Director of Public Prosecutions v Williams
[2024] ACTSC 303
•2 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Williams |
Citation: | [2024] ACTSC 303 |
Hearing Date: | 16 September 2024 |
Decision Date: | 2 October 2024 |
Before: | Christensen AJ |
Decision: | See [84] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravention of Family Violence Order – family violence offending – whether victim allowing offender in their home in breach of FVO constitutes mitigating factor – s 34B of the Crimes (Sentencing) Act 2005 (ACT) – suspended sentence not appropriate penalty – history of family violence offending – term of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24 26, 27, 43 |
Cases Cited: | DPP v Linsley [2023] ACTSC 255 |
Parties: | Director of Public Prosecutions ( Crown) Aaron Benjamin Williams (Offender) |
Representation: | Counsel M Lucero ( Crown) S Lynch ( Offender) |
| Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service ( Offender) | |
File Numbers: | SCC 263, 264 of 2023 |
CHRISTENSEN AJ:
Introduction
Aaron Williams is to be sentenced in relation to four family violence related offences that occurred on or about 15 June 2023. The offending involves:
(a)aggravated choke, suffocate, strangle another person so as to render the other person insensible or unconscious, contrary to s 27(3)(a) of the Crimes Act 1900 (ACT) (Crimes Act);
(b)aggravated assault occasioning actual bodily harm, contrary to 24(1) of the Crimes Act;
(c)aggravated common assault, contrary to s 26(1) of the Crimes Act; and
(d)contravene family violence order, contrary to s 43(2) of the Crimes Act.
Mr Williams had initially sought that any sentence of imprisonment be served by way of a Drug and Alcohol Treatment Order (Treatment Order). This form of order was not pressed when accommodation options necessary for engagement with a Treatment Order were not available. As will become apparent, this sentencing option is not one that is available for Mr Williams in any event. Rather, condign sentences of imprisonment are necessary in order to fulfill the purposes of sentencing.
Facts of the offending
In or around June 2022, Mr Williams and the victim entered into a relationship. During the first six months of 2023, their relationship status was one of being “on and off again”.
In February 2023, following an application by police, a provisional apprehended domestic violence order was issued in New South Wales (NSW), with the victim of the current offending being the respondent. The conditions of the order included that, in relation to the victim, Mr Williams was prohibited from:
(a)assaulting or threatening her;
(b)stalking, harassing, or intimidating her;
(c)approaching or contacting her in any way, unless through a lawyer; and
(d)going within 500 meters of anywhere she lives, works, or a specified address in Greenway.
The provisional order was served on Mr Williams on 15 February 2023.
In the early hours of the morning of 15 June 2023, Mr Williams was staying with the victim at her apartment in a complex in Greenway. The victim observed Mr Williams to be “snappy” and stressed.
At around 2:30am to 3:00am, Mr Williams woke the victim up to let her know that the temperature of the apartment heater was not high enough. He began shouting at her and calling her names. The victim left the room to give him space. She fed her cat and was sitting on the floor. The offender came out and began to follow her around. He became “rough” with her.
In the bedroom, he used his hands to push the victim into a wall. The victim hit the wall head first, causing swelling and tenderness to the right side of her forehead and cheek around her eye. She began to cry, and asked Mr Williams to leave, saying words to the effect of “just please leave me”.
He did not leave. Mr Williams shouted at the victim, including calling her a “fucking bitch” and a “stupid cunt”. The victim told him that he had “a minute”, or she would call the police.
At this point, the victim had her mobile telephone. Mr Williams took the phone from the victim and tackled her to the floor of the apartment. He held her face into the carpet, with his hands on the back of her neck. The victim’s stomach was on the floor, and Mr Williams pressed his weight on top of her, on her ribs. As a result of this conduct, the victim was not able to breathe and lost consciousness.
The victim woke up some time later to Mr Williams pulling her up from the floor and shaking her, saying words to the effect of “please breathe, baby. I love you. I’m sorry, please breathe”. After regaining consciousness, the victim noticed that she had briefly lost control of her bladder.
The victim tried to crawl away, but had some difficulty. After a bit of a tussle, the victim managed to get her phone and get off the floor. Mr Williams took the phone from the victim and “shoved” her. This continued for a period. At one point, when the victim had her phone again, Mr Williams picked her up off the ground from behind and shook her in an attempt to the shake the phone from her hands.
At one stage, the victim managed to get to the front door of her apartment and open it. However, Mr Williams grabbed her and pulled her back inside. Further, during the incident, Mr Williams used his right hand, whilst standing behind the victim, to cover her mouth to prevent her from screaming.
After a period of about one hour, Mr Williams took the ‘fob’ remote to the apartment, some other items, and left.
For a period of time after his departure, Mr Williams continued to message and call the victim. The first message was sent at about 4:19am. He thereafter sent the victim 27 messages such as “fuck u”, “go fuck yourself” and “bye cunt!”. The offender also had a 25 second phone conversation with the victim, and attempted to call her twice. The facts provide that the victim sent the offender 26 messages.
At about 3:15pm that same day, the victim attended the front counter of the Tuggeranong Police Station, and told an officer that she wanted to discuss a family violence incident. The police officer observed the victim to be very softly spoken and appearing distressed. The victim provided an initial version of events in which the police notes of the conversation include the victim describing:
He pushed her into the ground + shook her “like a doll”.
Put his knees on her back while she was on the ground.
Put his hands around her throat – she lost consciousness.
[Victim] stated she was a lot of pain to her face + asked for a bag of ice to cool it.
During this conversation with police, the victim was observed to be timid, and she appeared frightened. Police advised the victim that she would need to be assessed by medical officers, and the victim said that she did not want to go to the hospital. While police made enquiries, the victim came to be asleep on the floor in the corner of the room. When woken by police, she apologised for falling asleep, explained that she had not had much sleep, and that she was sitting in the corner of the room so that nobody could see her. The victim acknowledged that she should probably go to the hospital due to the amount of pain she was in, and she said that she had not eaten all day and had been vomiting.
The victim then spoke with another police officer. The notes of the description given by the victim included that:
[Offender] [p]ushed her to the ground. She was laying on her belly and Aaron knelt on her back and placed his hands around her neck and squezed [sic]. She woke up and Aaron was…shaking her saying “Breath, Breath”.
She tried to open the front door to call for help. Aaron grabbed her from behind, placed his hand over her mouth and dragged her back inside.
Continued to verbally abuse her for about 2 hours untill [sic] He left
The victim then participated in an interview with police, after which the ACT Ambulance Service arrived, and commenced treating her. She confirmed to a paramedic that she had soiled herself while being choked by Mr Williams.
The victim arrived at the hospital at about 5:23pm. The emotional distress observed by medical officers included that the victim appeared distressed and forgetful, and was communicating in a limited way. Initially, the victim described the physical impacts during the assault as including that when she was held face down, it was for an unknown duration, but that she “saw floaters and passed out”.
During an examination by a forensic medical officer, the victim described that Mr Williams kept saying “I don’t want to hurt you”. She said that when she woke up after passing out, he was begging her to breathe and saying “don’t die”. She described that she “scrambled away” and it was “a cycle that kept going”.
Further during this examination, the victim described that she had pain in her head and forehead, and “flashes” and “twingling” in her eyes. During the “strangulation” she was unable to breathe, she was incontinent of urine, she lost consciousness, her ears felt “hot”, she had flashes before her eyes, she had pain in her neck, and she had a loss of memory related to the events. She said that after the “strangulation”, she experienced neck pain, voice changes, flashes before her eyes, and nausea. The following physical injuries were observed from an examination of the victim:
(a)an area of swelling and tenderness on her right forehead, measuring approximately 3 centimetres by 4 centimetres;
(b)an area of redness and tenderness over the right cheek;
(c)a cluster of healing abrasion injuries on the right side of the face, just below the right eye;
(d)an area of tenderness extending over the posterior aspect of the neck, worse on the right side;
(e)an area of tenderness over the upper inner quadrant of the right breast;
(f)a linear abrasion on the top aspect of the right hand/wrist, measuring approximately 1 centimetre in length;
(g)a punctate or pinpoint abrasion injury adjacent to the injury mentioned at (f);
(h)a circular yellowing bruise on the outer aspect of the right knee, approximately 1.5 centimetres in diameter;
(i)an abrasion on the inner aspect of the right knee, measuring approximately 1 centimetre by 0.5 centimetres;
(j)a cluster of circulate bruises over the right knee; and
(k)a cluster of largely circular and/or ovoid bruises over the left knee.
The forensic medical officer opines that the abrasion and bruise injuries were the result of blunt force, with it not possible to determine the exact causative object or objects. The injuries could have occurred as described by the victim.
As to the description of strangulation provided by the victim, the forensic medical officer states that it is likely that this “was a combination of strangulation, mechanical asphyxia and possibly smothering”. The tenderness associated with the rear aspect of the victim’s neck, and the symptoms the victim reported, “can occur in the context of non-fatal strangulation”.
The forensic medical officer further provides that:
(a)loss of consciousness and incontinence of urine in the setting of non-fatal strangulation, mechanical asphyxia and smothering indicates a period of hypoxia, in which the brain has been deprived of oxygen. Persistent hypoxia can be fatal; and
(b)neck compression that occurs in strangulation can be serious and life-threatening and may have minimal or no evident clinical signs.
Nature and circumstances
This was a serious example of family violence offending, particularly the act causing the victim to lose consciousness and control of her bladder. This act had the potential for grave consequences and given the consequences that did occur, must have had a period of protraction. It was an act, as the prosecution submitted, that constitutes “an extreme display of power of one person over another and is designed to subdue, control and terrify”. I accept, however, the submission on behalf of Mr Williams that it was not necessarily an act that was done with an intention to render the victim unconscious, and that Mr Williams expressed a form of immediate regret for this consequence.
Nonetheless, it was an act committed amongst persistent aggression by Mr Williams, during which the victim repeatedly asked and sought to leave or seek assistance, and was prevented from doing so. The victim also experienced the further degradation of verbal aggression during the incident, and physical assaults to a vulnerable part of the body.
These were acts committed in the victim’s own home at a time when she should have been experiencing the protection of the apprehended domestic violence order. The order had been issued a relatively short time, some four months, before the offending.
Victim’s ‘permission’ for offender’s presence in the home
On behalf of Mr Williams, it was submitted that it is important to note that “in the lead up to the offending [the victim] was allowing Mr Williams to stay at her address”. The prosecution submission was that this could not be considered a factor in mitigation.
The defence submitted that a distinction is to be drawn from a scenario where an offender has attended the premises without welcome or permission, to the situation here, where, it was submitted that, “at least from the outset of this matter [the victim] was not seeking the benefit or protections of the order”. In support of their submission, the defence relied upon what was said in R v KS [2021] ACTSC 109 (R v KS) by Elkaim J at [11]-[12]:
The complainant sought the order to prevent any contact with the offender. She then permitted him to be present, perhaps even invited him to be present, in a sense aiding his criminal conduct. I think this is a significant mitigatory factor.
I am left then in the position of having to sentence the offender for contravening an order notwithstanding that the beneficiary of the order was not relying on the benefit of the order.
(Emphasis added.)
I do not accept that what was said there amounts to an established principle that such circumstances always amount to a significant mitigatory factor. Each case needs to be assessed with reference to the nature and circumstances of the offending involved.
The prosecution submitted that in the case currently before the Court, there was an absence of evidence in the agreed statement of facts that the victim had allowed the offender into her home. It was submitted that while an inference was available that the victim had allowed the offender inside, there was an equally available inference that the victim was not a wholehearted participant in the offender’s visit to her home. The prosecution submitted that this could be drawn from the offender’s unwillingness to leave when asked by the victim, and his taking of the fob controller when he eventually did so, suggesting his intent to come and go from, and stay, at the victim’s home, irrespective of her consent to his doing so.
The prosecution further submitted that R v KS was decided on 2 June 2021, while s 34B of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) came into force on 12 August 2021. Section 34B(1)(a) provides that:
(1) In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following:
(a)the matters mentioned in the preamble to the Family Violence Act2016.
…
The prosecution then drew the Court’s attention to 2(c) of the Preamble to the Family Violence Act 2016 (ACT) (Family Violence Act), which states that “family violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years”. The prosecution submitted that:
[I]t cannot properly follow from a consideration of the exploitation of the power imbalances of patterns of abuse to allow a reduction in penalty for an offender who’s in the home of a protected person to a family violence order just because they are not there by force.
Here, the circumstances in which the offender came to be in the house, and to be making contact with the victim afterwards, amount to there being an absence of an aggravating factor, being a forceful entry or contact that was occurring in the absence of apparent express consent. Those circumstances may have some relevance as to the moral culpability of the offender, but, having regard to the matters that inform the objective seriousness of this form of offending, it may not have much, if any, significance. As the Preamble to the Family Violence Act provides, “family violence is unacceptable in any form”.
In a circumstance of family violence offending, consistent with legislated considerations for such offending per s 34B of the Sentencing Act,[1] any apparent acquiescence or permission by a victim who is a protected person in a family violence order is unlikely to be mitigatory on sentence. A family violence order is an order made by the court. The protected person’s engagement with that order is beside the point as they are not the person the subject of the court’s order. It is for the respondent to a family violence order to comply with it. A failure to do so, irrespective of the reasoning for a contravention, warrants condign punishment, giving emphasis to deterrence, denunciation, and accountability in the sentencing exercise.
Effect on the victim
[1] Noting also, while not in force at the time of this offending, the Family Violence Act was amended in September 2024 to, amongst other things, insert s 43(4), which provides:
(1)A person does not commit an offence under the Criminal Code, section 45 (Complicity and common purpose) if the person—
(a)is a protected person under the family violence order; and
(b)aids, abets, counsels, procures, or is knowingly concerned in or a party to, the commission of conduct that contravenes the order (including a condition of the order).
The Explanatory Statement for the Bill that introduced the amendment (Sexual, Family and Personal Violence Legislation Amendment Bill 2023) provides that “[t]his amendment clarifies that a protected person cannot aid and abet a breach of a family violence order that is designed to protect them”.
The presentation of the victim at the police station and with medical officers demonstrates viscerally the immediate impacts on her, both in terms of her emotional distress, and her physical harm. The extent of that physical harm was a not insignificant example of bodily harm injuries.
The victim, who likely had an expectation that the provisional domestic violence order afforded her some level of safety, was instead subject to a betrayal of the trust she, and the Court, placed in Mr Williams.
The victim herself expresses the ongoing and long-lasting effects from the offending, including that:
I have lost a sense of autonomy from my life.
I will never be the same.
The impact, and concern that the victim expresses as to her ongoing safety, may have made it unlikely that a Treatment Order could have ever been an appropriate order: s12A(2)(b)(ii) of the Sentencing Act.
Subjective circumstances
Mr Williams’ subjective circumstances are drawn from information contained in assessment reports undertaken for the purposes of consideration of a Treatment Order, as well as references that were provided on his behalf.
Mr Williams is now aged 39 years, and was aged 38 years at the time of the offending. He identifies as Indigenous, but his connection to his Country and culture was not otherwise expanded on in the information provided to the court.
Mr Williams was born and raised in Canberra, and raised by his mother following his parents separation when he was six years of age. His father was “around sometimes” during his childhood, but moved to Queensland in 2001. He has not had contact with him since 2014 following an incident that led to a breakdown in their relationship. Mr Williams has positive relationships with his siblings, being five sisters and a brother. He lost, though, the brother he felt closest to in a car accident in 2010, with this having “hit hard”.
He describes that his childhood was “good after mum broke up with dad”, there having been incidents of domestic violence prior to separation and periods spent in refuges. He had a negative relationship with a stepfather, and no longer has contact with him. Overall, Mr Williams is reported to describe his childhood as mostly unremarkable, stating “everything else was good when we were just with mum”.
He continues to have a positive relationship with his mother, who provides him with support and has expressed in a letter to the Court that her son is a “loving partner”, despite what his history would suggest, and that he has done a lot of soul searching while in custody and has changed for the better. She expresses a hope that Mr Williams can return to his normal life soon. Similarly, a sister of Mr Williams describes that she misses him, and how grateful she is for the assistance he provides to her and their grandmother.
His grandmother, who resides in the region, is also supportive and has provided in a letter to the Court that her grandson would assist her with things that she cannot manage on her own. She welcomes him to return to reside with her upon release from custody.
Mr Williams has three biological teenage children, and one young stepdaughter from a former relationship. He maintains a positive relationship with this former partner, with her daughter, and his two oldest daughters. One of his daughters expresses how much she misses her father and what a great support he is to her and her younger sister. Mr Williams is working towards building a relationship with his youngest biological child.
Ordinarily, Mr Williams resides with a friend in Canberra, and this was his proposed residence if he was to be sentenced to a Treatment Order. This accommodation was not confirmed as suitable and accordingly a Treatment Order was not pressed due to the unavailability of this suitability criterion. Mr Williams otherwise has intentions to access housing support if available, and a rental property once employed.
He has available to him employment with a scaffolding company that he has worked with since 2007. His employer provides a character reference as to him being a valued member of the team, who is hard working and helpful. Mr Williams obtained qualifications in scaffolding after he completed Year 12, and he has always engaged in this type of work. While in custody, he has been employed in horticulture which is a role that he reports enjoying.
Mr Williams has no concerning physical or mental health concerns.
Substance dependency
Mr Williams has a substance dependency that he reports as an explanation for the offending. He describes that he had been using methamphetamine “which [he] kept hidden from everyone” and that he was also on cocaine, which his partner was aware of.
At the time of the offending, he had been awake for three days, there was an argument, and “one thing led to another, and I got arrested”. He said that the offending would never have happened if he wasn’t “on ice”, and that he would “never dream of doing anything like that normally”. Further, that he “still can’t believe it happened, and I can’t get over that I did it”.
He reports his first use of methamphetamine when he was approximately 19 years of age, progressing to regular use by the age of 29 years. His last use of this substance was in early July 2024. In respect to cocaine, contrary to the substances he reported using at the time of the offending, he reported that he last used this substance in February 2023. He first used cocaine in his early twenties, and progressed to regular use by 29 years.
As to other substances, he first used alcohol when he was aged 10 or 12 years, progressing to daily use by 17 years. He began using cannabis at this age. His last use of alcohol and cannabis was in June 2023.
He has used Buprenorphine while in custody, seemingly obtained illicitly. He first used this in October 2023, and reported daily use. Mr Williams informed the assessor that he stopped because he was “hoping to move into the cottage, but you need clean urines to get in there”. The information provided at sentence is that Mr Williams is now housed in a cottage at the Alexander Maconochie Centre (AMC), inferentially suggesting that in recent times, he has achieved abstinence. Mr Williams reports having confidence that he can maintain abstinence, having been previously subject to a urinalysis testing regime for a prolonged period in 2012.
Mr Williams reports never having engaged in treatment, programs, or counselling for alcohol, tobacco and other drugs (ATOD). He has never been on pharmacotherapy. He has not engaged in any such programs while in the AMC, but the Court was informed at the sentence hearing that there have been challenges for him in accessing programs while his status is one of remand.
Mr Williams reports that his goals include to stay off drugs and to “better myself by not using drugs”. He desires to be a “better person for my family, my kids and everyone”.
Criminal history
It is relevant to consider Mr Williams’ criminal history closely. It was appropriately conceded that it is one that limits the availability of leniency in the sentencing. But it remains of interest in considering his prospects for rehabilitation, as well as being a legislated consideration per s 34B(1)(d) of the Sentencing Act.
In NSW, Mr Williams has been convicted of driving offences dating back to 2004, minor drug offending since 2008, and an offence of possession of a weapon. The last of these was offending that occurred on 20 November 2008, and Mr Williams was also sentenced on that occasion for offences including “stalk/intimidate intend fear of physical/mental harm” and an offence of “use carriage service menace/harass/offend”.
The penalty imposed was initially one of imprisonment which was suspended on the entering of a bond with a condition to obey all reasonable directions for counseling, educational development or drug and alcohol rehabilitation. For reasons that are not clear in the record, an appeal in relation to one of these sentences was determined in February 2013, and a term of imprisonment with a nonparole period was imposed in lieu of the original order.
In the Australian Capital Territory (ACT), Mr Williams has convictions commencing from 2005 with an offence of assault. Thereafter, he has been convicted of driving offences, failures to appear in court and breaches of community based orders. His history in the ACT also includes offences in the nature of family violence, being:
(a)a contravention of a protection order in 2008, for which he was convicted with a good behaviour order;
(b)an offence of assault occasioning actual bodily harm for which a suspended term of imprisonment was imposed;
(c)an offence of use carriage service to menace/harass/offend in 2016, for which he was convicted with a good behaviour order;
(d)two offences of common assault in 2020, for which he was imprisoned and fined;
(e)an offence of contravening a protection order in 2020, for which a suspended term of imprisonment was imposed; and
(f)an offence of stalking in 2020, for which a suspended term of imprisonment was imposed.
The later of these suspended terms of imprisonment was the subject of a breach proceeding in February 2024. The orders were cancelled and Mr Williams was sentenced to the rising of the court. Mr Williams advises that his previous
non-compliance with ACT court orders was due to residing in NSW, along with an aversion to crowds and the use of public transport, complicated by a preoccupation with alcohol use. He did not comply with a previous requirement to complete a men’s behavioural change program due to the implementation of COVID-19 restrictions.The information provided to the Court is that the previous convictions were committed against a different victim to the current victim, but also a then intimate partner. As the prosecution submitted, Mr Williams’ criminal history indicates that he has been engaging in family violence offending for 19 years against various victims.
While Mr Williams is of course not to be sentenced for this previous offending, his history highlights the need for accountability and community protection in the sentencing exercise. The offending on this occasion was not Mr Williams’ first occasion of family violence, including of contravention of court orders. Mr Williams shows a blatant disregard for such orders, and an apparent inability to not offend violently against his partners.
Plea of guilty and remorse
A plea of guilty was indicated in relation to each of the charges at the criminal case conference stage on 12 April 2024. Due to an administrative delay, the pleas of guilty were not entered until 15 May 2024. It is apparent, though, that the trial listing for 1 July 2024 was understood to have been vacated at a stage well in advance of the trial listing. A not insignificant utilitarian value, even recognising the harm that the victim expresses in her victim impact statement having arisen from the progress of the proceeding, remains. A reduction of 20 per cent is appropriate.
In the assessment reports, Mr Williams is described as agreeing with the statement of facts, and not proud of his behaviour. He describes:
If I had my time over, I would never touch ice or cocaine. You hear stories about this stuff happening but don’t believe it could be you when you’re on it. I guess I was in denial and didn’t think it could happen to me.
Mr Williams’ remorse can be described as understated, and lacking in a depth of insight into the causes for his repeated, and on this occasion, escalated family violence offending. An assessment report does, however, describe Mr Williams as displaying some insight into the contributing factors for his substance use, and recognises his expressed desire to change his lifestyle. The other assessment report finds that Mr Williams “verbalised limited awareness of his thought processes beyond attributing the [offences] to illicit substances”.
Maximum penalty
The applicable maximum penalties are as follows:
(a)the offence of choking, suffocating, strangling another person so as to render them insensible or unconscious, aggravated by being a family violence offence, carries a maximum penalty of 13 years imprisonment;
(b)the offence of assault occasioning actual bodily harm, aggravated by being a family violence offence, carries a maximum penalty of seven years imprisonment;
(c)the offence of common assault, aggravated by being a family violence offence, carries a maximum penalty of three years imprisonment; and
(d)the offence of contravene family violence order carries a maximum penalty of five years imprisonment, 500 penalty units, or both.
Current sentencing practice
The prosecution provided the Court with a number of authorities as to current sentencing practice in respect to the choking/suffocating/strangling offence: R v Palmer [2020] ACTSC 13; R v KN [2018] ACTSC 111 (KN); R v Watson [2014] ACTSC 395 (Watson); DPP v Linsley [2023] ACTSC 255; R v Thomas [2021] NSWDC 839 (Thomas). Both parties appropriately submitted as to the limitations that such authorities provide. This must be particularly so in respect to Thomas, given the difference in the sentencing legislation and maximum penalty involved. The defence submitted that the authorities provided confirm that the sentences imposed for such offending include sentences that have been suspended.
Having considered each of the authorities, KN provides the most comparative authority in terms of the nature and circumstances of the offending. However, the mechanism of choking involved the use of a rope, the subjective circumstances are distinguishable, and a maximum penalty of 10 years applied. A sentence of 3 years before reduction for the plea of guilty was imposed, with the term suspended.
The authority of Watson provides comparative value in terms of the mechanism of choking, although there were additional assaults, and circumstances of aggravation. A sentence of 4 years and 6 months, before reduction for the plea of guilty, formed part of a total term of 9 years imprisonment, with a nonparole period imposed.
Pre sentence custody
Mr Williams has been in custody in relation to these offences since the time of his arrest, on 26 June 2023, until the date of sentence, 2 October 2024. The sentence will be backdated by 464 days, having regard to the time spent in custody on remand.
As observed above (at [62]), on 8 February 2024, Mr Williams was sentenced to the rising of the court in respect to two charges. While this is a form of imprisonment, meaning he served a period in custody for other matters while on remand for the current matters, those terms were a common law form of imprisonment. I do not propose to reduce the period applicable per s 63 of the Sentencing Act as a result of this form of imprisonment.
Consideration
The offending behaviour by Mr Williams was appalling. As the prosecution submitted, it “constitutes a disturbing display of power and aggression and control over the victim in her own home”. It was a gross betrayal of his relationship, and the safety and security that his partner deserved. It is particularly concerning – and indicative of behaviour that requires denunciation, deterrence, and accountability – that it was offending which occurred in contravention of a family violence order.
This aspect, that is, the offending occurring while the offender was subject to an order, will also inform the appropriate sentences and the application of the totality principle in this matter. There is a need to avoid double punishment and avoid a crushing sentence. Similarly, the maximum penalties, which provide a starting point, are increased as a result of this being family violence offending. This is informative in determining the appropriate sentences and the manner in which the family violence context is assessed in the objective seriousness, noting of course that the severity of a sentence is not to be reduced because the offence is a family violence offence: s 34B of the Sentencing Act.
The offending by its nature warrants a severity in the sentences. While Mr Williams’ family members, and employer, express their desire for him to be released from custody soon, and the probable effect of the sentence on family members or dependents is a relevant consideration per s 33(1)(o) of the Sentencing Act, this is not a compelling consideration here.
Regrettably, family violence offences far too often involve a person who can reflect two truths – someone who presents well in employment, and with an appearance of caring for family members, including children, but equally, someone who is capable of appalling violence and betrayals of trust. The sentencing exercise in relation to such an offender involves the difficult balancing of those two forms of a person, along with fulfilling the other sentencing purposes.
Here, that is best met by the imposition of a nonparole period at 60 per cent of the term of imprisonment, imprisonment being the only appropriate penalty for each of the charges. I do not accept the submission made that a suspended term is appropriate.
A nonparole period is to be set to enable strongly deterrent community supervision upon release. A level of leniency in the nonparole period is appropriate to reflect a reduction in moral culpability having regard to Mr Williams’ early childhood years, in which the exposure to domestic violence has seemingly had a role in informing his adult behaviour, and to reflect his early introduction to substances.
Mr Williams plainly has a lengthy journey of rehabilitation ahead of him, in terms of both substance dependency and family violence offending. In terms of substance use, his dependency is such that even a period of custody while on remand has not ensured abstinence. He has not previously had any formal ATOD treatment. There is also no information to suggest that Mr Williams has previously engaged with any specialist behavioural change programs to address family violence offending.
The role of substances in the offending has to be treated with circumspection having regard to Mr Williams’ prior criminal history. It is not clear whether he attributes previous acts of family violence offending to substance use, or only this occasion. Had a Treatment Order been an available sentencing option, a real question would have arisen as to whether the dependency substantially contributed to the commission of the offences: s 12A(2)(a)(ii) of the Sentencing Act.
It is relevant to note that this observation arises in respect to any offender who has committed family violence offences and seeks a Treatment Order. A determination as to whether there is a causal relationship between the drug dependence and violence, or whether the drug dependence amounts to a risk factor for a person who otherwise has a predilection for intimate partner violence can be difficult to resolve.[2]
[2] See, for example: Anthony Morgan and Alex Gannoni, Methamphetamine dependence and domestic violence among police detainees (Trends & issues in crime and criminal justice, No. 588, February 2020):
Nonetheless, in respect to Mr Williams, it is unnecessary to determine this. It is apparent that the offending here involved serious acts of family violence that were committed by a person with a telling history of family violence, and who was experiencing entrenched drug dependency at the time of the offending. His drug use, and his history, does not enable leniency beyond that already observed.
Orders
For those reasons, the following orders are made:
(1) Aaron Benjamin Williams be convicted of aggravated choke, suffocate, strangle another person so as to render the person insensible or unconscious (CAN 2023/6345) and sentenced to 2 years, 9 months, 18 days imprisonment, reduced from 3 years and 6 months on account of the plea of guilty, to commence on 26 June 2023 and end on 12 April 2026.
(2) Aaron Benjamin Williams be convicted of aggravated assault occasioning actual bodily harm (SCCAN 2023/451) and sentenced to 1 year, 2 months, and 12 days imprisonment, reduced from 1 year and 6 months on account of the plea of guilty, to commence on 26 March 2025 and end on 6 June 2026.
(3) Aaron Benjamin Williams be convicted of aggravated common assault (CAN 2023/6344) and sentenced to 9 months and 18 days imprisonment, reduced from 1 year on account of the plea of guilty, to commence on 13 December 2025 and end on 30 September 2026.
(4) Aaron Benjamin Williams be convicted of contravening family violence order (CAN 2023/6341) and sentenced to 1 year, 7 months, and 6 days imprisonment, reduced from 2 years on account of the plea of guilty, to commence on 13 December 2025 and end on 18 July 2027.
(5) The total sentence imposed be 4 years and 23 days imprisonment, commencing from 26 June 2023 and ending on 18 July 2027.
(6) A nonparole period be imposed to commence from 26 June 2023 and end on 4 December 2025.
| I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for sentence of her Honour Acting Justice Christensen Associate: Date: |
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