R v Cowling
[2019] ACTSC 138
•23 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cowling |
Citation: | [2019] ACTSC 138 |
Hearing Dates: | 29 January, 18 April 2019 |
DecisionDate: | 23 May 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [114] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unlawful Confinement – Chokes, Suffocates or Strangles – Common Assault - Rehabilitation - Intensive Corrections Order |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 28(2)(a), 34 |
Cases Cited: | Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 |
Parties: | The Queen (Crown) Andrew James Cowling (Offender) |
Representation: | Counsel A Williamson/P Dixon (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Numbers: | SCC 159 of 2017; SCC 160 of 2017 |
LOUKAS-KARLSSON J
Introduction
On 28 September 2018, Andrew James Cowling (the offender) pleaded guilty to:
(a)one count of unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT) (Crimes Act) (CC2017/5354), the maximum penalty for which is 10 years’ imprisonment;
(b)one count of choking, suffocating or strangling contrary to s 28(2)(a) of the Crimes Act (CC2017/3448), the maximum penalty for which is 5 years’ imprisonment; and
(c)one count of common assault contrary to s 26 of the Crimes Act (CC2017/3449), the maximum penalty for which is 2 years’ imprisonment.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown tender bundle. The following is a necessarily brief summary of the detailed facts.
The offender and the victim commenced a relationship in May 2016. The offender engaged in controlling and violent behaviour towards the victim during their relationship and on several occasions threatened to kill her and her family if she ended the relationship.
1-2 November 2016
On 1 November 2016, the offender was driving himself and the victim home. Having stopped at a petrol station, and when the victim attempted to exit the vehicle, the offender pulled her back into the seat and told her, “you’re not going fucken anywhere”. While driving, the offender maintained his hold on her arm and pulled her towards his body. Over the following period of intermittent driving and stopping, the offender pulled her hair, held her head in his lap, pinched her shoulder and neck and punched her in the face several times.
The victim verbally and physically resisted the offender, asked to leave the vehicle, became fearful and cried. The offender refused the victim’s requests to let her leave the vehicle. Following the punches to the face, she reported being in “in a lot of pain”, bloodied, dazed, and confused. She was unable to clean her face or move from the car and vomited multiple times. These acts constituted the unlawful confinement offence.
21 – 23 March 2017
On the evening 21 March 2017, the victim attended the offender’s residence and an argument ensued. During this argument, the offender grabbed the victim with two hands, pushed her down and squeezed her neck. After temporarily losing his grip, the offender recommenced gripping the victim’s neck for over a minute. The victim felt pain around her neck and felt as though she would pass out. When she told the offender she was leaving him, he choked her again. She felt dizzy and struggled to breathe. He then threatened to kill her and her sister. The offender continued to squeeze her neck and threaten her.
After midnight, following a period where the conflict ceased, the offender and the victim argued again. The offender pulled the victim back into the bedroom and choked her with both hands for about 20 minutes. He intermittently released his hands and threatened to kill her. She feared he would kill her. These acts constituted the suffocation, strangulation or choking offence.
The next afternoon, 22 March 2017, the victim fled and called her brother to collect her. The offender later attended the brother’s residence. The brother confronted the offender, who made further threats and drove his vehicle towards the brother. This constituted the common assault offence. The brother was the victim of this charge. On 23 March 2017, the offender was arrested, protesting that he had “let her go”.
Victim Impact Statement
In evidence before me was a Victim Impact Statement from the victim. The statement includes the following:
The crimes committed against me and being in a relationship with [the offender] has caused me a great pain and has affected my life in many ways. I was in a relationship with [the offender] for one year, and I feel so lucky to be alive. I was more than certain that on both occasions [the offender] was going to kill me.
In November 2016 I was so scared and felt completely helpless as he continued to assault me. I felt myself weakened and just kept repeating in my head I’m sorry mum, I’m sorry as she was terminally ill and I didn’t want her to have to know about this.
…
I am extremely scared of [the offender] and what he is capable of. I was too scared to leave him as he threatened me during this incident … and would tell me what he would do to me and my family if I did. I had to go to the hospital in November, there was blood everywhere.
…
In March 2017 I finally let police become involved because I was worried about [the offender] hurting my brother. I love my brother, and I know what [the offender] is capable of. I was scared and didn’t want my family to get involved. I didn’t want the drama. I was relieved that there were others around to call the police and I could get help and get out.
…
I still get flashbacks about what has happened and I wake up screaming in the night. I get worried about going home at night, because it is dark and I just don’t know if he is around. I don’t go to places that we would go to together anymore because I am worried he might be there and something might happen.
10. The court acknowledges the significant impact that the offences have had and continue to have on the victim.
Objective Seriousness
11. Counsel for the prosecution submitted that the offences “could be characterised as offences of control, of dominance, and they were conduct designed to strike fear in [the victim]”. It was also submitted that “there’s little explanation for his conduct and there’s certainly no excuse … objectively, these are serious examples of family violence assaults.”
Unlawful Confinement
12. In respect of unlawful confinement, both parties referred to the decision of R v Williams [2016] ACTSC 389 (Williams) where Refshauge ACJ stated the following at [53]:
The offence of unlawful confinement is also a serious one. [Nield AJ has outlined in R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) some of the factors that are relevant to the assessment of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54,] it seems to me that the matters relevant to that assessment include at least:
· The length of the unlawful confinement;
· The extent that it was premeditated or planned;
· The way in which was effected;
· The purpose of it;
· The conditions under which the victim was confined, including the behaviour towards the victim, such as the level of restraint, any physical or verbal abuse committed and whether the victim was subjected to degrading behaviour;
· The extent of the fear instilled; and
· The injuries inflicted.
13. In respect of each of the Williams factors, counsel for the offender submitted:
(a)the length of the confinement was not established on the facts and it can only be put as high as “not an extended period of time”;
(b)there was no premeditation or planning;
(c)there were physical acts of restraint and restraint effected “by words” but not use of restraints;
(d)the purpose appeared to be to keep the victim in the car “and perhaps, in the relationship”;
(e)it was accepted that the conditions of confinement included some physical violence and derogatory comments, but that these were not the most serious conditions of confinement;
(f)it was accepted that the victim was fearful; and
(g)in respect of injuries, it was submitted that the relevant issue regarding the seriousness of the offence is “the harm that is actually done, and not that potentially done” (R v Carmody (No 3) [2017] ACTSC 60 at [47]) and that while photographs were before the Court, there was no medical evidence regarding the extent of the injuries, the need for any surgical intervention or any long-term consequences.
14. Accordingly, it was submitted by counsel for the offender that the offence was “in the mid‑range” of objective seriousness.
15. In respect of each of the Williams factors, the prosecution submitted:
(a)while not clear what time the confinement began and ended, by reference to the locations of where the offender stopped the car, a confinement of at least half an hour would be “a conservative estimate”. Given the range of times involved in such offences, the length suggests the objective seriousness “falls somewhere between the bottom and mid-point on the spectrum”;
(b)it was accepted there was no planning or premeditation. This consideration therefore suggests objective seriousness “towards the lower end”;
(c)the purposes was a desire to ensure continued relationship and therefore this suggests the objective seriousness “falls towards the lower end”.
16. In respect of the conditions and injuries suffered, it was submitted the victim “was subject to gratuitous cruelty and violence” including assaults to the face, a vulnerable part of the human anatomy. The severity was evidenced by bleeding, vomiting, bruising, swelling, pain and difficulty of breathing. It was submitted that this consideration suggests the offending was towards the “upper end” of the spectrum of objective seriousness.
17. It was further submitted by the prosecution that where confinement involves uncharged acts of assault, the offending will be aggravated (R v Avery [2018] ACTCA 57 at [24]; Singh v The Queen [2015] ACTCA 65 at [113]; Naqvi v The Queen [2017] ACTCA 52 at [29]). The circumstances of domestic violence was a further aggravating factor (R v Edigarov (2001) 125 A Crim R 551; NSWCCA 436; R v HC [2018] ACTSC 49).
18. Overall, the prosecution submitted that the objective seriousness “falls somewhere between the middle and upper end of the spectrum”.
Choking/strangulation
19. While the prosecution submitted that there was an absence of authority on the relatively new offence, factors such as duration, amount of force, extent of obstruction of breath, resulting injuries and other conduct involved should inform objective seriousness. Accordingly, the fact that the victim felt as though she would pass out, the significant length of the choking and the accompanying threats are relevant considerations.
20. Moreover, the prosecution submitted that the ‘rolled up’ nature of the charges, and combined nature of criminality involved across three instances will “necessarily be very high”, putting the offending at the upper end of the spectrum for offending of this nature.
21. Counsel for the offender submitted that by reference to the prosecution submissions on the intent behind the introduction of the offence, it was not appropriate to “give any additional weight to the consideration of seriousness based upon the material in the Explanatory Statement” for the legislation’s introduction, as the section and maximum penalty “speak for themselves” and that in the context of sentencing the statement is “inflammatory and inappropriate for judicial consideration”.
22. Counsel for the offender submitted that the victim did not lose consciousness during the offences, that there is no medical evidence of any physical injury resulting from the offences, and that there was no other accompanying physical violence.
23. Counsel for the offender submitted that ultimately the offences of choking fell into the “mid-range” of objective seriousness.
Common assault
24. Counsel for the offender submitted that the victim to the common assault “was not struck by the motor vehicle, and there is no evidence to indicate that he needed to move out of the way as the car passed him.” It was further submitted that the victim to this assault “immersed himself in the situation”. Counsel for the offender submitted that this offence was “at the low end” of objective seriousness.
25. I find the unlawful confinement offence to be above mid-range. I find the choking/strangulation offence to be above mid-range. I find the common assault offence to be in the mid-range.
26. Nevertheless, it must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]).
27. The unlawful confinement charge was a serious offence involving gratuitous violence against the offender’s partner, including punching her in the face. I accept the submissions of the prosecution as this accords with my view of the objective seriousness of the offences.
28. The choking charge was a serious offence where the victim felt as though she could pass out and the conduct was accompanied by threats. Again in this regard, I accept the submissions of the prosecution as they accord with my view of the objective seriousness of the offences. This is a rolled up charge encompassing 3 discrete instances where the offender choked the victim (see R v Jones [2004] VSCA 68 at [13]; Johnson v R [2017] NSWCCA 53 at [68] – [70; and McLeod v The Queen [2018]).
Subjective Circumstances
29. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.
30. The offender is a 27-year-old man who was raised in Canberra. He reported a parental separation at the age of five, and resided with his mother thereafter. He reported a supportive family environment with his mother, family and step-father, who passed away unexpectedly four years ago. The death had a significant emotional impact on the offender.
31. The offender has a four year old son with his ex-partner who, according to the PSR, he separated from amicably in 2016. The PSR reported that the offender maintains contact with his ex-partner in relation to the parenting arrangements for their son.
32. Following the separation in 2016, the offender commenced a relationship with the victim. The relationship ended in March 2017 following the commission of the offences before me. The offender advised the report’s author that he experienced apprehension concerning the relationship within the first few months due to the perceived influence exerted on his partner by her alleged anti-social and drug using peers, as well as by her behaviours. The offender reported that he is relatively socially isolated at present, as a result of a decision made five years ago to focus on his child, family and employment.
33. The offender commenced, but did not complete, a Bachelor of Arts, before entering the workforce in the hospitality and real-estate industries. He is currently employed as a business development manager for an international hospitality group, and reports a high level of satisfaction in his work. The offender denied historical or current illicit drug use, and advised of intermittent consumption of alcoholic beverages at family gatherings. It was noted in this context that there was an almost decade-old matter for possession of prohibited drugs where no conviction was recorded.
34. The offender reported that he attended psychological counselling sessions on a mental health plan developed by his physician, and had also attended EveryMan Australia for counselling. He has also successfully completed the Preventing Violence, Managing Anger group based intervention with EveryMan Australia. Family members indicated to the author of the PSR that the offender entered a period of depression following his step-father’s sudden death in 2014.
35. Overall, the author of the report assessed the offender as a low-risk of re-offending, and that he accepted the facts of the matters before the Court as accurate, acknowledging that his actions made the victims fearful. The report noted that the offender is well supported by his immediate and extended family, and that his work ethic and continuous employment is a protective factor, as is his involvement in and financial contribution to his child’s life and development.
36. The author concluded as follows:
[The offender] is a 27 year old man who was assessed by this Service as a low risk of re-offending. He accepted the facts of the matters currently before the Court as accurate, and acknowledged that his actions made the victims fearful.
He is well supported by his immediate and extended family, and his work ethic and continuous employment since his decision not to pursue tertiary education is a protective factor, as is his involvement in and contribution to his child’s life and development.
Appeared unprepared for the concurrence of the unanticipated birth of his child and the passing of his step-father, which by all accounts caused him emotional trauma for which he did not seek professional advice and support. Since his arrest, Mr Cowling has attended counselling and a program addressing anger management, and is willing to undertake other treatment options as directed by this Service in the event he enters a community based sentence”.
37. Counsel for the offender submitted that the offender complied with his extensive bail conditions for two years, and obtained new employment since losing his prior employment on account of these charges.
Remorse
38. The PSR recorded that the offender was remorseful for the offences and that he recognised the need to address his behaviours that lead to the offending.
39. Counsel for the prosecution accepted that the offender was remorseful (T 20.42).
40. Counsel for the offender submitted remorse was evidenced by: the pleas of guilty, the references provided to the court, the PSR and in his lengthy engagement with EveryMan.
41. I take the offender’s remorse into account on sentence.
References
42. In evidence before me were a number of references in support of the offender, which included the following:
(a)A letter from the offender’s grandfather, dated 9 January 2019, which included:
I am a retired member of the Australian Federal Police, of 16 years …
We are the Grandparents of [the offender], aged 27 years, the person now before the Court. I am aware that [he] has entered pleas of guilty to a number of serious family violence offences. [His] father, Grandfathers and Great Grandfather, have all served as Police Officers and I firmly believe that this circumstance has influenced his, perhaps firm, but proper upbringing to a great extent.
…
Unfortunately, about 18 months ago [the offender] informed us of the current situation regarding the matters now before this Court. This naturally shattered the family and devastated [him].
Since that time we have seen [the offender] visibly demonstrate his intense remorse in several ways. He has obviously deeply reflected on his actions and taken steps to remedy the situation in regard to his behaviour.
…
Whilst we all, both individually and as a family, absolutely denounce his behaviour, he has demonstrated to us genuine remorse to the utmost degree.
I firmly believe if offered an opportunity over this matter, he would prove to be a credit not only to himself, but more importantly, to our community.
(b)A letter from the offender’s mother, undated, which included:
I am aware [the offender] has been charged and I understand he has entered a plea of guilty to all charges. I am familiar with the factual circumstances of all matters. [The offender] understands the seriousness of this matter and the effect it has had on everyone involved. [He] is extremely remorseful and so sorry for his actions. He is both embarrassed and ashamed of his behaviour.
…
It has been a horrific stage in his life; however, [the offender] is a strong young man and has taken full responsibility for his actions. He has demonstrated positive changes in his behaviour and he is very aware his actions have affected a great deal of people. Over the last 22 months he has demonstrated maturity and responsibility by participating in 3 separate counselling treatment programs and has attended rehabilitation … He has attended these sessions voluntarily. He has had some consistent full-time employment since leaving university and since becoming an adult has supported himself financially. He has always worked very hard and has an extremely good work ethic and is respected by his peers.
…
Make no mistake, I am deeply disappointed in [the offender’s] offending behaviour and there is nothing I, or anybody else, can say to justify it, however my parents, … [the offender’s] sister…, his Aunties and Uncles, Cousins, friends and I his mother, love [him] very much and we will continue to love and support him in the future. In my opinion [the offender] would benefit greatly from continued counselling and he has expressed desire to continue... I am grateful to have been given the opportunity to write you this letter, please consider my thoughts when sentencing [the offender].
(c)A letter from the offender’s sister, undated, which included:
[The offender] has always held a fulltime working job, and dedicates his money and spare time to family and friends. He is a wonderful father to his son … they think the world of each other.
…
Throughout my entire life with [the offender] I have never witnessed him being violent to any other person. As his younger sibling, I have never experienced violence or hostility from [him].
(d)Two references from Mr Wayne Pash, a counsellor at the EveryMan program, dated 23 January 2019 and 17 April 2019. The letter of 17 April included:
[The offender] sought counselling support in August 2018 to address issues of anger and frustration, separation and parenting, his health and wellbeing and his offending behaviour. He has attended sixteen counselling sessions. [He] has committed to making positive changes and better choices. He has developed techniques which have contributed to him better managing his stress levels and his emotional responses and is maintaining a good relationship with his son.
[The offender] complemented his counselling support by completing EveryMan’s Preventing Violence, Manager Anger (PVMA) group program which ran from 4 October to 6 December 2018. The PVMA program is conducted by this agency’s Violence Prevention Service and is a 10-week psycho-educational program for men who are struggling with the way they deal with anger. PVMA is not simply an anger management program, rather a program that allows men to identify their own feelings, attitudes and thought patterns which can be a catalyst to violent, dangerous and disrespectful behaviour and to develop strategies and self-awareness to over to change those attitudes and thought patterns.
[The offender] graduated from the program. He actively engaged and contributed within the group environment. The program coordinator reported that he benefitted greatly from this program and has developed a greater capacity to use more appropriate responses to emotional reactivity and inappropriate, habitual ways of being.
[The offender] has engaged conscientiously with this counselling service and has indicated he will continue to attend counselling.
(e)Also before me was a certificate from EveryMan, indicating that the offender has completed the “preventing violence managing anger” program.
43. I take these references into account on sentence.
Criminal History
44. The offender has a limited criminal history, with a traffic offence in NSW recorded in 2009 and possession of a prohibited drug in 2010 referred to earlier.
45. Counsel for the offender informed the court that the offender currently has a family violence charge before the Magistrate’s Court and that a plea of not guilty has been entered. As a matter of law, I may not take this charge into account. Where there is no conviction an accused is entitled to the presumption of innocence.
Plea of Guilty
46. The offender entered pleas of guilty 11 days prior to when the trial was listed to commence for a second time. The first trial was vacated due to being not reached.
47. Counsel for the offender submitted that pursuant to section 35(2)(c) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), it should be noted that the pleas were the subject of negotiations between the parties and indications on the acceptance of pleas given as early at 13 September 2018. It was submitted this is a better reflection of “the totality of the circumstances of the extended negotiation process”. It was further submitted a discount of 15% is appropriate in relation to the pleas.
48. The prosecution referred to R v Cranfield [2018] ACTCA 3 which cites Murrell CJ in Monfries v The Queen [2014] ACTCA 46, where her Honour observed at [47]:
A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
49. The prosecution noted that indications to pleas referred to by counsel for the offender were to different charges, but accepted that “if there is ongoing negotiations, and pleas indicated prior to that, 15% is not unreasonable” (T 17.10).
50. I therefore allow a discount of approximately 15% for the pleas of guilty.
Time in Custody
51. The offender has spent 13 days in custody in relation to these charges between the date of arrest and 4 April 2017, as bail was initially refused in the Magistrates Court.
Intensive Corrections Order Report
52. When this matter came before me on 29 January 2019, I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.
53. The assessment was carried out with the assistance of:
(a)seven interviews with the offender;
(b)an interview with the offender’s mother;
(c)perusal of court documents, AFP and NSW criminal history, ACT Corrective services files and records;
(d)tests including a revised Level of Service Inventor, an Alcohol Use Disorder Identification Test, a Drug Abuse Screening Tool, and Corrections Victoria Treatment Readiness Questionnaire.
54. The ICO Report dated 18 April 2019 confirms much of the information contained in the PSR. It notes the offender’s response to supervision has been satisfactory. He continually reported as directed, complied with his mental health care plan, and attended anger management interventions and individual private counselling.
55. Of note is that the offender has been employed in a full-time capacity as a business development manager and verbalises a high level of satisfaction and pride in his work. He describes his friendship networks as minimal, and claims to have isolated himself socially, spending time with his immediate family only.
56. Regarding the offender’s mental health, he has attended ten initial sessions of psychological counselling, and fortnightly private psychology sessions since 2018. The offender self-referred for a 1:1 ‘Preventing Violence, Managing Anger’ program with EveryMan Australia, and continues to join groups and volunteer his time.
57. Regarding the risk of domestic violence, the offender is currently the subject of a Family Violence Order, granted to his ex-partner, the victim, for the current offences. The Order expires on 30 July 2019. He is also subject to an Interim Family Violence Order, granted 1 March 2019.
58. Regarding the offender’s attitude to the current offences, he agreed with the police statement of facts, and “continues to verbalise his regret for the offences, acknowledging that the victim would have been fearful. In conclusion, the PSR reported that:
[The offender] is a 27 year old man who was assessed by this Service as a low risk of general re-offending. He is well supported by his immediate and extended family, and his work ethic and continuous employment is an ongoing protective factor, as is his involvement in and contribution to his child’s life and development.
[The offender] has attended counselling and interventions targeted at addressing anger management, and is willing to undertake other treatment options as directed by this Service in the event he enters a community based sentence.
Conclusions of the Report
59. Corrective Services assessed the offender as suitable for a Community Service work condition and for an Intensive Correction Order. The offender has signed an undertaking to comply with all the obligations of an ICO. The offender was assessed as a low risk of general re-offending.
60. Corrective Services recommended the following factors associated with the offending be targeted if an ICO is made:
a. The offender continue engaging with psychological services to manage mental health;
b. The offender complete offence specific intervention through Corrective Services (DAP) if assessed as suitable.
61. Counsel for the prosecution submitted that “despite the ICO assessment coming back as favourable and [the offender] being a suitable candidate for an ICO, the Director’s position remains that the only appropriate sentence is an immediate custodial sentence.”
62. Counsel for the offender submitted that “an intensive corrections order is a sentence of imprisonment and it has been determined that it is a punitive sentence” that “does still [s]end a very strong message … not only for a specific deterrence but also general deterrence.” It was also submitted that “noting the rehabilitation and stability, then in all of those circumstances an intensive corrections order is an appropriate sentence”.
Cases
63. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
64. I was referred to the following cases by the prosecution.
Unlawful confinement
65. R v Klickovic [2018] ACTSC 141: The offender confined his partner because she was an ice addict and he believed she had been prostituting herself. He was motivated by a desire to protect their unborn child from the victim’s drug use. The offender was a person of good character and had good prospects for rehabilitation. The offender was sentenced to 18 months imprisonment reduced from 20 months, and suspended after he served 20 days imprisonment (his time spent in custody whilst refused bail).
66. The prosecution submitted that the offending in the matter before me is significantly more objectively serious. Mr Klickovic had uniquely compelling subjective circumstances and although Mr Klickovic used force to effect the confinement, the prosecution submitted that the victim was not subject to anywhere near the level of violence or degrading conduct as in the matter before me. Particularly, there was no gratuitous cruelty or violence.
67. R v Williams [2016] ACTSC 389: The offender and victim had been married for 28 years before their relationship broke down. A dispute arose over the distribution of property. The offender drove the car they were in into a lake to the point where the front wheels were submerged on two occasions, then threatened to kill the victim’s therapy dog if she left. The sentencing judge found that the confinement was for a relatively short duration. The victim did not claim that she experienced any level of terror. The offender was not violent and no injuries were occasioned. The offender’s criminal history primarily related to traffic matters. He was sentenced to 12 months imprisonment, which was suspended.
68. The prosecution submitted that the offending in the instant matter is of considerably greater objective seriousness given that it involved significant violence and the infliction of significant injuries and terror.
69. R v Eimerl [2015] ACTSC 72: The offender told his mother to stand in one place in her house for approximately 1.5 hours. He acted in an aggressive manner and at one point the victim feared that the offender might kill her. The offender did not assault her or inflict any injuries. The offender had a long criminal history, including convictions for offences of violence, and was on parole at the time of the offending. He was sentenced to 2 years and 1 month imprisonment, reduced from 2 years and 9 months for the plea of guilty.
70. The prosecution submitted that the offending in the matter before me is of considerably greater objective seriousness given that it involved significant violence and the infliction of injuries. They also submitted that this offender has more compelling subjective circumstances.
71. R v East [2015] ACTSC 54: The offender had been in an ‘on again, off again’ sexual relationship with the victim. Whilst at her house, they had an argument and the victim told him to be out of the premises by the time she returned. He prevented her from leaving the house and at one point grabbed her by the throat, preventing her from breathing. The confinement lasted 5 hours. The offender had one common assault and one count of making threats to kill on his criminal history. He was on parole at the time of the offending. He was sentenced on separate charges for the acts of violence committed during the forcibly confinement. As such, the sentence for the forcible confinement only reflected the loss of liberty. The offender was sentenced to 17 months imprisonment, reduced from 20 months for the plea of guilty.
72. The prosecution submitted that the offending in the matter before me is of considerably greater objective seriousness given that, unlike in East, it encompasses the acts of violence and the injuries occasioned.
73. Twerd v Holmes [2010] ACTSC 55: The offender in this matter forced his ex-girlfriend into a taxi and confined her whilst she was driven to someone else’s house against her will. She was not allowed to use her mobile phone during the journey. The confinement lasted for approximately two hours. He had a long criminal history. He was sentenced to 20 months imprisonment, with a non-parole period of 15 months.
74. The prosecution submitted that the offending in the matter before me is of considerably greater objective seriousness given that it involved significant violence and the infliction of significant injuries.
Choke, suffocate or strangle
75. R v Dillon [2018] ACTSC 164: The offender was dealt with on a ‘rolled-up’ charge of choking. On two occasions he filled a bath tub and make his young son kneel next to it. He would then push his head underwater so he couldn’t breathe. The victim was scared for his life and would kick and struggle to come up. The offender had a limited criminal history. He was sentenced to 2 years and 11 months imprisonment for his offending.
76. The prosecution submitted that the facts in Dillon are difficult to compare with those in the matter before me. The offending in Dillon was objectively very serious given the victim was a young child who was particularly vulnerable, and the offending involved a gross breach of trust between father and son.
77. R v Van Duren [2017] ACTSC 132: The offender choked an RSPCA inspector whilst she attended his house to seize a dog. He strangled the victim during a struggle with her and police, to the point that she almost lost consciousness. He only released his grip on the victim in response to multiple baton strikes delivered by officers. He was a war veteran who was suffering from acute mental health issues relating to his service. He was sentenced to 2 years imprisonment, reduced from 2 years and 6 months for the plea of guilty. He served 46 days in custody, the balance being suspended.
78. The prosecution submitted that whilst the offending in Van Duren was objectively very serious, the seriousness of the offending in the matter before me is of greater objective seriousness. Unlike in Van Duren, the offending encompasses three discrete instances, it was accompanied by gratuitous threats to kill the victim and her family, and police officers were not readily available to come to the victim’s aid.
79. I was also referred to a table of cases by the prosecution: R v Avery [2018] ACTCA 57; R v Ndlovu [2017] ACTSC 244; R v Barlow [2017] ACTSC 90; R v Pearce [2016] ACTSC 393; R v Le Clair, R v Yeboah [2016] ACTSC 126; R v Naqvi [2016] ACTSC 345; R v Thompson [2016] ACTSC 164; R v Smith [2016] ACTCA 317; R v Britt [2015] ACTSC 402; R v Catanzariti [2014] ACTSC 333; Singh v The Queen [2017] ACTCA 17; Singh v The Queen [2015] ACTCA 65; R v Dalton, R v Fleet [2014] ACTSC 204; R v Sharon Ann Stott [2011] (Unreported, ACTSC, Penfold J); R v Ngata, R v Massey [2011] (Unreported, ACTSC, Burns J); R v Walters [2012] (SCC 201 of 2012).
Statutory and other Considerations
80. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
81. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, rehabilitation, denunciation, and recognition of harm to the victim are important sentencing considerations.
82. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO or wholly suspended. It is submitted that the ICO is appropriate given the importance of continuing rehabilitation for the offender (considering R v Carmody (No 3) at [8]).
83. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
84. When 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: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic).
85. The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
86. In R v Edigarov [2001] NSWCCA 436, the Court stated the following at [41]:
…violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. 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.
87. In R v HC [2018] ACTSC 49, Elkaim J stated the following at [3] in relation to domestic violence offences:
These types of offences are appalling. Actions of violence against a partner or family member must be condemned. Any person who commits these offences should expect to be sentenced to a period of full-time custody.
88. The choking offence is a serious offence. I note the research referred to in the Explanatory Statement to the Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 (ACT), which underpins this new offence, namely that non-fatal strangulation by a partner is one of the most important predictive risk factors for intimate partner homicide.
Counsel’s Submissions on Sentencing
89. The prosecution submitted that a significant degree of accumulation between each charge and the discrete and independent offences should be recognised (O’Brien v R [2015] ACTCA 47), in order to reflect the proper degree of criminality and acknowledge the harm to the victim (R v Tonari [2014] NSWCCA 232).
90. The prosecution submitted that a community based sentence of imprisonment would in inadequate and inappropriate in the circumstances, particularly given the objective seriousness and the domestic violence context. To impose such a sentence would be to “demonstrably fail to adequately give effect to the sentencing purposes of deterrence, denunciation” and recognising the harm occasioned to the victim. It was also put that “an ICO wouldn’t appropriately deter in general terms other prospective family violence.”
91. The prosecution submitted the Court would be falling to error if the consideration of rehabilitation was allowed to outweigh all other sentencing considerations.
92. Counsel for the offender submitted that:
“the order that section 7 sentencing considerations are listed plays absolutely no part in any order of preference or order of importance. All of them are important and … based upon the subjective factors of [the offender], rehabilitation and his ability still to provide to the community through his employment and his engagement with his son are very important factors for your Honour to consider.”
93. The offender submitted that given the choking and assault were closely related in time there should be a level of concurrency.
94. Counsel for the offender submitted that, in respect of the considerations contained in s 11(3) of the Sentencing Act, while it was accepted that there was a level of harm caused to the victim but that the offender is remorseful for that harm, that there was “no evidence to support that the community needs to be protected from [the offender]” and that he has accepted he was culpable for the offences but has gained insight and expressed a desire to make a positive change.
95. Counsel for the prosecution submitted that s 11(3) is not a balancing exercise regarding intensive correction orders, rather that it sets the threshold for imposing ICOs. Counsel submitted I must be satisfied that it is appropriate to order an ICO having regard to the three criteria. It was further submitted I could not be satisfied the ICO was suitable in this case. Counsel for the prosecution accepted that the offender had demonstrated remorse.
Treatment and rehabilitation
96. Counsel for the offender submitted that I take into account s 33(1)(t) of the Crimes (Sentencing) Act whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence. Pursuant to s 33(1)(t)) I was referred to the offender’s self-referral to EveryMan for both counselling and a further anger management program.
97. Rehabilitation is also an important consideration having regard to rehabilitation efforts that have been undertaken by the offender.
98. Counsel for the prosecution submitted that “the principles of rehabilitation in this case are overshadowed by the need to impose a sentence that demands accountability and acknowledges denunciation.”
99. Counsel for the offender submitted that the offender “has gone through” the rehabilitation steps undertaken so far “of his own volition”. It was also submitted that the offender continues to engage with EveryMan to assist himself and the organisation on a “regular basis”, that he is “gainfully employed” and “very proud of his employment”. It was also submitted that “is the most durable guarantor of community protection and it is in the public interest, and also [the offender]’s”.
Sentence
It must be recognised by the Court that the offences committed against the victim have had a serious and significant impact upon her. Both the short and long-term consequences of being the victim of these offences must be acknowledged. It must be recognized that no sentence that the court imposes can now rectify the consequences of what has occurred to the victim in the commission of the offences by the offender. This sort of violence against women must be deterred and must be punished. General deterrence and specific deterrence are both important in this case.
Both the prosecution and counsel for the offender accept that the offender must receive a sentence of imprisonment. The issue is the length of sentence, whether it is essential that it be served by way of full-time imprisonment or whether it can be served by way of ICO.
The prosecution submitted that a period of fulltime imprisonment is called for and that general deterrence is a leading consideration. The offender’s pleas of guilty, his remorse, his suitability for an ICO, the intensive counselling he has undertaken, and his consequent significant prospects for rehabilitation, point in a direction other than a term of imprisonment served by way of fulltime custody.
In Veen v R (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions. The following paragraph is often quoted because it so eloquently summarises the nature of the sentencing discretion:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
Also referred to in the context of the nature of the sentencing discretion is the following statement by Mahoney ACJ in R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996) (Lattouf) emphasising individual justice in every case:
There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it … But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case.
Sentencing must always deliver individualised justice. An approach that would dictate gaol to be served by way of fulltime custody in every case of family violence is anathema to individualised justice. There will be exceptions to the necessity for fulltime custody where individual justice demands it. The offender was in custody for these matters, bail refused, in 2017 for 13 days. A return to full-time custody for the offender after 2 years is not mandated in this case to ensure the protection of the community.
General deterrence is important in this case, as for all cases of family violence. As stated by Murrell CJ in R v Hill [2016] ACTSC 310 where a person has good prospects of rehabilitation, the court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm to the community and protection of the community.
Section 11(3) of the Sentencing Act requires that where imprisonment is for more than 2 years, but not more than 4 years, regard is to be had to the level of harm to the victim and the community caused by the offence, whether the offender poses a risk to people in the community and the offender’s culpability in all the circumstances. I have had regard to these matters in detail, as set out above.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, subjective matters, and ongoing rehabilitation.
In my view the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be “a significant punishment, coming second only to a term of full-time imprisonment” (R v Srna [2018] ACTSC 337 at [13]). Its content will require strict adherence and if this is not followed could result in a period of full-time custody.
The appropriate sentence for the offence of forcible confinement is 2 years reduced to 1 year and 8 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of choking is 3 years, reduced to 2 years and 6 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of common assault is 6 months, reduced to 5 months on account of the discount for the plea of guilty.
Overall there will be a sentence of 4 years, taking into account appropriate periods of accumulation and concurrency.
Order
I make the following orders:
(a)I record convictions for the three offences;
(b)In respect of the offence of unlawful confinement (CC2017/5354) the offender is sentenced to a term of 1 year and 8 months of imprisonment, commencing on 10 May 2019 and ending on 9 January 2021.
(c)In respect of the offence of choking (CC2017/3448) the offender is sentenced to a term of 2 years and 6 months of imprisonment, commencing on 10 September 2020 and ending on 9 March 2023.
(d)In respect of the offence of common assault (CC2017/3449) the offender is sentenced to a term of 5 months of imprisonment, commencing on 10 December 2022 and ending on 9 May 2023.
(e)The sentence is to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT). I impose the core conditions. I impose the following additional conditions:
(i)That the offender perform 400 hours of community service within 4 years;
(ii)That the offender continue engaging with psychological services to manage his mental health, as directed by the Director-General; and
(iii)That the offender be assessed for and complete offence specific intervention through Corrective Services (DAP), as directed by the Director-General.
| I certify that the preceding one hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for her Honour Justice Loukas-Karlsson. Associate: Date: 24 May 2019 |
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