R v McLaughlin
[2015] ACTSC 201
•16 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McLaughlin |
Citation: | [2015] ACTSC 201 |
Hearing Date(s): | 5 June 2015; 3 July 2015 |
DecisionDate: | 16 July 2015 |
Before: | Burns J |
Decision: | See [47]-[51] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – common assault – assault occasioning actual bodily harm – resisting a public official – contravening a protection order. |
Parties: | The Queen (Crown) Cameron McLaughlin (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J Maher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number(s): | SCC 38 of 2015 |
BURNS J:
Cameron McLaughlin, you have pleaded guilty to two offences of common assault, one offence of assault occasioning actual bodily harm, one offence of resisting a public official and one offence of contravening a protection order. The maximum penalty for the offence of common assault is two years' imprisonment. The maximum penalty for the offence of assault occasioning actual bodily harm is five years' imprisonment. The maximum penalty for the offence of resisting a public official is two years' imprisonment, 250 penalty units or both. The maximum penalty for the offence of contravening a protection order is five years' imprisonment.
The 30 December 2014 offences
The two offences of common assault, the offence of assault occasioning actual bodily harm and the offence of resisting a public official all occurred on 30 December 2014. At about 7 pm on that day, the victim, who was your wife, was at your common matrimonial home in McKellar with your two children, who at that time were aged three and one year old. You were heard to return and sit on the outside porch of the house. A short time later you attempted to walk inside the house. As you opened the door of the house your dogs walked in front of you, causing you to trip. You became angry and began kicking the dogs. Your wife said to you, “Calm down, stop kicking the dogs you’re scaring the kids”. You turned to your wife and punched her once in the stomach with your right hand with a clenched fist and walked out the front door of the house. Your wife fell to the ground winded. She cried and tried to catch her breath. I note that the act of punching your wife was the first offence of common assault.
About 10 minutes later, you came back inside the house and had a conversation with your wife in the kitchen, in which you said that you had not tried to hit her, but you were trying to hit the dog. A further conversation occurred and then you admitted that you had intended to punch her, but that it was a “snap thing”, and you did not mean to hit her that hard. There was then a conversation about your previous exposure to family violence and your wife said, “You grew up watching your dad hit your mum and now you think it’s okay to hit me too”.
You again became angry and punched your wife once to the back of the head with your right hand with a clenched fist, causing her fall to the ground. You punched her twice more as she lay on the ground. She attempted to protect herself by curling into the foetal position. You kicked her five times in the head with the point of your boot. As your wife attempted to sit upright to get away from you, you stomped on her head using the sole of your boot. During this assault your wife felt scared and felt immediate pain each time she was punched, kicked or stomped on. As a result of the blows to her head, your wife suffered a large cut to her forehead above her left eyebrow and a bloody nose. That constitutes the assault occasioning actual bodily harm. A large amount of blood flowed from the head and facial injuries of your wife, over her face, onto her clothes and on the floor of the kitchen. She picked up her mobile phone and called police.
Police later attended and spoke to you and you said, “I just lost it at the missus”. Police entered the house and observed your wife lying in the kitchen holding her head. She was observed to have blood on her head, face, upper body, arms and legs. Police also observed blood covering the cupboards and floor in the kitchen in the immediate area of your wife. Both of your children were present in the house during the assault. Police observed your wife to be about five foot tall and of thin build and weighing approximately 60 kilograms. You were of a much larger build and were also wearing very heavy boots at that time.
Police arrested you, at which time you became aggressive. You spat at one of the officers, which constitutes the second offence of common assault. You also struggled with the police officers, which required you to be handcuffed. That struggle constitutes the offence of resisting a public official. Later that evening, your wife attended hospital where she was treated for abdominal tenderness and a deep five centimetre laceration to the left-hand side of her forehead, which required anaesthetics and seven stitches. She was discharged from hospital the following day.
In assessing the objective seriousness of these offences, I take into account that you were significantly larger than your victim and that they occurred in the context of a domestic relationship. Your conduct was cowardly, shameful and rightly characterised as criminal.
With respect to the offence of assault occasioning actual bodily harm, I take into account that, after punching your victim and causing her to fall to the ground, you kicked her to the head with the point of the heavy black work boots you were wearing and then stomped on her head using the sole of those boots. At that point, she was virtually helpless.
It is also an aggravating circumstance that this occurred while there were children in the house.
The 2 June 2015 offence
10. The final offence of contravening a protection order occurred on 2 June this year. On 16 March this year, your wife obtained a Domestic Violence Order from the Magistrates Court, which restrained you from engaging in conduct that constitutes domestic violence with respect to her, including offensive or harassing conduct. The Order also prohibited you from being within 100 metres of your wife, except in certain circumstances which included during the course of your employment. The Order also prohibited you from contacting your wife except in certain circumstances, including during the course of your employment. Finally, the order prohibited you from harassing, threatening or intimidating your wife. I note that, at that time, you and your wife were both employed in adjoining premises in the Canberra Centre.
11. The facts in relation to the offence of 2 June are that, at about 9.30 am, your wife was making her way to her place of employment, which was at that time Select Meats in the Canberra Centre. You were employed at Perfect Poultry, which was located adjacent to Select Meats. Prior to arriving at her work place, you approached your wife and there was a conversation, initially about your children but then about the proposed sale of the family home. Your wife advised you that her father had decided to help her with the house, so she was proposing to keep it. As I understand it, your understanding at that time was that the house was to be auctioned. There was then an argument about financial arrangements and your wife said that you would either have to come to an agreement between yourselves or you would have to go to court. You then became very abusive towards her. She walked away to her work place. At about 9.45 am, you again attended Select Meats and spoke with your wife. You were again very abusive towards her and, indeed, threatening. A work colleague of your wife intervened, requesting that you calm down and you responded by threatening to kick in his head. You were then further abusive towards your wife before leaving. During this altercation, your wife felt extremely scared for her safety and was intimidated by your actions. You attended Belconnen Police Station on 4 June 2015 and participated in a digital record of interview with police, at which time you made admissions to involvement in that incident.
12. It is an aggravating circumstance surrounding this offence that it occurred in the context of a domestic relationship. It is a further aggravating circumstance that the offence occurred at the time that you were on bail, which was granted in this Court with respect to the offences which occurred on 30 December 2014.
13. Your contravention of the Domestic Violence Order involved threats and offensive language. It is made more objectively serious by the fact that it occurred in public and in the presence of a fellow employee of the victim.
Consideration
14. A Victim Impact Statement prepared by your wife was tendered at the sentence hearing. It speaks of the impact of the offences of 30 December 2014 on your family and the trauma and anxiety those offences have caused your wife and children. As is so often the case in domestic violence offences, the long term burden of your violence will not only be felt by your wife, but also by your children.
15. You have a prior criminal history, particularly for offences of drink driving. You have convictions for assault and resisting a Commonwealth public official in 2003, although the penalties imposed would suggest that they were not particularly serious examples of this type of offending.
16. A Pre Sentence Report dated 1 March this year was tendered at the sentence hearing. I note that you are 35 years old and you have been subject to supervision by Corrective Services in 1999 and in 2004 with respect to drink driving offences. You have previously completed community service work in 2001. Your response to supervision and other community based orders has apparently been satisfactory in the past.
17. Your childhood was marred by exposure to domestic violence. You married the victim of the current offences in 2004 and you have two young children from this relationship. You also have another child from a previous relationship, which broke down because of your alcohol abuse and work stresses.
18. You left school before attaining your year 10 certificate and immediately entered into a butchery apprenticeship. You have held consistent employment in this field for the past 20 years. I note that work is available to you when you are released from custody.
19. You told the author of the Report that you commenced alcohol use as a teenager. Alcohol was made available to you through your place of employment. Your use of alcohol quickly became problematic and you would consume alcohol to intoxication daily. This has apparently continued throughout the majority of your adult life, impacting on your family, your employment, your mental health and also on the commission of criminal offences. You claim to have reduced your alcohol intake over time, however, you continue to consume alcohol most nights.
20. You began using amphetamine and later methyl amphetamine from the age of 23. You claimed that, at the height of your use, you were using approximately $500.00 worth of these substances each week, although you claimed that your use since November 2014 has been minimal.
21. You reported a long history of mental health issues, but stated that you only began to receive treatment in 2014, after you were referred to ACT Mental Health by your general practitioner. Since that time, you have been seen by the Crisis Assessment and Treatment Team and have also engaged with a psychiatrist.
22. You told the author of the Report that you did not have a good memory of the events of 30 December 2014, due to your level of intoxication. You accepted that you had committed the offences and said that you were disappointed in your actions and how you exposed your children to that type of domestic violence, which you despised as a child. The author of the Report believed that you were able to express insight into how your behaviours had affected your victim and understood the fear that she may continue to feel towards you. The author of the Report said that you accepted responsibility for your offences and did not try to attribute blame to your alcohol use or mental health issues.
23. You were assessed as being at moderate risk of reoffending, primarily due to your alcohol and drug use, and mental health concerns. You were assessed as suitable for community service and periodic detention.
24. I take into account the contents of a CADAS Report dated11 May 2015, which provides further information about your family background and your drug use. You apparently never knew your father, and were raised by your mother and stepfather. Your mother died in 2012 from pneumonia. Your youngest brother died in 2006. You reported being subjected to significant violence as a child.
25. You told the author of the Report that you suffer from hypertension, for which you receive medication. You have also received numerous injuries in the past in car accidents.
26. The Report also notes your mental health issues. Your general practitioner commenced you on medication for depression in May 2014, and on the tranquiliser, Seroquel in October or November 2014. You told the author of the Report that you were diagnosed in March this year with bipolar disorder and post traumatic stress disorder. You reported a suicide attempt on 25 October 2014.
27. The Report notes that you commenced using alcohol at age 14 and began drinking daily from age 15. You started reducing your alcohol consumption in November 2014 from 15 to 30 standard drinks daily to a lesser, but unspecified, quantity. At the time of the Report, you were drinking six to eight standard drinks daily.
28. You commenced using cannabis when you were 14, but only reported using it on five occasions. You commenced using amphetamines when you were 23. You started using methyl amphetamine daily in 2014, using up to one gram a week, costing $500.00 or $600.00.
29. The Report noted that you had attended the ADFACT sober driving program on two previous occasions, following drink driving offences. You recently attended AA meetings, but did not find this to be helpful. The author of the Report considered you to be highly motivated to address your substance use and recommended alcohol and drug counselling to supplement your mental health treatment. Residential treatment was not suggested as at that time you were in full time employment. You were referred to alcohol and drug services, counselling and treatment service and you were also encouraged to attend the Smart Recovery Program at Directions ACT, to assess if this was useful to you. Unfortunately, it appears that the offence of 2 June this year meant that you could not adopt the recommendations made to you by the CADAS clinicians.
30. A report from a consultant psychiatrist, Dr William Knox, dated 6 May this year was tendered. Dr Knox noted your history of exposure to domestic violence as a child and your deteriorating mental health prior to the offences on 30 December last year, including a suicide attempt in October that year. He noted that you were being treated by a psychiatrist who had diagnosed complex post traumatic stress disorder and/or bipolar disorder. Dr Knox doubted the diagnosis of bipolar disorder, but supported the diagnosis of complex post traumatic stress disorder.
31. He believed that you showed some insight into your condition and that you had good potential to be rehabilitated, although he doubted whether the psychological and psychiatric facilities needed would be available to you in the public sector. He considered that you needed long term consistent psychotherapy with one therapist to treat your damaged personality. You may also need to address your excessive chronic alcohol use. Dr Knox expressed the opinion that you were under very considerable stress at the time of the offences on 30 December last year and, in addition, you were heavily intoxicated.
32. Your behaviour was strongly influenced by your background of mental health issues arising out of your traumatic childhood, particularly your ongoing complex post traumatic stress disorder. He believed that you were not able to exercise appropriate judgment at the time of these offences, nor were you able to make calm or rational choices or to think clearly at the time. You were also disinhibited. He believed that, at the time of the offences, you did not give attention to the full wrongfulness of your act, although you subsequently appreciated that what you did was wrong. He believed that you acted on the spur of the moment and impulsively under the influence of your intense emotions and alcohol. He believed that your mental health contributed causally to the commission of the offence.
33. He expressed the view that a full time prison sentence would be deleterious to your mental health and your prospects for rehabilitation. He also expressed the view that appropriate treatment would not be available to you within a custodial setting. In cross-examination, Dr Knox expressed the view that you would need years of psychotherapy, but that you had the potential for rehabilitation. He reiterated his view that a full time prison sentence would be detrimental to your prospects of rehabilitation and recovery. He also expressed the opinion that your abuse of alcohol is not your major problem and cannot be looked at in isolation from your mental health. He was of the opinion that your alcohol abuse arises from your mental health issues, and in turn makes those issues worse.
34. I take into account the evidence given by Ian Turner that he is prepared to support you when you return to the community, particularly in obtaining employment and in addressing your alcohol abuse.
35. You gave evidence at the sentence hearing. You agreed that, on 2 June this year, you breached the Domestic Violence Order made in favour of your wife, but explained that you became angry when your wife told you that the former matrimonial home was not to be auctioned as you had expected and that you have to make some arrangements with her about a financial settlement or take her to court. Whilst it may be understandable that you would be annoyed by this apparent change in plans, it does not excuse your behaviour, particularly as you were on bail at that time for committing a serious assault on her. With respect to your offences on 30 December 2014, you said that you were ashamed of your conduct and that your wife did not deserve to be assaulted in this way. You also said that you understood the possible impact of your offending on your sons, and that you did not want them to be around that kind of conduct.
36. After you were arrested and remanded in custody, you said that you spent the first seven days in the crisis support unit at the Alexander Maconochie Centre before being removed to the remand block. You have generally been provided with your prescription medication whilst in custody, but I accept that access to mental health treatment and support is limited in that facility, as opposed to the general community. There is also a difficulty in that there is no continuity in treatment providers within the Alexander Maconochie Centre.
37. You testified that you are a heavy drinker. You commenced alcohol abuse when you were about 14 or 15. At that time, you were employed as an apprentice butcher and alcohol was supplied by your employer or your work mates. Since that time, your longest period of abstinence has been three months.
38. In 2014, you said that things were very bad in your marriage and at work. At that time, you had your own business and both you and your wife were under considerable pressure. You were working long hours. You were prescribed antidepressants, but later in the year you became suicidal. You were drinking to excess in the context of financial trouble and other stressors. On 31 October last year you attempted suicide, which was two days after you commenced on the tranquiliser, Seroquel. You nevertheless remained on this medication and on antidepressants.
39. You testified that, when released, you intend to stay on your medication and to seek out help. You also propose managing your use of alcohol, although I have some doubt about whether that is a realistic proposition. Experience suggests that management, as opposed to abstinence, is unlikely to be successful in someone with such an established alcohol addiction.
40. On the evidence before me, I accept that you have demonstrated a degree of remorse for your crimes. Your early pleas of guilty demonstrate remorse, as do your statements to the author of the Pre Sentence Report, to Dr Knox and to this Court. I take into account your early pleas of guilty as not only indicating remorse, but also for the utilitarian value. I will reduce by 25 per cent, or approximately that figure, the sentences that would otherwise have been appropriate.
41. I accept that you have an underlying mental health condition, namely complex post traumatic stress disorder, and that your offending is causally connected to that disorder. I accept that your disorder is the cause of your abuse of alcohol. I accept that your impaired mental functioning at the time of the commission of the offences on 30 December last year reduces your moral culpability by impairing your ability to exercise appropriate judgment and to make calm and rational choices. I also accept that your impaired mental functioning, together with your alcohol consumption, may be disinhibited. I accept that these offences were not premeditated.
42. With respect to the offence of 2 June 2015, I also accept that your impaired mental functioning reduced your moral culpability by impairing your ability to exercise appropriate judgment, and make calm and rational choices.
43. I further accept, on the evidence of Dr Knox, that full time imprisonment would have a deleterious effect on your mental health and on your prospects for rehabilitation.
44. In my opinion, both general and specific deterrents should be moderated, in light of the evidence of your impaired mental functioning at the time of these offences. That does not, however, mean that those sentencing considerations are irrelevant.
45. The offences of assault occasioning actual bodily harm and contravening a protection order call for sentences of imprisonment.
46. I note that you have been in custody since 4 June this year and that you earlier spent one day in custody after the offences on 30 December 2014.
Sentence
47. For the offence of assault occasioning actual bodily harm, you are convicted and sentenced to nine months’ imprisonment, commencing today and expiring on 15 April 2016. Bearing in mind the factors to which I have referred, that sentence will be served by way of periodic detention, with the first detention period commencing this Friday 17 July 2015.
48. For the offence of breaching a domestic violence order on 2 June this year you are convicted and sentenced to three months' imprisonment, commencing on 3 June this year and expiring on 2 September this year. The period from 3 June this year and expiring on 15 July this year is to be served by way of full time imprisonment with the balance suspended. There will be a Good Behaviour Order for a period of 18 months, requiring you to accept the supervision of ACT Corrective Services for a period of 18 months, or such lesser period as deemed appropriate by your supervising officer. You are to obey all reasonable directions of ACT Corrective Services, including any requirement that you participate in assessments or treatment for alcohol or drug abuse, and that you continue engagement with ACT Mental Health and other health providers. You are to report to the ACT Community Corrections office at Eclipse House within 48 hours.
49. With respect to the offence of assault, constituted by you punching your wife on the night of 30 December 2014, I record a conviction and there will be a Good Behaviour Order for a period of nine months. In the light of the conditions which I have included in the Good Behaviour Order imposed for the offence of breaching a domestic violence order, I will impose no further conditions with respect to this Order.
50. With respect to the offence of assault on 30 December 2014, constituted by you spitting on a police officer, I record a conviction and you will be fined $600.00, payable three months from this date.
51. With respect to the offence of resisting a public official on 30 December 2014, I record a conviction and there will be a Good Behaviour Order for a period of three months, commencing today, with no conditions other than the core conditions.
| I certify that the preceding fifty one [51] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 30 July 2015 |
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