R v Cross
[1999] VSC 173
•27 April 1999
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION
Not Restricted
No. 1409 of 1999
THE QUEEN
v.
DONALD JAMES CROSS
---
JUDGE: HARPER, J. WHERE HELD: MELBOURNE DATE OF SENTENCE: 27 APRIL 1999 MEDIA NEUTRAL CITATION:
[1999] VSC 173
---
CATCHWORDS: Sentencing - Intentionally causing serious injury.
---
APPEARANCES: Counsel For the Crown Mr. W. Morgan-Payler Q.C. For the Accused Mr. S. Lindner
HIS HONOUR:
Donald James Cross, you have pleaded guilty to a charge that on 1 June 1998 you did without lawful excuse intentionally cause serious injury to Katherine Linda Bond. You are 43 years old. You have a daughter, Louise Vicki Cross, who was born in January 1991. Her mother,, Katherine Bond, was the victim of your assault.
Your counsel has submitted that your relationship with Ms Bond, with whom you lived as de facto husband and wife for about 14 years before early 1997, was affected in part by your perception that Louise was not being cared for by her mother as well as you thought she should have been cared for. There is a suggestion put forward by you that Ms Bond is involved with illicit drugs.
You have also suggested that about three years ago another child of Ms Bond's, your step daughter, Kelly Lee Bond, followed her mother into that scene. Kelly is now approaching her 20th birthday, having been born on 25 July 1979. Some time after what you took to be evidence of Kelly's entry into the drug culture, proceedings were instituted in the Family Court. You sought custody of Louise. You were unrepresented and so appeared for yourself. The application, which was heard in about September 1996, failed.
I, of course, have no means of knowing whether your application for custody was soundly based. In any event, the Family Court has spoken on that issue, at least for the present. The episode is relevant only because it demonstrates the depth of mistrust and antipathy that then existed between you and Ms Bond. It seems that the period between September 1996 and June 1998 did not result in any lessening of the ill feeling; quite the contrary.
Given what happened in December 1996, this is not surprising. Taking the law into your own hands is seldom a smart long-term strategy. When the lives of young children are involved, it can be even harder to justify. This is so even if you have a basis for thinking that what you are setting out to do will be in the child's best long- term interests. At the very least, defying a court order, as you did, and removing Louise from the physical care of her mother may have a long term psychological effect on the child whom you profess to love, and for whom I am prepared to accept you have a father's genuine affection.
I make this point, although I have not taken into account for sentencing purposes the episode in which on 27 December 1996 you took Louise away from her mother for about 10 weeks. Your action in so doing is not relevant to my task of fixing the sentence for the offence to which you have pleaded guilty. It is relevant, but only in that it illustrates, (a), your attitude towards Louise's mother; (b), your feelings as a father towards Louise; and (c), your unwillingness on occasion to accept that you must not take action in defiance of the law no matter what your personal view of the law may be. Quite apart from the fact that in the end people must obey the law if society is to survive, a real danger in doing the kind of thing you did in December 1996 is that Louise will become a mere instrument in a battle between her parents. This cannot fail to do her harm, however much she might otherwise be better off in your custody than in her mother's. But it is not for me to make any judgment about that. I repeat, for the purposes of determining your present sentence, I do not take that incident into account.
What I do take into account are the matters which under the Sentencing Act I am bound to take into account. First among them is the maximum sentence for this offence, which is 20 years. Not surprisingly, parliament has indicated, in fixing such a high maximum term, that it regards the intentional and unlawful infliction of serious injury as a crime which no civilised community should tolerate.
There are some aggravating and some mitigating circumstances surrounding your attack upon Ms Bond on 1 June last year. First, you have been the subject of accusations concerning your conduct towards Kelly and Louise. None of these accusations have been made out, although they have been put to the police and investigated by the police. I am prepared to accept for the purposes of this sentence that they are false. Nothing could be more harmful and more hurtful or distressing to a father who loved his daughters than a false accusation that he had molested them. As you said to the police, "It is horrific when you get your own children to say things like that."
On the other hand, as you also said to the police, "None of us are God". None of us have the right to unilaterally declare guilt or innocence, let alone mete out any punishment which happens to come into our minds, whether in a moment of anger or after a period of cold calculation. Above all things, punishment must be governed strictly by the law.
As well as accepting for the purposes of this sentence that you were unjustly accused of molesting your daughter and stepdaughter, I am also prepared to accept another circumstance as being in your favour for sentencing purposes. I accept that you have, at least from time to time, had good reason to be dissatisfied with the way Ms Bond has brought up both Kelly and Louise. It seems that on one occasion, for example, Ms Bond was fined $500 on seven counts of neglect of Louise. On another occasion you were telephoned by Louise who had been left alone late at night. Although your subsequent action in going to Louise resulted in your breaching an intervention order, and this is not to be condoned, the incident was such as to do nothing to allay your concern about the manner in which Louise was being brought up.
It has been submitted on your behalf that you visited the house in Drouin Road, Poowong, on 1 June last year because you wanted to discuss with Ms Bond a number of matters of importance to you. I am satisfied, however, that physical confrontation was more on your mind than reasoned debate. You armed yourself with a tomahawk and a knife on illegally gaining entry into the house. You then waited for Ms Bond to return. You spent some time in Louise's room before moving into Ms Bond's bedroom where you were when she re-entered the house. Whatever defensive motives may have been in your mind when you took possession of the two weapons - there is a claim that you thought Ms Bond might return with Paul Derrick and that he might have a gun - it was plain that Ms Bond had in fact returned alone. You made no attempt to engage in a conversation with her. Although each of you may have spoken before the blow was struck, you made no attempt to talk to Ms Bond before you struck what can only be described as a savage blow. You admit that you used the tomahawk for this purpose. You say, and of course I accept, that your intention was to do no more than is encompassed in your plea of guilty. Whether you aimed at Ms Bond's mouth or upper head is scarcely relevant. You hit her with the blunt end of a tomahawk blade, which is the end you intended to use, in a blow which may have caused permanent injury or death. As it was, she required seven stitches and claims to be suffering continuing psychological problems as a result. She also suffered another cut to the head and bruising to the shoulders as she fell.
Your behaviour after you struck the blow was, however, entirely appropriate to the circumstances which you had by your own actions brought about. You immediately desisted from further attack. You assisted Ms Bond by providing her with a pillow and a cloth with which to stem the flow of blood. You called an ambulance. When the police arrived you co-operated with them and made full admissions. You pleaded guilty at the first available opportunity. I have taken into account the circumstances of the assault, the events which lay behind it and your subsequent conduct, including your plea.
Although I am in no position to form a concluded view of your character, it may be that I have a more favourable view of you than you have of yourself. From what I can tell, you should look upon yourself as a person of worth, capable of being a good father to Louise, although ashamed of some aspects of your past. In that respect, nothing can excuse an assault such as that you committed last June. You have, I think, come to the same conclusion. It is intolerable that anyone be attacked as you attacked Ms Bond. It is especially blameworthy when that attack is by an armed man upon an unarmed woman in her home. A sentence of imprisonment is inevitable.
In my opinion an appropriate sentence is two and a half years. One year of this sentence must be served before you become eligible for parole. The sentence is to commence today. So you will serve the balance of your Commonwealth sentence concurrently with the sentence which I have just pronounced.
I declare that the period of pre-sentence detention, being 12 days, be reckoned as having been served under this sentence. Direct that this declaration and its details be entered in the records of the Court.
___
0
0
0