Police v Roulston (a pseudonym)

[2023] ACTMC 57

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Roulston (a pseudonym)

Citation: 

[2023] ACTMC 57

Hearing Date: 

6 December 2023

Decision Date: 

19 December 2023

Before:

Magistrate Temby

Decision: 

See [87] – [88]

Catchwords: 

CRIMINAL LAW – Judgment and Punishment – Sentence – Aggravated assault occasioning actual bodily harm – Aggravated choke, suffocate, strangle – Family Violence – Conviction.

Legislation Cited: 

Crimes (Sentencing) Act 2005 ss 6, 7, 10(2), 17, 33(1)(a), 33(1)(za), 33(1)(w), 33(1)(m), 33(1)(j), 33(1)(k) & (I), 35, 35A, 36, 36(3)

Cases Cited: 

Kourpanidis v The Queen [2022] ACTCA 11

Murray v IA [2020] ACTSC 288

DPP v Gale [2023] ACTSC 297

R v Peric (No 3) [2022] ACTSC 387

R v Day (No 2) [2022] ASCTSC 352

DPP v Jewell [2023] ACTSC 348

R v Doan (2000) 50 NSWLR 115

Bennett v Daley [2021] ACTSC 159

R v Mauger [2012] NSWCCA 51

Parties: 

John Edgar Campbell (Informant)

John Roulston (a pseudonym) ( Defendant)

Representation: 

Solicitors

ACT Director of Public Prosecutions

Mr Woodhouse ( Defendant)

File Number:

CC  8670 of 2023

CC  8674 of 2023

CC  8674 of 2023

MAGISTRATE TEMBY:

Introduction

1․On 6 December 2023, I found the Defendant guilty of the following offences:

(a)CC 8670 of 2023: Aggravated assault occasioning actual bodily harm. The maximum penalty for this offence is seven years; and

(b)CC 8674 of 2023: Aggravated choke, suffocate, strangle a person. The maximum penalty for this offence is seven years.

2․Prior to trial, the Defendant pleaded guilty to charge CC 8671 of 2023: Aggravated assault occasioning actual bodily harm. Again, the maximum penalty for this offence is seven years.

3․I note that the Defendant gave his consent to the matters being disposed of summarily.

4․The matter came before me on 19 December 2023 for a sentencing hearing. Mr Woodhouse appeared for the Defendant. Mr Brown appeared on behalf of the DPP. At the sentencing hearing I received into evidence:

(a)A Victim Impact Statement prepared by the complainant, admitted as Exhibit 1;

(b)A Court Duty Report dated 18 December 2023, admitted as Exhibit 2;

(c)A bundle of documents entitled ‘Offender’s Sentence Bundle’, admitted as Exhibit 3; and

(d)A document produced by the Australian Health Practitioner Regulation Agency, admitted as Exhibit 4.

5․In considering the matter, I note that:

(a)I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offence for which the Defendant is charged; and

(b)I must be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of the sentence.

Nature and circumstances of offence – s 33(1)(a)

Facts

6․In my decision of 6 December 2023, I made a number of findings relevant to the Defendant’s guilt which are also relevant to the sentencing exercise I am required to undertake.

7․The relevant facts are:

(a)on the morning of 30 August 2022, at around 7.30am, the Defendant disclosed to the complainant, whilst they were in their bedroom, that he had had two affairs;

(b)at the time, the Defendant and the complainant were sitting on opposite sides of their bed. The complainant was angered by the information. She got up, moved quickly across the bed and slapped the Defendant. She was holding a mug of lukewarm tea and threw the tea at the Defendant;

(c)the complainant left the room and left the house to take their daughters to school at around 7.50am. She returned at around 8.20am;

(d)the Defendant was sitting at the dining table, speaking to his mother on speaker phone. The complainant asked his mother to hang up, but she did not do so and the Defendant had a smug look on his face. That angered the complainant. She was further angered when they resumed their discussion as to the Defendant’s affairs. She made repeated attempts to punch him and grab his penis and testicles. She slapped him again. She was yelling at him and calling him names;

(e)the Defendant asked her not to get physical;

(f)he went to the study to retrieve a coat so that he could go to work. The complainant followed him into the study. She continued to be physical with the Defendant in that room;

(g)in response to the complainant’s aggression, the Defendant hit the complainant with a closed right fist to her left temple area. This action caused the complainant to hit the door to the room. The complainant suffered bruising to the left cheek and around the left eye. I found that the Defendant used considerable force when he hit her. This incident makes up the aggravated assault occasioning actual bodily harm offence the subject of charge CC 8670 of 2023;

(h)the Defendant said that he had acted in self-defence, however I did not accept that for a number of reasons, including for the reason that that the Defendant’s frustration and growing anger with the complainant resulted in him wanting to hurt the complainant in retaliation, not protect himself;

(i)the Defendant left the study to go to work. He was stopped at the back door by the complainant holding the door closed. The complainant told the Defendant that she was going to destroy their wedding album and she went upstairs to the walk-in-robe. She started with wedding photographs that were contained in the scrapbooking box that the Defendant was using. She grabbed a number from the box and tore some of them;

(j)the Defendant followed her to the walk-in-robe. I found that the Defendant was angry by this point. He had twice been slapped by the complainant and had been subject to repeated attempts from her to hit him. He had followed her upstairs because he did not want her to damage the wedding album, which was clearly an item of sentimental value to him. When he got upstairs he could see that she had damaged his scrapbooking project;

(k)the complainant was crouched down. The Defendant pushed past her and grabbed the wedding album. They wrestled and the Defendant pushed her. He pushed her hard enough for her to fall into a wire shoe rack, with her head hitting the shoe rack. The shoe rack bowed from the complainant colliding with it. Ultimately, I did not find the Defendant guilty of any offence in relation to this incident, however it is relevant to the incident which follows because I am satisfied that, at this point, the complainant was in a vulnerable position, laying on her back on the ground, having just hit her hand on the wire shoe rack;

(l)it is unclear exactly how the Defendant then came to be on top of the complainant but, however it occurred, I found that the Defendant could have got up with the wedding album and left. Instead, he decided to subdue and control the complainant, not in order to obtain the wedding album but because he was angry and wanted to retaliate. He wanted to hurt her;

(m)he applied pressure to her neck with his forearm. He did so for at least 5 seconds. She couldn’t breathe. She told the Defendant that he was hurting her. The Defendant said that he didn’t care. He said that she needed to behave or he would “section her” and put her in the mental health unit. That is, he threatened to use his position as a doctor to have her committed to a mental health unit;

(n)this incident makes up the aggravated choke, suffocate or strangle offence the subject of charge CC 8674 of 2023;

(o)the Defendant eventually got up, took the wedding album and went downstairs. He put the album on the dining table or kitchen bench. The complainant followed him down. She picked up the album and started to remove photos from it and threw them on the ground. She tore some of them;

(p)the Defendant retrieved the album from the complainant. While she was faced away from him, he hit her with considerable force with the album to the back of her head. I note that the wedding album was a thick album and appears to have been quite heavy. The level of force used, and the fact that the Defendant exercised it when the complainant wasn’t even looking at him, is demonstrative of the significant anger that the Defendant had for the complainant at this point. She hit the floor. This part of the incident caused harm to the Defendant’s head, jaw and neck;

(q)this incident makes up the aggravated assault occasioning actual bodily harm offence the subject of charge CC 8671 of 2023.

Victim Impact Statement

8․As noted above, the complainant prepared a Victim Impact Statement, which she read at the sentencing hearing.

9․There is no doubt that the complainant was the victim of serious acts of violence.

10․However, it is difficult for me to take much of what is written in the victim impact statement into account in sentencing the Defendant.

11․The main reason for that is that, in giving my early decision, I did not accept that the complainant was an entirely honest and reliable witness. One of the reasons for taking that view was the inconsistency in the evidence that she gave with other evidence given in the proceeding which I did accept.

12․Similarly, several statements in the victim impact statement, as to the impact of the Defendant’s actions on the complainant, are inconsistent with the available medical evidence. This makes it difficult to know what aspects of the victim impact statement are reliable. This is particularly the case in circumstances where the complainant had a number of pre-existing physical conditions and where it is difficult to separate the impact of the offending conduct from the impact of the breakdown of her marriage on her mental state.

13․I have found that the complainant suffered bruising to the left cheek and around the left eye as a result of being punched in the study.

14․I have found that the Defendant exerted sufficient pressure on the complainant’s neck in the upstairs walk-in-robe to render her unable to breathe. On the facts, that was for a relatively short period (around five seconds).

15․I have found that being hit with the wedding album downstairs caused the complainant harm to her head, jaw and neck, although there is no evidence of any break or long-lasting impacts.

16․I accept that the complainant suffered pain to the relevant areas of her body as a result of each of the incidents. I am unable to accept, however, to the requisite standard, that she suffers from ongoing pain as a result of the Defendant’s conduct.

17․I also accept that the complainant suffered mental anguish and suffers from nightmares, as she says in her statement.

Objective seriousness

18․There are two principal factors to be considered when assessing the objective seriousness of the offences of assault occasioning actual bodily harm. First, the nature of the offending conduct and, second, the nature of the injuries that were sustained by the victim.

19․There are several factors which bear upon the objective seriousness of an offence of choke, suffocate or strangle. These are:

(a)the length of the choking of the victim;

(b)the amount of force used;

(c)the interruption of breath;

(d)the making of threats;

(e)injury or harm, including pain, suffered by the victim;

(f)loss of consciousness by the victim;

(g)the use of aids, such as rope;

(h)the circumstances in which the offender releases the victim (for example, the intervention of a third party);

(i)if the victim is particularly vulnerable;

(j)if the offence is committed in the context of a family violence offence where there is a breach of trust; and

(k)if the offence is a deliberate and sustained course of conduct designed to threaten the victim and inflict harm.

20․The considerations relevant to assessing the impact of provocation were summarised in Kourpanidis v The Queen [2022] ACTCA 11, at [27]. They include the nature of the provocation, its severity, its duration, its timing in relation to the offence, the extent of its impact on the Defendant and whether the response was proportionate to the provocation.

CC 8670 – Punch to the head

21․In terms of the punch in the study, this involved significant force being used to punch the complainant to her head, which is a vulnerable part of the body. The injury suffered by the complainant was bruising to her cheek and near her eye. And of course, I must take account of the fact that the assault occurred in the complainant’s home.

22․On the other hand, the nature of the injuries suffered by the complainant were not significant. Further, the Defendant’s conduct arose from significant provocation on the part of the complainant, involving the Defendant having twice been slapped by the complainant and her having tried to hit him on multiple further occasions, although his response was clearly disproportionate.

23․This offence falls towards the lower end of the spectrum for this kind of offence.

CC 8674 - choke

24․In terms of the choking offence, I note that the length of choking was not particularly long – I was only able to find that it lasted for at least 5 seconds – however, the Defendant did continue to choke the complainant for a short time after she told him that she could not breathe. There is a certain degree of callousness in that, which is reflected in the Defendant’s statement to the complainant that he did not care that she could not breathe or that he was hurting her.

25․The Defendant was lying on top of the complainant and used his body weight to force his forearm onto the complainant’s neck. I accept that these actions involved strong force being applied to the complainant.

26․As noted above, the Defendant’s actions caused an interruption to the complainant’s breath. As I have also noted already, I accept that the Defendant’s actions caused the complainant pain to her neck, although I am unable to find that her pain is continuing on the evidence before me.

27․Again, I am required to take into account that the offence occurred in the complainant’s home. While it did occur in the context of a family violence offence, I note that the Defendant is to be sentenced for the aggravated version of the offence by reason of that fact.

28․In my view, the offence is aggravated by the fact that the Defendant threatened to use his position as a doctor to have her committed to a mental health unit if the complainant didn’t behave as he wanted her to.

29․The offending conduct is mitigated somewhat by the provocation to which he was subject, but not to the extent as the first offence. As I have noted, at the time that the Defendant committed this offence, the complainant was lying on her back, having just hit her head on the wire shoe rack. He could have simply got up and left the room with the wedding album. His response to the provocation, being the physical provocation and the complainant’s actions in relation to the wedding memorabilia, was grossly disproportionate.

30․This offence falls somewhere on the low to mid range of the spectrum for this kind of offence.

CC 8674 – strike to the back of the head in the living room

31․This offence is a more serious example of an assault occasioning actual bodily harm than the first offence. It too involves a strike to the complainant’s head, a vulnerable part of her body. It also involves the use of a heavy implement, it involved harm caused to the complainant’s neck, head and jaw, it resulted in the complainant hitting the floor and, importantly, it involved the Defendant striking the complainant in the back of her head when she wasn’t engaged with him. She was facing the opposite direction. She was vulnerable to the Defendant’s actions.

32․While provocation is still relevant, I consider that the sting had gone out of the argument by this point. The Defendant’s actions were not only very aggressive but they were cowardly. His response in this respect was also grossly disproportionate to the complainant’s actions.

33․This offence approaches the mid-point of the spectrum for this kind of offence.

Comparable cases – s 33(1)(za)

34․Paragraph 33(1)(za) of the Sentencing Act provides that the Court must have regard to current sentencing practice and patterns when considering how an offender must be sentenced.

35․In Murray v IA [2020] ACTSC 288, Mossop J stated, at [28]:

In relation to sentencing decisions, the relevance of past sentences to discretionary sentencing decisions is a matter of legislative prescription. The Crimes (Sentencing) Act provides that, in deciding how an offender should be sentenced for an offence, a court must consider “current sentencing practice”: s 33(1)(za). Considering past sentences is also relevant to the achievement of reasonable consistency in sentencing: Wong v The Queen [2001] HCA 64 … (Wong) at [6]. However, sentencing involves a discretionary judgment and the mix of factors that must be weighed in determining an appropriate sentence will never be precisely the same from one case to another: R v Pham [2015] HCA 39 … (Pham) at [46]. Consistency does not mean numerical equivalence but, rather, the consistent application of relevant legal principles: Wong at [6], [65]; Hili v The Queen [2010] HCA 45 … at [49]; Pham at [28].

36․At least in terms of objective seriousness, a comparable case in relation to the assault charges is DPP v Gale [2023] ACTSC 297. It too was a family violence offence and involved the offender being verbally abusive towards the victim. He pushed the victim in the chest and struck her on the left-hand side of her head with his hand or elbow. She suffered a small bruise to the left-hand side of her face, pain in her left ear and temporary hearing loss.

37․The Court found that, although the actual bodily harm suffered by the victim was modest, the offending was in the mid-range of objective seriousness. The Defendant was sentenced to 13 months’ imprisonment, reduced from 16 months for his plea of guilty.

38․A comparative case with respect to the choking offence is R v Peric (No 3) [2022] ACTSC 387. In that case, the Defendant and his partner were arguing in the bedroom of their home. The Defendant pushed her to the ground. While she was on the ground, facing down, the Defendant straddled her and placed his hands around her neck, exerting significant pressure and choking his partner. It caused her eyes to roll back in her head. She was unable to breathe. The choking lasted for approximately 10 seconds.

39․The Defendant was sentenced to 18 months’ imprisonment, reduced from 24 months for his plea of guilty.

40․A second comparative case is R v Day (No 2) [2022] ASCTSC 352. In that case, the Defendant pushed the victim off the mattress she was sitting on, onto the ground. He then put one or both of his hands on the sides of the victim’s neck and applied a level of force that the victim ranked as “about a five”. This continued for around 10 or 20 seconds. It did not restrict the victim’s breathing and she considered it “just like a warning”.

41․The Defendant was sentenced to 15 months’ imprisonment.

Subjective Circumstances

42․The Defendant is a 46 year old man. He and the complainant were together for 16 years and married for 14 years. They have two daughters, aged nine and 12.

43․References tendered on the Defendant’s behalf speak of a calm and caring individual in both a personal and professional capacity. He is, it seems, a well-liked and respected doctor. He is, for the purposes of sentencing, a person of impeccable character.

44․He is a doctor who, prior to the instant offences, was engaged by the Greater Southern Area Health Service. He worked at the Bega Hospital and Queanbeyan Hospital. I understand from the report of Dr Samuel that the Defendant has extensive experience in emergency medicine.

45․The Defendant was stood down by the Greater Southern Area Health Service following the incident. Conditions were placed on his registration by the Medical Council of NSW. These related to the Defendant’s hours of work, the need for him to have a mentor, and the need for him to engage with a GP, psychiatrist and psychologist. There were obvious concerns for the Defendant’s mental health.

46․His service was terminated once charges were proffered. He was able to obtain some locum work, in particular in South Australia, however he is not currently working. In combination with his separation from the complainant, he is now in difficult financial circumstances.

47․Dr Samuel noted in his report of September last year that the Defendant:

… has a range of depressive symptoms including appetite and sleep disturbance .. He does have ongoing suicidal thoughts and was quite suicidal in the immediate aftermath of the incident … He is under a great deal of stress. He is anxious … Dr [redacted] does, in my view, meet diagnostic criteria for Major Depression. He seems to be receiving appropriate care and treatment through the local mental health area, he is seeing a psychiatrist and is due to engage with another psychologist. I do have some concerns about his current fitness to work and recommendations in this regard are best made by his treating GP, psychologist and psychiatrist.

48․Mr Woodhouse submitted that a diagnosis of Major Depression in October 2022 suggests that the Defendant was suffering from a mental health condition at the time of the present offences. He submitted that such a condition is unlikely to have arisen just from the offending and its fallout.

49․I do not know that to be true. I am not satisfied on the balance of probabilities that it is. I am also not satisfied that the evidence before me establishes that the Defendant was suffering from a mental health condition which explains how someone of his standing lost his cool. The impression I have from the material is that the marriage between the Defendant and the complainant had not been in a healthy state for some time and, indeed, the Defendant described to Dr Samuel how difficult he found the complainant to be. Combined with the physical and emotional provocation engaged in by the complainant on the day of the incident, his actions were clearly actions of retaliatory angry frustration, as I have previously found. Whether the response was contributed to in any way by a mental health condition cannot be answered to the requisite standard on the material before me.

50․Nevertheless, I accept that the Defendant may have had a mental health condition which may have played some part in his response. To that extent, I accept that he is engaging in treatment to address his present mental health issues. In part that appears to be in order to comply with conditions placed on his medical registration, and in part as a result of voluntary actions on his part.

51․A report from the Waratah Private Hospital from October of this year noted that the Defendant remained adherent with his treatment, including psychological therapy. I note that Mr Woodhouse also referred to the Defendant’s attendance with EveryMan and his participation with a NSW domestic violence prevention group. The Medical Council amended the Defendant’s conditions to permit the Defendant to work increased hours.

52․I note that, in May of this year, AHPRA gave notice to the Defendant that it proposed to suspend his registration on the basis of the criminal charges that had been brought against the Defendant. However, following submissions made by the Defendant, AHPRA decided not to take immediate action, pending the outcome of the criminal proceedings.

53․What action AHPRA will take on the finalisation of these proceedings is not known. AHPRA’s ‘Registration Standard: Criminal History’ document, that was tendered by the Defendant at the sentencing hearing, sets out a number of considerations that AHPRA will consider in deciding whether a doctor’s criminal history is relevant to the practice of their profession. These are:

(a)the nature and gravity of the offence and its relevance to health practice;

(b)the period of time since the doctor committed the offence;

(c)whether a finding of guilt or a conviction was recorded for the offence. In this respect, the document notes that a conviction will be most relevant, a finding of guilt second-most relevant, pending charges next most relevant, and charges subject to non-conviction orders least relevant;

(d)fourth, the sentence imposed for the offence;

(e)the age of the doctor;

(f)the doctor’s behaviour since he committed the offence;

(g)the likelihood of future threat to a patient of the doctor;

(h)any information given by the doctor; and

(i)any other matter that AHPRA considers relevant.

54․It is clear from this document that, while a conviction is treated more seriously than a finding of guilt that is not accompanied by a conviction, AHPRA takes a nuanced approach and has regard to all the circumstances of a criminal matter involving a doctor. Not recording a conviction will by no means guarantee that the Defendant will avoid an adverse decision from AHPRA, even if it would assist the Defendant’s case. By the same token, the recording of a conviction does not guarantee that the Defendant’s registration will be suspended or that other adverse action will be taken, even if it would increase the chance of an adverse decision.

Remorse and Contrition – s 33(1)(w)

55․I accept that the Defendant is remorseful for his actions. It is reflected in his text messages to Dr Frost and in his interview with police, both of which occurred not long after the incident. It is also reflected in the Defendant’s character references.

Criminal History

56․Section 33(1)(m) - antecedents

57․As I have noted earlier, the Defendant is unrecorded.

58․This indicates that the instant offending was an uncharacteristic aberration and suggests that specific deterrence as a sentencing consideration is not of great significance in this case.

59․The Defendant is entitled to a significant degree of leniency on sentence.

Pleas of Guilty – s 33(1)(j) and 35

60․As I noted earlier, the Defendant entered a plea of guilty to the last of the offences (the last in time). He did so at a sufficiently early stage to warrant a discount on sentence of 25 per cent.

Assistance to law enforcement authorities – ss 33(1)(k) and (l), 35A and 36

61․The parties submitted that the Defendant may be entitled to a discount on sentence for the offences with respect to which he was found guilty, based on the admissions he made to police during his police interview. Having regard to the considerations set out in subsection 36(3), I agree that he should receive such a discount.

62․He provided a timely interview and he made admissions which ultimately made the fact-finding exercise for the court easier. However, in circumstances where he did contest the charges, and having regard to the effect of the offences on the complainant, I consider that a more modest discount should be allowed than I have with respect to the last of the offences. For these offences I allow a discount of 15%.

Statutory and other Relevant Considerations

63․In sentencing the Defendant, the court is required to take into account those matters set out in section 33 and s34B of the Sentencing Act that are relevant and known. I have referred to the relevant matters above.

64․The court is also required to have regard to the objects of the Sentencing Act as set out in section 6 and to the purposes of sentencing as set out in section 7.

65․In terms of the purposes of sentencing:

(a)general deterrence is an important sentencing consideration – while there was provocation involved, it is not unusual in a domestic violence case for an incident to start as a verbal argument and lead to a physical altercation started by one party or the other, to which there is a response. It needs to be understood that violence is not an acceptable response, particularly a response that is as disproportionate as the Defendant’s was to the complainant’s actions;

(b)Similarly, there is a need for denunciation and to make the Defendant accountable for his actions;

(c)there is also a need to recognise the harm done to the complainant;

(d)to some extent, there is a need to facilitate the Defendant in his efforts to rehabilitate himself, mentally.

Sentence

66․Ultimately, I must ensure that the Defendant is adequately punished in a way that is just and appropriate.

67․Several principles are relevant to that exercise.

68․Firstly, careful attention to the maximum penalties for the offences is required. In this respect, I note the remarks of Justice McWilliam in DPP v Jewell [2023] ACTSC 348, where her Honour said at [101]:

An increase in the maximum penalty is an indication that the sentences for that offence ought to be increased: Muldrock at [31]. That is reinforced by the Explanatory Memorandum to the Family Violence Legislation Amendment Bill 2022(ACT) where it was stated at 6-7:

Setting higher maximum penalties for aggravated offences provides guidance to the courts and the ACT community about the seriousness of family violence offences compared to other offences. The higher maximum penalties will help to prevent family violence offending by deterring individuals from committing these offences. The penalties will also help to protect the community and victims from the risk of further harm from family violence offenders by allowing longer terms of imprisonment to be imposed and operate as a mechanism to publicly recognise the harm done by family violence offending.

69․Second, in assessing the appropriate sentence, I note that, even though the limit of the Court’s jurisdiction in this matter is lower than the maximum penalty for the three offences, I am required to conduct an initial assessment of the appropriate sentence without reference to that jurisdictional limit: R v Doan (2000) 50 NSWLR 115.

70․Third, as I am sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.

Section 17 application

71․The Defendant submitted that a section 17 disposition was appropriate. Mr Woodhouse submitted, as I have accepted, that specific deterrence is not of great significance as a sentencing consideration, and noted that a conviction may have implications for the Defendant’s medical registration (and, therefore, his capacity to practice medicine). Mr Woodhouse also pointed to the Defendant’s good character, the absence of a criminal record, the Defendant’s mental health condition, and the extenuating circumstances of the offending, as all supporting such an outcome.

72․Mr Woodhouse did concede that the seriousness of the offence is against the Defendant. In that respect, I note that I am to have regard to the seriousness of the type of offence committed by the Defendant as well as the objective seriousness of the Defendant’s actions within the spectrum of conduct captured by the offence.

73․I note that a conviction is the ordinary consequence of a finding of guilt and that the absence of a conviction is, therefore, an exceptional outcome.

74․The question is whether, having regard to the considerations set out in section 17, which were raised by Mr Woodhouse, there are sufficiently cogent or compelling circumstances to warrant a departure from the usual course.

75․Further, as Justice Burns noted in Bennett v Daley [2021] ACTSC 159, at [49]:

The section is not a “first offenders” provision, so that a lack of convictions would not, of itself, ordinarily satisfy the requirement to demonstrate compelling circumstances justifying a non-conviction order.

76․Further, as the NSW Court of Criminal Appeal said in R v Mauger [2012] NSWCCA 51, in discussing a similar provision that operates in NSW:

Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases.

77․I do accept that, despite what I have just said, the application of section 17 is not limited to minor offences. I also accept that an order under section 17 can be made in conjunction with a good behaviour order, which itself is a form of punishment.

78․Ultimately, I do not consider that it is appropriate to dispose of any of the offences under section 17 of the Sentencing Act. I take this view having regard to the seriousness of the relevant offences, the disproportionate response of the Defendant to the complainant’s provocation, the callousness of the Defendant’s actions in relation to the choking offence, the cowardice and dangerous nature of his conduct in relation to the last of the offences, and the fact that, while AHPRA considers a conviction to be a more serious outcome than a finding of guilt without a conviction (which it is), it is clear that AHPRA will look at all the circumstances of the offending in deciding what action to take with respect to the Defendant’s registration. Whether a conviction is recorded is just one factor it will consider and it is entitled to reach its own view as to the seriousness of the Defendant’s actions for the purposes of the Defendant’s registration.

Consideration

79․In determining an appropriate sentence to be imposed with respect to the charges that have been brought against the Defendant, I have had regard to the objective seriousness of the offences, the maximum penalties for each offence, the Victim Impact Statement, the Defendant’s subjective circumstances and the circumstances of the offending conduct, the Defendant’s mental condition, the Defendant’s references, the Defendant’s criminal history, his remorse, and the Defendant’s plea of guilty for the third in time offence and the assistance he provided to the police in relation to the first and second in time offences.

80․Pursuant to subsection 10(2) of the Sentencing Act, the court may only sentence the Defendant to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. Having considered all the sentencing options, it is my view that, despite the Defendant’s good character and clean criminal record, there is no appropriate alternative to imprisonment with respect to the second and third in time offences. I do not consider that the imposition of a good behaviour order would adequately meet the sentencing purposes, despite its seriousness as a form of punishment, particularly in circumstances where the Defendant urged me not to impose any community service obligations on him.

81․However, in all the circumstances of the first in time offence, particularly given the extent of the provocation to which the Defendant was subject, and noting his good character and clean criminal record, I do not consider that the section 10 threshold is crossed for that offence.

82․I have determined that the appropriate sentence for the first in time offence – the punch to the complainant’s head in the study – is the imposition of a Good Behaviour Order for 12 months.

83․I have determined that the appropriate sentence for the second in time offence – the choking of the complainant – is six months’ imprisonment, reduced from seven months for the assistance the Defendant provided to law enforcement authorities.

84․I have determined that the appropriate sentence for the third in time offence – the assault with the wedding album in the living room – is six months’ imprisonment, reduced from eight months for the Defendant’s guilty plea.

85․However, given the Defendant’s good character and his clean criminal record, I consider that it is appropriate that these sentences be suspended immediately on the Defendant entering into a GBO for a period of 18 months for each of these offences. I would have preferred to incorporate community service obligations into that good behaviour order, however I appreciate the practical challenges that would exist for the Defendant in meeting any community service work obligations.

86․In circumstances where I have suspended the sentences of imprisonment, it is not necessary to consider questions of concurrency with respect to the sentences of imprisonment. However, I consider that it is appropriate for the three Good Behaviour Orders to run concurrently.

Orders

87․Accordingly, I make the following orders:

(a)I record convictions in relation to each of charges CC 8670, 8674 and 8671.

(b)In respect of CC 8670, aggravated assault occasioning actual bodily harm, the Defendant is sentenced to a Good Behaviour Order of 12 months.

(c)In respect of CC  8674, aggravated choke, suffocate or strangle, the Defendant is sentenced to a term of imprisonment of six months, suspended immediately on the Defendant entering into an 18 month Good Behaviour Order;

(d)In respect of CC 8671, aggravated assault occasioning actual bodily harm, the Defendant is sentenced to six months’ imprisonment, suspended immediately on the Defendant entering into an 18 month Good Behaviour Order.

88․Each of the Good Behaviour Orders is to commence from today’s date. Each will comprise core conditions only.

I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Magistrate Temby.

Associate: Niamh Dwyer

Date:  12 March 2024