Director of Public Prosecutions v Vaana
[2024] ACTSC 46
•27 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Vaana |
Citation: | [2024] ACTSC 46 |
Hearing Date: | 27 February 2024 |
Decision Date: | 27 February 2024 |
Before: | Berman AJ |
Decision: | See [44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – family violence offences – controlling behaviour – offending not spur of the moment – children nearby when offending occurred – childhood of violence and alcohol abuse – early guilty plea – young offender – focus on rehabilitation – suspended sentence of imprisonment imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions Peter Jeremiah Vaana ( Offender) |
Representation: | Counsel C Wanigaratne ( DPP) G Le Couteur ( Offender) |
| Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Offender) | |
File Numbers: | SCC 235 of 2023 SCC 236 of 2023 |
BERMAN AJ:
Introduction
1․For many years, domestic violence offences were not treated with the seriousness they truly deserved. This has now changed, and proper recognition is now given to the harm that such offences cause to the victims of it, and society generally.
2․Section 34B of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) requires that I have regard to the preamble in the Family Violence Act 2016 (ACT). I will do that. In particular, I recognise that family violence is unacceptable in any form and that freedom from family violence is a human right.
3․I recognise also that family violence is best addressed through a coordinated legal and social response of assistance to the victims and prevention of violence by things such as promoting the accountability of perpetrators of family violence and the appropriate intervention by police and the courts.
4․I am to sentence today Peter Vaana for domestic violence offences.
5․The sentence that I will announce is designed to promote his accountability for his wrongdoing, to punish him, and to assist him to act in a much better way in the future.
Facts
6․The offender had been in a relationship with a woman, the complainant. They have two daughters together.
7․On Saturday 26 August 2023, the complainant was at a football match. She was sitting in the grandstand area with her father and her two daughters. The offender was also there in company with members of his family.
8․At about 2.30 pm, the offender approached the complainant and demanded that she give him her mobile phone and the phone's passcode. This is overbearing, controlling behaviour. It should not have happened, but the response of the offender to what then occurred became very seriously criminal in nature.
9․The complainant did not answer the offender when he demanded her mobile phone and the passcode. She instead looked towards her father. The complainant’s father got up and told the offender to go away. The offender should have done this, but he didn't. He continued to stand close to the complainant for about two minutes and again demanded that she give him her phone. She didn't do so. Eventually, the offender left the grandstand area and left the football ground.
10․That should have been the end of the matter. The offender's behaviour was serious enough, demonstrating, as I've already mentioned, a desire on his part to control the complainant. He should have left and not come back, but that is not what he did. He went to a local Woolworths supermarket where he purchased a knife, a knife of a significant size, the blade being about 13 centimetres long.
11․He went back to the football ground, found the complainant's car, and punctured the left rear tyre using the knife he had just purchased. That is an offence of aggravated damage to property in circumstances of family violence, for which the maximum penalty is three years imprisonment.
12․Not content with having damaged the complainant's property, causing her both expense and inconvenience, he then committed further offences shortly afterwards.
13․The offender told one of his sisters to let the complainant know what he had done to her car. The offender's sister did that.
14․He was then approached by a relative of the complainant, a female, who engaged in a verbal altercation with the offender as part of which she warned the offender to stay away from her family and to leave the complainant alone. This was very good advice, which the offender ignored.
15․There was some physical contact between the two, before a female relative went as if to punch the offender. In response, the offender removed the knife he had purchased from Woolworths, which had been in his pants, and pointed it at the female relative. He held it at about waist height with the blade raised towards her in a threatening manner. Sensibly, she left the area. There is an offence of possessing an offensive weapon with intent, the maximum penalty for that offence being one year in prison.
16․What happened then was that the complainant's father saw that the offender was in the car park and that he was wielding a knife. What he said to the offender was an eloquent summary of the wrongfulness of the offender's conduct. He said to him:
This is shit, you’ve got your babies here, who brings a knife here?
17․That the offender would do what the complainant's father recognised was seriously wrong, with his children nearby, demonstrates the gravity of the offender's behaviour that day.
18․In response to what the complainant's father said, the offender then walked towards him, holding the knife in his right hand. The offender raised the knife he was carrying to about shoulder-height, pointed it at the complainant's father and said:
I’m going to fucking kill you, I’ll put this knife in your fucking neck, I’ll fucking stab you!
19․There was then an argument. The offender continued to threaten the complainant's father with his knife. The complainant's father became fearful for his life and safety as a result of what the offender was doing.
20․Some of the relatives intervened. So did bystanders and security guards. The offender was escorted away from the area by security staff. He finally left the football ground, throwing the knife into a stormwater drain.
21․As a result of threatening to kill the complainant's father, the offender was charged with an offence of aggravated reckless threat to kill in a family violence context, for which the maximum penalty is 13 years imprisonment.
22․Police, being notified about what had happened, then found the offender and arrested him. At an interview which took place shortly thereafter, the offender made full admissions about this incident and his actions. Later on that day, he showed police where he had thrown the knife. They located it and seized it.
23․He was then remanded in custody and has spent 84 days in jail before he was released on bail.
Objective seriousness
24․What I have just described was clearly serious criminal behaviour. It is worth repeating that many people were there, including the offender's children. They may not have been actually present when the knife was presented to two people, but they were certainly nearby.
25․Nor was the offender's conduct something that occurred on the spur of the moment. He had to leave the football ground, go to the supermarket, buy the knife, and then return. And this all came about because the complainant would not give in to his unreasonable demands that she provide him with her phone and the passcode to it.
26․This is not the offender's first brush with the law. For a young man, 21 at the moment, he has accumulated a relatively significant criminal history, including six offences of destroying or damaging property, two offences of stalk or intimidate, one offence of common assault, one of affray, one of theft, and one of obstructing or resisting a Territory Official.
27․Certainly, the number of offences, and the seriousness of the offences for which I must sentence him today, raise concerns as to the prospects of his rehabilitation.
Subjective features
28․Consistent with the offender's cooperation with police, and his early admissions, he pleaded guilty to these offences at the earliest opportunity. The sentences I impose upon him will thus be 25 per cent less than they would otherwise have been.
29․The offender is one of 10 children born to his parents who are hard-working and care for their children.
30․Unfortunately, the offender's childhood was less than ideal. His father would engage in the abuse of alcohol and domestic violence. Often the offender's father would drink with friends so that when the offender returned home of an evening, the house would be in chaos. Things have improved of recent times. The offender's father no longer consumes alcohol and is supportive of the offender.
31․The offender is very fortunate to also have the support of his mother. She is in Court today. She has supported him despite all the troubles he has caused for her. She is to be congratulated for the effort she makes, not only to provide for her large family financially by working, but also by doing what she can to ensure that her son puts his offending ways behind him. She has provided a reference to the Court in which she recognises realistically the problems that her son has and expresses a willingness to do what she can to support him in his rehabilitation efforts.
32․The offender is currently employed as a labourer. He has a desire to become a motor mechanic and to this end, he has recently completed what he needs to do in order to get a learner's permit. He did the tests that were required of him and got 100 per cent on both tests. Whilst in custody, he did courses and his certificates attesting to his work in that regard were also tendered to me today.
33․It is clear that whilst many other people have worse upbringings, the factors outlined in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are nevertheless enlivened in this case. The use of violence and alcohol was something that was normal for the offender when he was a child, and which could easily explain his decision at a very early age to commence drinking. Certainly, it cannot be said that he made an informed choice to begin consuming alcohol because of the young age at which he started. The offender's criminal history and his conduct on the occasion leading to the three charges for which I must sentence him have to be looked at in light of the background that he has, where violence and alcohol were normalised for him.
34․I recognise that the offender is still a young man. Although he is an adult for the purposes of the criminal law, that does not mean that I should treat him as being a fully mature adult. It is well known, as I said when sentencing an offender on a similar age yesterday, that there is not some bright line of maturity that an offender achieves at the age of 18. That is one of the factors that have led me to focus on the offender's rehabilitation in the sentences which I will impose upon him.
Consideration
35․In almost all cases of family violence, and this is no exception, general deterrence is of great importance. There are many people, almost always men, who display the attitude displayed by the offender in this case. That is an attitude that their partner must do what they say, even after their relationship has ended. And when their partners do not do what they require, they react badly and in a violent manner.
36․It is important that such people in the community understand that if they act violently, that if they commit domestic violence offences, the courts will react by imposing significant, sometimes even harsh sentences.
37․In the present case also, personal deterrence is of importance. The offender's regular offending, and the fact that he appears not to have complied with the curfew condition of his bail, both suggest a need for the offender himself to be assisted to understand that he cannot keep acting in the way he has been.
38․For those reasons, I am satisfied that the threshold in s 10 of the Sentencing Act has been crossed, and that a sentence of imprisonment is required.
39․In this case, the offender did not consent to an intensive corrections order. Because of
s 77 of the Sentencing Act, that means I cannot impose a sentence of imprisonment to be served in that manner.40․That leaves for me the choice between a sentence which is suspended and a sentence of full-time imprisonment. I did give some consideration to sending the offender back to jail, but his more recent efforts at rehabilitation and the fact that he retains the support of his mother have persuaded me that, taking into account the fact he has spent 84 days in custody, there is no need for him to be returned to custody at this stage.
41․Although there were three separate offences, it is impossible to ignore the interrelationship between them. For example, the offender caused the aggravated damage with the knife and part of his threat to kill the complainant's father occurred when he presented the knife. For those reasons, I do not propose to accumulate any of the sentences, and they will all be served entirely concurrently.
42․The threat to kill offence is made more serious by the fact that the offender possessed the knife and so, in order to avoid any possibility of double counting, I will impose concurrent sentences as I have said I would.
43․I was invited to backdate the sentences of imprisonment that I will shortly impose to 5 December 2023, reflecting the 84 days the offender has already spent in custody.
Orders
44․For those reasons, the following orders are made:
(1)On the charge of aggravated damage (CC2023/8419) the offender is convicted and sentenced to imprisonment for 4 months.
(2)On the charge of possess offensive weapon with intent (CC2023/8418) the offender is convicted and sentenced to imprisonment for 9 months.
(3)On the charge of aggravated threat to kill (CC2023/8417) the offender is convicted and sentenced to imprisonment for 18 months.
(4)Those sentences are to be served concurrently and are to date from 5 December 2023.
(5)The sentences are suspended with immediate effect upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years with the following conditions in addition to the core conditions:
(a)The offender is on probation and subject to the supervision of the Director-General and must obey all reasonable directions of that person.
(b)The offender is to attend assessment and treatment in relation to alcohol consumption as directed.
(c)The offender is to attend assessment and treatment for persons who use domestic violence and/or aggression.
(d)The offender is to perform 200 hours of community service.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |
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