R v DD

[2017] ACTSC 109

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v DD

Citation:

[2017] ACTSC 109

Hearing Date:

5 May 2017

DecisionDate:

8 May 2017

Before:

Elkaim J

Decision:

See paragraph [31]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – assault occasioning actual bodily harm – stalking – attempting to contravene a protection order – contravening a protection order – domestic violence – criminal history

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33

Crimes (Sentence Administration) Act 2005 (ACT) s 108

Cases Cited:

R v Hamid [2006] NSWCCA 302; 164 A Crim R 179

R v Rappel [2017] ACTSC 38

Roncevic v Boxx [2015] ACTSC 53

Parties:

The Queen (Crown)

DD (Offender)

Representation:

Counsel

E Beljic (Crown)

J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Hill and Rummery (Offender)

File Number:

SCC 32 of 2017

ELKAIM J:

1. The offender has pleaded guilty to one count of assault occasioning actual bodily harm, one count of stalking, six counts of attempting to contravene a protection order and one count of contravening a protection order.

1. The maximum sentence for the assault is five years’ imprisonment. The maximum sentence for stalking is two years’ imprisonment. The maximum sentence for a breach of a protection order is a fine of $75,000 and/or imprisonment for five years.

1. The offender entered pleas to an amended indictment on 5 May 2017. The offender is entitled to a discount for the utilitarian value of his pleas of guilty.

1. The offences arise from a relationship between the offender and the victim, beginning in 2004. They commenced living together in about 2006. The offender moved out of the victim’s home in August 2016.  

1. The offences occurred both during the course of the relationship and after it had come to an end.

1. The offender and the victim are co-owners and directors of a business in Braddon.  

1. The assault charge arises from an incident on 22 December 2011. The offender, apparently in a jealous rage and suspecting the victim of having an affair, grabbed the victim by the wrists and pushed her onto the bed. He shoved a mobile phone into her mouth, pinning her down onto the bed, and pushed her face. The victim found it difficult to breathe.

1. A more detailed description of the attack is contained in the statement of facts. I note that the victim consulted a doctor later that day. His records indicate the presence of bruising and scratches. The doctor recorded a history consistent with the allegations. The victim felt pain and discomfort in her nose and cheek bones for about 10 days after the incident.

1. The stalking offence occurred during August and September 2016. The details are, once again, contained in the statement of facts. In short, the offender used a mobile phone tracking device to monitor the activities of the victim.

1. On 30 August 2016, the victim was granted an Interim Domestic Violence Order by a Magistrate. The six charges of attempting to contravene a protection order are set out in the statement of facts. These charges involve the offender attempting, through various means, to contact the victim. The attempts included the use of coded messaging. The contravention of a protection order, Count 9, involved the offender using an intermediary to pass matters on to the victim.

1. The assault charge, the stalking charge and the attempts to contravene a protection order all fall within the broad description of domestic violence. This area of misconduct carries with it the condemnation of society. It infects the very nature of one of society’s most treasured assets: The capacity of people to live in a harmonious and safe relationship. These sentiments were well expressed by Burns J in R v Rappel [2017] ACTSC 38 at paragraph [131]:

The clear legislative purpose behind the Domestic Violence and Protection Orders Act 2008 (ACT) is the protection of members of the community from domestic violence. It is a truism that it is mostly women who require such protection. The Domestic Violence and Protection Orders Act 2008 (ACT) provides a mechanism whereby those who claim to have been the subject of domestic violence may seek the protection of the community, including protection while any dispute about the application of the Act is resolved. By invoking the protection of the Act, and obtaining an interim order, the deceased was entitled to the protection of the law. For many years now, the courts of this country have spoken of the need to protect members of the community, and particularly women, from domestic violence, and the need for courts to take seriously offences of domestic violence. If these statements are to have meaning, if the protection offered by the Act is to have significance, it is incumbent on courts to recognise the heinousness of offences of violence committed in retribution for a member of the community invoking the protection provided by the Act.

1. The victim read a Victim Impact Statement in court. Its contents gave voice to the need for the legislation. In it, the victim describes the effects of the offences on her. These effects permeate her daily life and will be likely to do so for some time. She said that she feels compelled to leave Canberra, where she has lived for 30 years, and where her son and his family still reside. Corroboration of the effect on the victim is to be found in the Victim Impact Statement of the victim’s daughter-in-law.

1. I generally agree with the Crown’s assessment of the objective seriousness of each offence. I do not, in fact, think that there was much difference between the Crown’s assessment and the assessment put on behalf of the offender. In my view, all of the charges are of low to medium objective seriousness.

1. The offender has been in custody in respect of these offences since 16 September 2016; that is, for 232 days. This custody must be taken into account in sentencing him.

1. The offender was born in 1949 and is now 67 years of age. He has lived a productive and active life, being involved in motorsport, aircraft racing and successful business ventures. It is most unfortunate that he has allowed criminal conduct to mar an otherwise successful life.

1. The offender has previous convictions, some of which relate to domestic violence. He plainly has a difficulty with anger management. I am also concerned by the contents of the pre-sentence report, as captured by this passage:

Despite acknowledging he had pled guilty, [the offender] disagreed with the Statement of Facts. He minimised his offending behaviours and failed to demonstrate any victim empathy. Instead, the offender referred to the victim in derogatory terms on numerous occasions and blamed her for a number of his actions.

1. The report also noted that the offender was exposed to violence in his own home from a young age and suffered abuse at the hands of his father. This type of history must always be taken into account in mitigation, but never provides an excuse for later abusive actions by an offender.

1. The offender gave oral evidence. He expressed remorse. He lamented the effects on his life, his family and friends. He did not seem to express any sympathy for the victim. He was later asked about his attitude to the victim. Any expression of sorrow for what has happened to the victim was entirely unconvincing. This was aggravated by his later comments about her dealing with an amount of money being the cause of his predicament and his allegation of unfaithful conduct on her part. This allocation of blame is consistent with the views expressed in Dr Clout’s report:

Given his reasonably stable sense of self-worth, responsibility for any setbacks is more likely to be attributed externally than to personal feelings.

1. Later in her report, the doctor continued:

[The offender’s] interpersonal style seems best categorised as involving very strong needs for affiliation and attention. This may result in rather extreme behaviour on his part, such as controlling and interfering with others’ social interactions to meet his own needs. His behaviour may be seen by others as being attention-seeking and dramatic.

1. A less technical description of the offender may be that of an overbearing bully.

1. Also important is the diagnosis of attention deficit hyperactivity disorder and  bipolar disorder. The offender has apparently been prescribed antidepressant medication but seems reluctant to continue to use it. This is unfortunate because it might assist in limiting the extremes of his behaviour.

1. The identified disorders must be taken into account. However, the opinion of Dr Clout does not suggest that the offender’s actions were caused by these disorders, although they may have been influenced by them. In other words, the disorders are relevant to mitigation but they do not excuse the offender’s actions.

1. I note here that Dr Clout was cross-examined on her report. The cross-examination called into question the part played by the offender’s diagnosed disorders, to the extent that it was suggested that he had acted impulsively. In my view, the facts of the stalking and attempt to contravene a protection order charges suggest otherwise.

1. I have read the four references provided by friends and associates of the offender. They all describe a person unlikely to have committed offences of the nature of those before the Court. The offender, as I have already said, is capable of a very productive life. Unfortunately, this productivity has been frequently influenced by the traits identified by Dr Clout. The references in the report also raise the personal stress that the offender suffered arising from the death of his mother. This occurred in 2016 so cannot be said to ameliorate the events in 2011.

1. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10, which tells the Court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

1. In this case, the offender has already spent a considerable period in prison so that a sentence of imprisonment is inevitable, the important issue being the extent of any punishment continuing from today. I note that I would have, in any event, considered imprisonment as the only appropriate sentencing option.

1. It is also necessary to have regard to s 33(1) (za) of the Crimes (Sentencing) Act. Some of the cases I have considered include R v Hamid [2006] NSWCCA 302;
   164 A Crim R 179 and Roncevic v Boxx [2015] ACTSC 53. As often occurs, it is difficult to identify other cases with closely similar facts.

1. The offender submitted that there was a degree of extra-curial punishment in the offender remaining in prison, as it is likely to lead to the deterioration of his business. The offender has run a business for many years.

1. I do not think this is an extra-curial punishment. Any person imprisoned will always suffer an interference with their personal and financial existence. The business is, however, important to this case because the victim is a partner in the business and any effect on the business will also be felt by her. It is for this reason that I intend to suspend the sentence of imprisonment that I am going to impose after a month.

1. In sentencing the offender, I have allowed a discount of approximately 20% for the pleas of guilty.

1. I make the following orders:

(a)For the offence of assault occasioning actual bodily harm the offender is sentenced to a term of imprisonment of 12 months to commence on 16 September 2016 and end on 15 September 2017.

(b)For the offence of stalking the offender is sentenced to a term of imprisonment of three months to commence on 15 August 2017 and end on 14 November 2017.

(c)For each of the offences of attempting to contravene a protection order the offender is sentenced to a term of imprisonment of one month.

(d)The sentences for attempting to contravene a protection order are to be served concurrently and to commence on 14 November 2017 and end on 13 December 2017.  

(e)For the offence of contravening a protection order the offender is sentenced to a term of imprisonment of one month to be served concurrently with the sentences for the attempts to contravene a protection order.

(f)The head sentence is to expire on 13 December 2017. The sentence is suspended with effect from 7 June 2017, on condition that the offender be of good behaviour for a period of twelve months, during which time he is to obey all reasonable directions of the Director-General generally and specifically as to participation in anger management therapy.

(g)In respect of the breach of the 2010 good behaviour order, I take no action pursuant to s 108 of the Crimes (Sentence Administration) Act 2005 (ACT).

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim

Associate:

Date: 8 May 2017