R v FDP

[2007] NSWDC 319

CITATION:	R v FDP [2007] NSWDC 319
HEARING DATE(S):	20-27 August 2007- Trial
JUDGMENT DATE:	9 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Sentenced to imprisonment. On each offence in Counts 2, 3 and 4 of take control of child without consent there will be a non-parole period of two years to commence on 1 June 2007 and expire on 31 May 2009 and a total term of three years and three months to expire on 31 August 2010. Each sentence will be concurrent. On the offence of malicious wounding - statutory alternative to Count 1 - there will be a non-parole period of three years to commence on 1 December 2008 and expire on 30 November 2011 and a total term of five years to expire on 30 November 2013. I find special circumstances. First date offender will be eligible for release to parole is 30 November 2011. Recommend conditions of parole: not to approach or attempt to contact NDP ; not to have unsupervised contact with his children. On related s 166 charge of contravene AVO sentenced to twelve months fixed term of imprisonment to commence 1 June 2007 and to expire 31 May 2008.
CATCHWORDS:	CRIMINAL LAW - Sentencing - Domestic violence offences - Malicious wounding - Abduction of children
LEGISLATION CITED:	Crimes Act 1900 (NSW) Family Law Act 1975 (Cth)
CASES CITED:	R v Hamid [2006] NSWCCA 302
PARTIES:	Crown FDP (Offender)
FILE NUMBER(S):	07/11/0126
COUNSEL:	Mr P Lynch (Crown) Mr G Drake (Offender)
SOLICITORS:	NSW DPP William O'Brien

SENTENCE

The name of the offender and any matter which identifies the child victims is not to be published.

1 HIS HONOUR: FDP was convicted by a jury on 27 August this year on a charge of maliciously wounding his wife NDP. He was charged with malicious wounding with intent to cause grievous bodily harm, but he was acquitted on that count and convicted on the statutory alternative charge.

2 Before the trial commenced he pleaded guilty to three charges of taking his children, contrary to s 87 of the Crimes Act. Those three offences consisted of taking three children at the same time and there are three offences only because there were three children involved.

3 Although the charges were preferred under s 87 at a fairly late stage, I am not satisfied that this was the first opportunity for the offender to plead guilty. However, the pleas of guilty meant that it was not necessary for the children to give evidence and there is a strong utilitarian value in that plea.

4 On the malicious wounding charge he was, of course, convicted on the return of the jury’s verdict, and he is now convicted of the three charges to which he pleaded guilty. Following the return of the jury, he was remanded in custody and he has been in custody since that time. He was also in custody for a period of two months and nineteen days following his arrest, and between the granting of bail, after that period, and the trial, he was on bail on strict conditions which restricted him to his father’s house, except when he was at work and having other legal and similar appointments, in order to prepare his case.

5 The circumstances of the offences followed a domestic dispute in which the wife, who is the victim in the malicious wounding charge, developed legitimate fears for her safety. She left the matrimonial home with her three children and went to a women’s refuge where she stayed for some time. She applied for an Apprehended Violence Order against the offender, to which he consented. It was a condition of that order that he should not have any contact with her or with the children, unless there was an independent person present, and the wife consented in writing.

6 NDP’s evidence was to the effect that it was a condition of her staying in the refuge that she should not disclose the location of that place to anybody, particularly her husband. By the time of these offences, there were no Family Law Act orders in place, although FDP gave evidence that he intended to seek orders at one stage.

7 NDP’s parents were involved in the matter. They appeared to be keen to effect a reconciliation and they arranged for one successful contact meeting, at which NDP was not present, but they were. The offender was able to meet his three children at a place in Lane Cove, and after that visit, another visit was arranged for a later time.

8 There was evidence that the offender was extremely fond of his children and felt very strong responsibilities for them. They were a major part of his life. There was no disagreement about that. Both the offender and his wife gave evidence to that effect, as did a number of other people who gave character evidence in the trial.

9 After the first contact visit with the children, the offender took time off work and went to Queensland for a holiday. While he was in Queensland, he had telephone contact with the victim’s father, and he learnt that the planned contact visit with the children had been postponed. This upset him considerably, and he returned to Sydney. When he returned to Sydney, he contacted the victim’s father in order to get him to arrange some telephone contact between NDP and himself as a matter of urgency. He said he was concerned at the cancellation of the contact visit, and he said that the purpose of the call to NDP’s father was to make arrangements for another contact visit. Within a very short time after he contacted NDP’s father, NDP telephoned him and they agreed to meet that afternoon so that he could see the children. NDP said that she had hoped that, with the passage of time, what she described as his controlling behaviour, would change, and reconciliation would be possible. I accept that.

10 The offender went home. The inference that I must draw, in view of the jury’s verdict, is that when he was at home he collected a Stanley knife. He then drove his car, via a service station, to the place where he had met the children on a previous contact visit. He then drove them to a park. NDP was present. She knew the park because she had been on outings to that area from the nearby refuge, and it was a suitable area for the children to play. They arrived there at about 4pm.

11 After the children had been playing for a short time, the offender put them into the back seat of his car. He then approached NDP and said that he wanted to speak to her. He took her down the slope of the park to an area surrounded by fairly dense bush. There, her evidence was that, and I find that the jury must have accepted this, and been satisfied of it beyond reasonable doubt, he grabbed her mobile phone from her back pocket. She attempted to get the phone back and he then punched her several times to the head with his fist, and bruised her. She fell to the ground, she looked up and saw that he had produced the knife, and he stabbed her about six times, causing one deep wound in her shoulder and causing her to bleed. She began to scream extremely loudly and managed to struggle. At that stage, the offender threw the knife away and it was subsequently found close by, after police arrived at the scene. He ran to his car and drove off with the children.

12 I must interpret the jury’s verdict of acquittal on the offence charged and conviction on the statutory alternative, that they must have accepted, in large part, NDP’s version of the events, but they were not satisfied beyond reasonable doubt that, when the offender went to the meeting, he intended to cause serious injury to her.

13 After she started screaming, neighbours arrived and attempted to talk to her. She was screaming hysterically, and those screams could be heard on recordings of telephone calls, made by bystanders to the emergency number.

14 By this time, the offender had driven away. His evidence was that he was not familiar with the Lane Cove area and he drove north along Centennial Avenue to its intersection with Epping Road. At that point, only a left turn was permitted. He turned left and found himself on the M2 freeway and subsequently on the M7 freeway. He said that he was in a desperate state of mind, but I am not convinced of this beyond reasonable doubt. He did not stop until he reached the service station at Sutton Forrest, where he was recorded on closed circuit television.

15 After making some purchases of petrol and things for the children, he drove to Canberra. He hoped to stay at a hotel in Queanbeyan, where the family had often spent holidays. He knew the owners of this hotel. He contacted them and was told that the hotel was full, but he managed to find accommodation at a motel in Canberra. He went there and stayed overnight with the children.

16 The next morning he said that the children switched on the television and he saw a picture of himself, as a person who was being sought by the police. He then contacted the ACT police and arranged to surrender, and, after extensive negotiation with the ACT police, he did that. He was later extradited to New South Wales, charged with these matters and, as I say, spent some time in custody.

17 I am satisfied beyond reasonable doubt that the abduction of the children was, to some extent, premeditated. I have also found that he brought the knife with him, although I am not satisfied beyond reasonable doubt, and I could not be, in view of the jury’s verdict, that he intended to use it.

18 The victim gave evidence that she had seen that weapon previously at the matrimonial home, which was, in fact, the house of the offender’s father, and she assumed that it belonged to the offender’s brother.

19 The victim’s evidence was that the offender was obsessively controlling and violent. He described himself as a traditional Italian man, and indeed that is borne out by some of the reports that have been tendered on sentence. He clearly did not approve of his wife’s desire to lead a relatively independent life, and this led to the initial friction and the obtaining of the Apprehended Violence Order. He clearly resented losing his children. He blamed his wife and he decided to take the law into his own hands.

20 There was evidence, as I have said, that before these offences he contacted a solicitor about family law proceedings to regain custody, and he received an estimate of the costs. Those were quite high, and at the time he was employed as a truck driver, and he was quite astounded by the costs.

21 In this country we have a complex system of family law, which is designed to protect the interests of both children and their parents. The offender decided to fly in the face of this system. I am not just talking about the Family Law Act, but I am also talking about the laws relating to domestic violence.

22 In this case, I am satisfied that the offender consented to an Apprehended Violence Order and he knew exactly what that involved. It is also clear that he blamed his wife for the break up of the family, and particularly for taking the children. He was angry and emotional, and there is evidence that he suffers now from depression, although it is not clear that he was suffering from depression at the time of these offences. The evidence before me on that is contained in the psychologist’s report from Mr Watson-Munro, and any evidence on that matter is hearsay.

23 He was certainly angry and emotional, and he said that he was emotional when he returned from Queensland. His evidence was that, during the course of the trip to Canberra, one of the children had mentioned that they had a new daddy. If the offender had known this before the events giving rise to the charges, his anger might have been even greater.

24 We have not only a system of criminal law and of family law, but the criminal law seeks to protect all citizens against gratuitous violence. In this case, the offender’s anger and misplaced sense of unfairness drove him to inflict potentially life-threatening violence against an entirely innocent victim, one who, in her naivety, was seeking reconciliation. All these offences are therefore very serious.

25 One of the matters which a court must consider in imposing a sentence is general deterrence. Parents whose marriages break up must be warned that they should not take the law into their own hands, that they should not attempt to punish, physically, spouses with whom they disagree, and that they must not make off with their children without going through the proper processes of the law. If they do, they must expect to be punished severely.

26 Personal deterrence is also important. I am not satisfied that FDP appreciates that what he did was wrong. I am not certain that he will not attempt to repeat these actions, and certainly both Mr Watson-Munro’s report and the report of the Probation Officer, suggest that he does not yet accept responsibility for his actions, and that he still blames his wife for what happened.

27 FDP is thirty-one years old. He appears to have had a strict Catholic upbringing. He left school after Year 10 and became qualified as a panel beater, although, at the time of these offences, he was, and had been, working as a truck driver, and his employer has indicated that he is prepared to employ him again.

28 Mr Watson-Munro says that he is now depressed, and I am satisfied that, certainly since these matters were brought before the courts, at least, he has been anxious and depressed. He is now under medication for depression, and there is no doubt, in my mind, that that is affecting him badly.

29 These matters are most unfortunate because, clearly, the break up of the family has had a very profound effect on FDP, leading him to unwise actions.

30 I am aware of the sad circumstances which give rise to this matter. In Hamid [2006] NSWCCA 302, Johnson J, with whom the other members of the Court agreed, reviewed a large number of cases governing the sentencing of offenders for assaults, of various sorts, in what he called domestic violence situations. Those situations do not take the facts of the crimes out of the ordinary run of events, and indeed, in some cases, where there is an Apprehended Violence Order, the offence is made more serious, because the offence itself is a breach of the apprehended violence order. In this case, the offender has admitted that he was in breach of the Apprehended Violence Order, and I will deal with him accordingly.

31 The offences fall into two groups. One is the abduction of the children and the other is the malicious wounding of the wife. They were committed fairly close to each other in time, but they are separate and, therefore, the sentences cannot be totally concurrent. There will be a partial accumulation of the sentences and that partial accumulation will accommodate the principle of totality, but it also accommodates the very serious nature, both of the child abduction and of the malicious wounding.

32 Before these offences, the offender has never been in custody. He was previously a person of good character. He is clearly very attached to his children and, as his counsel pointed out, it is unlikely that he will see them while he remains in gaol, because of the attitude of Corrective Services.

33 In my view, it would, in any event, be extremely unwise to allow him unsupervised contact with the children during his parole, or contact with his wife during the parole, and, because of the nature of the sentences that I propose, it will not be a matter for me to impose conditions on his parole, but rather for the Parole Board.

34 On each of the child abduction offences under s 87, there will be a non-parole period of two years and a total term of three years and three months. Those sentences will be concurrent. If the offender had not pleaded guilty, then the total term would have been four years, and that discount reflects the utilitarian value of his plea. Those sentences take into account his custody before trial and the restrictive bail conditions. They will commence on 1 June 2007. The non-parole period will expire on 31 May 2009 and the total term on 31 August 2010.

35 On the malicious wounding charge, the offender is sentenced to a non-parole period of three years and a total term of five years. That will commence on 1 December 2008. The non-parole period will expire on 30 November 2011 and the total term on 30 November 2013.

36 Those sentences reflect the fact that I have found special circumstances, particularly the hardship caused to the offender by his depression and the fact that he will not have contact with his children, or is unlikely to have contact with his children, which will make his time in custody more severe.

37 I recommend that conditions of parole be that he not have unsupervised contact with his children and that he not approach or attempt to contact NDP.

38 In relation to the breach of the Apprehended Violence Order, there will be a fixed term of twelve months imprisonment commencing on 1 June 2007 and expiring on 31 May 2008.

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