Director of Public Prosecutions v Foster - [2019] TASCCA 15

[2019] TASCCA 15

COURT: SUPREME COURT OF TASMANIA

CITATION: Director of Public Prosecutions v Foster [2019] TASCCA 15

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  FOSTER, Geoffrey Peter

FILE NO:  CCA 1012/2019
DELIVERED ON:  12 September 2019
DELIVERED AT:  Hobart
HEARING DATE:  27 August 2019
JUDGMENT OF:  Estcourt J, Brett J, Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Found guilty of two counts of assault and one count of demanding property with menaces with intent to steal – Where assaults committed in context of domestic violence – Sentence of 16 months' imprisonment with parole eligibility after half of that sentence manifestly inadequate.

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1; Director of Public Prosecutions v Harington [2017] TASCCA 4; Director of Public Prosecutions v Brown [2019] TASCCA 11; Price v Tasmania [2016] TASCCA 22; R v Kilic [2016] HCA 48, 259 CLR 256; R v Dunn [2004] NSWCCA 41, 144 A Crim R 180; Gregson v Tasmania [2018] TASCCA 14; Director of Public Prosecutions v Swan [2016] TASCCA 9, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  J Shapiro
             Respondent:  D Craig
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2019] TASCCA 15
Number of paragraphs: 42

Serial No 15/2019
File No CCA 1012/2019

DIRECTOR OF PUBLIC PROSECUTIONS v GEOFFREY PETER FOSTER

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
BRETT J
MARSHALL AJ
12 September 2019

Orders of the Court (27 August 2019)

Appeal allowed.

Sentencing order (sentence of imprisonment) of 16 April 2019 set aside.

Respondent re-sentenced to a term of 2½ years' imprisonment.

Respondent not to be eligible for parole until half of the sentence served.

Serial No 15/2019
File No CCA 1012/2019

DIRECTOR OF PUBLIC PROSECUTIONS v GEOFFREY PETER FOSTER

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
12 September 2019

The appeal

The respondent, Geoffrey Peter Foster, pleaded not guilty to five counts of assault and one count of demanding property with menaces with intent to steal. His trial took place between 8 and 10 April 2019 in Burnie before Porter AJ.
He was found not guilty of three counts of assault, namely counts 1, 3 and 4 on the indictment against him, but guilty of two counts of assault and one count of demanding property with menaces with intent to steal, namely counts 2, 5 and 6 on the indictment.
On 16 April 2019 Porter AJ sentenced the respondent to a term of 16 months' imprisonment with a non-parole period of half of that term.
The Director of Public Prosecutions appealed against that sentence on the sole ground that it is manifestly inadequate. For the reasons that follow I joined in an order allowing the appeal on 27 August 2019.
In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J set out the principles relevant to appeals against sentence on the basis of manifest excess or inadequacy. His Honour said at [8]-[9]:
"8 As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen (2010) 242 CLR 520 at 539.
9 It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen(No 2) (1988) 164 CLR 465 at 476:
'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions'."
In Director of Public Prosecutions v Harington [2017] TASCCA 4, Pearce J summarised the considerations where the appeal is brought by the State on the ground of manifest inadequacy. His Honour said at [95]-[96]:
"95 This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]-[2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116]. In Everett v The Queen, McHugh J said at 306:
'Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.'
96 The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appealable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."

The circumstances of the offending

In his comments on passing sentence the learned sentencing judge set out the circumstances of the respondent's offending as follows:
"The complainant in each count was his then partner, Janelle Jacobson, now known by her maiden name of Foster, but there is no family relationship. The crimes were committed in December 2016. My findings of fact are as follows. The two met through a dating website in mid-2016 and the relationship developed quickly. Ms Foster has two children, a son and a daughter, then aged 10 and 7. At about the beginning of November 2016 the defendant moved in with Ms Foster and the children. The defendant soon became very possessive and jealous, controlling access to Ms Foster's mobile phone, and controlling her movements in the sense that she was compelled to seek his permission to leave the house to do such things as shopping. The defendant has some IT skills and set up her phone so that it was mirrored on his, to the extent that he could see what calls and texts she made. He could also track her phone. This was established by evidence of Facebook Messenger messages which she was later able to retrieve by accessing her account. At the time, the complainant was a fitness trainer. The defendant insisted she no longer have male clients. The defendant started being violent towards her. The jury found the defendant not guilty of three counts of assault, one alleged to have been committed on 19 November 2016, the second between 9 and 16 December 2016, and the third on 29 December 2016. Of course, I do not take those into account, but I am satisfied that the defendant was violent from time to time during the course of the relationship, ignoring, of course, those three counts of which he has been found not guilty. The level of abuse was such that at some point near the end of the relationship, the complainant wrote out a note and gave it to a female client. She said she needed the client to help her, and needed her to ring the police, explain that she was a neighbour and that she thought that domestic violence was going on. In the note the complainant asked the client not to say anything or to text or ring as the defendant had her phone. The client contacted police in accordance with the request, and two officers went to the house, but the complainant was too frightened to say anything and told police that she thought the client may have heard noise from physical activity. The client to whom the note was given gave also gave evidence of seeing an abusive text from the defendant to the complainant, asking about toilet paper and calling her a cunt. Other abusive texts were in evidence. Of course, the defendant is not to be punished for matters other than the three crimes, but I am satisfied that the assaults were not isolated aberrations, and were committed in the context of an abusive relationship.
The first count of assault of which the defendant has been found guilty happened in the first week of December 2016 in Hobart. The couple had travelled to Hobart so that the complainant could go to a hens' night. She and the defendant were to sleep at the complainant's sister's house, in a downstairs room with external access only. The complainant's evidence was that the defendant was 'quite beside himself in the weeks leading up to this'. Despite the complainant's assurances to the contrary, he thought there were to be male strippers at the function, and thought that was disrespectful to him. He was jealous and moody about the complainant's attendance, and told her she had to be home by 9 o'clock. As she was leaving the function she started to get text messages from him saying such things as 'don't forget I'm watching you', and 'I can see where you are'. When she arrived at her sister's house the defendant began to abuse her, suggesting male strippers had been at the function. He became angry, threw the complainant onto the bed, got on top of her and punched her to the side of the head on both sides. He pushed his knee into her ribs, put his hands around her neck and started to choke her. She became very frightened and feared for her life. The incident was interrupted by the complainant's brother-in-law knocking on the door to retrieve some bedding. After that happened, the complainant was in bed and the defendant prevented her from moving for a time, causing distress and discomfort as she wanted to go to the toilet.
The remaining count of assault and that of demanding property with menaces form part of one episode that happened on the morning of 30 December 2016. The complainant had contacted the mother of an ex-boyfriend after a man had been seriously injured in a car accident. The defendant noticed the contact and became very angry, accusing her of having an affair. He threw her phone against the door, grabbed her bedsheet and ripped it, before pushing the complainant onto the bed. He got on top of her, punched her to the side of the head and kneed her to the sides of her body. During this, he said he wanted the complainant to give him $10,000 or he would chop her into little pieces and make her family watch, then saying it would be better if he chopped them up in front of her, then he would burn the house. After making the threat the defendant told her to go into the en-suite bathroom. He was still demanding the money and slammed her head against the window frame in the bathroom, put his hands around her neck and stuck his thumb up under her jaw, threatening to kill her by choking. She was trying to fight him off but said that she would give him the money. That seemed to calm him down. The background to the demand for money is that the defendant wanted a bigger motor vehicle. He had sold his and the family was reliant on the defendant's small car. The two had been looking at car advertisements. There is some further background to this. A little earlier in the month, the defendant had said he wanted to buy a drone and told the complainant that if she loved him she would buy it for him. When the complainant said she could not afford it, the effect of his response was that the abuse would stop if she bought it. She complied. Returning to the narrative, later in the morning the defendant, the complainant and the two children went to a bank and parked outside. The complainant suggested the children go to a nearby toyshop, but the defendant said he would not let them out of the car, saying 'you'd better get me the money; remember I've got your kids'. The complainant went into the bank on her own. She was seen to be upset and crying. She told the manager that someone was asking for $10,000 and she did not want him to have it. She enlisted the support of the manager to freeze all her bank accounts and to change her passwords. When she went back out she told the defendant that it would take three working days to make up a cheque and clear it. The defendant looked at the complainant's phone and noticed that the passwords had been changed. He told her to go back into the bank and sort it out, reminding her that she had better come out with the money as he had the children with him. The complainant went back into the bank and explained to the manager that her partner had the children in the car and would not let them go until $10,000 was withdrawn. The manager rang the emergency number and spoke to police, immediately after which the complainant spoke to an officer and provided details. The manager went outside, at which point the defendant drove away with the children. He drove around for a time, during which he rang his ex-wife saying that he had done something very silly and that he was going to gaol for a long time. She made suggestions about what he should do with the children, such as taking them to the police, but he said he would get arrested. She suggested a safe place to which he should take them. In the end, he left them near a park with a phone and told them to contact their grandfather. He drove to another location, parked the car and threw the keys under a bush. He also disposed of the complainant's phone but he remained in the area until found by the police. He appears to have wiped the data from the phone."
The learned sentencing judge made the following observations on the complainant's victim impact statement:
"In a victim impact statement, the complainant says that she still suffers with anxiety arising from these incidents. She has difficulty trusting people, especially men. She is in a new relationship, but has taken a long time to settle into that relationship. She is very security conscious and remains concerned that the defendant would harm her. She made arrangements with friends to contact the police if she texted them a code word indicating that the defendant was with her."
The complainant did not suffer any significant physical injuries.
His Honour made the following comments as to the respondent's personal circumstances:
"The defendant is now 40 years old. He has convictions for offences of violence, including ones of family violence. In March 2003 he was convicted in Western Australia of an assault of his ex-wife, and sentenced to a community based order for 18 months involving community work. In December 2014 he committed a breach of a family violence order which protected that woman, and was heavily fined. In this State, in January 2018 he was convicted of a number of offences, including two charges of assault committed in the same period as the present crimes, one relating to a former boyfriend of Ms Foster. That occurred before the end of this relationship. There are also charges of burglary and stealing – also committed in the same period – which related to the theft of property from his ex-wife. The global sentence for all those charges was a community service order with supervised probation with special conditions relevant to his mental health. The defendant seems to have had a reasonably good work record although at the moment he is in receipt of NewStart allowance pending the resolution of an outstanding workers compensation claim arising from his employment as a removalist. I am told that he has had significant psychiatric issues spanning about two decades. He suffers anxiety and depression, panic attacks, paranoia and there are suggestions of bipolar disorder and borderline personality disorder. He has been reluctant to raise this with mental health professionals, but I am told that he was sexually abused by his parents and others while an infant, and his problems essentially stem from this very difficult background. I have a psychological assessment report from Mr Damien Minehan dated 21 March 2019. Mr Minehan's opinion is that there is sufficient evidence to support a diagnosis of bipolar disorder. The defendant had a psychiatric admission in 2012 with depressive issues and problems with anger and impulse control, and violent ideation. He was prescribed appropriate medication. In 2018 he engaged in self-harm and has had ongoing contact with psychiatric and mental health services. He self-reports suicidal ideation, and for about eight months has been on a medication regime overseen a psychiatrist. Mr Minehan notes a history of increasing irritability and regulating emotions. His offending behaviour may be a function of a mood disorder or personality dysfunction, and irritability may be a function of a hypomanic or manic episode during which his judgment may be impaired and he is likely to experience behavioural impulsivity. However the operation of these symptoms at the time of the relevant offending is only put as a possibility. Mr Minehan says the defendant will require assessment upon admission to the prison and ongoing support. His medication will have to be monitored. Mr Minehan says that with the defendant's mental state, he would find adjustment to the prison environment challenging, with a need for ongoing support. I infer the hardship experienced would be greater than ordinarily might be expected. Additionally, imprisonment, Mr Minehan says, would likely lead to a deterioration in his condition. These propositions, I should note, are expressly accepted by the Crown."

Finally, the learned judge made the following comments on passing sentence:
"As I have said, these offences occurred in the context of possessive, violent and domineering and controlling behaviour. They amount to breaches of trust. Violence and abuse, both in existing and former relationships, cannot be tolerated. Family violence is a matter of great community concern. This case extends to financial abuse, with the jury being satisfied that the defendant intended to take from the complainant a significant amount of money, and keep it, at least for a time given the Code provisions on stealing money. Fortunately, no serious physical injuries were caused by the assaults, but an aggravating feature of the case is that the two children were present in the house during the events represented in the last two counts, although there is no suggestion they saw or heard the assault. They were, however, swept up in the drama surrounding the visit to the bank. I accept that the defendant was good to the children during the relationship, and helped them with various activities. He did not directly threaten or abuse them in any way, the only threats involving them being those made to the complainant. Apart from the effects of imprisonment which I have just mentioned, there is nothing really to justify leniency, although I take into account the defendant's longstanding mental health issues.
Mr Foster, I have explained what I consider to be the relevant considerations. You have relevant offending history. Attempting to deter you and others from this sort of conduct is of primary importance, but I do not lose sight of your difficulties, and in particular the effect of imprisonment, which does allow for some moderation of penalty. I note you have recently had the benefit of supervised probation with appropriate conditions. You are convicted of the three crimes and sentenced to 16 months' imprisonment to commence on 10 April 2019. I order that you are not eligible for parole until you have served one half of that sentence. That may well lead to engagement with mental health professionals. I make a family violence order in the same terms as that made on 11 January 2018, and that will operate until it is revoked by order."
On 18 April, pursuant to the Family Violence Act 2004, s 13A, his Honour declared that he was satisfied that the three offences were family violence offences, and directed that the offences be recorded on the respondent's criminal record as family violence offences.

The appellant's submissions

The appellant submits that the respondent committed two serious assaults against his partner, both of which were prolonged and involved strangulation, and that during the second assault he also committed the crime of demanding property with menaces with intent to steal. The appellant contends that the crime of demanding money with menaces was a serious example of that offence as it was committed during a prolonged attack and involving threats to kill the complainant and her children. It is also submitted that these matters were not isolated as they occurred within the context of a violent and abusive relationship.
The appellant submits that 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. It is contended that significantly deterrent sentences are warranted as family violence offences inherently involve a breach of trust and are typically committed against vulnerable complainants.

The respondent's submissions

The respondent accepts the factual basis upon which his Honour sentenced him; his Honour's factual findings being entirely consistent with the complainant's evidence. He notes that at no stage were the two children either directly threatened or injured in any way and that it is accepted that he was good to the children during the relationship and helped them with various activities.
The respondent submits that the sentence of imprisonment of 16 months is a significant sentence, carrying with it a significant "penitent effect". The effects are further compounded, the respondent argues, by virtue of the fact there was no suspension of the operation of the sentence, as is often the case.
Having regard to all of the relevant factors, the respondent argues that the sentence imposed was "well within the reasonable exercise of the learned judge's sentencing discretion" and could not be said to show a "manifest disparity or inconsistency in sentencing standard" to the extent required for intervention by this Court.
It is further submitted that the offending must be viewed against the backdrop of the psychiatric issues set out by the learned sentencing judge in his remarks.

Discussion

I accept the appellant's submissions. They are undoubtedly correct.
As the learned sentencing judge commented, there was no justification for leniency in this case. While his Honour noted that he took into account the respondent's long standing mental health issues, he was well aware that the operation of the symptoms of any of those illnesses at the time of the relevant offending was put no higher than a possibility.
During the sentencing hearing the prosecutor specifically noted that a reduction in an otherwise appropriate sentence under the sixth of the Verdins principles was accepted on the basis that the hardship of imprisonment experienced would be greater than ordinarily might be the case with a person without the respondent's mental health issues. However, any reduction of sentence on any other of the Verdins limbs was not accepted as there was no evidence before the Court to "properly link the offending to the (psychiatric) condition". It follows that I do not accept the respondent's submission that his "offending" must be viewed against the backdrop of his "psychiatric issues".
In my view the words of Blow CJ and Pearce J in Director of Public Prosecutions v Brown [2019] TASCCA 11 at [2] are apposite to the present case:
"… this is a serious case, and the intervention of this Court is required so as to 'maintain adequate standards of punishment for crime ... and ... to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience': DPP v Dalgliesh (a pseudonym) [2017] HCA 41, 262 CLR 428 per Kiefel CJ, Bell and Keane JJ at [63] citing Griffiths v The Queen (1977) 137 CLR 293 at 310; Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Osenkowski (1982) 30 SASR 212 at 213; Wong v The Queen [2001] HCA 64, 207 CLR 584 at 591-592 [8]."
There is no discernible error in the approach the learned sentencing judge took to the formulation of the sentence. However, in the result inadequacy is plainly apparent to my mind.
The assaults were committed in the context of domestic violence, which is an aggravating factor: see Price v Tasmania [2016] TASCCA 22 at [39], per Estcourt J. They were cowardly and vicious. The notion of causing the complainant to wet herself, even minimally, by confining her to the bed is abhorrent. While noting that the complainant's two children were not directly threatened or injured in any way, the menaces used in the demanding of the money were horrific, involving as they did, threats to the complainant of death to both her and her children.
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 this is now well understood in the community.
Each of the identified incidents involved vicious and cowardly attacks by the respondent on a woman. 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 have devastating psychological long-term effects on its victims in addition to 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 and airways obstruction causing death may be delayed.
Whilst the respondent is not to be sentenced for his record, his prior convictions make it clear that the present offences were not isolated or aberrant. The defendant did not plead guilty and did not spare the complainant the ordeal of a trial. He has shown no remorse.
Violent behaviour by men towards women in relationships must be condemned and discouraged. Vulnerable women, such as the complainant, are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the courts.
In R v Dunn [2004] NSWCCA 41, 144 A Crim R 180 at [47], Adams J noted:
"[47] Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation …".
To that I would add retribution and vindication of the victim.
In Gregson v Tasmania [2018] TASCCA 14, a case of assault by a man, with relevant prior convictions, upon his partner by punching her multiple times to the head, Martin AJ said at [37]:
"37 The appellant is not to be punished again for his prior criminal conduct, but he is not entitled to any leniency. He has a history of violence towards women and, as I have said, the community is greatly disturbed by the prevalence of this type of conduct. Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners: Director of Public Prosecutions v Karklins [2018] TASCCA 6 per Geason J, at [54]–[60]. Women who become victims in these circumstances, and other potential victims throughout the community, are entitled to such protection as the law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent."
I respectfully concur.
I am satisfied that the sentence is manifestly inadequate. I am also satisfied that this is not a case in which this Court should exercise its residual discretion to dismiss the appeal notwithstanding that it is satisfied that the sentence is erroneously lenient and that a different sentence ought to have been passed: Director of Public Prosecutions v Swan [2016] TASCCA 9.
For the foregoing reasons I joined in an order that the appeal be allowed and that the sentencing order of 16 April 2019 be set aside.

Re-sentence

For the reasons which are apparent from the comments I have made and the views I have set out above, and taking into account the submissions made by the respondent's counsel as to re-sentencing, I joined in an order imposing a new sentence of two years and six months' imprisonment with parole eligibility after serving half of that sentence. That re-sentence takes account of the engagement of the sixth Verdins consideration as conceded by the appellant before the learned sentencing judge as relevant.
The Family Violence Order made by the learned sentencing judge on 11 April 2019 is undisturbed.

File No CCA 1012/2019

DIRECTOR OF PUBLIC PROSECUTIONS v GEOFFREY FOSTER

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
12 September 2019

I have had the advantage of reading the reasons in draft of Estcourt J and Marshal AJ. I agree with what each has written, and accordingly I joined in the orders of the Court.

File No CCA 1012/2019

DIRECTOR OF PUBLIC PROSECUTIONS v GEOFFREY FOSTER

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
12 September 2019

I have had the benefit of reading, in draft form, the reasons for judgment of Estcourt J. I respectfully agree with his Honour's reasons and with the sentence his Honour proposes. I wish only to add some brief observations.
The offences committed by the respondent occurred during the currency of a domestic relationship. The respondent's actions towards the complainant were appalling. Although no lasting physical damage to the complainant occurred, the psychological damage to her will be long lasting.
On the count of demanding money with menaces with intent to steal, the respondent used the complainant's children as a bargaining chip when he said, "You'd better get me the money; remember I've got your kids." This, again, was appalling, abhorrent behaviour and constituted an implied threat to the welfare of the children. It is not to the point that the children were not actually harmed. It is sufficient that the respondent caused the complainant to believe that he had the capacity to harm the children.
In all the circumstances, I agree that the sentence of 16 months' imprisonment was manifestly inadequate having regard to the seriousness of the offending in the context of a domestic relationship