R v KS

[2021] ACTSC 109

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KS

Citation:

[2021] ACTSC 109

Hearing Date(s):

2 June 2021

DecisionDate:

2 June 2021

Before:

Elkaim J

Decision:

See [25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – family violence order – mitigation – complainant contributes to breach

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT)

Cases Cited:

R v Tonna (No 1) [2020] ACTSC 360

Parties:

The Queen (Crown)

KS (Offender)

Representation:

Counsel

R Christensen (Crown)

K Archer (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Andrew Byrnes Law Group (Offender)

File Number(s):

SCC 181 of 2020; SCC 180 of 2020

ELKAIM J:

1. The offender came to trial on 19 April 2021, before me and a jury. He faced three counts in an indictment dated 7 September 2021.

1. The three counts, respectively, were aggravated burglary, making a threat to kill and contravening a Family Violence Order. The offender pleaded not guilty to the first two counts, but guilty to the third.

1. In addition, the offender faced a charge transferred from the Magistrates Court, of common assault. This was put as an alternative to the threat to kill charge.

1. The jury found the offender not guilty of Counts 1 and 2. I found him not guilty of the transferred charge. This left him to be sentenced for the third count.

1. The maximum penalty for this count is 5 years’ imprisonment, a fine of $80,000 or both.

1. The order which had been contravened was made on 2 April 2020. Its terms included a prohibition on the offender from contacting the complainant, being within 100 metres of her and attending her residence. The allegations which formed the basis of Counts 1 and 2 occurred at this residence. There was never an issue that the offender was present at the residence. The jury was called on to decide what had occurred while he was present.

1. The allegations were that he had entered the residence without permission and while he was there, he threatened the complainant. The cross-examination of the complainant, besides suggesting that he had not threatened her, also included the suggestion that he had been present at the residence with the permission of the complainant.

1. The Crown case was put plainly on the basis that the complainant needed to be believed in order for the prosecution to succeed. Part of the complainant’s evidence was that the offender had effectively broken-in to her unit by entering through a malfunctioning balcony door. She said he certainly did not have her permission to enter in this way, or in fact any other way.

1. Although it is impossible to ascertain the precise reasoning of the jury, it is an inevitable conclusion that the jury did not believe the complainant.

1. The jury’s rejection of the complainant’s evidence must, if only implicitly, include a rejection that the offender was not present in the unit without the complainant’s permission.

1. This does not of course entirely absolve the offender. It is however an important consideration. The complainant sought the order to prevent any contact with the offender. She then permitted him to be present, perhaps even invited him to be present, in a sense aiding his criminal conduct. I think this is a significant mitigatory factor.

1. I am left then in the position of having to sentence the offender for contravening an order notwithstanding that the beneficiary of the order was not relying on the benefit of the order.

1. A Family Violence Order is an important measure in the fight against domestic violence. Refshauge J in R v Tonna (No 1) [2020] ACTSC 360 said this from [23]:

23.As to the offences of breaching the Family Violence Order, these are serious offences.  In Roberts v Smorhun [2013] ACTSC 218, at [2], I said, after commenting on the beneficial reform to the protection order regime:

In Nicholas Seddon, Domestic Violence in Australia: The Legal Response (Federation Press, 2^nd ed, 1993), 86-7, the author set out advantages of such orders and continued:

These advantages have generally been met with a positive response from those who work with victims of domestic violence and from surveys and the fact that protection orders have been adopted in all jurisdictions in Australia is testimony to their perceived effectiveness.  The protection order regime is seen as a necessary complement to (but not as substitute for) the criminal law.

24.   I went on at [3]-[4]:

The author points out, however, that the protection order procedure “depends for its effectiveness on the police and magistrates”.

In R v B G (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 1 December 2010) at 5, after commenting that the offence of contravening a protection order is a serious one, I said:

Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour.  Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity.  A severe approach is necessary, consistent with fairness to the accused.  Thus, the Court cannot punish beyond what is appropriate to the offence.

25.Indeed, as appears to have some resonance in this case, it was said in R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47]:

Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence:  firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat.  These elements also usually mean that the victim never feels truly safe … To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.

1. The offender has spent 18 days in custody directly referable to this matter. Mr Archer, on his behalf, also asked me to take into account that the cancellation of an Intensive Corrections Order on 26 May 2020 was also a relevant factor because the cancellation would have included, if only in part, a consideration that remaining subject to the order was futile if the offender was in any event remanded in custody pending his upcoming trial. I think there is substance in the submission and I will take it into account.

1. In addition, Mr Archer submitted that the offender was entitled to a discount for his plea of guilty, not only because it occurred at the commencement of the trial, but because it had been offered at an earlier stage in full satisfaction of the indictment.

1. Once again, I agree with Mr Archer and will apply a discount of about 20%.

1. The offender has a long and broadly spread criminal history. It includes matters of a similar kind, most recently in New South Wales in 2018, although the sentence imposed in that case perhaps suggests the offence was not regarded as overly serious. Nevertheless his significant criminal history must play a part in the sentencing process.

1. The offender was born in 1983 in Canberra. He is one of five siblings. His upbringing was hampered by his father’s alcohol abuse which in turn generated physical and verbal abuse in the family. After his parents separated, when he was 10 years of age, the offender led a somewhat nomadic lifestyle, although he seems to have formed better relationships with his family as an adult. He is keen to return to live with his mother and sister. His mother requires care as a result of a cancer condition.

1. The offender left school in Year 8. Most of his employment has been in the building industry.

1. Not surprisingly the offender has had a continuing problem with drugs and alcohol. To his credit he has recently completed a drug and alcohol program while in custody. He probably has a fairly high likelihood of reoffending. That will be a matter for him to consider as to whether he wishes to change his permanent address to the AMC.

1. The term of imprisonment he is currently serving will end on 17 July 2021. Mr Archer submitted that any term of imprisonment imposed for breach of the Family Violence Order should be concurrent with his current sentence so that he will be released on 17 July.

1. The Crown submitted that full-time imprisonment was necessary, and that if any sentence did not extend past 17 July 2021 it should be accompanied by some further supervisory orders. This was required as a matter of general deterrence. I agree with the Crown.

1. Although I think the facts of this case do contain, as I have explained above, a significant mitigatory element, the public at large must be made aware that the courts take breach of orders of this type very seriously and persons engaging in family violence will be dealt with harshly.

1. I have also taken into account the provisions of ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is not relevant because it is accepted that there is no choice but to impose a period of full-time imprisonment.

1. I make the following orders:

(i)For breaching the Family Violence Order (SCCAN2020/146) made on 2 April 2020 the offender is sentenced to a term of imprisonment of six months (reduced from 8 months) to commence on 18 March 2021 and end on 17 September 2021.

(ii)The sentence is suspended after 4 months, that is from 17 July 2021, on condition the offender enter into a Good Behaviour Order for a period of 12 months thereafter and that in addition to the core conditions of such an order the offender be required to accept the supervision and comply with all directions of the Director General of ACT Corrective Services as to his place of residence and attendance at drug and alcohol programs.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim

Associate:

Date: 2 June 2021