission.
You must permit a police officer, probation officer or prescribed officer to enter those premises.
You must permit a police officer to conduct a search of the premises, conduct a frisk search of you, and take a sample of any substance found on the premises or on your person.
You must submit to electronic monitoring, which may include wearing or carrying an electronic device.
You must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purposes of electronic monitoring.
You must not allow anyone else to remove, tamper with, damage or disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring including directions relating to the installation, attachment or operation of a device or a system used for the purposes of electronic monitoring if those directions are given to you by a police officer, a probation officer, a prescribed officer, or any other person whose functions involve the installation or operation of a device or system used for the purposes of electronic monitoring.
You must maintain in operating condition an active mobile phone service, provide the contact details to community corrections, and be accessible for contact through that device at all times.
You must submit to a breath test, urine test or other test for the presence of an illicit drug if directed to do so by a police officer, a probation officer or a prescribed officer.

Another condition of the order is that no later than 10am tomorrow you must attend the office of Community Corrections in Bathurst Street, Hobart for the fitting of an electronic monitoring device and induction arrangements relating to this order.

I also make a community correction order, to operate for 12 months from today, with conditions that during that period:

(a) You must submit to the supervision of a probation officer as required by the probation officer;

(b) You must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer; and