R v Hanson
[2018] ACTSC 181
•19 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hanson |
Citation: | [2018] ACTSC 181 |
Hearing Date: | 18 June 2018 |
DecisionDate: | 19 June 2018 |
Before: | Mossop J |
Decision: | See [49] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – assault occasioning actual bodily harm – forcible confinement – history of illicit drug use – dysfunctional upbringing – significant criminal history – plea of guilty to charge of assault occasioning actual bodily harm – found guilty by jury of forcible confinement – sentencing purposes – consideration of rehabilitation – custodial sentence |
Legislation Cited: | Crimes Act 1990 (ACT), ss 24, 34 Crimes (Sentencing) Act 2005 (ACT) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR Cheung v The Queen [2001] HCA 67; 209 CLR 1 Singh v The Queen [2017] ACTCA 17 |
Parties: | The Queen (Crown) Nathan Hanson (Offender) |
Representation: | Counsel M Fernandez (Crown) D Berents (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Elringtons Lawyers (Offender) | |
File Numbers: | SCC 291 of 2017 SCC 292 of 2017 |
MOSSOP J:
Introduction
The offender pleaded guilty to one count of assault occasioning actual bodily harm. The facts in relation to that offence were in dispute. He was also found guilty by a jury of unlawful confinement of Lawrence Forshaw.
The maximum penalty for forcible confinement contrary to s 34 of the Crimes Act 1990 (ACT) is 10 years imprisonment. The maximum penalty for assault occasioning actual bodily harm contrary to s 24 of the Crimes Act is imprisonment for five years.
Facts
The facts that I find are based upon the evidence given in the trial. Those facts must be consistent with the verdict of not guilty returned by the jury in relation to the charges against Josephine Timbrell which were joint commission assault occasioning actual bodily harm and joint commission forcible confinement: see Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [14].
There remains much unexplained about the context in which the offences occurred. There are strong indications of the association of Mr Hanson, Ms Timbrell and Mr Forshaw with unlawful drug use or sale activities but nothing sufficient to permit the making of findings of fact beyond reasonable doubt. The matters indicative of drug use or sale are the otherwise unexplained comings and goings in the early hours of the morning from Ms Timbrell’s house; the presence of a detailed closed-circuit television (CCTV) system at Ms Timbrell’s house which not only recorded comings and goings from the house but was also displayed on the television in the living room; the presence at times during the night of a member of the Rebels Motorcycle Gang; the fact that at the time the victim, Mr Forshaw, was a heroin user and a member or former member of an outlaw motorcycle gang; the chaotic state of the house; and references in the evidence to the sale of drugs to Mr Hanson and Ms Timbrell.
On 26 April 2017, the victim was staying at Ms Timbrell’s house after a dispute with his parents. At about 11:30pm that evening, the victim and the offender left the house together and returned at about 12:15am, bringing takeaway food items. The offender was absent from the house between 3:10am and 4:33am on 27 April 2017. Ms Timbrell was absent from the house from 3:58am until 4:43am.
The offender admitted that he assaulted the victim causing him actual bodily harm. The evidence as to the injuries suffered by the victim was uncontroversial, except in relation to the possibility that some of the injuries had been incurred not during the assault but as a result of the tying up of the victim which amounted to the unlawful confinement. Dr Graeme Thomson identified the victim as suffering from:
(i)a bruise on the white area of his left eye;
(ii)bruising and swelling around the left eye (constituting a black eye);
(iii)bruising and abrasions above the left eyebrow;
(iv)scratch abrasions on the centre of his forehead above his nose;
(v)a purple bruise on the bridge of his nose;
(vi)abrasions on the right side of his nose;
(vii)abrasions on the centre of the front of the his upper chest;
(viii)speckled bruising in front of his elbow;
(ix)abrasions and bruising on his left hand near the base of his forefinger;
(x)irregular shaped areas of abrasions and blue and purple bruising on the front upper right arm near his shoulder;
(xi)parallel lines of bruising and abrasions on his upper right forearm;
(xii)three pinhead size abrasions on the tip of his right shoulder;
(xiii)bruising and abrasions over an area of 7cm x 5cm on the back of his right hand;
(xiv)red linear bruising and abrasions over an area of 15cm x 5cm on his right wrist;
(xv)on the outer side of his right lower leg, multiple lines of abrasion and redness approximate 10cm in length;
(xvi)redness on the middle of his left shin; and
(xvii)on his left shoulder, linear scratch abrasions with the lines of abrasion along the vertical axis.
There was also evidence of a facial fracture which did not require any surgery or treatment.
Items xiv and xv in the list above are consistent with being injuries resulting from cable ties.
Counsel for the offender submitted that the Crown had not established beyond reasonable doubt that the assault involved the use of weapons (as opposed to fists) or that it occurred other than during a confined period involving a fight.
The victim’s evidence clearly involved some difficulties. Whilst he gave evidence that he had been struck with a baseball bat, no baseball bat was found at the house. He did not accept that he was struck with a cricket stump which was found at the scene. He accepted that he was a heroin user at the time. He could not recall whether he had taken heroin prior to going to sleep before being assaulted. His description of the assault over a number of hours did not adequately describe how that time was spent, there being on his own evidence considerable periods where he was not being struck. He did say that there were intervals between being struck of between five and 40 minutes, but the evidence didn’t extend to what was going on during those periods and why he remained subdued during these periods. His evidence did not describe why he remained in the premises during those periods, most notably 3:58am until 4:33am when he was alone in the house. I am not satisfied beyond reasonable doubt that the assault took place over as long a period as from 2am until the victim made a call for an ambulance at about 6am.
However, following his escape from the house shortly after 10am on 27 April 2017, he made complaints to those who provided assistance to him which are consistent with him having been assaulted with more than just fists. He made a complaint to Senior Constable Melissa Bedford, Constable Simon Tankey and Senior Constable John Zaganelli that after going to sleep he was hit in the face with a baseball bat. He complained to ambulance officer Robbie Irvine that he had been hit in the legs with a crowbar and a helmet. He also complained to a neighbour about being hit with a baseball bat. Having regard to the circumstances in which those complaints were made, I consider that they are unlikely to involve any fabrication and hence they support the victim’s evidence to the extent that he said that he was assaulted with weapons rather than fists.
I cannot be satisfied beyond reasonable doubt that a baseball bat was involved having regard to the failure of police to locate any baseball bat on the premises when they searched for it. However, I am satisfied beyond reasonable doubt that the injuries were inflicted by one or other or a combination of the motorcycle helmet, crowbar or the cricket stump. I do not accept the submission that the absence of blood on the items is of significance having regard to the nature of the contact between them and the victim. Having regard to the nature of the injuries, the manner in which they were used must have been well short of the most damaging potential use of them and as a consequence, so far as the objective gravity of the offence is concerned, the use of weapons per se does not increase the gravity of the offence when compared with the same injuries being inflicted by manual means.
I cannot be satisfied beyond reasonable doubt that the assault occurred at 2am and continued until 6am or sometime after 9am when the victim was hogtied. The evidence to the effect that it commenced at about 2am was not described by any time recording device and Mr Forshaw’s estimate of the time had the potential to be affected by the reasonable possibility of heroin use prior to him going to sleep. However, I am satisfied based upon his evidence, including the attempt to call for an ambulance that that the assault took place over a significant period and was not confined to a short period involving a fight or the period of 15 minutes when Ms Timbrell was not in the house.
The facts in relation to the unlawful confinement are less controversial. The unlawful confinement was particularised as that period during which the victim was hogtied with cable ties and tape. The victim’s evidence was that this was for a period of 30 to 45 minutes. The jury’s verdict in relation to Ms Timbrell means that she was not proved beyond reasonable doubt to be the person who tied the victim up even though that was his evidence. The finding of guilt in relation to the offender means that either the offender or some other person must have tied the victim up. During this period, the offender appeared in a video where he was on top of and straddling the back of the hogtied victim talking to the camera. The video was intended to be degrading to the victim because it showed him in helpless circumstances being dominated by Mr Hanson but was not degrading in the sense of involving any particularly degrading acts.
Objective seriousness
Both offences were committed when the offender was on conditional liberty, namely, parole.
In light of my findings about the assault occasioning actual bodily harm it is in the mid range of objective seriousness. That is because of the combination of a series of relatively minor forms of actual bodily harm as well as a facial fracture, the details of which are not disclosed and which did not involve complications or any long term consequences.
Having regard to the factors described in R v Williams [2016] ACTSC 389 at [53], the unlawful confinement was in the low to mid range of objective seriousness. It clearly involved a significant degree of restraint and the exploitation of the domination of the victim in order to make the video. However, it was for a relatively brief duration, there was a lack of evidence of premeditation or planning, a lack of evidence of motive beyond something relating to money, a lack of evidence of significant fear on the part of the victim, the lack of other than short term injuries caused by the cable ties.
Subjective circumstances
The offender’s personal circumstances are described in the pre-sentence report as well as the psychological report prepared by psychologist Thea Gumbert-Jourjon.
The offender was born in Blacktown, New South Wales. His father was caucasian and his mother was of Aboriginal descent, belonging to country located in Western Australia.
He had a difficult upbringing. His parents separated at about the time of his birth. Up until the age of about five he was raised by his mother. From five until the age of 12 he lived with his father. The periods during which he was raised by his mother were extremely traumatic and dysfunctional. His mother was physically and emotionally abusive towards him and he had been sexually abused by several of her boyfriends. His mother was a polysubstance drug addict with limited ability to care for her children. He had caring responsibilities for his younger siblings and was exposed to drug use from a very early age.
He started using alcohol when he was eight years old. He said that he last consumed alcohol in August 2002. He also reported that he started using cannabis and methamphetamine when he was eight years old. He injected amphetamines daily from 1998 until 2002. He claimed not to have used methamphetamine since 2002 and cannabis since 2015. It is difficult to reconcile that history with the circumstances of the current offending which involved a milieu of drug use and the offender’s conviction for drug possession in 2010.
He has had a variety of forms of employment including house painting and being a short‑order cook. Between 2004 and 2010 he worked as a labourer on railways, eventually moving to a supervisory position. He subsequently worked in industrial cleaning but had not had steady employment for several years prior to the offences.
He is recorded in the pre-sentence report as having moved to Canberra in 2014, although he reported to the psychologist that between 2010 and 2016 he lived the majority of the time in Canberra.
He has six children currently aged between three and 20 years. The youngest is a child of Ms Timbrell. His younger two daughters currently live in Taree with their maternal grandparents. He proposes to live with his sister and brother-in-law in Orange upon release, and then move to Taree so as to be closer to his daughters.
He accepted that his social network comprised of persons who had a negative influence upon him and claimed to the author of the pre-sentence report that he has severed those associations.
He denied any medical, emotional and mental health issues to the author of the pre‑sentence report. Ms Gumbert-Jourjon assessed him using the Depression, Anxiety and Stress Scale – 21 Items (DASS21 test) as having mild symptoms of depression and “Severe difficulties with stress”.
The opinion of the author of the pre-sentence report is as follows:
Mr Hanson is a 39 year old Aboriginal man who appears to have experienced significant disadvantages and difficulties in his childhood. He has a lengthy criminal history over a number of jurisdictions and a history of polysubstance abuse. His offending behaviour appears to be a reflection of his anger management issues and poor decision making skills. This situation is unlikely to change unless Mr Hanson makes a concerted effort to address these issues.
Mr Hanson may benefit from undertaking anger management and cognitive behaviour therapy.
Mr Hanson has been assessed as a medium–high risk of general reoffending. This assessed risk is primarily due to the offender’s accommodation issues, attitude and orientation, anti‑social companions, lack of employment, financial situation and criminal history.
He was assessed as suitable for a community service work condition.
The report of Ms Gumbert-Jourjon summarised the offender’s position as follows:
Mr Hanson’s account of his upbringing suggest that his childhood was primarily characterised by severe trauma and disadvantage. He reports being subjected to physical, emotional and sexual abuse from a young age, as well as significant neglect by his mother, who was a poly‑drug user and unable to provide a safe or stable home environment. As a result he reports that he not only became self-reliant but also took on responsibility for the care of his younger siblings. By his own account, drug use was normalised within his household and he began using drugs and alcohol at age 8, progressing to dependant, daily use by the time he began high school. He reports having had numerous short-term placements in foster homes and group homes, and though he repeatedly returned to his mother she ultimately abandoned him at age 12. After this time he faced further instability, moving between juvenile detention and multiple short-term accommodation placements, as well as experiencing periods of homelessness. It appears he had little if any meaningful family support or role-modelling during this time. He continued to lead a somewhat transient lifestyle during adult hood, moving between different areas and jobs, and repeatedly returning to custody.
Ms Gumbert-Jourjon also expressed the opinion that he presented a substantial risk of reoffending. She expressed the view that his pattern of offending was “intrinsically linked with the aforementioned early risk factors, and should be considered against the background of extreme developmental trauma.”
References from his father, sister and half-sister were tendered.
The reference from his father, John Brooks, elaborated upon the offender’s very difficult upbringing. The reference from his father indicated that Mr Hanson had been abused after the separation of his parents. As a result, his father obtained full-time custody which continued until Mr Hanson was aged 12 years old at which time he ran away. He was subsequently placed in foster homes.
A reference from Nicole Lowe, the offender’s sister, describes a very disrupted upbringing. It refers to him moving to Canberra and making “some bad decisions getting into drug and crime”. It refers to attempts that he made to leave by staying with her and indicates that he is motivated to move to Orange so that he can be there for his kids and granddaughter.
The third reference is from his paternal half-sister, Emma Brooks. She provides examples of his strong family values, offering to be assessed to donate a kidney to her if that was necessary, and travelling interstate to support her after her mother’s death. The letter also refers to his difficult childhood and consequential aberrant behaviour.
The references from John and Emma Brooks both refer to the desirability of him being incarcerated in New South Wales so that they have greater prospects of visiting him while in custody. That is not a matter which I am required to or can make any decision about as part of the sentencing process.
Criminal history
The offender has a significant criminal history which arises from offences committed in four different jurisdictions, the Australian Capital Territory (ACT), New South Wales, South Australia and Queensland. He has convictions between 1998 and 2003 in Queensland, mostly relating to or arising out of drug use. It has a conviction in 1999 in South Australia for driving or using a motor vehicle without consent and carrying an offensive weapon. In New South Wales, he has convictions between 1998 and 2011 which include traffic offences, taking a driving a vehicle without consent, larceny, goods in custody, failing to appear, assault occasioning actual bodily harm, drug driving and possessing a prohibited drug.
In the ACT, his offending occurred in 2015 and 2016 and included aggravated burglary, damaging property, contravening a protection order and attempting to pervert the course of justice. It is the sentence for these offences in relation to which he was on parole at the time of committing the present offences. He has some further driving related offences from 2017.
Plea of guilty
The offender pleaded guilty to the charge of assault occasioning actual bodily harm, although the facts were entirely in dispute, namely, the nature of the assault, whether it involved fists or weapons, when it occurred and how long it took. He was convicted by a jury on the charge of forcible confinement. Having regard to the complete dispute about the facts and that I have found them to be substantially as asserted by the Crown, there was only very limited utilitarian value in the plea of guilty in reducing the issues at trial. I will reduce the sentence that I would otherwise impose by five per cent on account of the plea of guilty.
Time in custody
The offender has been in custody solely attributable to this offending since 10 January 2018.
Other cases
I was referred to four cases involving forcible confinement. In Singh v The Queen [2017] ACTCA 17, the offender kidnapped a woman, took her to an apartment and committed various sexual acts upon her. One of the charges was unlawful confinement. The unlawful confinement occurred when the victim was detained in an apartment with four other males in circumstances where the offender intended not to let her leave. The Court of Appeal ultimately resentenced the offender and the sentence included a sentence of three years imprisonment which was cumulative as to six months upon one of the earlier sentences. The total sentence was five years and 10 months with a non‑parole period of three years and 10 months. In the related case of Singh v The Queen [2015] ACTCA 65 at [98]-[108], the Court of Appeal records the analysis of the previous decisions of the Court relating to unlawful confinement and the conclusion in that summary of the appellant’s submissions that cases of unlawful confinement involving violence generally attracted a sentence of between two and five years.
In R v Ngata and Massey (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 October 2011), the offenders were found guilty of unlawful confinement and of kidnapping. The offenders had entered the victims unit without his consent and confined him there for a number of hours. When police were outside, one of them left the unit with the victim in his presence and the unlawful confinement continued until the victim was subsequently able to escape at a petrol station. Mr Massey had a dreadful criminal history, Mr Ngata had a less significant criminal history. The offenders were trying to recover money alleged to be owed to another person. Mr Massey was sentenced to three years imprisonment and Mr Ngata was sentenced to two years and three months imprisonment.
In R v Avery [2018] ACTSC 64, the offender pleaded guilty to unlawful confinement and a number of other charges relating to drugs. The victim was alleged by the offender to have taken drugs and cash. He was brought to the offender’s house. He was strapped to a chair and interrogated about the location of the “gear”. The victim was assaulted over a 10 minute period by striking his face. He had a pair of scissors pushed into his neck piercing the skin and was struck in the temple. The offender, who had pleaded guilty and recognised the seriousness of his offending conduct, was given a sentence of 12 months imprisonment.
Consideration
Having regard to the nature of the offences and the offender’s criminal history, sentences of imprisonment are the only appropriate sentences.
The offender clearly had a dysfunctional upbringing and this needs to be taken into account notwithstanding his extensive criminal history in accordance with Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [42]-[44]. At [43] the High Court said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise a person’s capacity to mature and learn from experience. It is a feature of a person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long period of offending.
Clearly, the same may be said of an environment involving abuse of illicit substances. As the High Court recognised, giving full weight to the deprived background of an offender does not mean that the need for protection of the community from behaviour, which may also be seen to have its roots in that deprived background, can be ignored.
The criminal history of the offender demonstrates criminal conduct over a substantial period. The personal references and psychological report indicate that there is some recognition on the offender’s part of the need to change his ways, most particularly for the benefit of his younger children. However, the hope that that realisation gives must be tempered by his past history which indicates an inability to be changed by even the substantial period of imprisonment imposed by the Magistrates Court in 2015. Counsel for the offender submitted that because of the hope that he may be able to partially rehabilitate himself in custody, a shorter non-parole period and a longer period of supervision on parole in the community should be imposed. I am not satisfied that the circumstances are such as to warrant a shorter than usual non-parole period. There are clear signs of hope that if the offender accepts the support of members of his family and obtains consistent employment then he may be able to avoid criminal activity, but it cannot be said at this stage that there is a clear path to rehabilitation. Rather, only time will tell whether ageing and insight into his predicament will be sufficient to let him break free of criminal conduct in the medium to long term.
Counsel referred to the assessment of Ms Gumbert-Jourjon that he was suffering severe issues with stress. The source of that stress was not identified. The evidence is not sufficient to render it as a significant mitigatory factor in relation to the duration of any period of imprisonment.
Having regard to the closely related nature of the two offences, I consider a significant degree of concurrency is warranted. On the assault occasioning actual bodily harm charge, the starting point for that is a sentence of 18 months, which I will reduce to 17 months on account of the plea of guilty. On the charge of unlawful confinement, I will impose a sentence of 18 months cumulative as to three months upon the earlier sentence. This gives an aggregate sentence of 20 months. It is clearly appropriate that these sentences be served by way of full time detention, rather than in any other way permitted by the Crimes (Sentencing) Act 2005 (ACT). The non-parole period will be 14 months. The sentence will be backdated to take account the period which he spent in custody solely attributable to these offences, namely, from 10 January 2018.
Orders
The orders of the Court are therefore:
1. On the charge of assault occasioning actual bodily harm (CC2017/4822), the offender is sentenced to imprisonment for a period of 17 months from 10 January 2018 until 9 June 2019.
2. On the charge of unlawful confinement (CC2017/4823), the offender is sentenced to imprisonment for a period of 18 months from 10 March 2018 until 9 September 2019.
3. The non-parole period commences on 10 January 2018 and ends on 9 March 2019.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 7 September 2018 |
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