R v Peric (No 3)
[2022] ACTSC 387
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Peric (No 3) | ||||||||||||||||
| Citation: | [2022] ACTSC 387 | ||||||||||||||||
| Hearing Date: | 8 April 2022 | ||||||||||||||||
| Decision Date: | 20 April 2022 | ||||||||||||||||
| Before: | Refshauge AJ | ||||||||||||||||
Decision: |
|
comply with the offender’s Good Behaviour obligations under
s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 20 April 2024, until the end of the total sentence, 15 October 2024, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services
or his delegate for the period of the undertaking or such lesser
period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment.
9. For the treatment and supervision part of the Drug and Alcohol Treatment Order:
a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Mitchell John Peric undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; c. Mitchell John Peric comply with any directions of the Court from time to time about attendance at Court in person or by electronic means; and d. Mitchell John Peric continue to participate in the Room4Change Program conducted by the Domestic Violence Crisis Service in accordance with directions from the Treatment and Supervision Team. 10. Mitchell John Peric be directed to appear in Court on Friday 22 April 2022 at 11:30 am.
11. Mitchell John Peric be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Choke, suffocate or strangle a person – Assault occasioning actual bodily harm – Common assault – Family violence – Alcohol abuse – Opportunity for rehabilitation – Sentence of imprisonment – Drug and Alcohol Treatment Order application – Application successful |
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46J, 46K, 63, 80S, 80W, 80Y, 80ZA Crimes Act 1900 (ACT) ss 24, 26, 28 |
| Cases Cited: | Beniamini v Craig [2017] ACTSC 30 Douglas v The Queen (1995) 56 FCR 465 Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 R v Ayuel [2020] ACTSC 213 R v Bell [2005] ACTSC 123 R v Bonfield [2021] ACTSC 362 R v Carney [2013] ACTSC 266 R v Cowling [2019] ACTSC 138 R v Crawford (No 1) [2020] ACTSC 245 |
| R v Elson [2020] ACTSC 264 | |
| R v Glen (New South Wales Court of Criminal Appeal, Grove, Simpson JJ, and Loveday AJ, 19 December 1994, unreported) R v McHughes [2021] ACTSC 92 R v Pearson [2020] ACTSC 375 R v Peric [2022] ACTSC 385 R v Ridley [2014] ACTSC 382 R v Smith [2020] ACTSC 277 Shaw v The Queen [2008] NSWCCA 58 Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545 | |
Texts Cited: | Birdsey, Emma and Snowball, Lucy, Reporting Violence to Police: A survey of victims attending domestic violence services (NSW Bureau of Crime Statistics and Research Issue Paper No 91, October 2013) |
| Parties: | ACT Director of Public Prosecutions (Crown) |
| Mitchell John Peric (Offender) | |
| Representation: | Counsel |
| D Swan (8 April 2022), C Muthurajah (20 April 2022) (Crown) P Edmonds (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
| File Numbers: | SCC 279 of 2021 |
| SCC 280 of 2021 | |
| REFSHAUGE AJ | |
| Introduction |
1. There is no doubt that, as this Court has described it, domestic violence is “a pernicious and evil phenomenon”: R v Bell [2005] ACTSC 123 at [30]. It often stems from an inappropriate attitude by men to women: Beniamini v Craig [2017] ACTSC 30 at [1]–
[2]. It also stems, no doubt, from an attitude to violence which minimises the seriousness of it and justifies it as a legitimate resort when anger, frustration or disapproval are experienced.
2. If not checked, family violence can escalate over time and, having for many years left the response to it to members of the community, governments are now realising that they have a part to play if it is to be eradicated, or at least minimised, so that the community can be safer and more civilised.
3. Now appearing for sentence on his pleas of guilty is Mitchell Peric, who has been charged with assault occasioning actual bodily harm, choking, suffocating or strangling a person and common assault, all offences committed against his then partner.
4. On sentence, the Crown tendered, without objection, the Crown Tender Bundle, which included the prescribed cover sheet, the committal and transfer documents, an Agreed
Statement of Facts and Mr Peric’s Criminal History.
5. It also contained a Drug and Alcohol Sentencing List Suitability Assessment Report dated 21 February 2022, together with a Drug and Alcohol Sentencing List Case Plan, both prepared by Alcohol and Drug Services, and a Drug and Alcohol Treatment Assessment Report dated 29 March 2022, prepared by ACT Corrective Services. These were the Drug and Alcohol Treatment Suitability Assessments (Suitability Assessments) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). They were prepared as Mr Peric requested that the Court consider making a Drug and Alcohol Treatment Order (Treatment Order) for him under s 12A of the Sentencing Act.
6. Mr Peric has signed a consent form for the making of a Treatment Order. It has been filed in Court.
7. Mr P Edmonds, counsel for Mr Peric, tendered, without objection, on an earlier bail application, a radiology report of the injuries suffered by Mr Peric's partner and a letter dated 7 April 2022 from Directions. See R v Peric [2022] ACTSC 385.
8. None of the contents of any of the above documents were challenged.
9. Mr D Swan, counsel for the Crown, and Mr Edmonds both filed helpful and comprehensive written submissions and supplemented them by valuable oral submissions.
10. From this material, the Court makes the following findings.
The facts
11. Mr Peric and the victim of his offences had been in a relationship for several years prior to 2021.
12. On a date between 5 and 24 April 2021, not more precisely identified in the evidence, the two were driving either to or from Fyshwick. Mr Peric was a passenger and his partner was driving the car.
13. During the drive, for no reason of which there was any evidence before the Court, Mr Peric leant over and struck his partner to her right eye with his closed fist. She suffered bruising and a cut above her right eye.
14. These were the facts that supported the charge of assault occasioning actual bodily harm.
15. The victim reported the incident to Mr Peric's mother and sent her several photographs of the injuries. Photographs of her injuries had been earlier admitted into evidence on a bail application. She did not, however, report the matter to police and has never provided a statement. This is not unusual. A study conducted by the New South Wales Bureau of Crime Statistics and Research reported that, of victims who attended domestic violence services, just over half of all victims reported an incident of domestic violence to police. See Emma Birdsey and Lucy Snowball, Reporting Violence to Police: A survey of victims attending domestic violence services (NSW Bureau of Crime Statistics and Research Issue Paper No 91, October 2013) at 7.
16. On 4 August 2021, Mr Peric and his partner were at their home and an argument arose between them. His partner was in the bedroom when Mr Peric approached her from behind, grabbed her by the shoulders and pushed her to the ground. This was the incident which founded the offence of common assault.
17. While his partner was on the floor, facing down, Mr Peric straddled her and placed his hands around her neck, exerting significant pressure and choking her. His partner felt the extent of the force that he was applying and it caused her eyes to roll back in her head and made them feel hard, like marbles. She was unable to breathe as Mr Peric continued to choke her, despite her kicking him with her legs. Mr Peric told police that the choking had lasted for about 10 seconds.
18. After the incident ended, the victim attended The Canberra Hospital, where she was treated for injuries sustained to her neck and other unrelated matters.
19. These were the facts to support the charge of choking, suffocating or strangling a person.
20. On 27 May 2021, Mr Peric's partner attended Conder Surgery, where she complained of constant headaches, nausea and pain around her eyes. Moderate rhinosinusitis and narrowing of the osteomeatal units were noted. The osteomeatal units are related to the lateral wall of the nasal cavity.
21. The victim subsequently reported this incident to Mr Peric's sister, who reported it to Mr Peric's mother. As a result, ACT Police were contacted and investigated the matter. Mr Peric's partner declined to provide a statement. Mr Peric, however, made full admissions to this incident when interviewed by police on 9 August 2021.
22. Mr Peric was then arrested and was refused bail.
The proceedings
23. Mr Peric appeared in the ACT Magistrates Court on 10 August 2021. He was charged with the offence of choking, suffocating or strangling a person and common assault. He applied for bail. It was opposed and refused. The proceedings were adjourned.
24. On 31 August 2021, the next occasion in Court, Mr Peric entered a plea of guilty to the charges and consented to the Magistrates Court dealing with them. A charge of assault occasioning actual bodily harm was preferred, but he did not enter a plea at that stage.
25. On the next mention in Court on 21 September 2021, he pleaded not guilty to the charge of assault occasioning actual bodily harm. This required the prosecution to prepare a Brief of Evidence, which was delivered on 2 November 2021. On 23 November 2021, Mr Peric entered a plea of guilty to that charge of assault occasioning actual bodily harm. He was given leave to withdraw his consent to the Court's jurisdiction and was committed for sentence on the two indictable offences to this Court, with a view to participating in the Drug and Alcohol Sentencing List. The assault charge was transferred to this Court also as a related charge.
26. Mr Peric appeared in the Drug and Alcohol Sentencing List on 4 February 2022, when eligibility assessments (as to which, see R v McHughes [2021] ACTSC 92 at [7]) recommended that he proceed to undergo Suitability Assessments. On 10 February 2022, Suitability Assessments were ordered and the proceedings listed for sentence with appropriate directions given to prepare for the sentencing hearing.
27. Mr Peric applied for bail. He explained to the author of the Suitability Assessment
prepared by Alcohol and Drug Services that he had not applied earlier as “he knew that he needed this time to make changes in his life”. He was granted bail on 10 February
2022 (as to which, see R v Peric), which has continued.
28. He has, however, been in custody for 186 days prior to sentence. This period will be taken into account on sentence.
The offences
29. In order that a court sentencing an offender may come to the difficult decision of a just and adequate sentence, it must consider the factors mandated by the legislation in s 33(1) of the Sentencing Act, as well as relevant common law principles.
30. The first issue, set out in s 33(1)(a), is the nature and circumstances of the offence or offences.
31. The initial consideration is, of course, the facts setting out the details of the offending behaviour and the circumstances in which it is committed, for most offences can be committed in a wide variety of ways and circumstances. Those facts are set out already
in these reasons (at [11]–[22]).
32. The Court must then consider the maximum penalty for the offence. This is the legislature's determination of the comparative seriousness of the offence and the specified penalty for the worst category of case.
33. In order to determine the seriousness of the actual offence committed, the Court will also have regard to the factors that, over the years, courts sentencing offenders and appellate courts determining appeals from sentences have identified as the relevant aggravating and mitigating factors. This is also part of the current sentencing practice required to be considered by s 33(1)(za) of the Sentencing Act.
34. Assault occasioning actual bodily harm is an offence contrary to s 24 of the Crimes Act 1900 (ACT) and carries a maximum penalty of five years imprisonment. It is, thus, a serious offence, though there are many other more serious offences in the criminal calendar, including some very much more serious.
35. This offence is more serious because it is an offence here committed in circumstances of family violence: Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 at 182; [34].
36. In this case, there are other aggravating factors: the punch was to the head, a
vulnerable part of the body (R v Pearson [2020] ACTSC 375 at [24]–[27]) and it was a punch inflicted while Mr Peric’s partner was driving, a very dangerous thing to do. It
also meant the victim was unable to defend herself. It appears to have been
unprovoked.37. The damage caused is relevant. In this case it was not very serious, being pain, bruising and a cut. It appears, however, that it may have had some longer term consequences
for the victim’s health.
38. No reason was given for the punch and injury inflicted, which makes it rather gratuitous violence.
39. Choking, suffocating or strangling a person is a crime prohibited by s 28(2)(a) of the Crimes Act and also carries a maximum penalty of five years imprisonment. It is, therefore, also a serious offence.
40. The offence has been considered in R v Bonfield [2021] ACTSC 362 at [68]–[69] after
a review of the authorities. The relevant considerations are summarised there as
follows:68. From these cases, it seems that the following considerations are important. The length of the choking of the victim is important and a longer period makes the offence more serious. The amount of force used is also relevant. The interruption of the breath is relevant as well. The making of threats is an aggravating factor, as is the injury or harm, including pain, suffered by the victim, such as injuries to her neck. Further, the loss of consciousness by the victim is a factor of aggravation.
69. The use of aids such as rope, cables or the like will aggravate the offence, as will the circumstances in which the offender releases the victim, such as by being beaten or pulled off the victim. If the victim is particularly vulnerable, like a young child, this will make the offence more serious, as will the fact that it is committed in the context of a family violence offence where there is a breach of trust also. That the offence is a deliberate and sustained course of conduct designed to threaten and inflict harm is also a serious matter.
41. Unfortunately, no doubt partly because of the victim’s reticence to participate in the
criminal investigation, it is not possible to determine from the evidence before the Court
whether some of these considerations actually apply in this case.42. Thus, for example, there is only evidence of the duration of the choking from Mr Peric, who said it was for a very short period of time. It cannot be found that it was for a long period of time, because any aggravating factor has, of course, to be proved beyond reasonable doubt: R v Carney [2013] ACTSC 266 at [149].
43. The force applied would have to have been significant, particularly having regard to the seriousness as shown by the victim's eyes rolling in the back of her head, although there was little other evidence of the actual force. There was clearly harm inflicted,
because she was treated at the hospital for “injuries sustained”, though that is not very
specific. It appears that Mr Peric ceased choking his partner and she did not have the particular vulnerabilities of, for example, a young child or a person with limited mobility, though, as a domestic partner, there is always a certain vulnerability that is relevant. Further, it was in her bedroom, where she could expect to be protected. It was clearly deliberate and occurred in her home. Again, it appears to have been unprovoked.
44. The crime of common assault is proscribed by s 26 of the Crimes Act and it attracts a maximum penalty of two years imprisonment.
45. The circumstances of the offence are important. Again, here, it is a family violence offence, but the harm was not great. It involved Mr Peric pushing the victim to the floor. It was by no means trivial and rendered her more vulnerable on the floor, but the actual harm does not seem to have been particularly serious. His demeanour, no doubt, was frightening, and, as the assault was from behind, it would have been more frightening because it was unexpected.
Subjective factors
46. As well as the nature and circumstances of the offence, s 33(1) of the Sentencing Act requires, in a number of paragraphs, consideration of matters personal to the offender as known to the Court.
47. In this case, comprehensive reports were received by the Court, the contents of which were accepted by both parties.
48. Mr Peric was born 38 years ago in Canberra, the second eldest of his parents' three children. His childhood was somewhat chaotic, with his parents moving locations frequently, leading to his education being disrupted. He was also exposed to some drug and alcohol use at home and he was assaulted by his father, but there was no other domestic violence at home.
49. His parents separated when he was 13 years old and, although he resided with both parents from time to time, he was largely brought up by his grandparents.
50. His siblings have both moved to the Northern Territory, where he has spent some time. He has ongoing contact with his younger brother, but no contact with his elder sister. He does not have current contact with his mother, whom he has not seen for a year, but he does have a positive relationship with his father, though he lives in Queensland.
51. Mr Peric had difficulties at school. He described himself as a quiet and anxious child. His disrupted childhood meant that he changed schools frequently. He fell into what he
described as “the wrong crowd”, which led to him being suspended for fighting and
other behavioural issues, including the use of alcohol and drugs. He left school upon completing Year 10 at age 16. He has completed some courses subsequently, including certificates for Safety at Heights, Asbestos Awareness, Powerline Clearing, Elevated Work Platform, Chainsaw Usage and a White Card, as well as obtaining his Truck Driver Licence.
52. Mr Peric has had a good employment record, mainly in the construction industry in Western Australia and the Northern Territory, as well as in Canberra. The history is a little unclear, for he reported to one author of a Suitability Assessment that he had worked in the air conditioning industry for 15 years, but the other that he had only returned to Canberra at age 33 and has, after working in the logging and tree clearing industry, worked in air conditioning for at least 12 years. He said that his work has been a strong motivation in his life.
53. Mr Peric has had an “on and off” relationship with the victim of his current offences for
about 16 years. There are three children of the relationship, two daughters aged 14 and 13 and a son aged seven. His partner has some health and dependency challenges. The current state of the relationship is described in one of the Suitability
Assessments as “uncertain”, though the Crown submitted that it “understands that the victim is supportive of the offender”.
54. While that assessment is consistent with the description of the relationship, it is necessary to treat such evidence with caution. As was said in Shaw v The Queen
[2008] NSWCCA 58 at [27], “it is the collected experience of sentencing courts that
victims of domestic violence may be actively pressured to forgive their assailants or
compelled for other reasons to show a preparedness to forgive them.” See also R v
Glen (New South Wales Court of Criminal Appeal, Grove, Simpson JJ, and Loveday
AJ, 19 December 1994, unreported).55. Of course, many victims do express forgiveness to the perpetrators of crimes against them. Not every victim seeks severe punishment, much less is revengeful or vindictive. A number in this Court have expressed a wish for the rehabilitation of an offender. Further, while, what is said by the Court in those cases has much truth, which must be recognised, it is also important not to assume that all victims in domestic violence are in this category and, therefore, to deny them their autonomy or empowerment and the capacity to make their own decisions.
56. Mr Peric has not been diagnosed with any mental health issues, though it appears that there has, in the past, been a suggestion of bipolar disorder and he has been prescribed Seroquel, an anti-psychotic drug used to treat that condition, as well as others. He has no physical health issues, though he has suffered some issues in the past.
57. Mr Peric was first introduced to alcohol as a five year old, when his father gave it to him
“because he thought it was funny”. He regularly started drinking, however, when he
was 13 years old and was drinking daily by age 16, drinking until he was sick. He has since reduced his consumption to every second day, but still to excess. Alcohol is his primary drug of concern.
58. Initially, the Crown was sceptical of his assertion that he was affected by alcohol on 4 August 2021, but, later, in the best traditions of Crown Prosecutors, counsel for the Crown pointed to evidence he had, that was not in the material before the Court at the
time, that Mr Peric was “at the pub” prior to the incidents on that day and that he had
told police that “it wouldn't have happened if they didn't go to the pub the evening”.59. He also used cannabis first when he was aged 13, but that use also escalated rapidly to daily use. Prior to the offences, he was using about 10 grams per week, but has not used since he was arrested.
60. He has used MDMA/Ecstasy fairly regularly, but only about fortnightly and has periodically used non-prescribed benzodiazepines.
61. He has not used cocaine, heroin, GHB or other drugs, though he has used methamphetamine, opiates and hallucinogens very occasionally.
62. He has had little treatment for his alcohol dependency. He did attend a facility in the Northern Territory, but only for two days before he discharged himself. He has, as noted in the letter from them to the Court, had some counselling from Directions and it was reported that he had addressed some issues in three completed sessions, though Mr Peric was hesitant about the value of them to him.
63. Mr Peric says also that he has had a gambling problem. He played poker machines from the age of 18 years and also the game Keno. He has such a problem that he has had himself excluded from ACT gaming venues, but those in Queanbeyan are not so strict and he can gamble there. This addiction has, with his alcohol dependence, contributed to his offending behaviour.
64. Mr Peric has an address to return to in Canberra, which has been assessed as suitable for a Treatment Order when he is released from custody.
65. He has also engaged with the Domestic Violence Crisis Service in the Room4Change program, designed for men who want to stop their use of violence and controlling behaviour and to build healthy, respectful relationships. He does not appear to have had any such prior counselling or treatment.
66. His criminal record is problematic, but not as serious as many seen in this Court. He has 16 offences on his record. All but four are related to driving although, relevantly, he has six offences of driving with a prescribed concentration of alcohol in his bloodstream and one of driving with a prescribed drug in his oral fluid. Worryingly, however, he has a conviction for common assault and two convictions for assault occasioning actual bodily harm. The common assault and one of the assault occasioning actual bodily harm offences were also committed against the victim of the current offences, and so were also family violence offences.
67. Mr Peric has been supervised by ACT Corrective Services during a 12-month Good Behaviour Order and for three bail periods. His compliance with supervision is considered satisfactory.
68. Mr Peric participated well in the interviews for the Suitability Assessments. He was interested, cooperative, attentive and demonstrated a willingness to engage openly. He has welcomed the opportunity to participate in a Treatment Order.
Current sentencing practice
69. Section 33(1)(za) of the Sentencing Act requires a court sentencing an offender to have regard to current sentencing practice. Some of that has been considered above (at
[29]–[45]) when considering the relevant factors to determine the seriousness of an
offence.
70. The other aspect of this consideration is the actual sentences that have been imposed, not for the purpose of setting boundaries or limits, but to respect the important sentencing value of consistency and to show the principles upon which the collective wisdom of sentencing judges and courts of appeal from sentencing decisions have identified as appropriate.
71. There are generally two ways in which this can be done. The first is through access to the ACT Sentencing Database, which collects statistics on the sentences imposed.
72. There are, however, significant limitations on those records. They are by no means complete. They have some links to the sentencing remarks made when sentences are imposed, but not comprehensively, and they have on occasion misstated the outcomes.
73. Further, they do show a number of important characteristics, such as whether pleas of guilty or not guilty have been entered, the age of the offender, whether additional offences are taken into account, whether the offender had conditional liberty at the time of the offending and any prior record, though not the details of that record. They also have valuable statistical information for policy-making, such as gender and indigenous status, which is not relevant to the sentences to be imposed.
74. It does not, however, have important information allowing comparison with offences for which an offender is to be sentenced, such as the value of goods stolen or damage done, whether burgled premises are residential or not, and whether a burglar had a weapon or co-offenders with him or her, or both.
75. Nevertheless, the statistics do provide some information and, as long as the limitations are noted and taken into account, they have value.
76. The most relevant information, however, comes from the sentencing decisions in comparable cases where all of the relevant factors can be considered and the principles from which the sentences are crafted can be considered also.
77. In this case, the Sentencing Database shows that, for the 121 offences of assault occasioning actual bodily harm, the sentences in this Court recorded show that 81% resulted in sentences of imprisonment, though 18% were fully suspended and 14% were partially suspended. About 50% were of full-time imprisonment. Of the sentences of full-time imprisonment, the range of the imprisonment terms for the sentences were from four months to 42 months, with 80% being within the range of six months to 18 months.
78. There were only two sentences recorded for choking, suffocating or strangling a person, so this is probably not very helpful. One was R v Ayuel [2020] ACTSC 213, for a sentence of 11 months and 15 days imprisonment which was wholly suspended, largely because Ms Ayuel was a young offender with a limited criminal history and good prospects for rehabilitation.
79. The other was R v Cowling [2019] ACTSC 138, where the sentence was for two years and six months imprisonment. There were two other offences sentenced at the same time, leading to a total sentence of four years imprisonment, to be served by an Intensive Correction Order.
80. As to the offence of common assault, most of the sentences in this Court were of terms of imprisonment, of which most were sentenced to full-time imprisonment (47% of the 66 sentences). The terms were from three months to three years and six months, though one was for seven weeks. The vast majority were of five to six months imprisonment.
81. The Crown provided two comparable decisions in their very helpful submissions. The first was R v Smith [2020] ACTSC 277, where the offender choked the victim, his domestic partner, in her bedroom for a few seconds and did not cause injury. He entered a late plea. The violence was perpetrated while the children were present in the house, making the offence more serious: Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545 at 551; [32]. See also R v Elson [2020] ACTSC 264 at [11].
82. Unlike Mr Peric, Mr Smith was at conditional liberty at the time of offending. He was under an Intensive Correction Order at the time, but the sentencing remarks do not mention what his criminal record was. He did, however, have a history of alcohol and drug use, making such a record likely. He was sentenced to 19 months imprisonment, suspended but for the 191 days of pre-sentence custody.
83. Mr Smith also struck the victim in the face, causing a comminuted fracture of the orbit of her left eye. It left her with some impaired vision, which resulted in her having to undergo some surgery. For this offence he was sentenced to 29 months imprisonment, also suspended. Again, that is a more serious version of the offence of assault occasioning actual bodily harm.
84. The second decision was R v Cowling where, again, the offence of choking was a family violence offence. Mr Cowling choked his domestic partner in her residence, holding her neck for over a minute on one occasion and about 20 minutes, with intermittent release, on the second occasion. The two occasions were charged as a rolled-up plea. A victim
impact statement showed “significant impact” on the victim, though there was no
medical evidence of injury.
85. He had a limited Criminal History with no convictions or findings of guilt for violence.
He was employed and had attended counselling. He had complied with “extensive bail conditions” for two years. He was sentenced to two years and six months for the
offence, to be served by Intensive Correction Order. This was a more serious offence,
although Mr Cowling had less serious objective circumstances.
Consideration
86. The Court must now synthesise all these factors into a sentence which will respond in a just and adequate way to the seriousness of the offences Mr Peric has committed, having regard to all the relevant circumstances, including his own personal history. In order to do that, it is important to identify the purposes for which the sentence is to be imposed.
87. These purposes are helpfully set out in s 7 of the Sentencing Act. Thus, the fact that there are offences of violence committed within a domestic relationship means that the sentence should include a significant element of punishment.
88. It is important, too, that others who may commit such offences be deterred from doing so by the sentence, which then reinforces the norms of the community, which completely rejects family violence. It will also do this by denouncing the conduct constituting the offences.
89. Similarly, Mr Peric himself must be shown that such behaviour is quite unacceptable and, thus, deterred from continuing similar offences in the future, though previous sentences have not been successful to this date.
90. This can also be achieved by taking account of the prospects of rehabilitation of an offender. Mr Peric has been proactive in engaging with a family violence rehabilitation program and has taken steps to address his use of alcohol and drugs. Thus, when first entering the Alexander Maconochie Centre on remand for the current charges he was drug tested and the test proved positive for cannabis and benzodiazepines. Since then, however, he has been breath tested on four occasions and subject to urinalysis on one occasion in custody. All those tests returned negative results. He has also complied with a bail condition since release from custody not to use alcohol and drugs.
91. In addition, he has obtained a mental health plan and engaged proactively with ACT Corrective Services. He has positive protective factors, namely a good work history and an offer of ongoing employment. Through the achievement of these purposes, the community will be protected.
92. The sentence must also recognise and acknowledge the harm done to the victims. While no Victim Impact Statement has been presented to the Court, courts can assess, in general terms from the collective experience of sentencing, the general nature of
harms suffered from various offences. See R v Ridley [2014] ACTSC 382 at [42]–[43].
93. Thus, the events must have engendered great fear in the victim, and indeed, concern for her life. The assault in the car must also have caused much fear that further assaults could disrupt the driving and cause great injury.
94. Having said that, the Crown was not aware of any concerns of the victim that she had advised it of about her safety or welfare and noted that the victim was supportive of Mr Peric. It did, however, draw attention to Mr Peric's history of violence towards her and her reluctance to provide evidence against him. It is noted that the offences were also committed before Mr Peric had engaged with the Domestic Violence Crisis Service.
95. Mr Peric made full admissions to the offences. This was crucial to the prosecution of the offences, as the victim declined to provide a statement to the Police. While there was some evidence of a hearsay nature from Mr Peric's sister and mother of what the victim had told them, and some evidence of the medical treatment she received at The Canberra Hospital, this would, without the admissions, have made a very weak case.
96. Nevertheless, Mr Peric has also entered pleas of guilty to the choking, suffocating and strangling a person and the common assault charges at an early date. The admissions may make it, effectively, the earliest date. Although he initially pleaded not guilty to the charge of assault occasioning actual bodily harm, he then entered a plea of guilty following negotiations with the prosecution. He is entitled to a discount of some significance for the utilitarian and other values, as permitted by s 35 of the Sentencing Act.
97. Mr Peric had a somewhat dysfunctional home life and certainly a greatly disrupted schooling. This can create significant challenges, though he seems not to have let it affect his work experience and, indeed, has not prevented him gaining a number of employment-related certificates. While there is some evidence of physical abuse by his father, it was not a home where there was violence between his parents.
98. He was, however, introduced to alcohol and drugs at an early age. This is relevant as it was a stage where he could not have made an informed consent to so engage. See Douglas v The Queen (1995) 56 FCR 465 at 470.
99. These are all matters to be taken into account.
100. The pleas of guilty are evidence of his remorse. He did, through his counsel, express
that he “felt terrible about what he had done”. He also entered the pleas of guilty
notwithstanding advice to the contrary, submitted to be further evidence of his remorse.
101. It was suggested that he tried to minimise his responsibility and to blame the victim in describing the offences to the author of a Suitability Assessment. Through his counsel,
he said that this was not how he feels. He is described by his counsel as “not a sophisticated man” and “not an articulate man”. He says that he does not blame his
victim and that his feelings about the events are shocking to him.
102. As well as all these matters, the sentence will take into account the nature and circumstances of the offences as described above and the personal circumstances of Mr Peric, as also described above.
103. Mr Peric was solely responsible for the offences. There is no credible evidence that he was provoked to any degree, nor that the victim played any part in motivating or bringing about the offending.
104. Having carefully considered the evidence and all of these matters, though considering all the relevant alternatives, there is no other sentence than a sentence of imprisonment that is just and adequate for the offending: s 10 of the Sentencing Act.
105. There are three offences for which sentence must be imposed and a proper sentence must be imposed for each of them. Nevertheless, it is important that the length of each sentence be only just and adequate, so that Mr Peric is not punished twice where there are common elements, though not particularly present here, or that the offences are part of a course of conduct, as is relevant here.
106. Careful consideration must also be given to whether the sentences should be partly or wholly concurrent with another or each other because of any of these matters. This is relevant to the choking, suffocating and the strangling another person and the offence of common assault, because they are part of the same course of conduct. Nevertheless, this must not give the impression that multiple offending requires a discount or permits further offences to be committed with impunity.
107. The length of the total sentence has then to be reviewed, which has been done, to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality of the offences, but no more than that, and that the total sentence is not excessive. It should leave open the realistic prospect of Mr Peric being able to engage in reform and to achieve his hopes and goals when he completes his sentence.
108. This may result in what may be seen as some leniency, as to the extent of cumulation and concurrency of sentences, but it is important that the total sentence is proportionate to the total culpability of Mr Peric and that all of the other factors, such as the plea of guilty, remorse, prospects of and desire for rehabilitation and the problematic childhood with early drug use and disrupted education, are given appropriate weight. The synthesis of these factors must result in a sentence that leaves Mr Peric with some hope for reform, which it is clear that he does seek.
109. The pre-sentence custody of 186 days must also be taken into account, which will be done by backdating the commencement of the sentence under s 63 of the Sentencing Act.
Sentence
[His Honour then spoke directly to the offender]
110. Mr Peric, please stand.
(1) You are convicted of common assault and sentenced to three months imprisonment to commence on 16 October 2021 and end on 15 January 2022. Had you not pleaded guilty, you would have been sentenced to five months imprisonment.
(2) You are convicted of choking, suffocating or strangling a person and sentenced to 18 months imprisonment to commence on 16 January 2022 and end on 15 July 2023. That is to be cumulative as to 18 months on the sentence for common assault. Had you not pleaded guilty, you would have been sentenced to 24 months imprisonment.
(3) You are convicted of assault occasioning actual bodily harm and sentenced to 18 months imprisonment to commence on 16 April 2023 and end on 15 October 2024. That is to be cumulative as to 15 months on the sentence for choking, suffocating or strangling a person. Had you not pleaded guilty, you would have been sentenced to 22 months imprisonment.
111. Please be seated.
Drug and Alcohol Treatment Order application
112. Now that Mr Peric has been sentenced to a total sentence of three years imprisonment, it is necessary to decide how that sentence be served. Mr Peric has sought that a Treatment Order be made. Given that he has commenced some rehabilitation and that he appears committed to that, it is appropriate to consider that option first.
113. In order to do that, it is necessary to consider whether Mr Peric is eligible for such an Order and, if so, whether he is suitable for such an Order to be made.
114. The eligibility criteria are set out in ss 12A and 80S of the Sentencing Act. It is appropriate to consider those in s 12A first.
115. Mr Peric has pleaded guilty to the primary offence of choking, suffocating or strangling a person, which is an eligible offence. He has also pleaded guilty to the charges of common assault and assault occasioning actual bodily harm, each of which is also an eligible offence. He has been sentenced to a term of imprisonment of 18 months for the primary offence and then for a total of three years imprisonment for all of the offences. These periods are within the minimum and maximum periods of imprisonment for which an offender is eligible for a Treatment Order to be made.
116. In addition, Mr Peric is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
117. The Suitability Assessments show that Mr Peric has a long history of alcohol and cannabis use. The extent of his use is significant, according to his unchallenged evidence of it, and it is clear, on the balance of probabilities, that he has a dependency, especially for alcohol.
118. While, initially, the Crown submitted that the Court could not be satisfied that this dependency substantially contributed to his offending behaviour, the further evidence to which counsel for the Crown referred was sufficient to address this.
119. This evidence is that he was under the influence of alcohol at the time of the offending and the unchallenged evidence that he gave was that he would not have committed the offences unless he was under the influence of alcohol. This, together with the descriptions in the Suitability Assessments, which show his behaviour and assertions consistent with this evidence, are sufficient to satisfy that criterion. Indeed, the
Suitability Assessment of ACT Corrective Services describes his alcohol use as “a significant criminogenic risk factor”.
120. “[S]ubstantially contributed to”, as used in s 12A(2)(a)(ii) of the Sentencing Act, was
clearly intended to exclude from access to the Treatment Order regime those for whom the use of alcohol or drugs was incidental or so occasional that it was not required to be addressed by a rigorous and intensive rehabilitation regime. That does not require that the dependence was the only causal factor in the offending, nor even the main or primary cause, so long as it was a substantial cause. Mr Peric's history and his use on the occasions in question clearly meet this criterion on the balance of probabilities.
121. Mr Peric has lived mostly in Canberra, though he has also lived in the Northern Territory and Western Australia. These periods were, however, over a decade ago. He has a current place to stay in Canberra, which has been assessed as a suitable residence for a person subject to a Treatment Order. On the balance of probabilities, the Court is satisfied that he will be resident in Canberra for the next three years.
122. Mr Peric has signed a form consenting to the making of a Treatment Order. In this form, he also asserts that he has had sufficient information to make a balanced judgment to give that consent. The Suitability Assessments also confirm discussions about that. He also accepts that he has had the opportunity to ask any questions about the Order and had any questions answered. He appears to have understood the answers.
123. Accordingly, subject to suitability, Mr Peric is eligible for a Treatment Order to be made. Suitability for and appropriate and available arrangements for the Administration of the Treatment Order are the criteria required by s 80S of the Sentencing Act to be met.
124. The Suitability Assessments have been, as they regularly are, prepared in an expert way, addressing with professionalism, comprehensively and thoroughly the question of Mr Peric's suitability for a Treatment Order. Both recommend that he is suitable. The recommendations have been considered carefully, together with other evidence.
125. A Case Plan has also been prepared, which sets out a detailed and thorough regime of rehabilitation, which appears suitable for him. He has already commenced discussions with the Domestic Violence Crisis Service about his involvement with the Room4Change program.
126. Thus, there are appropriate arrangements for the administration of a Treatment Order.
127. There are no reasons why the sentence should not be served by a Treatment Order. Mr Peric's compliance with community-based orders has been satisfactory, thus, there is no reason why the sentence of imprisonment should not be suspended so that the Treatment Order may be served.
128. There are no indicators of unsuitability for a Treatment Order, as set out in table 46K of the Sentencing Act, that would require or make it appropriate that the Court decline to make a Treatment Order.
129. The fact that, while the sentence of imprisonment should be wholly suspended, the sentence commenced before today does not render the sentence one that makes Mr Peric ineligible for a Treatment Order to be made, for the reasons set out in R v
Crawford (No 1) [2020] ACTSC 245 at [91]–[111].
Drug and Alcohol Treatment Order
[His Honour again spoke directly to the offender]
130. Mr Peric, please stand again.
(4) A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for two years from today, 20 April 2022, and ending on 19 April 2024, in respect of the primary offence of choking, suffocating or strangling a person, of which you have been convicted and for which you have been sentenced to 18 months imprisonment. (5) That Order be extended to the offences of common assault and assault occasioning actual bodily harm, of which you have been also convicted and for which you have been sentenced and which are associated offences of the primary offence.
(6)
It be noted that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
(7)
It be directed that the custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 from today, 20 April 2022, until the end of the sentence, 15 October 2024.
(8)
Under s 80ZA of the Crimes (Sentencing) Act 2005, you are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 20 April 2024, until the end of the sentence, 15 October 2024, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
(9) For the treatment and supervision part of the Drug and Alcohol Treatment
Order:
(a)
The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 be hereby imposed;
(b)
You undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where you reside, with whom you associate and your attendance from time to time;
(c)
You comply with any direction of the Court from time to time about attendance at Court in person or by electronic means; and
(d)
You continue the Room4Change Program conducted by the Domestic Violence Crisis Service in accordance with directions from the Treatment and Supervision Team.
(10) You are directed to appear in Court on Friday, 22 April 2022 at 11:30 am.
(11) You are directed to attend the Court Registry before you leave the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 for the period that this Order is in force.
131. Mr Peric, that is the formal Order and that is my explanation as to why I have done so. There are a lot of words there, but it is all about you and what you have done, and so I hope you have understood most of it. There is some legalese in there, but you have been around the Courts a bit and you should know that that is the situation.
132. I have said that these were serious offences. Violence is always serious. Family violence is even worse, and you need to address that. You are taking steps to do that and I congratulate you for that, but it will be a long and challenging process. Hopefully it will work at the end of the day, and you have come to the right Court to get help to make it work.
133. It will be important that you participate and, ultimately, it is you who must make the change for yourself. This Court will help you, and the members of the Treatment and Supervision Team, Corrective Services, Canberra Health Services and others in the Team will assist in achieving that wherever possible.
134. If there are problems, come and talk to us. Talk to your Case Manager. Explain what the challenges are. You will be amazed at what resources they have or what ideas they might have to help you get through that.
135. If there are problems, you can also talk to the Court. You will see a lot of me in the next few months. You will be coming in every Friday at 11:30 am for a while. There are quite a few people who come in and that is an opportunity for you to report to me on how you
are going. “Are you going well?” “Congratulations.” “Are there some problems?” “We need to deal with them.” If those problems are bad, then you will be sanctioned for
them. If you do not attend urinalysis, if the urinalysis is positive for alcohol or cannabis
or other drugs, then you will be sanctioned.136. Those sanctions are usually points, and the points notionally represent a day in custody. We do not send you to custody until you have got, usually, seven points, and then we send you back to the AMC for seven days. If it gets really bad, then I can cancel the Order and then you will have to serve most or all of the balance of the sentence of three years.
137. You obviously are committed. You have obviously got the work ethic, which will help you to commit yourself to this. There is, however, lots of time outside this, and if you are going to re-establish your relationship with your partner, you have got to be very careful about that. There are triggers there that will trigger your reactions for which you have been punished before. You are going to have to learn that that is not the way to have a successful relationship in which you can get the best out of it, as well as give your partner the best out of it.
138. Clearly alcohol, and to some extent cannabis, are a problem for you, and you will need to come to terms with that. In that you will have counselling and assistance, but, again, from now, you will need to be abstinent. Using will result in sanctions. We will not necessarily cancel the Order just because you have one drink, but one drink means you are being set back. I may need to extend the Order. At the end of the day I might
say, “It is not working, I'm going to cancel the Order”. We need to work that through.
139. One of the really important things for you, if you are going to achieve this, is honesty. Be honest to your counsellors, your Case Managers, to those who are supporting you,
but also be honest to yourself. It is very easy for you to say, “It is not that bad, it is only one drink”. Anything like that, if you do not confront it, starts the slippery slope of going
backwards instead of forwards to reform, to rehabilitation, to abstinence, to being crime free. That does not mean you are a bad person. It means you have done bad things.
Own up to it. Be frank to yourself about it and say, “I shouldn't have done it,” not, “It doesn't really matter. I can live with that”. “No”, is the answer.
140. Keep in contact with the Treatment Team. You will be getting a letter in a moment which sets out the details of that. Keeping in contact is really important. If you do not keep contact, if you do not engage respectfully, politely, if you do not attend on time, if you do not engage in discussions, then those are matters for sanction, and if that does not work, for cancellation of the Order. I am not saying that to threaten you or to frighten you, but you need to know the consequences and you need to know how serious this all is.
141. You have asked for a Treatment Order. I am giving it to you because I think you are worthy of rehabilitation. Worthy because you are doing it and you will achieve it if you set your mind to it, but also because it may let us stop your behaviour before you are a menace to society further.
142. The important thing is to come back to Court every Friday until you are told otherwise. Make sure you go to urinalysis every Monday, Wednesday and Friday. Attend your case management and discuss your progress and be open. Then it will all go well, and, hopefully, by the end of the Order you will be coming back to see me once a month.
143. Hopefully by then you will be abstinent, you will be confident in yourself that you are a good person and can behave well, have a productive relationship in the community and get back to work. You cannot really do much work in the initial stages because there are all these other obligations. Hopefully this will all work out well. I wish you luck. I am sure it will work out well.
144. One thing is, you have been very well represented by Mr Edmonds, who is a very experienced and professional solicitor and counsel, but within this program, the Drug and Alcohol Sentencing List, Legal Aid will represent you.
145. You will get a contact from your Legal Aid lawyer, Ms Duffy and if there are any issues that you want to raise, you can raise them through her and discuss them with her. Other legal issues, you can raise them with her. She will not necessarily deal with them all. She can tell you how to address them, or, if there are matters that you need to be brought to the Court but you are not quite sure how to do it, you can talk to her about it.
146. All that now remains for me is to wish you good luck.
147. You may be seated.
I certify that the preceding one hundred and forty- seven [147] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge
Associate:
Date: 25 May 2023
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