Harrop v Evanson (a pseudonym)
[2023] ACTMC 28
•25 July 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Harrop v Evanson (a pseudonym) | |
| Citation: | [2023] ACTMC 28 | |
| Hearing Date(s): | 11 July 2023 | |
| DecisionDate: | 25 July 2023 | |
| Before: | Special Magistrate Richter | |
| Decision: | Without conviction, the defendant is ordered to enter into a bond to be of good behaviour for a period of 2 years and 6 months. | |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – Assault Occasioning Actual Bodily Harm – Family Violence – Conviction | |
| Legislation Cited: | Crimes Act 1996 (ACT) ss 24(1), 26(1):
| |
| Cases Cited: | See R v John [2017] ACTSC 144 at [106] – [107] R v CV [2013] ACTCA 22 | |
| Parties: | James Harrop (Informant) | |
| Representation: | Counsel | |
| Solicitors | ||
| File Number(s): | CC 2023/1432 |
SPECIAL MAGISTRATE RICHTER:
The defendant is before the court having pleaded guilty to the following charge:
CC 2023/1432 Assault occasioning actual bodily harm.
Crimes Act 1990 (ACT) section 24(1):
That she in the Australian Capital Territory, on 06 February 2023 did assault Kade Evanson (a pseudonym) and thereby occasioned to him actual bodily harm, and the offence involved family violence.
Maximum penalty 7 years imprisonment.
The defendant had been further charged with assault. That charge was withdrawn by the prosecution at the time of the plea being entered in this matter and I am required to deal with the defendant on the basis of the entirety of her conduct being encompassed by the rolled-up charge underlying the charge to which she has pleaded guilty.[1]
The prosecution exercised its election pursuant to s374 Crimes Act 1900 (ACT) (“Crimes Act”) to have the charge disposed of summarily.
The prosecution election cannot be taken to infer that the matter is not a serious one. The election does not alter the maximum penalty but merely sets a jurisdictional limit; therefore, the nature of the offence as an indictable offence is also not altered. The jurisdictional maximum penalty in this Court is $15,000 and/or 5 years imprisonment by operation of the Crimes Act section 375.
Guilty plea
The defendant initially pleaded not guilty to both charges, but pleaded guilty at a pre-hearing mention on 13 June 2023, which was her seventh occasion before the court.
Section 35 of the Crimes (Sentencing) Act 2005 (ACT) (“Sentencing Act”) provides for the court to impose a lesser penalty on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
The section only applies if the court considers that there is a real likelihood that it will sentence the offender to imprisonment (s 35(1)(b) of the Sentencing Act). Even if no sentence of imprisonment is ordered, that does not mean the plea of guilty is put to one side. On the contrary, s 33(1)(j) of the Sentencing Act requires the court to take into account a plea of guilty by the offender. The plea in this case avoided the necessity of a criminal hearing and spared the victim from giving evidence.
Even though at a late stage and after having received a brief of evidence from the prosecution, the guilty pleas in this case still provide the court and the community with a utilitarian benefit. I consider that a discount of 20% on any sentence I give is appropriate.
Circumstances of the offending
The facts are agreed.
The defendant and the victim in this matter are married and have been for about 29 years and had been in a relationship some 35 years. They have four children together. At the time of this offending they were aged between 13 years and 20 years.
On Monday 6 February 2023 the family were at home together when at about 10:30pm the defendant and the victim went to bed. The victim stayed awake playing on his mobile phone while the defendant attempted to sleep. An argument broke out thereafter with the defendant asking the victim if he was texting other people. The victim told the defendant that it was not her business.
The defendant then began to attack the victim then punched, pinched, scratched and kicked him. She took hold of his testicles and squeezed them hard causing pain and causing a number of deep scratch marks on his back and left shoulder that broke the skin causing him to bleed onto the bed sheets.
The victim attempted to walk away into a hallway and the defendant followed him and punched him once in the head. Shortly after that the victim took hold of the defendant and pushed her to the floor. As she fell to the floor the defendant hit her head on an air freshener plug resulting in a laceration to her head. She then walked through the house with blood dripping from her head onto the tiled floor.
The defendant then called the police who, upon their arrival, arrested the victim. After speaking with him and the four children, the victim was released from custody and the defendant was subsequently arrested.
Background to the offending
In addition to the statement of facts and the oral submissions of both counsel, I received the following material:
1. Victim Impact Statement (read to the court by the prosecutor).
2. A letter of apology from the defendant.
3. Six letters of support from the defendant’s friends.
On any reading of the material, this was not, and had not been for some considerable time, a happy marriage. The victim impact statement is eight pages long and canvasses the entire history of the relationship. Much of it is inadmissible for various reasons, however objection was not taken to its tender. A significant amount of the material contained hearsay and opinion and I have not taken those portions into consideration.
Victim impact statement
In his statement to the court, the victim describes events of 6 February as being impossible to isolate from the 10+ year history of physical violence and the 30+ year history of family violence in its other forms that he has experienced in his relationship with the defendant.
He describes continuing discomfort in his right testicle a result of the assault with continued discomfort when walking or running and during other activity such as in the gym or volunteering for sports club and even when sitting down.
Whilst there was no medical evidence produced before me, the victim impact statement refers to an ultrasound on the victim’s testicles, but says that was unsuccessful in determining the nature of the injury.
The victim speaks of crippling depression and anxiety brought on by the defendant’s actions, suicidal thoughts and extremely low self-esteem. I attach little weight to this psychological harm being caused by this one event of violent behaviour by the defendant.
Defendant’s material
The material provided in support of the defendant is in contradistinction to the relationship described in the victim impact statement.
Those letters of support describe a relationship where the victim would undermine her or belittle the defendant in public with her referees describing their discomfort at the way the victim behaved towards her with one witness describing racist and degrading behaviour towards the defendant by the victim during their friendship with the defendant and victim as a couple.
The defendant’s own letter to the court informs me that she and the victim met in 1987 when she was 16 years of age. She describes the marriage as toxic, and she describes being constantly belittled and humiliated by the victim.
Both parties make counter allegations of infidelity, and the defendant describes the victim’s behaviour as being coercive control. She says that on the night of the incident she had what she can only describe as a “brain snap”. Her counsel referred to her shame and disgust at her actions on the night and described the marital relationship as tumultuous and toxic.
Fortunately, I do not have to determine where fault lies in the breakdown of this relationship. What is clear to me from all the documentary evidence is that this was a toxic relationship. This background, with the competing claims as to the nature of the relationship making findings of the circumstances surrounding the offending difficult.
Sentencing
In considering the appropriate sentence in this case I must turn my mind to the purpose of sentencing in the relevant considerations described in the Sentencing Act and in particular sections 7 and 33.
Section 7 emphasises punishment, the protection of the community, rehabilitation, denunciation of the conduct, recognising the harm done to the victim and making the offender accountable for their actions.
Section 33 sets out a series of matters which I must consider, including the nature and circumstances of the offence, injury resulting from the offence, the effect of the offence on the victim, and a series of considerations which are personal to the defendant including her plea, his background, character, antecedents age and physical or mental condition, her financial circumstances, the effect that any sentence would have on her family, the degree to which the offence was the result of provocation, and whether she has demonstrated remorse.
The sentencing objectives do not all point in one direction.[2] There is a tension that the Court must balance. On the one hand, the purpose of the sentence is to denounce the conduct, punish the individual offender and deter her (in this case), by making her accountable for her choices. The sentence should consider what is necessary to protect the community, by deterring others from committing the same offence. The sentence also plays a role in recognising the harm to the victim. Equally though, the Court must promote the rehabilitation of the offender.
In addition to the general considerations for sentencing, family violence offences are subject to their own specific set of considerations.
CRIMES (SENTENCING) ACT 2005 - SECT 34B
Sentencing—family violence offences
(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 Act 2016;
(b) whether the offending occurred at the home of the victim, offender or another person;
(c) whether the offending occurred when a child was present;
(d) if the offence is a serious family violence offence—whether the offender has 1 or more other convictions for serious family violence offences.
The provision emphasises the significance of matters which courts usually take into account in any event. The reference in s 34B to the preamble to the Family Violence Act 2016 (ACT) (“Family Violence Act”) emphasises the significance with which the legislature treats family violence.
In this case the offending is aggravated because if occurred in the home of the victim (which was also the home of the defendant) and also because the children of the relationship were present – albeit that only one of them was a child in the legal sense of that term.
This is a ‘serious family offence’ as it carries a maximum period of imprisonment of 7 years – however the defendant comes before me with no prior history of offending of any sort.
Whilst the considerations in section 34B apply, nothing in the section or the preamble requires the court to sentence in a way that ignores the facts of a particular case.[3]
The children
Section 34B(1)(c) specifically directs the court’s consideration to the presence of children at family violence offending. In this case each of the four children was present in the home when this offence occurred.
The rationale for section 34B(1)(c) recognises the effect of family violence on children. Similarly, the Family Violence Act[4] defines “family violence” to include behaviour that causes a child to hear, witness or otherwise be exposed to family violence. The intent of the parliament to protect children from exposure to family violence is obvious from both enactments.
When this matter was called on before me, the victim was present in court with all four of the children of this relationship, including the youngest who is 13 years of age and who I subsequently heard spends weekends about with his mother.
I raised with the victim whether this was in the best interests of his children given that not only the Family Law Act 1975 (Cth), but also common sense, indicates that the best interests of a child are that they have an ongoing relationship with both of their parents. After considering this, the youngest child was absented from the court. The other three children of the relationship remained within the court to hear the sentencing submissions and to hear the victim impact statement read to the court.
In his victim impact statement, the victim has dwelled on the exposure of the defendants’ children to this offending. He describes having “to date, hidden the full extent of the impacts of the offender’s actions from my children as much as I can”.
The conduct of the victim in bringing the children of the relationship to court to hear the sentencing of their mother in this matter, runs contrary to the obvious intent set out in section 34B. In my view it can only serve to further traumatise the children of the relationship, and particularly the youngest, who is only 13 years of age.
Choosing to bring the children to the court to hear the sentencing of their mother causes me to question the victim’s insight into the well-being of the children and to consider whether the defendants allegations of coercive control by the victim are supported by this conduct.
Subjective factors
The defendant is 52 years of age and comes before me with no prior convictions of any type. The letters which had been provided to the court supporting her describe this conduct as being out of character, with her being described as being kind, thoughtful of other people, very friendly and dependable.
She is currently working part time and she has now moved out of the former matrimonial home and is beginning to commence a life of her own and in doing so has sought rehabilitation from a psychologist.
She has limited contact with her three older children, but the 13-year-old spends every second weekend in her company.
Her claim that the victim was in bed texting another woman is to some extent corroborated by the victim’s own reference to his “Tinder dating profile” in the victim impact statement.
Objective Seriousness
The maximum penalties provide yardsticks against which to assess the objective seriousness of this offence.[5]
The offending in this case is serious offending. This has been accepted by the defendant. As a rolled-up charge incorporating both assaults, the criminality it encompasses is greater than if the count were to be constituted by only the one offence.[6]
The sentence imposed must be proportionate to the seriousness of the offence. This requires consideration of the nature of the assault, the harm that was caused as a consequence and the defendant’s moral culpability for doing what she did.
Provocation arises for consideration (s33(1)(q) Sentencing Act).[7] I accept that the defendant believed the victim was texting another woman while he was in bed with her and that this suspicion was reinforced by his response to that allegation. This caused her to become agitated, resentful and angry. Given that both parties in this relationship have alleged infidelity this is unsurprising.[8]
.Section 10 Sentencing Act
Section 10(2) of the Sentencing Act places an obligation on me to only sentence an offender to imprisonment, for all or part of the term of the sentence, if I am satisfied, having considered possible alternatives, that no other penalty is appropriate.
Given the defendants age, and lack of any prior offending, and the unique circumstances of this offending, she is a candidate for the range of sentencing options which are available outside of imprisonment.
Section 17 - Crimes (Sentencing) Act
The defendant’s counsel has urged me to exercise the discretion at section 17 of the Sentencing Act and to not impose a conviction upon the defendant. The prosecution opposes that course of action citing the seriousness of the offence.
CRIMES (SENTENCING) ACT 2005 - SECT 17
Non-conviction orders—general
(1) This section applies if an offender is found guilty of an offence.
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order ):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b) a good behaviour order under section 13.
Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender's character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
There is no particular restriction on the kinds of offences in respect of which non-conviction orders could be made (see, Mearns v Neill [2016] ACTSC 36 at [34]).
The defendant’s prior good character indicates that it is unlikely that she will re-offend. Her rehabilitation is already well under way and she accepts accountability for her actions. That leaves the issues of denouncement and punishment to be dealt with.
Women cannot assault their domestic partners any more than men can assault their domestic partners. The offence is no less serious because of the reverse of gender roles from the usual stereotype. The defendant is aware of this, and she has acknowledged as much through the submissions of her counsel.
It is with hindsight that the defendant now realises that she should have simply got up and walked out – either on the night this offence occurred, or at some earlier time.
The sentence I impose cannot continue to punish the defendant to any greater extent than the fracturing of her relationship with her three oldest children, which will continue to punish her for her behaviour for the foreseeable future.
The recording of a conviction is a formal mark of society’s disapproval of the wrongdoing and also forms part of the offender’s punishment:[9] . A conviction is the ordinary consequence of a finding of guilt:[10] The absence of a conviction is an “exceptional outcome:[11]
Whilst the recording of a conviction is generally a matter of importance in a serious offence, that circumstance should “not be permitted to dilute or to downgrade the significance of the imposition of a bond”.[12]
The entry of a conviction against the defendant will, in all likelihood affect her ability to continue her work at her local rugby league club where she requires a ‘working with vulnerable people’ registration to continue in that role. Her continuation in that role is important to her continued rehabilitation.
In this case, the defendant’s age and her lack of any prior criminal history is added to the fact that her relationship with the victim has now come to an end. In these circumstances there is no utility in a conviction serving to protect the community or the victim. I am told that there is a Family Violence Order in place for the protection of the victim. In all those circumstances I consider that an order under section 17 is warranted.
I impose a good behaviour order for a period of 2 years and 6 months.
Sentence
I order that:
In respect of 2023/1432 - Assault occasioning actual bodily harm – without conviction, the defendant is ordered to enter into a bond to be of good behaviour for a period of 2 years and 6 months.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter. Date: 25 July 2023 |
[1] See R v John [2017] ACTSC 144at [106] – [107].
[2] Munda v Western Australia[2013] HCA 38; 249 CLR 600 at [58]
[3] DPP v Dunn [2022] ACTSC 355 at [53].
[4] Family Violence Act 2016 (ACT) section 8(b)
[5] Markarian v R [2005] HCA 25; 228 CLR 357 at [31],
[6] R v Forrest (No 2) [2017] ACTSC 83.
[7] Islam v R [2013] ACTCA 10 at [65].
[8] The victim impact statement refers to ‘toxic infidelity’.
[9] Lukatela v Apostoloff [2010] ACTSC 74 at [29]
[10] Balthazaar v The Queen [2012] ACTCA 26 at [53].
[11] Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [42]
[12] R v CV [2013] ACTCA 22 at [59].
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