Director of Public Prosecutions v Howe
[2024] ACTSC 178
•6 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Howe |
Citation: | [2024] ACTSC 178 |
Hearing Date: | 5 June 2024 |
Decision Date: | 6 June 2024 |
Before: | Taylor J |
Decision: | See [110]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated common assault – common assault – property damage – family violence offences – lack of genuine remorse – high degree of responsibility for the offending – good prospects of rehabilitation – low risk of re-offending – no criminal history – sentence of imprisonment immediately suspended upon entering a good behaviour order – community service work condition imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 34B, 35 Crimes Act 1900 (ACT), ss 26, 116 Family Violence Act 2016 (ACT) Magistrates Court Act 1930 (ACT), s 88B(1) Supreme Court Act 1933 (ACT), ss 68CA, 68D |
Cases Cited: | DPP v Padreny [2024] ACTCA 4 Imbornone v R [2017] NSWCCA 144 Johnston v R [2017] NSWCCA 53 Markarian v R [2005] HCA 25; 228 CLR 357 R v Aniezue [2016] ACTSC 82 R v Carmody(No 3) [2017] ACTSC 60 R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v EP(No 3) [2019] ACTSC 242 R v Hancock [2021] ACTSC 52 R v HC [2018] ACTSC 49 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381 R v McConkey (No 2) [2004] VSCA 26 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v UG [2020] ACTCA 8; 281 A Crim R 273 |
Texts Cited: | Monica Campo, “Children's exposure to domestic and family violence: Key issues and responses” (Child Family Community Australia Paper No. 36, Australian Institute of Family Studies, 9 December 2015) |
Parties: | Director of Public Prosecutions ( Crown) Brendan Lionel Howe ( Offender) |
Representation: | Counsel D Swan ( DPP) M Thangaraj SC; J Walker ( Offender) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Lawyers ( Offender) | |
File Number: | SCC 89 of 2023 |
TAYLOR J:
Introduction
1․The perpetration of family violence, often by men against their female partners, is a familiar occurrence to the Courts in this jurisdiction, indeed across the country. The use of violence by one partner against the other can create complex psychological and emotional circumstances that are not straightforward and can be difficult for victims in particular, to navigate. This matter demonstrates some of those complexities. It exposes the profoundly sad ramifications for victims, their children and the extended family units of both parties when relationships are severed because of violence and abuse. It also reveals that there can be life-altering consequences for perpetrators of family violence. Sentencing courts are tasked with giving effect to the relevant principles and purposes of sentencing when dealing justly with perpetrators of family violence. Such is the nature of family violence, and such are the limitations of the criminal justice system, that this will rarely result in an outcome that allows those affected by family violence offending to simply and easily, move on and repair their lives.
2․The offender, Brendan Lionel Howe, is to be sentenced in relation to four separate offences committed between 2018 and 2022. The victim of each offence was the offender’s wife at the time the offending occurred.
3․On 3 June 2024 the offender entered pleas of guilty to the following offences:
(a)CC2023/507: common assault contrary to s 26 Crimes Act 1900 (ACT) (the Crimes Act), which carries a maximum penalty of two years of imprisonment.
(b)CC2023/629: common assault contrary to s 26 Crimes Act, which carries a maximum penalty of two years of imprisonment.
(c)CC2022/10915: damage property not exceeding $5,000 contrary to s 116 Crimes Act, which carries a maximum penalty of two years of imprisonment, a fine of $8,000 or both.
(d)CC2023/630: aggravated common assault contrary to s 26 Crimes Act, which carries a maximum penalty of three years of imprisonment.
4․These charges are before this Court as ‘related offences’ to an indicatable offence that was committed to this Court for trial: s 68CA of the Supreme Court Act1933 (ACT) (the Supreme Court Act). Accordingly, the Court must deal with these related offences if it is in the interests of justice to do so. In my view, consistent with the submissions made by the parties, it is in the interests of justice for this Court to deal with the related offences: s 68D of the Supreme Court Act.
The proceedings and the agreed facts
5․There were several offences listed for trial to commence on 3 June 2024. On that morning, the Court was advised that the matter had resolved. The offender entered pleas of guilty to the four charges listed above. The Director will seek the remaining, in some cases more serious, charges be dismissed or discontinued.
6․All the matters committed to this Court in April 2023 were capable of being dealt with summarily. The prosecution withdrew two strictly indictable offences, meaning his appearance in this Court was not inevitable in order that the matter resolve. The offender sought committal of the matters to this Court pursuant to s 88B(1) of the Magistrates Court Act 1930 (ACT) by virtue of which he declined the option available to him to have the matters dealt with summarily. To the extent that a submission was pressed that the now negotiated outcome has resulted in the offender ‘losing’ the opportunity for summary disposal, in the circumstances as outlined, it cannot be accepted. The sentencing proceedings were able to be promptly accommodated because the timing of the resolution did not allow for another trial to be brought on at short notice. I will deal with the timing of the pleas later in these remarks.
7․The agreed facts are as follows.
8․Between 2018 and 2022 on four separate occasions, the offender committed family violence offences against the victim.
Incident 1: Common assault (CC2023/507)
9․The offender and the victim were married and as of September 2018 were residing at an address in Campbell, ACT.
10․On the evening of 4 September 2018, the offender and the victim were seated on the couch watching television with their three dogs sitting alongside them. As they watched television, the offender was squeezing pimples on the skin of one of the dogs. The victim took issue with this, telling the offender that she could see it was causing the dog discomfort.
11․The victim stood up from the couch and picked up the dog, telling the offender, “I’m removing her, stop squeezing her pimples, she’s clearly in pain and you don’t care”. The offender then stood up from the couch, grabbed the victim by the arms before holding her by the shoulders as he pushed her against a nearby cabinet.
12․As he held her, the offender said words to the effect of, “don’t push me, don’t fucking push me to the point I’ll do something I’ll regret. I pay for those dogs, so I’ll do whatever I fucking want, you don’t tell me what to do”.
13․The offender then let go of the victim.
14․The following day in a text message exchange the offender admitted to having grabbed the victim the night prior.
Incident 2: Common assault (CC2023/629)
15․On the evening of 14 October 2021, the offender and the victim were in the kitchen of their residence. At the time, their daughter, aged just over 2 years old at the time, was present in the home.
16․During an argument the offender screamed at the victim in the following exchange:
OFFENDER: “I’m going to fucking kill you; I’m going to fucking kill you. Go to bed”.
THE VICTIM: “I’m not going to bed”.
OFFENDER: “Go to bed”.
THE VICTIM: “Get away from me. You psycho”.
OFFENDER: “You’re a fucking psycho”.
*Indecipherable yelling*
17․The above exchange was captured on a baby monitor located within the bedroom of their daughter.
18․The victim disclosed details of this incident to a friend via text message the following day.
Incident 3: Damage property (CC2022/10915)
19․On the evening of 2 November 2021, the offender and the victim were in the kitchen of their residence when a verbal argument commenced regarding the victim’s spending habits. At the time, their daughter was present in the home.
20․During the argument the offender struck a door located in the kitchen, causing an indentation.
21․The offender later removed this door and was captured on CCTV depositing it in the driveway. The victim photographed the damage to the door and messaged the photos to a friend.
22․The offender later had a conversation with a mutual friend of he and the victim where he made admissions to having struck the door during an argument.
Incident 4: Aggravated common assault (CC2023/630)
23․On 9 September 2022 the offender had been at lunch throughout the day whilst the victim was home with their daughter. At the time, the victim was 34 weeks pregnant.
24․The victim sent the offender an SMS asking whether he would be home at the “normal time”, to which he replied that he would be. The offender had not arrived home by 7 o’clock in the evening and the victim locked the doors to the residence and got their daughter ready for bed. The victim then got in the shower with her daughter, when she received two phone calls and a text message stating, “I’m out the front” from the offender. The victim missed the first call and text message, but answered the second call, during which the offender yelled at her to let him inside the house as he had forgotten his keys. The victim wrapped her daughter in a towel, placed her in the master bedroom and proceeded to open the door for the offender. The victim immediately formed the impression that the offender was intoxicated.
25․The offender went into the bathroom to shower, and the victim entered to get a hairbrush. The offender asked whether he was getting the “silent treatment” and the victim told him that it was irresponsible for him to be heavily intoxicated while she was 34 weeks pregnant.
26․The victim then left the bathroom. The offender exited the shower and approached the victim from behind. The victim turned around and the offender grabbed her by her shoulders and pushed her up against their bedroom door. The victim felt her feet being lifted off the ground as she was held by the offender. While his hands were on her shoulders, the offender said words to the effect of “if you and that little cunt inside of you can’t see that I’m the boss and when I wanna fucking talk about something I’m gonna fucking talk about it and she’s gonna know that and you’re gonna know that and you’re gonna know that, I rule the roost of this house, you should worship the fucking ground I walk on, you’re a fucking bitch, you’re a mutt, I’m the boss”. The offender held the victim in this position for approximately 45 seconds.
27․The offender released his grip on the victim and walked back into the bathroom. The victim was crying and shaking and ran over to her daughter, who had been nearby, to comfort her.
28․Shortly afterwards, the offender came out of the bathroom a second time and approached the victim. He grabbed the victim by her shoulders, pushing her into a nearby corridor before placing his forearm across her chest and held her against the wall. The pressure made the victim feel that her breathing was impacted. While this incident unfolded, the offender said words to the effect of “If you try to fucking leave me I’ll kill you, try and take my kids away from me, you don’t understand what you’ve got, no one would give you the lifestyle [you’ve] got, look at this amazing house that you’re living in, look at the lifestyle that you’ve got, you don’t fucking tell me what to do, I’m the provider, if I wanna be home late, I’m gonna fucking be home late, get over it”.
29․The offender released the victim and went into their bedroom where he got dressed and then sat on the couch. Their daughter was standing in the doorway when this act occurred.
30․The offender continued to argue with the victim later that evening.
31․The victim disclosed details this incident to a friend via text message that evening.
32․On 4 November 2022, the victim attended the Woden Police Station and completed a family violence evidence-in-chief interview.
33․On 6 November 2022, the offender attended the City Police Station and was placed under arrest. The offender was offered a record of interview, which he declined.
Victim impact statement
34․The victim provided a victim impact statement which she read aloud to the Court at the sentencing proceedings.
35․The victim identified the intense fear that the offender’s behaviour instilled in her over the course of their relationship. She described the offender’s frightening temper as going “from zero to 100 at the drop of a hat” and the feeling it unsurprisingly instilled in her of “walking on eggshells”. The victim captured the emotional and psychological consequences of the offending including the sense of betrayal she felt at the man she loved treating her so very poorly. The offending undermined the victim’s sense of safety and security. The conflict involved for her, between the desire to keep her family together and the strain of living with the offender’s violence, as well as the influence of the offender’s threats about what he would do if she left him, are all compelling features of the victim impact statement. So too, her acknowledgement that she loved the offender, making his conduct even more difficult to comprehend. These features are familiar dilemmas in the lives of victims of family violence who engage in the criminal justice system and reflect the complex, sometimes competing emotions, that victims are required to manage because of the violence perpetrated against them by their male partners. On a practical level, the victim referred to the load she now bears as the primary carer for their two small children.
36․Victim impact statements provide an opportunity for victims to directly participate in sentencing proceedings, using their own voice to describe the impact upon them of the offending perpetrated against them. These statements assist the Court to truly understand the nature and extent of the impact of the offending upon a victim. The victim impact statement in this matter provided a powerful account of the insidious effect that the use of violence in an intimate relationship can have. Recognising the harm done to the victim is an important sentencing consideration.
Sentencing considerations
Nature and circumstances of the offending
37․An assessment of the nature and circumstances of the offending includes consideration of the objective seriousness of the conduct. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at 266 [19]. The maximum penalty provided for by the legislature “serves as an indication of the relative seriousness of the offence”: Markarian v R [2005] HCA 25; 228 CLR 357 at 372 [31]. The maximum penalty that applies to the aggravated common assault in this matter reflects the community’s intolerance for the use of violence in domestic relationships. Consistent with observations made in this jurisdiction about the utility of references to low, mid or high range offending, I have assessed the offences by reference to the individual features of each incident: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at 108 [24].
38․As is required, in determining how the offender should be sentenced for incidents two, three and four I have also had regard to those matters contained in s 34B of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act), including the preamble of the Family Violence Act 2016 (ACT) (the Family Violence Act). The prosecution suggested the provision should apply to all offences regardless of the timing of the insertion of the provision: cf the observation in DPP v Padreny [2024] ACTCA 4 (Padreny) at [120]. Sensibly, Senior Counsel for the offender conceded that even if s 34B Crimes (Sentencing) Act, did not strictly apply to the first in time offence, the matters to which the section directs attention would nonetheless be relevant to an assessment of the nature and circumstances of the offending.
39․The preamble to Family Violence Act encapsulates the approach the community expects should be taken to family violence, including the need to condemn family violence, the need to promote offender accountability, the exploitation of power imbalances that these offences can involve and recognition that family violence is predominantly committed by men against women and children. I do not understand s 34B Crimes (Sentencing) Act to undermine the need for each matter before the Court to be assessed, respectful of the requirement to deliver individualised justice having. I have, in taking account of those matters contained in s 34B Crimes (Sentencing) Act, also considered the specific features of the offender and of the offences now before the Court.
40․I observe here that common to each offence is the offender’s sense of entitlement, borne of a perception of having power over the victim, to conduct himself with little regard for the impact of his conduct upon her and in the case of the most serious offence, upon their small child. This is a familiar dynamic in relationships where family violence features, with male perpetrators facilitating control by a threat of violence that looms over their female partners. The effects on children of exposure to domestic violence are now widely accepted and include behavioural problems, poor mental wellbeing, and low self-esteem: see Monica Campo, “Children's exposure to domestic and family violence: Key issues and responses” (Child Family Community Australia Paper No. 36, Australian Institute of Family Studies, 9 December 2015).
41․In terms of the objective seriousness of the offences, common to each offence is that the conduct occurred in the victim’s home, a place where she was entitled to feel safe and secure.
Common assault (CC2022/507)
42․The offending involved the offender grabbing the victim and holding her before moving her body and pushing it up against a cabinet. It was an action that saw the offender assert physical dominance over the victim. The physical conduct was accompanied by a threat of further violent conduct on the offender’s part intended to assert psychological dominance over the victim in order that she comply with the demand not to “push him”. The conduct was not protracted and accordingly, involved momentary interference with the victim’s bodily autonomy.
Common assault (CC2022/629)
43․This is an offence established by the threat of violence created by the offender’s words in the context of an argument. I was played an audio-visual clip of the offence recorded by a baby monitor in the residence where the offending occurred. The audio is relevant to the manner in which the words were expressed by the offender. The video demonstrates their child is not in her cot. It does not capture whatever physical interaction is occurring when the words used by the offender to establish the offence were used. It is accepted that their child was present somewhere in the residence when the offending occurred. I accept the submission of the prosecutor that an inference can be drawn from the audio that the child in the residence would have heard the shouting by the offender, such is the volume of his voice. The words used are unequivocally threatening and violent in nature. The words used reveal a desire by the offender to dominate the victim and to frighten her. The offending conduct did not escalate to physical violence. I consider this to be the least serious of the offences before the Court.
Damage property (CC2022/10915)
44․The offending occurred in the context of an argument between the offender and the victim. The property involved was a kitchen door and the extent of the damage caused by the offender’s one strike, described as an ‘indent’ was not extensive as depicted in a photograph of the door tendered by the prosecution. The offender later removed the door entirely. The conduct, reckless though it was, nonetheless represented a communication to the victim that the offender was unable to control his physical reaction in the context of their argument and in that sense must have been a frightening experience.
45․During submissions, the offender advanced an explanation that he damaged the door when it became jammed after an argument with his wife and that their daughter was standing directly behind it when the damage occurred. The offender explained the strike to the door occurred because he was frustrated it was jammed and he wanted to let his daughter out. This is not an explanation included in the agreed statement of facts.
46․In the end, in my view, it is not significant whether the door was struck out of frustration because it was jammed, in circumstances where there was also an argument with the victim or in direct response to the argument with the victim. In either scenario, the offender was unable to control his physical response to the unfolding events in circumstances of conflict. His physical response was inappropriate and irrational. His explanation makes clear an aspect of the offence about which the agreed statement of facts was opaque and that is that his small daughter was very close by when the offence occurred, indeed immediately behind the door when he struck it. I do not consider this to be a particularly serious example of the offence though, as in the next offence, it does demonstrate that even the little eyes of his young daughter upon him did not see the offender moderate his conduct.
Aggravated common assault (CC2022/630)
47․This is a “rolled up” charge capturing the offender engaging in more than one act of assault over the course of a single incident. Accordingly, the charge has a greater degree of criminality than a charge which captures only one act of assault: see R v Hancock [2021] ACTSC 52 at [28] and Johnston v R [2017] NSWCCA 53 at [68].
48․This was an incident that saw the offender decide to return to the victim after the first act of assault and continue the offence. The first act involved a use of force against the victim to physically dominate her and control her movements. The second act involved a similar use of force with added pressure on the victim’s chest exerted by the offender’s forearm. This action demonstrated his physical dominance and his capacity to control the victim. The second act in the incident exposed their young child to his violent conduct and abusive language because she was by then standing nearby.
49․The victim was vulnerable at 34 weeks pregnant. There was a submission made by the offender that this factor carried little weight. I reject that submission. I consider it to be factor of significant aggravation. The victim was heavily pregnant, being in the third trimester. This was clearly a circumstance well known to the offender. Indeed his truly awful reference to their unborn baby in the verbal abuse he subjected the victim to, makes that clear. The offender’s violent conduct required the victim to consider not only her own safety but that of her unborn child, in circumstances where she perceived the offender to be intoxicated and while her other child watched on. The language used by the offender was offensive and deliberately demeaning.
50․By his conduct and verbal abuse the offender again reveals a desire to demonstrate his inflated sense of self-importance and power over the victim in order that she feel helpless and small. The features of this offence as I have recorded them see it properly characterised as a serious example of the offence.
Subjective circumstances
51․The offender is 37 years old, born and bred in Canberra. He has a strong and supportive family network. He is the director of an apparently successful residential building company. From around late 2022 he has engaged in psychological support, initially through the in-house support provided by his family lawyers and more recently through a private psychologist. There are property orders in place arising from family law proceedings. The offender is under some financial strain as a result. The situation with respect to the two children of the relationship with the victim remains difficult and the offender currently has limited access to their younger daughter. He has not had contact with their older daughter for a significant period. I accept this is emotionally challenging for him.
Court Duty Report
52․The comprehensive report records that the offender experienced a happy and normal childhood and has a close and supportive relationship with his family. The offender reported the difficulties associated with the breakdown of his relationship with the victim, including “low moods” and financial difficulty. He currently has supervised contact with his youngest daughter who is 20 months old twice a week and no contact with his oldest daughter who is 5 years old, at her request. He is engaged in Family Court proceedings with the intention of gaining increased access to his daughters.
53․The offender has worked in the construction and building industry for most of his life. He has run a building company for the last 10 years, which has been profitable and provided him with a significant income, though his financial situation has deteriorated since the breakdown of his relationship due to legal costs, as well as obligations to pay child support and other payments to the victim. He has significant debt. He currently lives with his parents and spends some time with a new partner who he has been in a relationship with for the past eight months. The offender said she was aware of the current charges and is supportive of him.
54․The offender did not believe he had any issues with alcohol or illicit substances. He drinks occasionally and described a period seven years ago when he had used cocaine briefly, estimating it to be about 10 times.
55․The offender has experienced some mental health issues arising from the breakdown of his marriage and the subsequent criminal and family law court proceedings. He has experienced suicidal ideation and has been attending counselling and psychological therapy sessions for the past 18 months and believes these are assisting him manage his mental health though he still feels “sad” about his personal circumstances.
56․The offender mostly agreed with the statement of facts, though noted some remaining issues with the precise wording of the agreed statement of facts which the offender intended to raise with his lawyer. The author considered that while the offender failed to display victim empathy, he did not engage in overt victim blaming and acknowledged his actions at the time were unlawful.
57․The author of the Court Duty Report considered the offender to be at low risk of general re-offending recognising protective factors as including his supportive family, stable accommodation, employment, no reported significant drug or alcohol concerns, and ongoing access to psychological treatment. The offender identified his “desire to make change in order to be a positive, respectable role-model for his young children”.
58․The offender said he could meet a financial penalty through a payment plan. The author considered that he was suitable for a good behaviour order, noting that supervision with ACT Corrective Services was unlikely to be of significant benefit. The offender was assessed as suitable for a community service work condition.
Letter from treating psychologist
59․The offender’s current treating psychologist, Mr Nomchong, provided a letter to the Court verifying the offender’s attendance of nine sessions over the past seven weeks. Mr Nomchong is aware of the general nature of the offender’s charges and that he has pleaded guilty. Mr Nomchong identifies the “challenging”, “stressful” and “emotionally charged” experience of the breakdown of the offender’s marriage. The offender and Mr Nomchong, over their sessions, have been discussing “why the marriage broke down, the role each partner played in that process, the responsibilities of each partner in that process, and the impact of the breakup upon the children”. Mr Nomchong expressed the opinion that the offender has gained insight into “domestic violence and his role in such a situation” and that his likelihood of engaging in domestic violence in the future is low, given his motivation to make considered choices in the future.
Character references
60․The Court was provided with four character references for the offender, from his former partner, his current partner, his mother and his sister. The references support the offender’s otherwise good character, describing him as kind, recording his financial generosity to family members and the respect he extends to women and children. The references attest to the stress the offender endures by virtue of his business interests and his work ethic. They all variously record his desire to be a good father and role model. His family members describe his commitment to their family unit and to his daughters as well as the efforts he has made to continue a relationship with his daughters and include them in the family unit, in difficult circumstances.
61․The references from the two women who have been in relationships with the offender since his relationship ended with the victim, both identify his lack of anger, aggression or violence in his interactions with them and others, as well as their observations of the bond he has with his daughters and his nieces and nephews. Collectively the references support the offender’s limited use of alcohol and record their observations of his ability to deal with stressful situations calmly.
Remorse, degree of responsibility for the offending and rehabilitation
Letter from the offender
62․The offender provided a letter dated 3 June 2024 to the Court. The letter purports to be an expression of his “sincere remorse for his actions that led to the charges”. The offender writes that he “deeply regrets his behaviour and harm it caused” and that he takes full responsibility for his “unacceptable conduct”. The offender confirmed the steps he has taken since the offending, namely engaging in psychological treatment for the past 18 months, and completing the ‘Circle of Security’ parenting program. The offender considered that the psychological interventions have assisted him to manage his emotions more effectively in order not to repeat his “mistakes”.
63․The offender addressed his relationship with the victim by observing, “upon reflection, I realise it is better for us to be apart than together. There were too many unresolved issues from our previous breakup in early 2020 and being together only exacerbated the situation”.
64․The offender nominated his relationship with his children as a high priority, expressing his aim to have positive involvement in his children’s lives and to be a responsible, loving parent. The offender expressed shame that his eldest daughter witnessed some of his offending.
65․In R v Baxendale [2018] ACTSC 60 Loukas-Karlsson J said at [37]:
The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [36]; R v Mumberson [2011] NSWCCA 54 at [38].
66․This is consistent with Imbornone v The Queen [2017] NSWCCA 144, where the Court of Criminal Appeal confirmed that expressions of remorse contained in letters written by an offender should be “treated with considerable circumspection” and may be deserving of little or no weight given the assertions contained therein are untested: [at 57].
67․A close reading of the letter from the offender reveals it to be carefully crafted to avoid a direct connection between his violence and the impact of it specifically upon the victim. I do not consider the letter written by the offender to be evidence of genuine remorse for his offending conduct. I readily accept that the offender feels real sadness and regret about the situation now before him, in terms of his financial position and the limited contact he has with his children. I am not satisfied those feelings of sadness and regret translate to a genuine feeling of contrition about the violent offending he perpetrated against his ex-wife. This is consistent with the author of the Court Duty Report recording that the offender failed to demonstrate victim empathy.
68․Remorse is a “major factor” that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 (MAK) at 169 [41]. As was observed in MAK, without “true remorse” it may be difficult to make a finding that an offender has good prospects for rehabilitation. I am troubled by the absence of remorse. It seems to me to reflect a lack of insight on the offender’s part as to the level of responsibility he bears for the decision to conduct himself as he did on repeated occasions.
69․The lack of genuine remorse is consistent with the sense of entitlement and inflated self-importance, that I am satisfied beyond reasonable doubt underpinned the offender’s desire to reinforce to the victim that he had power over her – physically, financially and psychologically. In reality, all the offences represent irrational, immature overreactions to everyday tensions that might arise in a marriage-like relationship. While I accept the offending occurred in the context of the offender being under considerable strain at the time of the offending because of his business interests, family responsibilities and the state of their relationship, these are not circumstances unique to the offender and the victim; those kinds of stressors exist in many modern family units. It is the offender’s choice to use violence in response to those stressors that sees him before the Court. And while those stressors may have otherwise inevitably led to the breakdown of their marriage, it is the offender’s use of violence that has resulted in harm to the victim beyond that which might ordinarily accompany a failed relationship. It is this aspect of the situation, that the offender seems unable or unwilling to confront.
70․The offender, it seems to me, views his conduct as just a part of the breakdown of his troubled marriage, about which he is sad for himself because it has strained him financially and created difficulties for him as a father. Senior Counsel conceded the offender is “not there yet” in terms of entirely appreciating or accepting the true nature and extent of his conduct which in turn affects his capacity to feel genuine remorse. He submitted that this can be explained by the ongoing family law proceedings between the parties which are acrimonious. There is some sense in that explanation. I accept that the continuation of contentious family law proceedings could influence the offender’s narrative which fails to grapple with the significance of his violence and prevents him from genuinely contemplating the experience of the victim. This observation is not an endorsement of that narrative but recognition that the offender’s capacity to confront his conduct could evolve as he continues to engage in psychological intervention and the family law proceedings resolve.
71․I acknowledge that by virtue of the pleas of guilty he has entered the offender has taken responsibility for his conduct.
72․That there has now been some time since the last offence was committed, with no further offending, speaks favourably of the offender’s prospects for rehabilitation. So too the offender’s engagement with psychological support, his stable employment, accommodation and supportive family network.
73․The offender bears a high degree of responsibility for the offending conduct. He was not exposed to domestic violence in his childhood or adolescence. He is not challenged by any significant mental illness or impairment. He is not challenged by ongoing addiction.
74․Lest there be any doubt, the victim’s part in the conflict between them did not lay the foundation for the offender’s part inevitably escalating to criminal conduct. The offender made a deliberate choice to resolve conflict by pursuing control of his partner through the assertion of what he considered to be key markers of his power – his physical dominance and his financial contribution. The wielding of those factors in his relationship with the mother of his children reflects poorly on the offender’s character. Additionally, the willingness to assert physical dominance demonstrates a capacity for criminal conduct as depicted in the charges before the Court and influences the assessment of his prospects for rehabilitation.
75․In the end though, whether the offender wishes to reform the more unpleasant aspects of his character, revealed in his willingness to hold money and perceived lifestyle advantages over the victim’s head as levers of his power, is a matter for him. He is actively engaged in psychological intervention that could assist to understand those aspects of his character. The criminal law cannot guarantee that basic standards of care and decency are achieved between current or former intimate partners.
76․A sentencing court is concerned with the prospects of rehabilitation insofar as the commission of further offending is concerned. A lack of remorse is an important factor influencing that assessment. I accept that as a person with no criminal history, the process of being arrested and charged, remanded in custody overnight and ongoing participation in the criminal justice system has likely had an influence over the offender’s motivation not to offend in the future. I have taken into account that the two relationships the offender has entered since his offending conduct were not attended to by any violent, abusive or aggressive conduct on his behalf which is a significant factor in terms of his risk of reoffending. It also speaks to the positive influence of the psychological support he has received.
77․It must also be observed that the offender has been subject to stringent bail conditions over a significant period without proven breach. This compliance suggests an understanding of the seriousness of court scrutiny and the seriousness of the situation he faced as an alleged offender. The offender’s prospects of rehabilitation are greatly enhanced by the protective factors I have recognised, noting the absence of significant issues with alcohol or substance misuse and mental ill-health. The prosecution properly conceded that the offender does have a strong foundation upon which to build successful rehabilitation.
78․Ultimately, I am satisfied the offender has good prospects of rehabilitation and is a low risk of reoffending in the future, despite what I consider to be his lack of genuine remorse.
Criminal history
79․The offender comes before the Court with no criminal history.
Guilty pleas
80․The offender was charged with a series of offences on 7 November 2022 in the ACT Magistrates Court. Pleas of not guilty were entered and the matter committed for trial on 18 April 2023.
81․As I have already noted, the trial was listed to commence on 3 June 2024. On the first day of the trial, the offender entered pleas to the four offences for which he now stands to be sentenced. On any view, this was at a late stage in the proceedings. The trial had an estimate of four days. I recognise that there is some utilitarian value to the offender’s pleas. In particular the pleas spared the victim from having to give evidence and from being subject to cross-examination in circumstances where her credibility was to be squarely in issue. Court resources have been reduced because of the pleas of guilty.
82․Pursuant to s 35 of the Crimes (Sentencing) Act, I may impose a lesser sentence than I would have otherwise imposed had the offender not pleaded guilty to the offences. I must take into account the timing of the plea of guilty (s 35(2)(b)). The charge in relation to the September 2018 offence was only preferred by the Director in the weeks before the trial. It was accepted that the plea of guilty to that charge was entered at the first available opportunity and accordingly would attract a discount of 25 per cent.
83․The offender made submissions regarding the appropriate discount to be applied for the pleas of guilty to the other charges, referring to the recent Court of Appeal decision in Padreny. In Padreny the prosecution appealed on the basis that the sentencing judge had made an error by applying excessive discounts for a late plea of guilty. The prosecution challenged a discount of over 10 per cent being applied to the sentences for charges where the pleas of guilty were entered on the day of the hearing. The prosecution submitted the circumstances demanded the pleas be characterised as coming late in the proceedings. The Court of Appeal agreed and re-sentenced the offender, applying a discount of 10 per cent to the sentences imposed on the charges where pleas were entered on the morning of the hearing.
84․In Padreny, the Court canvassed the principles guiding the application of discounts to sentences in the ACT. In particular the Court referred, at [73] with approval to R v Nicholas; R v Palmer [2019] ACTCA 36 at [49]-[53]:
49․ In Williams v The Queen [2018] ACTCA at [47], this Court emphasised that, for public policy reasons, it is important that persons considering an early plea of guilty be justifiably confident that their plea will attract a substantial discount on sentence and also understand that, if they delay in entering the plea, the level of discount is likely to be significantly lower.
50․ In Cranfield, the offender had pleaded guilty a week before the trial was due to commence. The Court increased the sentence discount from five to 10 per cent. In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), the offender had pleaded guilty after committal to the Supreme Court but before a trial date had been set. The Court of Appeal reduced the sentence discount from 25 to 17 per cent. In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count. The Court confirmed the sentence discount of 10 per cent.
51․ Among others, these decisions illustrate that, in circumstances such as the present, an accused person should confidently expect to receive a discount of 10 per cent— or, perhaps, slightly more if their plea was not entered “on the steps of the Court”. They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute.
52․ Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said: It is also vital that persons coming to a criminal case conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice.
53․ The converse is also true. It is vital that accused persons who choose to wait to the last minute to enter a plea of guilty appreciate that, absent unusual circumstances, they will not receive a discount that is as high as the discount that they would have received had they pleaded guilty at the criminal case conferencing stage, which usually occurs soon after a matter has been committed to the Supreme Court for trial.
85․The parties here agree that there were some discussions in pursuit of a resolution on 7 May 2024. Ultimately the offender indicated a willingness to plead guilty on 29 May 2024 and the resolution was formally agreed on 31 May 2024. On this day prosecution witnesses were able to be “called off”. The pleas of guilty to the final three incidents can only be characterised as late in the proceedings though could not be said to be on the steps of the Court, the prosecution having days’ notice that the matter would resolve. This did allow for the victim and others to be advised that they would not be required to give evidence. In the circumstances, taking guidance from the authorities to which I have referred, I consider a discount of around 12 per cent to be appropriate.
Time in custody
86․The offender has spent two days in custody in relation to the offences, and I have taken that into account.
Sentencing practise
87․I was not provided with any comparable sentencing outcomes which is not surprising given the nature of the charges and their intermittent appearance in this Court. The use of bare sentencing statistics will often not be useful. While sentencing data might illustrate a possible range, it does not define the boundaries of the sentencing discretion in relation to an offence.
88․Having observed those limitations, I note the following record from the ACT Sentencing Database. For the offence of common assault sentenced in the ACT Magistrates Court, the penalties imposed include a good behaviour order (GBO) (49.7 per cent), a period of full-time imprisonment (16.5 per cent), a fine (11.1 per cent), a fully suspended sentence (11 per cent), an ‘other order’ (5.7 per cent), a partially suspended sentence (4.8 per cent), a period of imprisonment to be served as an intensive corrections order (ICO) (0.5 p[er cent) and finally, periodic detention (0.3 per cent). For the offence of common assault sentenced in the ACT Supreme Court, the penalties imposed include a period of full-time imprisonment (48.1 per cent), a fully suspended sentence of imprisonment (17.5 per cent), a period of imprisonment to be served as an intensive corrections order (ICO) (13 per cent), a partially suspended sentence (8.4 per cent), a GBO (8.4 per cent) and finally, a fine (4.5 per cent).
89․For the offence of damage property not exceeding $5,000 sentenced in the ACT Magistrates Court, the penalty imposed include a GBO (40 per cent), full-time imprisonment (24.9 per cent), a fine (23.7 per cent), a fully suspended sentence (6.1 per cent), a partially suspended sentence (2.7 per cent) and then a nominal penalty. For the offence of damage property not exceeding $5,000 sentenced in the ACT Supreme Court, the most penalties imposed include a period of full-time imprisonment (68.1 per cent), a period of imprisonment to be served by an ICO (10.1 per cent), a fully suspended period of imprisonment (8.7 per cent), a GBO (7.2 per cent), a partially suspended sentence (4.3 per cent) and then a fine (1.4 per cent).
Determination
90․The instinctive synthesis that attends to the sentencing task requires the Court to balance all of the relevant factors and principles to arrive at a just and appropriate outcome. The purposes of sentencing are clearly set out at s 7 of the Crimes (Sentencing) Act. The community speaks with one voice when it condemns family violence and laments the pervasive, negative effects of it on individuals, on families and on our communities. Sentencing Courts must make clear to perpetrators of family violence that their conduct will not be tolerated.
91․I consider the need to give proper effect to general and specific deterrence, denunciation, punishment and recognition of harm, as well as the offender’s prospects for rehabilitation to be of particular significance in this sentencing exercise. Holding the offender accountable for his conduct is also an important consideration.
92․It has been made consistently clear that perpetrators of family violence should understand that the consequence of their conduct can and will include being sentenced to periods of full-time imprisonment. In R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551, the Court observed at [41]:
[V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.
93․In R v HC [2018] ACTSC 49, Elkaim J reiterated this approach to family violence offences at [3]:
These types of offences are appalling. Actions of violence against a partner or family member must be condemned. Any person who commits these offences should expect to be sentenced to a period of full-time custody.
94․In R v EP (No 3) [2019] ACTSC 242 at [88], Loukas-Karlsson J underlined that “the Courts have made it clear that women must not be treated by men as property”.
95․These observations do not undermine the confirmation by the Court of Appeal in R v UG [2020] ACTCA 8; 281 A Crim R 273 (UG) at 299 [47] that:
[T]here is no place for a separate sentencing regime that applies to offenders who commit “family violence offences” (or any other general category of offences) whether it be a more lenient or a more severe sentencing regime.
96․Rather, they underscore the need for the sentence imposed in this instance to adequately denounce the offending, hold the offender accountable and deter others from engaging in this kind of offending.
97․As I have already observed for the final three offences before the Court, I am required to consider those matters contained in s 34B of the Crimes (Sentencing) Act, a provision enacted after UG. While s 34B did not create a separate sentencing regime for family violence offences it nonetheless provides a statutory mandate for the consideration of the factors to which it directs attention. I have taken those specific factors into account when determining the appropriate sentence for the final three offences and as conceded to be appropriate by the offender had regard more generally to the family violence context of the first in time offence.
98․The offender in this instance not only exposed the victim to his violence but also their young daughter, who was reliant on him to preserve her sense of safety and entitled to expect that as her father, he would always be entirely invested in her wellbeing. The offender, through his conduct, failed to meet that expectation.
99․The prosecution submitted that the “threshold” contained in s 10 of the Crimes (Sentencing) Act is crossed in relation to the charge of aggravated common assault. The offender pointed to the absence of criminal history, the nature of the offending and his prospects of rehabilitation as factors pulling the offence away from that threshold. It was also submitted that the offender has experience extra-curial punishment in the form of personal and professional reputational damage. It was also suggested that the extent of the current access to his children was further extra-curial punishment because it was not the “usual consequence”.
100․As was observed in R v Aniezue [2016] ACTSC 82 at [57], citing R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 at 410-411 [62]:
[A]s a matter of sentencing principle, punishment or relevant detriment suffered by an offender as a consequence of the commission of the offence may, in a proper case, be taken into account in sentencing.
101․There is no evidence before me as to the extent of any reputational or professional damage the offender has suffered arising from the awareness of others in the community of his offending conduct. Further, the specific circumstances of the current arrangement in relation to the offender’s children are not entirely clear. The author of the court duty report recorded that it is the choice of the offender’s eldest child not to see him. I am unaware of the detail of any parenting orders or agreement such that I could conclude that the offender’s access to his children arises only from his offending conduct. There may be other factors, of which I am unaware, that have led to or influenced the current access arrangement.
102․I am not satisfied on the material before me that I should treat those factors as extra-curial punishment such that they should operate to moderate the sentence I impose. I do take them into account as factors relevant to the subjective circumstances of the offender.
103․In my view, the seriousness of the aggravated common assault offence is such that only a sentence of imprisonment will give proper effect to the purposes of sentencing most relevant. An outcome that did not include a period of imprisonment for that offence would be unduly lenient. I do not have the same view in relation to the other three offences. I consider that those offences can be appropriately dealt with by imposing a financial penalty in the case of the damage property offence and a requirement for the offender to be of good behaviour in the case of the two common assault offences.
104․While I am of the view that a period of imprisonment is the only just and appropriate outcome for the aggravated common assault, having carefully considered all the relevant factors I do not consider that a period of full-time imprisonment is necessary to give proper effect to the purposes of sentencing. The prosecution did not seek to be heard on the question of how the period of imprisonment should be served.
105․The offender, through his commitment to psychological intervention, has demonstrated determination not to repeat the violent conduct that has brought him before the Court. I accept he has some very powerful motivation in the form of two little girls who would undoubtedly benefit from a father who prioritises their wellbeing and protects them from harm. If his motivation in that regard wanes, then he will answer to them at some point in their lives, and similar conduct from him in the future would undoubtedly risk his liberty. The offender’s demonstrated commitment to guarding against similar conduct in the future and improving his capacity to regulate his emotions and control his anger, reflects an appreciation on his part of the stakes involved.
106․Given the personal circumstances of the offender I do not consider an intensive corrections order would be an appropriate disposition and I was not pressed by either party to have the offender assessed as to his suitability for such an order. As was observed in R v Carmody (No 3) [2017] ACTSC 60 at [75], citing R v McConkey (No 2) [2004] VSCA 26 at [32], a suspended sentence, while obviously a more lenient outcome than full-time imprisonment, is nonetheless a period of imprisonment that constitutes “very significant punishment which can serve the function of general deterrence, and which may be imposed because a judge considers that it offers the greatest prospect of reformation and, in turn, the protection of society”.
107․I am satisfied that the circumstances as I have outlined them, justify the immediate suspension of the period of imprisonment that I will impose on the condition that the offender be of good behaviour for a period. I also consider it appropriate to include a community service work condition. I have taken into account, when determining the number of hours to impose, the offender’s professional and family commitments. This outcome provides an opportunity for the offender to continue to pursue meaningful rehabilitation, while marking the seriousness of the offending. Of course, for the period of good behaviour that the offender will be required to observe, the prospect of imprisonment remains a possibility should he return to past behaviours.
108․I have considered whether the offender should be subject to the supervision of ACT Corrective Services beyond that which is required for the purposes of overseeing the community service work condition. The author of the Court Duty Report considered there would be little benefit in general supervision. As I have already observed the offender appears genuinely motivated to present himself in the family law proceedings as a good father who can be trusted to ensure the safety and wellbeing of his children. Accepting the presence of that factor, it is difficult to imagine a more powerful motivation for reform than being granted the privilege of being present in the lives of your children. In those circumstances, I do not consider general supervision to be necessary.
109․The starting point for the aggravated common assault is eight months imprisonment. In recognition of the plea of guilty it will be reduced to seven months.
Orders
110․For those reasons the following orders are made:
(1)For the offence of common assault (CC2023/507) the offender is convicted and required to give an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act2005 (ACT) for a period of one year from today.
(2)For the offence of common assault (CC2023/629) the offender is convicted and required to give an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from today.
(3)For the offence of damage property (CC2022/10915) the offender is convicted and fined $1,800 with 90 days to pay.
(4)For the offence of aggravated common assault (CC2023/630) the offender is convicted and sentenced to seven months imprisonment to be immediately suspended on the condition that he comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of one year from today. There is to be an additional condition requiring him to perform 50 hours of community service within one year of today and for that purpose, he is required to accept the supervision of ACT Corrective Services and comply with reasonable directions in relation to the performance of community service.
| I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 7 June 2024 |
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