R v Baldsing
[1998] VSC 223
•27 July 1998
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION
Not Restricted
No. 1587 of 1997
THE QUEEN
v.
KENNETH HENSWORTH BALDSING
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JUDGE: VINCENT, J. WHERE HELD: MELBOURNE DATE OF SENTENCE: 27 JULY 1998 MEDIA NEUTRAL CITATION: [1998] VSC 223
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CATCHWORDS:
Guilty plea – Reckless conduct – Intentional and unlawful damage to property – Sentence of imprisonment – Suspend service of part of sentence.
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APPEARANCES: Counsel Solicitors For the Crown B. Kayser Office of Public Prosecutions For the Applicant J. Kaufman Caleandro Guastalegname & Co.
HIS HONOUR:
Mr Baldsing, you can remain seated during the sentencing process. I have already indicated that whilst I am of the view that a sentence of imprisonment is required in this particular matter, I do not consider that it need involve any further period of immediate incarceration than the 321 days that you have already undergone as presentence detention. Accordingly, I intend to impose a sentence of imprisonment, but suspend service of the entirety save for that period you have undergone. I now provide a statement of my reasons.
Kenneth Hensworth Baldsing, you have pleaded guilty to two counts of recklessly engaging in conduct that placed or may have placed a person in danger of death, one count of recklessly engaging in conduct that placed or may have placed a person in danger of serious injury, and one count of intentionally and unlawfully occasioning damage to a motor vehicle belonging to another. Accordingly, I have the responsibility of imposing sentence upon you.
At the outset it is to be noted that you have no history of any prior involvement with the criminal law, and I accept on the basis of, your long period of residence in this country, your record of constant employment - first with the Tramways Board and more latterly with an entity known as Swanston Trams which has virtually encompassed the entire time since your arrival here - your family background and associations which have been stable throughout that time, the strong support that you have received from your family and friends, and the absence of any evidence or suggestion that you may have a tendency towards violence, that you have hitherto conducted yourself as a person of good character.
The background to and circumstances surrounding the commission of your offences have been outlined by the prosecutor, Mr Kayser, in the course of the plea. That summary of circumstances, which was accepted as accurate by your counsel, also accords with the evidence set out in the depositions which I have read. I need only say with respect to Mr Kayser's summary that I regard it as a satisfactory description of the major features of the factual background upon which I have proceeded in the consideration of sentence. Rather than setting it out again, I propose to append the relevant portion of the transcript to my published sentencing remarks.
The offences in which you engaged were obviously the product of a deep sense of hurt and betrayal experienced when your recently divorced wife and her friend, Mr Jansz, were seen by you to be collecting your two boys after cricket training. I understand that, in spite of the apparent finality of the separation between your wife and yourself at that stage, you were still experiencing considerable difficulty in accepting that this was the case and you held some hopes that it may have been possible to resolve the differences which had arisen between the two of you.
It seems likely that you regarded Mr Jansz as the source of many of the problems in your relationship. You clearly felt great animosity towards him and I have little doubt that when you saw him with your wife and children, not knowing until that very moment that he was even in Australia, you lost control of yourself. It seems that your offences were committed within the following 30 minutes of that observation and whilst you were in a state of high emotion. There was no planning involved in your actions and no cooling off period which could give rise to the suggestion that you acted in a cold or calculated revengeful fashion. To that extent, your level of culpability must be regarded as somewhat reduced from that which is so often encountered in such cases.
I accept for sentencing purposes, at least, that the weapon that you had with you was not cocked and that you could have knocked your wife down with the motor car had you chosen to do so. It appears that you were in some limited control of yourself. Nevertheless, the actions in which you engaged were not only unlawful, but extremely dangerous.
It is very fortunate that the confrontation which took place did not end tragically. The dangers involved in taking a loaded firearm and ammunition into an emotionally charged situation and in using a motor vehicle as you did hardly need to be emphasized.
The courts must make clear beyond doubt that the use of violence and threats of violence, particularly when weapons or motor vehicles are involved, in the course of what are euphemistically and somewhat inaccurately termed domestic disputes, simply cannot and will not be tolerated. Those who engage in behaviour of this kind must anticipate that the law will take a firm stand. The courts must, and to the extent that it is consistent with the proper application of other relevant sentencing principles, endeavour to deter those who attempt to resolve personal disputes in this fashion or who give way to feelings of frustration and anger because of breakdown of personal relationships.
As I have indicated, even after making due allowance for a number of factors which militate in your favour, it is nevertheless my view that the element of general deterrence must assume significance as a sentencing consideration in your case. I have also, as I have indicated, arrived at the view that it is relatively unlikely that you will ever appear again before a criminal court, and that accordingly the element of specific deterrence need not be addressed.
With respect to your prospects of rehabilitation, the situation appears to be quite favourable. You appear to have come to terms with the break-up of the relationship with your former wife and have entered into a new relationship. I understand that your wife, in turn, has indicated that she does not consider that you should be required to undergo any further period of imprisonment for what you have done.
In all of the circumstances, and as I have already informed you, whilst I consider that a sentence of imprisonment is called for in your case, I also accept that no additional period of custody is required to that which you have already undergone at this stage. As all of the offences took place within moments of each other and constituted a single isolated episode, I have decided that all of the sentences should be made concurrent.
On each of Counts 1 and 2 you are sentenced to imprisonment for a term of 15 months.
On Count 3 you are sentenced to a term of imprisonment for 12 months.
On Count 4 you are sentenced to a term of imprisonment for three months.
All sentences, as I have indicated, are to be served concurrently. I declare that the period of presentence detention of 322 days that you have already undergone be reckoned as having been served under the sentence hereby imposed. I direct that this declaration and its detail be entered in the records of the court. I also direct that the service of the balance of the sentence imposed upon you be suspended for a period of 12 months.
I finally order that the firearm involved in your offences be forfeited.
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