Director of Public Prosecutions v Robin (a pseudonym)

[2024] ACTSC 322

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Robin (a pseudonym)

Citation: 

[2024] ACTSC 322

Hearing Date: 

1 October 2024

Decision Date: 

4 October 2024

Before:

Burns AJ

Decision: 

See [39]

Catchwords: 

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – breach of family violence order – assault occasioning actual bodily harm – unlawful choking rendering unconscious – unlawful choke, strangle or suffocate – offences aggravated by family violence – significant pre-sentence custody – intoxication contributing feature – some steps taken towards rehabilitation in custody – moral culpability reduced because of childhood exposure to alcohol abuse and violence – some moderation of general deterrence as sentencing consideration – sentence of imprisonment imposed

Parties: 

Director of Public Prosecutions ( Crown)

Julian Robin (a pseudonym) ( Offender)

Representation: 

Counsel

C Daly ( Crown)

E Chen ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ( Offender)

File Numbers:

SCC 328, 329 of 2023

BURNS AJ:   

Introduction

1․Julian Robin, you come before me today to be sentenced with regard to the following charges upon which you were committed to this Court for sentence from the Magistrates Court:

(a)CAN 9087 of 2023, being a charge that on 16 September 2023 you intentionally and unlawfully choked another person, so as to render that person unconscious and the offence involved family violence. The maximum penalty for this offence is 13 years imprisonment.

(b)CAN 9088 of 2023, a charge that on 16 September 2023 you intentionally and unlawfully choked, suffocated or strangled the victim and the offence involved family violence. The maximum penalty for this offence is 7 years imprisonment.

(c)CAN 9091 of 2023, a charge that on 16 September 2023 you did assault the victim and thereby occasioned to her actual bodily harm and the offence involved family violence. The maximum penalty for this offence is 7 years imprisonment.

(d)CAN 10028 of 2023, a charge that on 16 September 2023 you intentionally choked, suffocated or strangled the victim and the offence involved family violence. The maximum penalty for this offence is 7 years imprisonment.

2․In addition, you have entered a plea of guilty to a further charge CAN 10009 of 2023, alleging that between 18 September 2023 and 11 October 2023 you engaged in conduct that contravened that family violence order. The maximum penalty for this offence is 5 years imprisonment or 500 penalty units.

3․An agreed Statement of Facts was tendered at your sentence hearing. I will not now recite the facts. The following summary is sufficient. In September 2023 you and the victim were married. You had been married for about 18 months and had been in an intimate relationship for the previous 6 years. There are two children of the relationship, then aged one and three. You also have a 10-year-old daughter from a previous relationship.

4․The victim went out to a social function on 16 September 2023. You had not originally wanted the victim to attend that function because you were meant to be having a movie night with your 10-year-old daughter. You ultimately agreed to the victim attending the function. During that function a male person texted the victim and you believed this indicated that she was cheating on you. You saw the message because it appeared on the victim’s iPad which was at your home address. You immediately began to send the victim text messages accusing her of being unfaithful. The victim decided to return home.

5․When the victim returned home, you closed the front door behind her and grabbed her by the throat and pushed her up against the door using a substantial amount of force. You were angry and told the victim that your 10-year-old daughter had been crying because the victim was supposed to have a movie night with her that night. You continued to squeeze the victim’s throat to the point where she lost consciousness.

6․When the victim regained consciousness, she had a sore throat and was on the floor at the front door with her legs curled beneath her in an awkward position. You were standing over her saying words to the effect of “I hope you had fun” and “I hope it was worth it” and “don’t you make me go through that again”. The victim did not respond, but stood up and began walking towards the master bedroom. These are the facts relating to charge CAN 9087 of 2023.

7․Once the two of you reached the hallway, you again grabbed the victim around the throat forcefully with both hands and pushed her against the wall saying words to the effect of “[i]f it wasn’t for the kids, I would kill you and slice your throat”. You then released the victim. These are the facts relating to charge CAN 9088 of 2023.

8․The victim walked into the master bedroom, where your two young children were sleeping. She lay down on the bed for a short time, before getting up and walking to the ensuite bathroom, where she vomited in the toilet.

9․While the victim was still kneeling in front of the toilet bowl, you entered the bathroom holding her mobile phone. You had been accessing her messages on her phone and began asking her about text messages and Snapchat requests she had received. You accused the victim of cheating on you, and you pushed the victim’s head into the toilet bowl to the point where the head was below the lip of the toilet bowl. You used force to hold her head in the bowl and she struggled to push back against you. You then flushed the toilet causing the victim’s entire face and hair to get wet. The victim held her breath as the toilet was flushed.

10․You again asked her about the text message she had received and the victim responded saying she did not know what you wanted her to tell you. You again pushed her head into the toilet bowl and flushed it a second time. At some point after flushing the toilet, you threw the victim’s mobile phone into the toilet, however this was later retrieved, and no damage was caused to it. You then blocked the victim from taking a shower. These are the facts relating to charge CAN 10028 of 2023.

11․You then grabbed the victim and threw her to the ground, causing her to slump against the wall beneath the towel rail. You then advanced towards her and began throwing punches at her with closed fists while she curled up and attempted to cover her head with her arms. Several punches landed on the victim’s forearms causing bruising, and one punch connected with her right temple, causing slight swelling and a red mark. These are the facts relevant to charge CAN 9091 of 2023.

12․Once you stopped punching the victim, she got up and went to lay in bed. You then went to your 10-year-old daughter’s bedroom, where she told you that she had heard what had happened. In fact, during this incident, your 10-year-old daughter had sent text messages to her mother and to the victim’s younger sister saying that you were hurting the victim and that she was afraid.

13․At about 10:25pm that day, police arrived and you were arrested and transported to the ACT Watch House. You were not offered the opportunity to participate in a record of interview due to your level of intoxication. You have remained in custody since that time.

14․On Monday, 18 September 2023, a Special Interim Family Violence Order was made in the Magistrates Court naming the victim as the Protected Person and you as the respondent. That order prohibited you from contacting the victim except in specified circumstances.

15․Sometime between 18 September 2023 and 11 October 2023, while in custody, you wrote a letter and posted it to the victim’s brother’s address. The letter was addressed to your three children. The victim read the entire letter and noticed that you were addressing her directly, although not by name. By your plea of guilty you accept that you had intentionally communicated with the victim. These are the facts relating to charge CAN 10009 of 2023.

16․There are undoubtedly a number of red flags in the agreed Statement of Facts suggesting that your relationship with the victim was one in which you exercised considerable control over her. The letter which you wrote from custody suggests an attempt at manipulation of the victim by referring to your asserted love for her and your children, and repeated assertions of the deprivations to which you are subject in custody. If your letter was an attempt to manipulate the victim and/or your children, this would make the offence of contravening a family violence order more serious. In order to come to that conclusion, I must be satisfied beyond reasonable doubt that you intended to manipulate the victim and/or your children. While I think it is probable that this is what you were attempting to do, I cannot be satisfied beyond reasonable doubt of that fact. I am not, however, satisfied on the balance of probabilities that the content of the letter was innocuous. I simply proceed to sentence on the basis that there was a deliberate breach of the order.

17․A Victim Impact Statement was provided by the victim. She speaks of the profound impact your actions have had on her life and the lives of her children. The effects of the present offences have affected all aspects of her life. She has experienced an array of distressing emotions, including fear, anxiety and a profound sense of betrayal and loss. The incident has left her feeling unsafe within the confines of her own home. Places and events that remind her of you cause her anxiety.

18․Not unnaturally, the fears of the victim were amplified by your breach of the family violence order shortly after you were remanded in custody. The victim speaks of the effect that this incident has had upon your children, and the pain she feels on seeing that effect. The victim is now seeking counselling for your son, to try to lessen the long-term effect on him.

19․The victim also speaks of the substantial financial effects this incident has had on her. It has significantly impacted her career and her relationship with her workmates. The victim speaks of the ongoing support she provides to, and the strong relationship she has with, your now 12-year-old daughter. The victim expresses concern for her safety when you are released from custody.

20․In assessing the seriousness of the offences that occurred on 16 September 2023, I take into account in addition to the pleaded statutory circumstance of aggravation:

(a)all offences occurred at the home of the victim, a place where she was entitled to feel safe;

(b)there were three children in the house at the time of the offences, albeit that the younger two were asleep;

(c)while each of the offences were of relatively short duration, they were part of a course of conduct in which you sought to punish and control the victim through violence and degradation; and

(d)the physical harm caused to the victim was not great.

21․I would assess the first charge of aggravated choking so as to render the victim insensible as in the upper part of the mid-range of such offences. I would assess the two counts of aggravated choking as in the lower part of the mid-range of such offences. And I would assess the one charge of aggravated assault occasioning actual bodily harm as on the border of the low and mid ranges.

22․I would assess the charge of breach of a family violence order as in the lower range of such offences.

23․You do not have a lengthy criminal history. It is of concern, however, that the only matter on your criminal history, which dates back to 2014, involves domestic violence offending. On 27 September 2014 you were convicted in New South Wales (NSW) of offences of stalking and common assault and placed on a bond for a period of 18 months. I infer from the nature of the penalty imposed that the offences you committed were not amongst the most serious examples of that type of offending. I am told that you completed the bond without incident. I understand that this related to a different partner to the present victim.

24․Whilst you are not entitled to the leniency in sentencing for the present offences that would be shown to a first offender because of your criminal history, that history does not speak of a need to give predominance to personal deterrence in sentencing you for the present offences.

25․You gave evidence at your sentence hearing. You said that you feel disgusted by your actions. You testified that you started consuming alcohol when you were 8 or 9-years-old at family parties and barbecues. You said that your consumption of alcohol severely worsened when you turned 14 and you were expelled from school. You began drinking every day or every second day. You obtained work as a labourer, but you were encouraged to consume alcohol by your employer. You testified that prior to the present offences you were consuming 8 to 12 beers a night on weeknights and up to a box of beer a night on weekends.

26․You testified that when you are released from prison you want to travel to the South Coast of NSW where you have family support. Your two sisters who live on the South Coast attended court last Tuesday to provide you with support. They are willing to provide you with accommodation when you are released from prison, and you have the prospect of employment in that geographical area. Family support and employment are important circumstances relevant to your prospects for rehabilitation.

27․You testified that since being remanded in custody you have undertaken counselling regarding alcohol abuse, and you also completed four and a half months of the Solaris Program. You left that program because of concerns you had for your safety arising out of another charge on which you were later acquitted. You have commenced attending Alcoholics Anonymous (AA) and you have a sponsor in that organisation. You see that person irregularly within the Alexander Maconochie Centre (AMC) and you have their phone number for when you are released. You have a Recovery Plan in place.

28․While you were intoxicated at the time of these offences, you accept that alcohol use by itself does not explain your offending. You freely conceded that alcohol played no part in your offending in 2014. You acknowledge that you also need to address your temper and attitude, particularly towards domestic partners.

29․The Court Duty Report (the Report) records that you have not been subject to any disciplinary action whilst in the AMC. You are a 37-year-old Indigenous man whose childhood was unsettled and marred by your father’s alcoholism and violence towards you, your mother, and your siblings. You have not spoken with your parents or your brother for more than a decade, but you have, as I have noted, a continuing relationship with your sisters.

30․You told the author of the Report that you have had no contact with the victim or your children since being remanded in custody. You said that you understand that your relationship with the victim is now over and that you have no intention of attempting to reengage with the victim. You spoke, however, about your desire to regain contact with your children upon your release from custody. You said that you had applied for a mediation process through the Federal Circuit and Family Law Court and will follow up on the progress of that application when you return to the community. You told the author of the Report that your children remain your highest priority and your primary motivation to make changes to your lifestyle.

31․I accept that you have a good work history, despite your history of alcohol abuse. You are confident in finding employment when you return to the community. You have not consumed any alcohol since being remanded in custody about 12 months ago, and you gave evidence that you feel better for not consuming alcohol. The author of the Report stated that you acknowledged the seriousness of your offending and did not attempt to provide justifications for your actions or attempt to minimise your culpability.

32․The author of the Report stated that your primary risk factors are your use of alcohol, lack of family support in Canberra and your mental health, including anger management and emotional regulation.

33․I was provided with a number of documents confirming your participation in the Solaris Program, your attendance at therapy sessions in the AMC, and your completion of a number of courses and programs within that institution. I accept that you have taken the opportunities available to you as a remand prisoner to participate in programs addressing alcohol abuse. Your ability to undertake programs addressing domestic violence and anger management have been limited by the limited availability of such programs to remand prisoners. You have put in place a realistic plan for your release and you have expressed remorse for your offending. I am satisfied that you have reasonable prospects for rehabilitation if you maintain your commitment to obtaining appropriate counselling after your release from prison and your commitment to abstinence from alcohol abuse. That commitment, of course, is yet to be tested in the community.

34․There can be no doubt that these offences are serious. You have accepted that to be the case. As the prosecutor submitted, non-fatal strangulation by a domestic partner is one of the most important predictive risk factors for intimate partner homicide. That fact is undoubtedly reflected in the maximum penalties prescribed for the offences involving choking or strangulation. It also speaks of the need for caution in ensuring that a return to the community by an offender who has committed such an offence is carefully planned and monitored.

35․In my view, and in the particular case, that means it is appropriate to proceed by way of a non-parole period rather than a partial suspension of sentence. I accept that your pleas of guilty to the present charges were early pleas, saving the community the cost of a defended trial. I also accept that your pleas indicate a degree of remorse. And of course, you have already expressed remorse in other ways. I will reduce the otherwise appropriate sentences by approximately 25 percent because of your pleas of guilty.

36․Although I have assessed your prospects for rehabilitation as reasonable, personal deterrence is still a relevant factor. I accept that your childhood exposure to alcohol abuse and violence reduces somewhat your moral culpability for these offences, but it does not remove that culpability entirely. Some moderation of general deterrence and punishment as sentencing considerations is warranted. General deterrence, however, remains an important consideration for offences of this type.

37․I am satisfied with regard to the offences committed on 16 September 2023 that no sentences other than sentences of immediate imprisonment are appropriate. It is appropriate that there be a degree of concurrency of such sentences, bearing in mind that the offences all occurred as part of a single course of conduct and also bearing in mind the requirements of totality.

38․I am not satisfied that the offence of contravening a family violence order justifies a term of imprisonment.

Orders

39․I make the following orders:

(a)On the charge of aggravated strangling and rendering insensible (CAN 9087/23), I record a conviction, and you are sentenced to 3 years, 10 months imprisonment commencing 16 September 2023 and expiring 15 July 2027.

(b)On each of the charges of aggravated choking/suffocating or strangling (CAN 9088/23 and CAN 10028/23), I record convictions, and you are sentenced to 2 years, 4 months imprisonment to be served concurrently with each other, commencing 16 March 2026 and expiring 15 July 2028.

(c)On the charge of aggravated assault occasioning actual bodily harm (CAN 9091/2023), I record a conviction and you are sentenced to 19 months imprisonment commencing 16 May 2027 and expiring 15 December 2028.

(d)The total sentence of imprisonment which I have imposed is therefore one of 5 years 3 months commencing 16 September 2023 and expiring 15 December 2028.

(e)I set a non-parole period of 2 years 9 months commencing 16 September 2023 and expiring 15 June 2026.

(f)On the charge of contravening a family violence order (CAN 10009/23), I record a conviction and there will be a good behaviour order for a period of 8 months from today, ending on 3 June 2025.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Burns.

Associate:

Date: 9 October 2025