Miller v McCullogh

[2024] TASSC 61

[2024] TASSC 61

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Miller v McCullogh [2024] TASSC 61
PARTIES:	MILLER, Samuel John
v
McCULLOGH, Julie (Constable)
FILE NO:	2085/2024
DELIVERED ON:	11 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	6 November 2024
JUDGMENT OF:	Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Domestic violence and abuse – Two counts of assault – One assault involved pressure to the throat and neck – One count of emotional abuse or intimidation – Verbal abuse, demeaning and undermining conduct over a 12 month period – Harm to victim – Offender with relevant prior convictions – Offender with alcohol problem and mental health issues not contributing to offending – Where offender voluntarily sought assistance after charged and engaged with counselling– Sentence of 12 months' imprisonment with three months suspended on conditions including compliance with community correction order – Sentence not manifestly excessive.

Palmer v Tasmania [2024] TASCCA 6, referred to.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Applicant:	A Hilly
Respondent:	I Beecroft

Solicitors:

Applicant:	Adrian Hilly
Respondent:	Director of Public Prosecutions

Judgment Number:	[2024] TASSC 61
Number of paragraphs:	34

Serial No 61/2024 File No 2085/2024

SAMUEL JOHN MILLER v CONSTABLE JULIE McCULLOGH

REASONS FOR JUDGMENT	PORTER AJ 11 November 2024
Introduction

1 This is a motion to review sentencing orders of Magistrate Hartnett imposed on 21 June 2024. The applicant had pleaded guilty to two charges of assault contrary to s 35(1) of the Police Offences Act 1935, one charge of emotional abuse or intimidation contrary to s 9 of the Family Violence Act 2004, and one charge of breaching bail. After pleas were entered, the facts stated and submissions made on 22 April 2024, he was remanded in custody. By way of a global sentence in respect of all complaints, he was sentenced to 12 months' imprisonment to commence on 20 April 2024, the execution of three months of which was suspended on condition that he commit no offence punishable by imprisonment for three years and comply with a community correction order.

2             That order was made for a period of 18 months to commence upon release with special conditions that he undergo assessment and treatment for alcohol dependency and submit to testing for alcohol use as directed, that he submit to medical, psychological or psychiatric assessment and treatment as directed, and if assessed as suitable, attend, participate in and complete the EQUIPS domestic abuse program, the EQUIPS aggression program, the EQUIPS addiction program and the family violence offender intervention program.

3             The sole ground of appeal in the notice to review is that the sentence imposed was manifestly excessive in all the circumstances. On 6 November 2024, I dismissed the motion and said I would later publish reasons. These are those reasons.

The facts of the offending

4             The magistrate was told that the applicant and the complainant, who I will call "V", were in a relationship for about two years. It came to an end in August 2023, apparently after the second of the assaults with which the applicant was charged. The two had maintained separate homes, but each had spent time at the home of the other. V had two children, one of whom was a daughter aged 14 years at the relevant times. The following is a summary of the facts which were stated. It is taken from the respondent's outline of contentions, and that summary is not in dispute.

5             The assault which occurred first in time happened in March 2023. The applicant was at V's home. They had an argument. The applicant picked up a chair and threatened to throw it through the front door. V pulled the chair from the applicant's grip and the applicant then grabbed her around the throat. She was held but did not lose consciousness. She reported that she was left with red marks for several hours, took some pain killers that night and was left with stiffness in her neck and shoulders for a few days.

6             The next assault was committed on 19 August 2023. V was at the applicant's home. They got into an argument during which the applicant grabbed V to the chest area and attempted to push her down some stairs.

7             In relation to the charge of emotional abuse or intimidation, what is proscribed by s 9 of the Family Violence Act is pursuing a course of conduct that the offender knows, or ought to know, is likely to have the effect of unreasonably controlling or intimidating, or causing mental harm,

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apprehension or fear. The period alleged in the charge against the applicant is the 12 months between

August 2022 and August 2023. The magistrate was told the following as to the applicant's conduct.

(a) He verbally abused V, in person, via text-message and by phone call.

(b)	He obsessively checked up on V by phone call and text message when she was not in his company, including while she was at her workplace.
(c)	He used negative self-talk, including comments like: "I'm not worth it, obviously" and "I've got no-one other than you," in an attempt to illicit a response from V.

(d) He threatened to come to V's workplace if she did not respond to his text messages.

(e)	He consistently told V that she was an embarrassment to him, and that it was her fault that he behaved the way he did. He also told her that he only behaved badly since being in a relationship with her, and that it is what she had done to him.
(f)	He would tell V that he should "dump her" for a "younger one" so that he could have a child.
(g)	He would constantly devalue V's self-worth by telling her things like: "You can't cook good meals," "You don't exercise," "You're getting fat," and calling her names such as "fat slut."
(h)	He often taunted V about her parents being deceased and told her that she would be all alone without him. The applicant knew that the death of V's parents had been traumatic for her, and these comments induced feelings of vulnerability, sadness and weakness.

(i)    He undermined and denigrated V's parenting abilities by telling her that she was a "shit mum".

(j)	He would ask V what people would think of her making him do the things that he does.
(k)	He undermined V's relationships with her friends and made them so uncomfortable in his presence that they would limit their contact with V, which isolated her further, requiring her to rely solely on the applicant.
(l)	On one occasion the applicant wrote an abusive, derogatory comment about one of V's friends on Instagram, and on another occasion sent her ex-husband a message telling him that V had been unfaithful to him, and that she was a "slut."

8            In addition, the applicant would verbally abuse V's 14 year old daughter; "D". These details were not asserted as particulars to the charge but were accepted as context of the relationship. (a) He called D a "little red-headed cunt". (b) When D stood up to him, he verbally abused her. (c) On one occasion he stabbed the spa bath at V's address and stated: "I'll show "D".

(d) The applicant also told V that he was going to leave knives covered in blood outside D's bedroom door, and knock on her window, in order to scare her.

9   The applicant threatened V throughout their relationship. This included the following.

(a)	He threatened to cause the death of himself and V by driving into telegraph poles, which he stated would leave her daughter parentless.
(b)	He threatened to slit V's throat.

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(c)	He continually threatened suicide, which included sending V messages which indicated he was on the Tasman Bridge. He also sent her photographs of himself with a noose around his neck in order to force her into attending his address to check on him.
(d)	On multiple occasions, he threatened to burn V's house down, and burn her and her children's belongings.
(e)	He would threaten to cause, and did cause, damage to V's property in response to her putting relationship boundaries in place.
(f)	On 19 August 2023, the applicant sent V a photograph which showed property belonging to her and her children in the applicant's fire pit, with an accompanying message which indicated that he was going to burn the belongings.

10           Further, the applicant would hide V's car keys when he did not want her to leave the address, including by throwing them on the roof where she was unable to retrieve them. The applicant also spat on V on more than one occasion and told her that he had done so because he could not punch her. On 21 August 2023, the applicant sent V a message which stated: "Let's find Lewis. If you don't want to talk to me all day." Lewis is the name of V's dog. The applicant then called V and told her that he was going to her address to get her dog and take it to Primrose Sands. He told her: "Good luck finding him." The applicant subsequently attended V's address and forcibly took V's dog, before sending her a message which said: "I haven't gone evil yet."

11           The facts as to the breach of bail charge are that the applicant was arrested on 29 August 2023. On 31 August 2023 he was granted bail with a number of conditions including that he not enter the suburb where V lived, and comply with a family violence order made on the same day. About six days later he breached the condition of bail by being in that suburb. He was there working with another person. When interviewed he denied being there. He was arrested and on 7 September 2023, released on bail the next day. It was not suggested that he sought out V or was there for any reason connected with her.

12           V read to the court a lengthy victim impact statement. She had told police she was afraid of the applicant and described their relationship as like "being on eggshells". In addressing the applicant in passing sentence, the magistrate summarised the effect of the victim impact statement as follows:

"Your conduct has intruded on every aspect of her life. She describes being a shadow of her former self and suffering flash backs. She describes feeling utterly worthless with the cumulative effect crippling. She describes feeling she didn't deserve to continue to live. She has lost confidence; in public places she describes being hyper- vigilant. She has suffered panic attacks. The victim impact statement in a most articulate and insightful way sadly conveys the type of reactions and impact which might be expected from this type of offending."

13           In my view that is a short but fair summary. What should be added is that as a result of the applicant's conduct, V's anxiety became so overwhelming that she retreated from people at work, "desperately trying to shield [her] emotional turmoil from the public eye … to avoid questioning." She had several panic attacks at her workplace. That heightened social anxiety prevents her from going to social events. She has been prescribed medication because of that anxiety and those panic attacks, something that she had not previously struggled with.

The applicant's circumstances

14           The applicant was 33 years old at the relevant times; he is now 34. He went before the magistrate with a recorded history of relevant offending. In November 2011, he was dealt with for common assault. No conviction was recorded but he was released on an undertaking that for a period

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of 18 months he appear if called upon to do so. In December 2012, he was convicted of another charge of common assault committed in September 2012, which put him in breach of the undertaking. He was fined a total of $550.

15           Perhaps more significantly, in April 2019 he was convicted of two charges of common assault and one of destroy property committed on a date in January 2019, all involving the one complainant. The two charges of assault related to the same complainant and were family violence offences. He was fined a total of $1,250.

16           There is a further conviction for assault in April 2020 involving punching a man to the face in July of that year and for which the applicant was sentenced to two months' imprisonment, suspended on the statutory condition for a period of two years. At the same time, he was convicted of recklessly throwing a missile to the danger of another person, and injuring property being the window frame of a vehicle. In September 2022 he committed the offences of using abusive words to provoke a breach of the peace in a public place and disorderly conduct for which (along with a traffic matter) he was fined the total sum of $1,000.

17          Finally, there are convictions in May 2023 for two breaches of a restraining order. That order seems to have related to a female. The applicant was fined the sum of $500.

18           During the offending and at the time of sentencing, the applicant was self-employed as a painter. He employed a mature age apprentice. Apparently, the business was going well, and he had three to four months of work booked in advance. A summary of the matters put to the magistrate is contained in the applicant's outline of contention, and is as follows:

• It was indicated to prosecution a week before the hearing date that the applicant would enter a plea of guilty, saving the need for witnesses to give evidence.

• The applicant had a long history of mental health issues, including suicidal ideation.

• As a result of those issues, he had a number of admissions to the psychiatric ward between the ages of 24 and 29.

• The applicant proactively sought out treatment for his mental health conditions from a psychologist.

• The applicant had sought assistance for his alcohol use through Holyoake – which had been occurring for approximately 7 months.

• The applicant regretted his conduct and was remorseful.

• At the date of sentence, the applicant no longer met the criteria for ‘substance use disorder’ – it is accepted he was not formally diagnosed with that disorder.

• Since his arrest, the applicant was living with his mother, who continued to support him. He also has the support of his father who resides interstate.

• He was providing support to his mother who lost her partner 15 months before.

• He owned a property which was near where V lived and which he was intending to sell.

• He deeply regrets his behaviour.

19           Then counsel for the applicant tendered to the magistrate a report dated 19 March 2024 from Dr Little, the clinical psychologist, who the applicant had consulted. In that report, Dr Little confirms that the applicant had attended eight 50-minute sessions from 14 September 2023 to 19 March 2024. The applicant's symptoms met the diagnostic criteria for Borderline Personality Disorder and Substance Use Disorder "Early Remission". It was reported the applicant had not consumed alcohol

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excessively nor moderately in approximately six months and so did not meet the full criteria for that
disorder. The report contains the following:

"Mr Miller has reported to me …. that he has experienced significant depression and anxiety symptoms, including suicidal ideation from childhood. Mr Miller reported that from the ages of approximately 24 to 29, he experienced multi admissions to the psychiatric ward at the Royal Hobart Hospital due to extreme Major Depression Disorder symptoms, including self-loathing, multiple suicide attempts and ongoing suicidal ideation. Mr Miller has reported that during the relationship with his ex- partner, he frequently experienced suicidal ideation and intent, and to express this [to her] as a means of seeking comfort and relief. Mr Miller has expressed remorse at this past behaviour due to him gaining insight as to the emotional burden that this behaviour likely placed on his ex-partner. Mr Miller reported that he was not aware of the implication of his suicidal expressions at the time he was making them.

Mr Miller has expressed genuine deep regret and remorse at past behaviour of his within his past relationship. He has engaged very well in therapy with myself, as demonstrated by his full engagement in all set and home session exercises, and by his frank assessments of his own past behaviour and session with myself. He has displayed a strong desire and drive to address the psychological factors that underlie past behaviour."

20           The magistrate had a short report from Holyoake organisation confirming that the applicant had contacted them to address his alcohol use which he identified had been a long-standing issue in his life. The report states that the applicant had shown deepening awareness of the impacts of alcohol on his life and a slight reduction in his alcohol intake. Holyoake was happy to support the applicant for as long as he found helpful.

21           In the time between when the applicant pleaded guilty, 22 April 2024, and the time of sentencing, then counsel for the applicant obtained from Dr Little answers to questions which the magistrate had raised. When the matter came back to the magistrate on 21 June 2024, her Honour was told that Dr Little was of the view that there was a clear link between the substance use disorder and the offending: "he was excessively consuming alcohol on a daily basis". A second question was whether the suicidal messages, including photographs with a noose around his neck from the bridge, were genuine pleas for help and symptomatic of genuine suicidal thoughts, or whether they could be considered a part of the emotional abuse and coercive control. Dr Little's answer was that the suicidal expressions occurred when he was in a spiral of emotional distress and genuine suicidal thinking. It was through the therapy process that the applicant developed full awareness of how this behaviour may be negatively affecting his then partner.

22           After some discussion between the magistrate and counsel, counsel expressly disavowed reliance on any of the Verdins limbs.[1] Additionally, there was a discussion about the element of the crime of emotional abuse or intimidation; that is, the required state of mind that the offender knows, or ought to know, that a course of conduct pursued is likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear. The magistrate expressed her view that in this case, the only reasonable inference to be drawn from the facts was that the applicant knew of the likely affect of his conduct. That includes sending the photos of himself with a noose around his neck. Then counsel for the appellant accepted the proposition that in effect, as I would understand it, asked that the mental health issues be taken as background context with some mitigatory value.

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The magistrate's sentencing comments

[1]              R v Verdins [2007] VSCA 102, 16 VR 240.

23          After outlining the facts and summarising the victim impact statement and noting the applicant's relevant history of offending, the magistrate said:

"Your record indicates a need for a sentence that will act as a deterrent to you.

You are 34 years of age, a mature man. You have a supportive family. You have a long industrious history and have a good business. You employ others. [sic] You have been engaged with Macquarie Psychology since 14 September 2023. I received a letter from your clinical psychologist. It is not relied on to reduce your moral culpability or any of the Verdins limbs. It is unclear what information your psychologist had. You meet the criteria for borderline personality disorder and substance use disorder: in remission. You also attend Holyoake. You reached out for support to address your alcohol use which you have identified as a long-standing issue in your life. You have a history of psychiatric presentations between 24 and 29 years of age. You have expressed remorse to your psychologist. I will proceed on the basis that this is a very late development. You have expressed a strong desire and drive to address your issues. Your attendance at Macquarie Psychology and Holyoake are relevant to your rehabilitation prospects.

I take into account you have not previously served an actual term of imprisonment.

Family violence must always be regarded as a serious matter. I regard your offending as serious. There is a need for the sentence imposed to act as a deterrent to you and others. General deterrence is a significant sentencing factor in offending of this nature. There is a need for a sentence to denounce such behaviours.

A term of imprisonment is the only appropriate sentence. I will suspend some of the sentence and make a community correction order to encourage your rehabilitation."

The applicant's case

24           Counsel for the applicant accepted that the conduct for which the applicant was to be sentenced was serious. The essence of the argument put in support of the motion was that too great an emphasis was put on deterrence and denunciation at the expense of encouraging the continued self- motivated rehabilitation undertaken by the applicant. Rehabilitation, it was said, remained a predominant sentence consideration, there being a clear public interest in assisting an offender to rehabilitate and address factors which led to their offending. Counsel submitted that having regard to the applicant's background of mental health issues and the rehabilitative steps the applicant had taken since being charged, a sentence imposing an immediate term of imprisonment was not reasonably open.

25           It was noted that immediate imprisonment meant the loss of his business, work being something which was a protective factor. It was also submitted that although the pleas of guilty were not early ones, they were indicated very shortly before the hearing was due to commence and retained utilitarian value. That was so because V was not required to give evidence and the State was spared the expense and time involved. In addition, it was said that the immediate remand in custody on 22 April 2024 put an end to his physiological and alcohol counselling "with little certainty the applicant would have access to any rehabilitative course in custody [and] certainly no access to his psychologist." Counsel submitted that these were "particularly harsh outcomes of the sentencing order."

Discussion

26           As it is convenient to do so, I would venture to set out something I recently said, (with which Blow CJ and Brett J agreed), in Palmer v Tasmania [2024] TASCCA 6. It dealt with the approach to physical violence in the domestic context.

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"[39] This Court and other courts in Australia have made clear statements about the general approach to physical violence in the domestic context. In Director of Public Prosecutions v Karklins [2018] TASCCA 6, 29 Tas R 373 at [92], Geason J (with whom Blow CJ and I agreed) said:

'Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed. Community attitudes to it are changing: … . Strong denunciation is called for, and general deterrence is a primary consideration. For crimes which are difficult to detect, the consequences of discovery must be severe enough to counter the perception that their commission is a risk worth taking.'

[40] A short time later, in Gregson v Tasmania [2018] TASCCA 14 at [30] and [37],
Martin AJ (Blow CJ and Geason J agreeing) said:

'Men like the appellant who are minded to use physical violence against their female partners must understand that the community is greatly disturbed by this type of unacceptable conduct. Such violence is prevalent and will be met with significant terms of imprisonment. General deterrence was also an important factor in sentencing."

...

... Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners ... Women who become victims in these circumstances, and other potential victims throughout the community, are entitled to such protection as the law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent.'

[41] Similar remarks were made by the New South Wales Court of Criminal Appeal in R v Edigarov [2001] NSWCCA 436 at [41]. Wood CJ at CL, (Studdert and Bell JJ agreeing) said that "violent attacks in domestic settings must be treated with real seriousness." His Honour continued:

'In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.'

[42] A particular form of physical violence prevalent within the domestic violence context is choking and strangulation. That prompted Parliament to introduce s 178B of the Criminal Code, which created the crime of strangulation. That commenced on 22 August 2022. In Director of Public Prosecutions v Foster [2019] TASCCA 15 at [26]- [27], Estcourt J (with whom Brett J and Marshall AJ agreed) noted an academic observation "that strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome." His Honour continued:

'Choking can cause loss of consciousness and can cause death quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days and airways obstruction causing death may be delayed.'"

27           Of course, these statements were made in the context of cases of actual physical violence. But other domestic abuse takes various forms of mistreatment and, obviously, can be just as hurtful and harmful in the long term, if not more so, than physical acts. Emotional abuse undermines the victim’s self-esteem and mental health, and while it does not leave visible marks, it can lead to severe psychological trauma. Mistreatment is often frequently engaged in, and often for long periods. Accepting that each case must be judged on its facts, there is nothing to suggest the sentiments

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expressed in the passages set out in Palmer do not, in broad terms, equally apply to the offence of
emotional abuse or intimidation.

28           The applicant's overall conduct was quite appalling in many different respects. The first charge of assault was a serious matter because it involved grabbing V around the throat. In terms of the emotional abuse, the behaviour was possessive, controlling and highly demeaning and hurtful, if not cruel, carried out with knowledge of the likely consequences. Harm of some significance was in fact caused. The assaults and the ongoing emotional abuse constituted grave breaches of the trust that existed in the relationship. To the extent it might be reasonably inferred that at least some of the incidents happened when the applicant was intoxicated, it is worth noting the comments made by the High Court in Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [57]: "It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree."

29           As highlighted by counsel for the respondent, the maximum penalty for the Family Violence Act offence is two years' imprisonment. The other three all attract a maximum of 12 months. The applicant had prior convictions for violence, the most recent in April 2020 which led to a suspended prison term. When considering his earlier offending, in particular the family violence offences in 2019, it might be thought that the applicant may have been motivated to seek assistance with his mental health and alcohol abuse issues before being charged in August 2023 with the present matters, and his relationship ending as a result of his conduct.

30           In any event, the fact remains that he did seek assistance both in relation to his mental health and specifically his alcohol abuse. Those rehabilitation attempts were pursued until he was remanded in custody on 22 April 2024. That fact and the potential continued rehabilitation efforts were not matters that had no significance in the sentencing process. Additionally, the applicant was entitled to some, but in the circumstances no great, credit for his pleas of guilty. The magistrate accepted an expression of remorse but treated it as a "late development". No doubt that was prompted by the initial pleas of not guilty and the very late change. Remorse seems first to have been expressed to Dr Little and given the developing insight in the sessions with him, it is reasonable to accept that it was then genuine.

Resolution

31           No authority needs to be cited for the proper approach of an appellate court when reviewing an exercise of the sentencing discretion. It is well entrenched. The applicant needs to show that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust. It is not a question of what the appellate court might have done in the same circumstances, and it is not a question of whether some might think the sentence is too harsh. The question is whether the sentence is outside the permissible range of options available in the circumstances.

32           Having regard to the nature and extent of the totality of the conduct involved, the applicant's recorded history of relevant offending and the clear statements by appellate courts in relation to the weight to be given to deterrence and denunciation in matters such as these, I am not persuaded that the sentence should be disturbed.

33           As I have said, the applicant was entitled to some credit for his efforts towards rehabilitation and the potential in that regard, and for his pleas of guilty. However, I think those matters were adequately reflected in the suspension of three months of the 12 month sentence, and the community correction order with the special conditions directed to a broad range of rehabilitative measures.

34   For those reasons, I dismissed the motion.