R v Rusan
[2022] ACTSC 119
•25 May 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Rusan |
Citation: | [2022] ACTSC 119 |
Hearing Date: | 25 May 2022 |
DecisionDate: | 25 May 2022 |
Before: | Norrish AJ |
Decision: | See [134] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – common assault – forcible confinement – where offender pleaded guilty – offences committed in family violence context – some evidence of contrition – no previous convictions – no physical or mental health issues – offender has demonstrated capacity for rehabilitation – importance of giving effect to the totality of criminality – convictions recorded – good behaviour order imposed – suspended sentence imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 34 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 34B, 35 Family Violence Act 2016 (ACT), preamble |
Cases Cited: | Cranfield v The Queen [2018] ACTCA 3 Dawson v The Queen [2019] ACTCA 9 Wong v The Queen [2001] HCA 64; 207 CLR 548 |
Parties: | The Queen ( Crown) Michael Rusan ( Offender) |
Representation: | Counsel K Lee ( Crown) M Kukulies-Smith ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Offender) | |
File Numbers: | SCC 197 of 2021 SCC 198 of 2021 |
NORRISH AJ:
Introduction
Michael Juraj Rusan appears today for sentence in relation to three offences to which he pleaded guilty to on indictment. Those three offences are, firstly, in count one an offence of assault committed upon the victim, who I will not name, on 27 October 2017.
A second assault upon the victim committed on 24 November 2017 and a third count alleging that the offender unlawfully confined the victim on 8 July 2018. All offences occurring in Canberra. Each of the assault matters carries a maximum penalty of 10 years and the offence of unlawful confinement, I am informed, pursuant to s 34 of the Crimes Act 1900 (ACT) carries a maximum penalty of 10 years.
The matters proceeded with great assistance from the counsel. I have had a Crown bundle tendered and a bundle from the defence which I will deal with shortly. I have had oral evidence from the offender, although no evidence in reply from the Crown. Of course, I have had helpful written submissions supplemented by oral submissions as well as a number of cases provided to me.
If I can deal with one aspect of the matter immediately, I have had regard to the procedural history as it has been set out in the Agreed Statement of Facts and also referred to in the submissions. I have determined, by regard to s 33 and s 35, particularly s 35(2) Crimes (Sentencing) Act 2005 (ACT) that I should accord the offender a discount of 10 per cent upon what would otherwise be the appropriate sentence for each of the offences where terms of imprisonment are to be imposed.
Recognising in the context of all the facts of the case, noting the seriousness of the offending and other relevant matters set out, for example, in the legislation, although the plea was late, some days before the trial was to commence, as I understand it, it was a plea of substantial utilitarian value and the substantial utilitarian value was saving the victim the demands of having to give evidence in the proceedings
Facts
If I may turn to the background of the matter and for this judgment's purposes I will quote directly from the Statement of Facts, although I will summarise the Statement of Facts subsequently. The offender and the victim began an intimate relationship in the second half of 2016. In early 2017 they moved into an apartment at the Kingston Foreshore in Canberra. All the offences occurred in the context of that relationship between February or March 2017 and the date of the last offence and the most serious offence, the confinement offence, committed on 8 July 2018 at or around their shared Kingston apartment.
The victim was a student at the University of Canberra and also worked part-time. At one point as I would understand it from the facts, she was working in two jobs. The offender was also a person employed during this period of time. The Agreed Statement of Facts state that during the relationship the victim suffered from 'some mental health issues and saw a psychologist and a psychiatrist.'
At one point around March 2017, the victim’s treating psychiatrist noted that she was experiencing some paranoid ideation and anxiety in the context of the relationship with the offender. By 9 May 2017, however, the paranoid ideation had resolved completely. On one occasion in the middle of May 2018 following an argument with the offender, she became so upset that she went into the bathroom and started banging her head against a wall.
The offender was present in the unit when this occurred and the offender, in his evidence, conceded that he was aware of that fact. The first assault occurred shortly after. Before I move onto that, I should point out in relation to the various assault matters being five in all, there are two offences on indictment but there are five common assault matters that are transferred matters from the Magistrates Court. These transferred offences are before the court quite properly to provide a context for a full understanding of the extent of the offender’s criminality and particularly, to have an understanding of the circumstances of the commission of the most serious offence on 8 July.
The first assault which is a transferred offence occurred shortly after the couple started living together. The offender, at some point, stopped talking to the victim for a number of days which, to my mind I must say in passing, reflects something of the emotional immaturity of which he spoke. She attempted to cut the gordian knot, so to speak, of silence and tried to talk to him as he was on his way from the apartment to go to the gym.
She grabbed his keys to stop him from walking out. He, in response, grabbed her hand 'roughly taking the keys off her' before pushing her with both hands with enough force to cause her to fall backwards into the kitchen bench. There was no reported injury. This was the first time that he had been physical with her. There was an argument subsequently over the phone when the victim was in the company of a third person.
Ultimately, the offender told the victim that he was upset because a male friend of the victim had posted to her on her Facebook page. It would appear that that offence was one arising out of jealousy. The second assault, another transferred offence occurred again in the context of an argument where the offender was verbally abusive to the victim in the presence of a third person, grabbing her but no physical injuries were reported in relation to that incident.
The third assault, another transferred offence occurred on Anzac Day 2017. The offender and the victim had an argument over her need to study stating that he would, 'earn all the money in the relationship'. This is a matter I might point out in passing that the Crown refers to as an example of the offender trying to 'control' the victim.
The offender, in his evidence, referred to this as an example of him believing that matters such as going to work and studying were contributing factors to the victim's continuing anxiety. In the course of this argument the offender pulled the victim away from the front door as a result of which the victim had some red marks. She made a complaint to her friend that she was to meet and ultimately she said to the offender she wanted to move out, which she did.
During the course of the argument, the victim was screaming. The offender told her to stop screaming because 'he would lose his security clearance at work'. The offender, as I will point out later, has a history of working in security positions, particularly involved with cyber security issues working for either government, quasi-government or local government organisations.
He asked her to stay on this occasion. She agreed on the condition though that he slept on the couch, which he did apparently without any further ado. The fourth assault, again, another transferred offence, occurred on 8 May 2017. This occurred, again, in the context as all the offences did, of an argument. In this case the argument was over the fact that the victim apparently had lost keys to the apartment.
A locksmith was required to attend. In the course of the argument, the offender threatened to 'smash her face in'. She tried to leave. He grabbed her and pulled her away from the door. The argument that resulted caught the attention of a neighbour who rang 000. On this occasion, the offender, obviously not knowing that a call had been made, 'began to cry' and said to the victim that the police would be called if she kept 'carrying on'.
Both parties were clearly deflated from the event. The victim described herself as being 'exhausted' and they slept in separate parts of the apartment. Two police officers did arrive and knocked on the door of their apartment. The offender fobbed them off by indicating that there had been an argument which had been about a locksmith attending. The offender said that the argument was only verbal and that there were 'no ongoing relationship issues'. The victim had also told the police the argument was only verbal, however, she did this because she felt 'bad for the offender' when he told her that it would ruin his career if the police came. Of course, even if the offender said this, it was way short of the reality of the situation. In this particular case no further action was taken by the police. There were apparently no injuries on the victim.
Count one on the indictment is an offence of assault and may be regarded, as the Crown submitted to me, as the most serious of the common assaults. There was an argument on 27 October 2017 about going down to the south coast, as I would understand it, or 'the coast' which I take to be the Batemans Bay area or thereabouts and the need to do some shopping beforehand.
The victim did not want to go to the shops. The offender became angry. He started calling her names. The victim felt unsafe. Then she said she did not want to go down to the coast at all anymore but did agree to go to the shops and they both returned to the apartment. Back in the apartment the offender was yelling at her. She went into the bedroom, as I understand it to shower, he approached her from behind, grabbed her neck from behind and 'threw her onto the bed' and continued to scream at her.
She had red marks on her neck and was crying and shocked. She made a complaint later that day to her friend. Her friend saw marks on her neck consistent with the shape and size of fingers. It is not suggested, of course, by reference to the charge, that this constituted actual bodily harm. It must be said that the offender called the victim the next day over the phone and apologised.
She told him she was still upset and then he became angry again and thus the victim when to her parents' home before he returned. Count two is a common assault on 24 November 2017. There was a period of time where the victim went to live with her parents after an argument. She returned to the apartment on 24 November to tell the offender that the relationship was over.
He tried to take the keys off her saying that she could not have the keys to the apartment if she was leaving. She tried to resist this by striking the offender on the arm and this caused her to drop the keys. She picked them up again in her right hand and he grabbed the hand and pulled it hard, causing her pain. The offender had red marks on his body where the victim had scratched and struck at him.
The mother of the victim shortly arrived as did her father and sister, as I understand it. The offender was seen to be highly agitated. The victim’s family helped the victim collect her belongings and she made various disclosures to her parents. They were separated for about a month and then the facts state that they 'gradually reconciled'. The offender said he would seek professional help for his anger management and relationship issues.
He also rang a friend of the victim by phone and told her that he knew that he had 'done the wrong thing' and that he had 'anger issues'. I understand he had one session of counselling before the ultimate separation on 8 July but did not pursue that matter. Another transferred common assault offence occurred after the reconciliation on 24 February 2018.
The offender was unhappy that the victim was working two jobs. He grabbed her and pulled her, causing pain in her right shoulder and she eventually left. There were visible red marks on her arm. There are also, I should point out in the material tendered here, two photographs showing a mark on her arm and some bloodshot in her right eye.
The last marking in the eye was a result of the offence disclosed in count three. The Crown, in its written submissions, specifically submits that it does not allege that the offender is responsible for the shoulder injury and subsequent surgery to which the victim has referred to in her victim impact statement, to which I will turn shortly.
On 8 July 2018 another argument developed over the issue of the offender driving past a speed camera without warning from the victim. The victim returned home with the offender. She packed a bag and said she was going to her parents' place. He said she was not going anywhere. He took her bag and threw it on the ground. Groceries they had purchased were thrown on the ground as well.
The victim went to the balcony for fresh air and screamed 'Let me go' but was dragged inside. This was witnessed by a bystander who rang the police. When the victim attempted to leave through the front door, the offender grabbed her and pulled her away from the door. At this point apparently someone 'knocked on the door'. The offender put his hand over her mouth and held her tightly from behind.
His thumb contacted her eye, causing pain. Although, apart from the deliberation in placing his hand over her face, I do not believe it can be proven beyond reasonable doubt that he deliberately poked her in the eye. But it was a consequence of his conduct in placing his hand where he did. The offender said, in a loud voice, 'It's all right … it's just your anxiety. We'll work it out' or 'I will work it out'.
The conduct of the offender in pulling the victim back inside the premises to the point where he eventually let her go, as he did, just before the police arrived constitutes the forcible confinement. The parties had agreed before me, although it is not in the agreed facts, that this confinement was for a period of up to 30 minutes. Under closer questioning of both counsel, however, bearing in mind the source of the estimate of time arises out of the timing of 000 calls and the registered timing of the arrival of police, it seems to me that I could not be satisfied beyond reasonable doubt that this confinement was greater than 20 minutes.
That is still, of course, a substantial period of time, but it needs to be understood in the context of other matters that I need to take into account – the period of time that can be reasonably concluded as being the period of the confinement. When the police arrived, they came up to see the offender. They saw the victim apparently away from the apartment as she was leaving.
She told them that she had had a verbal argument with her boyfriend and they observed a mark on her face. When the offender was spoken to, he said it was a verbal argument and a 'small thing'. No further action was taken at the time. The victim ended her relationship with the offender definitively as the facts state.
Other people observed her bloodshot eye, however, the offender in the weeks that followed, contacted the victim apparently by email or text message and made a number of admissions which I will deal later in the consideration of the issue of contrition, bearing in mind the Crown made a submission to me that there was no contrition on the part of the offender, which I cannot accept on the evidence available here.
The victim made an initial approach to police on 17 July 2018 making inquiries about the process, however, on 19 March 2019, having summoned up the courage to do so, she attended a police station, gave evidence or material relating to being physically abused over a two-year relationship and the police obtained from her images, text messages and a video. Subsequently she made a formal statement and noted that she had not made the statement in July 2018 because she was 'scared'.
There is of course no issue about any delay in complaint by the victim. The courts fully understand there may be a number of reasons for failure to complain at a relevant time or to delay making complaint, particularly in the context of a domestic relationship or an ongoing relationship. The pressures that might arise out of that relationship, not peculiar of course to this relationship, can cause people not to take action to protect themselves.
The circumstances of the victim's reluctance to provide details to the police at various times is completely understandable, although it is to be borne in mind that a relevant matter in this sentencing exercise is that for various reasons, including, I hasten to say, the delay in the offender ultimately pleading guilty, there has been a substantial delay since the last of the offences, almost four years. This is relevant to the assessment of the progress of the offender's rehabilitation and in judging the risk of his reoffending.
It is not to be forgotten that the course of actions of the offender and the period of time over which the offending occurred was interspersed by relative calm between the offender and the victim. These are relevant matters to take into account, although it must be said also that relative calm between two parties in a domestic relationship interspersed with acts of violence or threats is not unusual in family violence situations.
Offender’s evidence
Before I turn to other material in the Crown case, I wish to turn to the offender's evidence because apart from giving evidence in relation to his background, adopting the accuracy of the background set out in a psychologist's report, which I do not believe is controversial, that is, the history of his upbringing, the offender gave evidence in relation to the facts of the case. As the evidence, including the cross‑examination, proceeded over an hour and a half, in this judgment it is not possible to detail everything that he said.
In my view, he was essentially endeavouring to be truthful and explain his conduct and I do not believe that he was deliberately being untruthful, but he did, as the reports reflect, attempt to some extent minimise his behaviour even at this period of time from the last of the offences.
I accept that none of the offences were influenced by drug taking or the use of alcohol, as he has acknowledged, and I accept that there was a degree of immaturity on his part at least in his relationship with the victim. He said it was the first serious domestic relationship that he had and it is quite clear that he had difficulty coping with issues that related to the victim's circumstances.
He appreciated that the victim had mental health issues, particularly suffering from anxiety, and statements he made to the victim about not wanting her to work two jobs, not wanting to study, he said were directed not at controlling but assisting her to cope with her mental health issues. There may have been some element of this, but they did have the effect of attempting to control her.
I bear in mind of course that many of the offences were separated by no allegations of improper conduct by the offender over a number of days or weeks, and I also bear in mind, as the facts make very clear, that after particular incidents that came to a flashpoint there was either a rapprochement between the parties or a cessation of hostilities leading to, for example, on two separate occasions the victim going to one bedroom to sleep by herself and the offender sleeping on a couch.
Of course, each of the assaults occurred in the context of what could be called domestic discord about relatively minor matters culminating in outbursts of anger by him. I accept that there is some truth in his assertions concerning the way in which he is alleged to have sought to control the victim.
To be fair to his evidence, both in chief and in cross-examination, he did make a number of concessions, some of which may have been missed by the Crown as I pointed out to him on one occasion, relating to the generality of the assertions that he made. For example, he sought to assert that all of the offences were in the context of he seeking to effectively shepherd the victim away from harm or further anxiety but it is quite clear in two or three examples that I have referred to that his anger directed at the victim was precipitated by a lack of tolerance and an unacceptable degree of jealousy and/or anger.
There is a history concerning his version of events in relation to the offences in a very short paragraph in the psychologist's report. Having regard to his evidence and his opportunity to give full account of himself, I do not believe the history upon which the psychologist has acted and assessed the offender to some extent is a complete account of the explanation of his conduct.
Whilst the psychologist had access to the statement of facts, as I understand it, the explanation she recorded for his conduct obtained from him is not the explanation he gave on oath in greater detail before me. I do not see that as necessarily an inconsistency. He has got no control over the manner of reporting.
One of the themes of his evidence repeated on a number of occasions, which is not a criticism of him, was that he acknowledged that he was acting inappropriately and he had not appreciated 'the magnitude' of his conduct. Of course, this is a troubling matter because any act of violence of any type, short even of punching or kicking, but pushing or grabbing, reflects matters of significant magnitude as I accept from the Crown's submission.
He said he saw his conduct as attempts to try and help the victim with the challenges arising out of mental health but he did not appreciate the seriousness of his conduct in the context of what he described as a toxic relationship. Of course, the description 'toxic relationship' has a connotation of seeking to apportion some blame to the other party.
However, on the other hand, when questioned about particular events described in the agreed facts he did acknowledge that on particular occasions his conduct had nothing to do, as I said earlier, with assisting the victim with her 'challenges'. He said in his evidence that he himself had challenges to his mental health with periods of anxiety and being emotionally unstable. The event where he started to cry reflects some instability as I said. As I understood his evidence, these were feelings or conditions that he had not experienced before and to my mind, the agreed facts to some extent confirm this.
I should point out that the offender gave evidence now that he is in a stable relationship now for a period of some seven or eight months and I have a reference from the woman involved which I will refer to shortly, who states there have been no acts of violence by the offender, nor any controlling conduct of the type described in detail in the agreed statement of facts.
I accept the evidence of the offender and that evidence contained in the references, although they are not sworn testimonies, in relation to these matters. Of course, I note in the context of this course of conduct of the offender that before the commencement of this course of conduct he had no relevant criminal convictions, certainly no history at all of domestic violence and I have noted the period that has elapsed since the last of the charges, almost four years.
The Crown properly cross-examined the offender in detail in respect of particular events and whilst I accept in general terms the evidence of the offender as I said, some details of his evidence do not accord with the statement of agreed facts. For example, it is clear from the document that on a number of occasions, including on the last occasion, the offender was concerned that the police would attend upon the apartment because the potential for police action could lead to charges which could, if proven, derail his career or at least have an impact on upon his career (the career that I outlined earlier). The conviction would cause jeopardy to his employment and business future. And I accept that the convictions that I will record may have that effect upon him now. I should point out his counsel, at no point, made a submission to me that because of matters personal to him that I should not record convictions.
However, the offender must have known the actions of him that are now the subject of the charges were wrong and possibly criminal. Surely criminal, for example, in relation to pushing and grabbing the victim and detaining her as evidenced in count three and that police intervention would realistically lead to charges. But he did not stop himself or restrain himself.
This brings me to the last offence when he put his hand over the mouth of the victim and said in a loud voice, 'It's all right we'll work through it'. I am satisfied that he was concerned that outsiders might interfere with the fracas but bearing in mind that he was unaware that the police were called and, in fact, at the time the police were not present at the premises at the time, I do not accept that he said these words to particularly prevent police intervention in the affair. He certainly did not want outsiders, however, intruding. That is not to say, and it is not suggested or accepted in the victim impact statement of the victim, that outside intervention may have stopped something more serious happening. The facts themselves note that having placed his hand over the victim's mouth he then let go of her without any further intervention and allowed her to leave the premises.
In fact, he 'begged her to stay' according to the facts. In this regard, by reference to the issue of contrition to which I made earlier comment, and noting, of course, how that arises pursuant to s 33 of the Crimes (Sentencing) Act 2005 (ACT), which I will herein after refer to 'the Act'. It is a matter with other matters I have adverted to in the agreed facts that reflect some contrition on his part. He has apologised on occasion but not on every occasion admitting wrongdoing to third parties. But particularly, in the context of timeliness, having regard to the emails sent to the victim, 'weeks' after the last offence and a long time before the victim went to the police. In that email he said, amongst other things:
In saying all that [I don't know what else he said, I'm not informed] it doesn't make physically stopping you from leaving okay and is something I'm very disappointed in myself for as I promised you I wouldn't just like you promised me wouldn't leave … no doubt I should have let you go and discussed later … It's no difference to me thinking it's okay to stop you from leaving because it's just not.
With respect to the Crown's submissions that, to my mind, is some evidence of contrition. But not complete contrition as other events occurred during the course of the proceedings. This reflects a relatively contemporaneous acknowledgement on the part of the offender of the wrongfulness of his conduct. But, of course, over time he has developed something of an ex post facto rationalisation, in part, concerning his conduct towards the victim.
He accepted in his evidence his physical superiority to her but denied seeking to deflect blame on the victim saying that the contextual circumstances involved 'contributing (conduct) on both sides'. It should be borne in mind, as I have already pointed out, that many of the offences occurred in the emotional heat of a relationship punctuated by, it would seem, frequent arguments.
The offender acknowledged that the relationship was 'not a good fit' but it was important for him in realising that either to step away from it or to restrain himself from reverting to physical activity harmful to the victim. It certainly does not provide any justification for any form of physical violence on the part of the offender.
Victim impact statement
I have a very detailed victim impact statement from the victim which I have read. It is an insightful document in a range of ways. I accept that in the context of her psychological vulnerability, there has been great harm caused to her. I should be careful in my assessment of it in the context of the authorities cited by the Crown, which I need not cite, that there are some aspects of it that involve claims that are not, as conceded in one particular instance, proven beyond reasonable doubt.
Some claims in relation to matters that fall outside the rubric of the character of the charges brought against the offender. As to what I understand to be the psychological vulnerability of the victim, however. I cannot find that the offender deliberately exploited that vulnerability. It is not suggested that an aggravating factor in this matter was that the victim was 'vulnerable'.
Which may be the case if it could be proven beyond reasonable doubt that a person knowing that someone had a psychological or psychiatric illness or vulnerability sought to take advantage of that. However, it's quite clear that her vulnerability was a matter of which the offender had to be more mindful, bearing in mind he was well aware of it on his own version of events.
It is taking a long time for the victim to recover from these series of events. On the other hand, there's no evidence available of any continuing threat to the victim from the offender. I note the offender has been subject to domestic violence orders since charging which I assumed occurred some time in the middle of 2019 and I'm informed by his counsel that in November last year he consented to a two-year extension of that order.
Those orders include avoiding any contact with the victim and approaching places where she may work or otherwise frequent. There is no suggestion of any breaches of those orders and that is a relevant matter to take into account; the existence of the orders and his conduct under the orders both as further restraints upon his freedom, to some extent. But more importantly, as evidencing his prospects of rehabilitation. And in my view, in part, his contrition. Before I leave the issue of contrition, I hasten to say I am very mindful that contrition comes in various forms and to various degrees. The man who kills a child as he's driving along the street, jumping out of the car in distress, aiding the child to the best of his ability immediately after the collision, expresses contrition immediately and sincerely. It can be reasonably described as profound and worthy of great weight if, in fact, that person is guilty of any particular criminal offence. Of course, when someone comes along to court and says they are sorry and says so for the very first time and seeks some comfort from the pleas of guilty as some evidence of contrition, one would approach the issue of contrition with some circumspection.
But the evidence in this case is not of that extreme, if I could use that expression, nor is it, of course, as significant an issue as it might be the case with immediate expressions of contrition in a particular matter. I have had full account of the victim's impact statement. I have also read the very short victim impact statement of the father and a much longer victim impact statement of the mother. I feel great concern for the victim but I also feel concern for the parents.
You can see it in the father's statement, amongst other things, the helplessness of knowing that his daughter had been assaulted and had been the subject of these particular crimes and not either preventing it or intervening or not being fully aware of the situation such as to take action to protect his daughter. Likewise, the mother who was a witness to some matters, was a person to whom the victim confided on occasions. She was aware of the situation, which not only caused distress to her but also caused pressure upon her relationship with her husband. It is a very distressing thing for parents to have to tolerate wrongdoing to a child of theirs and feeling powerless in the course of those relevant events. In terms of the victim's association and relationship with the parents, it is not without some significance that from time to time the victim, when she left the offender, as she did, , found herself going back to her parents' place. I accept the family is close and they are providing great comfort for her.
Subjective circumstances
I have a pre-sentence report from Queensland Corrective Services. It is worthy of some particular reference in the context of earlier observations I have made. The offender described the relationship as he did for me as 'toxic'. The reporter noted that the offender acknowledged his poor decision making and took responsibility for his actions in that he acknowledged his decision to restrict her from leaving or physically stopping her was unacceptable.
The officer, however, assessed that the offender appeared to minimise the severity of the offences and deflect partial blame of his actions onto the victim's 'poor mental health', which is, as I perceived his evidence, although I do not, of course, completely reject his evidence as I have earlier pointed out. In relation to the report, it sets out details of his background and current circumstances. He has no relevant criminal convictions.
I have a history from Queensland but the matters are irrelevant and did not lead to convictions. He has secure accommodation and secure employment. It was assessed that his preliminary need is to undertake attention and counselling to his domestic violence behaviours and attitudes. It would appear that he would benefit from completing behavioural change intervention supervised by the Queensland Corrective Services.
There is particularly a Men's Domestic Violence Education and Intervention Program which his facilitated at the Southport Community Corrections. This will run for 27 weeks and an order of supervision for a minimum of nine moths will enable this intervention to be completed. I should point out in the context of all the material available to me that whilst the offender is a person who has lived in Queanbeyan and the ACT most of his life. He did go to Brisbane in his early 20s, as I understand it, for a couple of years and then after the relationship with this victim ended, he went up to the Gold Coast to re‑establish himself.
I note by reference to his history of employment and the security of that employment and the roles that he has in the security industry, he also runs his own business. I assume he provides contractual services to the people of whom he spoke. He also runs a program called, 'The Beach Life'. To his credit, this is an organisation that is referred to in the references providing support to various surf clubs in Queensland and elsewhere in the country.
There is a reference to his suitability for other supervision. He is suitable for community service and the like but they are not practicable considerations here. However, the undertaking of a suitable program to address his domestic violence conduct evidenced in the charges, is a suitable and appropriate program for him. In dealing with the subjective case, I have referred, in summary, to his evidence and details of his background, employment and the like.
As I have earlier pointed out, the inevitable convictions may have an impact upon his career. I mentioned earlier material that related to the conduct of this business called The Beach Life. I should point out further to what I have said, it supports Surf Lifesaving Australia and the Surf Lifesaving Foundation. In relation to the supporting references, his current partner said that he discussed the offending with her and that he had admitted in engaging in 'inappropriate controlling behaviours' and accepted that he 'should've behaved very differently'. She said in her reference, 'Based on how he has treated me I believe he has changed because his behaviour towards me has not been the same'. I note, of course, what the victim had written in her impact statement about protecting other people from him, I do not believe the offender presents at the present time as a continuing threat to other people or the community.
She said the offender had treated her with nothing but respect, loyalty and kindness. She had been, herself, the subject of domestic violence in a previous relationship but the offender, in relation to his dealings with her had never been controlling or aggressive towards her. I have other references, one from his brother speaking of the offender's positive qualities, his industry, his interest in living a healthy lifestyle of which he spoke about in his evidence.
He appears to be a fit, strong young man which is an important matter to bear in mind given his physical conduct towards the victim. He is also involved with the organisation providing assistance to Surf Lifesaving Australia. I have other references from friends of the offender. One is of a friend of over 25 years and the other of over 15 years. They state that the offending, to their knowledge, is out of character and that the offender had expressed regret to both of those people about his conduct.
The male friend of over 25 years noted the offender's 'passion' about, and the assistance he provides to others in dealing with, cybercrime issues. Both referees asserted that the conduct of the offender was not only out of character but that the offender remained, for them, a loyal and trusted friend. Another friend of a slightly shorter period, that is a period of four years, noted he is surprised at the character of the charges. He had usually observed the offender to be polite and courteous to other people and he noted the offender had volunteered his time to him to assist him with the development of his own career and his knowledge of cybercrime issues.
Amongst the defence bundle I also have a psychologist's report from Dr Jenna Bollinger from New South Wales which sets out the detail of his family history of which the offender, himself, spoke. His parents separated apparently when he was 12 or 13 years of age. His mother either slid into or already was involved with drug abuse and had a very serious gambling addiction. The offender, subsequently, had a lack of contact with his mother. The offender noted to the psychologist that his father had an 'explosive temper' and this is of some significance in the analysis of the psychologist.
The offender is very close to his siblings, having a brother and a sister and describing his brother as his 'best mate' and he told me he had regular contact with him up to 10 times a day. The report reflects upon his relationship history with the victim. As I said, much of the history in general terms accords with his evidence. Although his description in his evidence is more particular.
Consequently, the psychologist's assessment based upon the history, as she understood it, needs to be viewed with some circumspection. That having been said there is no significant mental health issue to be considered in this case. There is no mental illness or impairment identified. She said that the offender had 'impaired decision making at the time of the offences' believing, of course, that he was trying to manage the arguments in more productive ways. But he has now accepted that this was not appropriate. This is a simplistic analysis, or an over-simplification of the true picture that emerged in his evidence. It certainly is an over-simplification if one looks at each of the offences individually in the circumstances of their occurrence.
She undertook various psychometric tests in respect to the offender's risk of offender or re-offending and assessed that at being at 'low range'. To my mind, this assessment is not at odds with the objective evidence for consideration in this matter. Drug and alcohol use are not problematic issues for this offender. The offender spoke of anxiety and panic attacks during the relationship. But there is no concrete analysis of the cause of these. They seem to be more emotional reactions to specific events seen in the wider context of the relationship.
She recommended the offender undertake a domestic violence course to ensure that he is fully aware of what does constitute domestic violence and develops strategies to ensure he does not find himself in a similar situation in the future. She felt that his anxiety of which he spoke may have contributed to the offending. She said this had to be seen in the context of a background of separation from his mother and explosive anger from his father which could be, in the experience of the courts, learnt behaviour by him. He was subject to regular corporal punishment from his father.
She noted in the context of his lack of detail about his absence of contact with his mother after she left the family home that it was 'a very uncommon thing for adolescents to cut off contact with their primary caregivers when there has been no abuse or trauma which may indicate some form of parental alienation coached by his father. The history may have contributed to the offender struggling to cope with interpersonal relationships.'
She suggested that he may need counselling in relation to these matters. Of course, these latter opinions that I have just referred to and quoted are based upon the suggestion of possibilities which are not confirmed by contemporaneous observation or assessment. But they may provide, as I said, some context for his behaviour. I mentioned earlier that the offender did undertake one counselling session during the relationship but scarcely gave enough attention to addressing his anger or other emotional issues.
Whilst his upbringing may provide some explanation for his reaction to particular domestic challenges, ultimately it provides no particular mitigation. At the same time it cannot be said on the basis of all the evidence, including the psychologist's assessment, that there are what could be called entrenched psychopathic tendencies that suggest the offender is a danger to others.
Consideration
In respect of the submissions that were made by the parties, I have already noted I had extensive written submissions from both parties supplemented by oral submissions. If I could deal with the Crown's submissions firstly because they are most helpful, particularly the reference in the submissions by regard to the forcible confinement offence to the decision of Refshauge J, as he then was, of this court in R v Williams [2016] ACTSC 389 (Williams).
I have read the entirety of that judgment, bearing in mind it is also to some extent sought to be relied upon as a 'comparable' sentencing exercise. From various authorities, his Honour divined the following matters as being relevant to the assessment of the objective seriousness of a forcible confinement offence: the length of the forcible confinement, the extent to which it was premeditated or planned, the way in which it was effected, the purpose of the confinement, the conditions under which the victim was confined, including the behaviour towards the victim such as the level of restraint, any physical or verbal abuse committed and whether the victim was subjected to degrading behaviour, the extent of fear instilled and injuries inflicted.
It should be said, as I pointed out by reference to all the cases to which I have been referred, the period of time of confinement in this matter is probably the shortest of the 10 or 12 authorities I have read. There is no suggestion, nor could it be found, that the forcible confinement offence was a premeditated or planned offence as with the assaults. It occurred in the context of an argument that started over nothing with the victim.
I have taken into account the facts of the matter and the purpose of the confinement earlier. The conditions of the confinement I have noted in the facts. I bear in mind some of the cases to which I will come in a moment involve, for example, in one instance a woman being tied to a bed for five hours and being beaten by the perpetrator. There are various varieties of circumstance that might describe the conditions of confinement and I note the conditions here by reference to those other cases.
With regards to the extent of fear instilled, I appreciate the victim was terrified or scared for her safety, but in the context of the period of time and the minor injuries ultimately that were suffered, the matter could not be objectively observed to be a confinement for the purposes of causing some more serious harm. I bear in mind, of course, in sentencing in relation to the confinement charge, I am required to understand and take into account the context of previous offending.
The Crown has set out at paragraph 10 of its submissions various matters, some of them involve some hyperbole, with respect, but they are generally matters that touch upon issues that need to be taken into account. I was somewhat perplexed by the use of the expression 'not insignificant' amount of time and it was only after I quizzed the parties about that submission that I got the proper material that I should have been provided in the first instance. That is no criticism of the parties.
In any event, I bear in mind the family violence context of this offending, a matter specifically dealt with by the Crown in his oral submissions and the various authorities set out at paragraphs 12, 13, 14 and 15 of the Crown's submissions. I need not repeat it. The various statements of general principle by the learned judges reflect what any rightminded judicial officer fully understands in this context.
I am required to have regard to contemporary sentencing practices. The Crown cites the High Court judgment of Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41, and I will come back to the comparative cases shortly. As to the common assault offences, I have set out the facts of the matter quite clearly and referred to the extent of time over which the offences occurred, their 'persistence' in that factual context that I have outlined.
I have taken into account of course the effect upon the victim. The Crown refers to various matters cited from her victim impact statement at paragraph [23] of his submissions. The consideration of the impact upon the victim is to be undertaken in the context of understanding, firstly, her vulnerability and the actual character of the contact with the offender. It is at paragraph [26] that the concession is made about the issue relating to the victim's shoulder.
The Crown acknowledges the absence of criminal convictions or current physical or mental health issues, drug and alcohol problems and the like. I cannot conclude that the offender is a danger to women or that he has entrenched attitudes of dislike or a wish to harm women generally. But his conduct towards this victim reflects adversely upon him.
I have already taken into account his plea of guilty as required under s 33 and particularly s 35, having regard even to s 35(5), and bearing that in mind, I have still concluded that a 10 percent discount should be given to most of the sentences, as I will make clear when I pronounce orders shortly. Some of the sentences are relatively short and it is not utilitarian, so to speak, to provide a discount and I bear in mind, as I have in a number of judgments I have already given in this jurisdiction, what the Court of Appeal said in the decision of Cranfield v The Queen [2018] ACTCA 3, particularly at [37]‑[38].
I have dealt with the issue of remorse or contrition as it arises under s 33. I should point out in my fact finding I have dealt with a number of issues that might readily be identified as matters particularly set out in the subparagraphs of that section.
I am required to give effect to the totality of the criminality and thus afford a degree of concurrency and accumulation and I note what was said by the Court of Criminal Appeal that the Crown has cited in Dawson v The Queen [2019] ACTCA 9 (Dawson), particularly at [37].
Mill v The Queen (1988) 166 CLR 59 is a significant decision in relation to ‘totality’, reflecting upon Professor Thomas' discussion of the matter in his learned work on sentencing from England. Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce), particularly at [45], is a leading case which has actually fundamentally changed sentencing throughout the Commonwealth of Australia.
Pearce of course was a conviction appeal, but the issue in the majority's judgement of fixing an appropriate sentence for each offence and then turning one's mind then to whether there should be a degree of concurrency or cumulation was focused upon the fact that the consequence of acquitting the offender in relation to one of the counts led to the remaining sentences, as they then stood, being plainly 'inadequate' for the seriousness of the offending. At the time of the sentencing of Pearce, at first instance, it was commonplace for judges to fix sentences that usually ran concurrent with one another and perhaps fix a very long sentence for one offence, but fix relatively shorter sentences for other offending, not giving proper attention, as is now required, to assessing the objective criminality and the relevant mitigating factors in assessing the appropriate sentence for each offence.
This is either implicit or express in the judgement of Dawson. I agree with the Crown that there is a need for a degree of cumulation and I will reflect that in the order that I make.
So far as the Crown's oral submissions are concerned, I just note further to what is contained in the written submissions that the placing of the hand over the mouth of the victim was an aggravating factor. It is clearly so having regard to those features identified by Refshauge J: the character of the force used is obviously relevant.
Whilst I cannot find that other offences were committed by the offender in the course of the forced confinement, there were actions by the offender that involved the application of force to the victim to give effect to the confinement. He made submissions that I have already taken into account about the offender's evidence.
The Crown drew my attention, helpfully, to s 34B of the Act, that specifically requires, in dealing with an offence of family violence, to take into account the various matters referred to in the preamble of the Family Violence Act 2016 (ACT), which was read to me by the learned Crown, which I do, and to take into account the fact that the offending occurred in the then home of the victim, which of course was also the home of the offender. But in most family violence offences the victim and the perpetrator will be living under the same roof.
Here, contrary to s 34B, I am not required to consider the commission of the offence in the presence of the child, nor am I required to take into account other convictions for serious family violence offences. The severity of the sentence to be imposed must not be reduced because it is a family violence offence and I agree with the submission generally of the Crown that the offences had crossed the s 10 threshold, as it is described by both parties.
In that regard, the Crown noted at [43] of his written submissions that terms of imprisonment were appropriate. He submitted orally in relation to all offences, but it was a matter for the court as to how the sentences were to be served and in determining how the sentences were to be served, I have been greatly assisted by particular comparative cases.
Turning then to learned counsel for the offender, his written submissions are very detailed and he deals with various matters that I have taken into account: the relevance of the maximum penalties, as discussed, for example, in Markarianv The Queen [2005] HCA 25; 228 CLR 357, the plea history, the subjective circumstances of the offending and the objective seriousness of the offences.
I must say, it is no criticism of the learned Crown who is very skilled and learned in his approach to the matter, but counsel for the offender actually went directly to the task of assessing the comparative objective seriousness of the offending or particular offences in their proper context.
I accept his assessments. I think ultimately it was not the subject of great dispute, that in the range of offences contemplated in relation to forceful confinement, the offences to be regarded by reference to the criteria in Williams as being at a low level of objective seriousness, but not of course at the lowest level of objective seriousness. It was conceded that whilst many of the assaults were at a low level of objective seriousness, the assault that occurred in October 2007 was described in the written submissions of counsel for the offender as 'above the mid-range of objective seriousness' and I have accepted that that is the most serious of the offences.
I have taken into account the submissions made about the victim impact statement and the comparative cases and I have had regard to the issue of disposition, as submitted. Counsel for the offender accepts, as the Crown submits, that by regard to s 7 of the Act there are a number of matters that are required to be taken into account, particularly in this matter the issue of general deterrence, as has been discussed in the authorities cited by the Crown concerning the character of domestic violence offences and the plague they present for our community.
The rationale of this, in part putting aside the actual harm done to a particular victim as anyone who has ever practised in the criminal law would know, is regrettably because of the totally unacceptable rate of homicides in the community by men, particularly, killing their partners or people with whom they are associated, usually arises out of an escalation from acts of violence not necessarily dissimilar from the violence of the offender in these matters.
However, I hasten to say, I am not saying for one moment that there was a risk that the offender would kill the victim. But the truth of the matter is that in many cases, those terrible outcomes that we read about or see in our work occurring on a regular basis, on a far too regular basis, have their origins in behaviour such as this.
I am required not only to give weight to general deterrence, but to some extent personal deterrence, although in my view the offender is a person who has demonstrated his capacity for rehabilitation in his progress, to some extent, in his rehabilitation and his prior conduct and his subsequent conduct suggests that he is well capable of having a lawful lifestyle, contrary to some of the people that were identified in the comparative cases.
I do not believe there is a need to protect the community from the offender, but there is a need to ensure that he is adequately punished. I am required to make him accountable for his actions, denounce his conduct towards the victim, recognise the harm done to the victim, but also promote his rehabilitation, as s 7 of the Act makes clear.
As the High Court in Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465 in 1988 said about the purposes of sentencing, where the majority identified four of the seven that now appear in s 7, they are ‘guideposts’ that sometimes point in ‘opposing directions’. In relation to his oral submissions, putting aside the submissions made about comparative cases, as I said I will turn to in a moment, he said that there was substantial evidence of behavioural change. There was some degree of insight, but it was not complete, which is quite clear, and that the offender would benefit from counselling.
He gave oral submissions as to the reason for a discount for the pleas of guilty and he shed light upon the domestic violence orders to which I have referred. In his submissions about the comparative cases, with no criticism of the learned counsel for the Crown, he noted some deficiencies in the schedule provided by the Crown and drew my attention to a particular authority which I will refer to now.
In inviting the court to take into account the comparative cases in relation to the confinement matter, I was not drawn to any particular cases in relation to the assault offences. The parties provided me not just with summaries, but the cases themselves, which I have read. Reading the cases provides me with a more reliable and complete understanding of those cases than any summary could. I do not propose to cite every case to which I have been referred. Bearing in mind, the material that has been made available to me, it would take too long.
Of course, comparative cases provide guidance for a sentencing judge as to ranges of sentences imposed in respect of particular offences, recognising that there are a vast variety of circumstances to be taken into account. Sentencing is, as the High Court said in Wong v The Queen [2001] HCA 64; 207 CLR 548, 'not a precise mathematical exercise'.
It is a discretionary matter. Of course, in reality, no two cases are alike and no two offenders are alike as a general rule. The decision of Williams to which I earlier referred provides some assistance in a comparative sense. In that matter, whilst the victim was not as severely affected as the victim in this matter by the offender's conduct there were surrounding offences committed by the offender of greater seriousness than here at the time of the confinement.
He made a threat to kill her for which he received a sentence and he was also convicted of other offending. For the confinement offence he was sentenced to 12 months' imprisonment which was suspended. In the decision of R v Klickovic [2018] ACTSC 141 that case involved an offender who confined the victim on two occasions motivated by a desire to protect their child from the victim's drug affected lifestyle.
But the use of force was 'more violent' as the Crown conceded than 'the instant matter'. That offender was sentenced to a reduced term of 18 months' imprisonment which was suspended although acknowledging 20 days of pre-sentence custody when he was bailed refused, presumably for the protection of the victim. The sentence, it reflected a discount of approximately 10 percent. He was also sentenced for a related assault to a term of imprisonment.
The Crown referred me to the decision of the R v Eimerl [2015] ACTSC 72, there the confinement was for a period of two hours. The victim feared the offender might kill her which, in my view, cannot realistically be concluded in this matter. The offender had a 'long criminal history including convictions for offences of violence and was on parole at the time of the offending'.
The sentence for the confinement offence was two years and nine months. Both the character of the confinement and the criminal history are not comparable to the current case in a range of ways. Likewise, in other authorities cited by the Crown, such as the decision of R v East [2015] ACTSC 54, the confinement in that matter was for five hours. The offender was subject to a suspended sentence order at the time of the offending as well as a good behaviour order. The good behaviour order was in respect of a previous offence of reckless threat to kill against the same victim. The sentence imposed was reduced from a starting point of 20 months’ imprisonment for the plea of guilty.
Likewise, another authority involving an offender with a lengthy criminal history was not comparable either objectively or subjectively with the offender having a 'long criminal history' and where the victim was an ex-girlfriend forced into a car and driven to another house against her will and confined for approximately two hours (Twerd v Holmes) [2010] ACTSC 55).
This was an appeal from an order in the Magistrates Court. The term of imprisonment imposed, admittedly with a non-parole period was 20 months. Counsel for the offender in this matter referred the court to an authority that is more comparable than the last three authorities. That is the decision of R v Barbour (unreported, Supreme Court of the ACT, Burns J, 20 November 2013) (Barbour).
That offender was convicted of assault occasioning actual bodily harm and contravening a domestic violence order. The offences were committed at the time of the confinement offence in respect to the same victim. Whilst he was a relatively young man of 25 at the time of the offending, he tended to blame the victim and minimise his responsibility for his actions.
He had one of the most unfavourable assessments I have seen from a judge in a long time. He was regarded and accepted by the judge to be an 'antisocial individual with no apparent self-awareness'. He was assessed as being at 'a medium to high risk of re-offending'. The judge found that the offender had no good prospects of rehabilitation. In fact, very few prospects indeed. For the forcible confinement charge, he was convicted and placed on a good behaviour order for a period of 18 months with a sentence of 10 months' imprisonment suspended in respect of contravening the domestic violence order and placed on a 12-month good behaviour order in respect to the offence of assault occasioning actual bodily harm. (Although, it must be pointed out notwithstanding those negative assessments of his future, he did not have a significant criminal history.)
In the Crown's schedule, there were quite a number of cases involving much lengthier confinements usually related to outlaw motorcycle gang activity, drug activity and organised crime that have absolutely no relationship to the circumstances of this case and provide absolutely no assistance in fixing the appropriate sentence other than providing an outer limit perhaps for offences of this type absent special or exceptional circumstances.
The Crown did refer me to a single judge's judgment in the matter of R v Laipato [2019] ACTSC 386. That offender was convicted not only of unlawful confinement but of a choking offence and of a burglary offence where the offender, according to the Crown's summary choked the victim 'multiple times' and said at one point while choking her 'I could fucking kill you'. The length of the confinement was one and a half hours. The victim believed she would die or might die, not unreasonably in the circumstances where the offender had a significant criminal history. However, counsel referred me to the appeal decision of Laipato v The Queen [2020] ACTCA 35. It is to be noted in that matter the offender had pleaded not guilty and the appeal matter was in relation to both conviction and sentence. The conviction appeal was dismissed. The sentence imposed at first instance was overturned on appeal. The court fixed a sentence of imprisonment without any discounts for a plea of guilty of two years for the confinement offence. A sentence of six years and six months for the burglary offence and a sentence of one year and three months' imprisonment for the choking offence with a total sentence of three years and six months for the three offences reflecting the totality of the criminality. The offender in that matter, putting aside the more serious facts of the matter was not a young offender with rehabilitation not being a 'prominent sentencing purpose'. What is most useful in this judgment is the court's reference to a series of supposedly 'comparative cases' to the circumstances of the case at bar. That court, in its judgment, referred to two comparative cases Singh v The Queen [2017] ACTCA 17 (Singh) and R v Rogers [2014] ACTSC 124 (Rogers). I have noted in relation to the various sentences imposed in comparative cases the starting point of the sentences. In that particular matter, of course, there was no plea of guilty. All of them involve, in my view, unlawful confinement or forceful confinement where fulltime imprisonment is imposed much more serious than the circumstances in this this case.
By reference to the cases cited by their Honours in Singh, the victim was not only confined for one and a half hours but subjected to serious sexual assaults during the period. The offence was committed by Singh in the presence of or in the company of another person. In Rogers, the case that I mentioned without naming it earlier, the victim was tied to a bed and assaulted for at least five hours. The offender having 'a significant criminal history' including offences for 'multiple domestic violence offences'. Thus, it can be seen by examining these various cases not only the range of conduct contemplated but as well the range of sentences imposed to reflect the relative seriousness of the conduct for sentence.
The fact of the matter is that within the range of offending drawn to my attention in the various cases that I have read, the offence of confinement here, as I said earlier, is at the lower end of the range of seriousness which is, in my view, is ultimately conceded by the parties by reference to some proper analysis of Williams criteria.
But that offending has to be seen in the context of the previous assaults as well. It must also be said in relation to the comparative cases, as was exposed from the examination of them, many of these cases – practically all of them – involve considerably more premeditation or planning and usually were concerned with an offence committed in the context of more serious or similarly serious offending either towards the victim or against the victim on prior occasions.
Of course, ultimately, in this matter, I cannot follow the path of Barbour. A good behaviour order would not be adequate in all the circumstances of the matter. But I believe in the circumstances of the prospects of the rehabilitation of the offender and the other positive matters to which I have referred that the suspending of a term of imprisonment fulfills what could be called the deterrent effect.
Bearing in mind what has been said by a number of judges about the significance of imposing a term of imprisonment, albeit, suspended upon an offender in respect of a matter called for sentence. Such a case, for example, is the decision Howie J in 2002 in the case of R v Zamagias [2002] NSWCCA 17 where his Honour, at length, discussed the importance of a formal order of a term of imprisonment being imposed on an offender.
Orders
The orders of the Court are:
1.The offender is convicted of each of the three counts in the indictment and the five transferred offences.
2.In respect of the offence of the assault of the victim committed between 1 February 2017 and 31 March 2017 (CC2020/12000) I sentence the offender to a Good Behaviour Order for a period of 12 months. The offender during the period of the order is to be of good behaviour. Other conditions are not required because of the orders later outlined.
3.In respect of the assault committed between 1 February 2017 and 31 March 2017 (CC2020/12001), the offender is sentenced to three months imprisonment commencing 25 May 2022.
4.In respect of the assault committed on 25 April 2017 (CC2020/12002) the offender is sentenced to three months imprisonment commencing on 25 June 2022.
5.In respect of the assault committed on 8 May 2017 (CC2020/12009) the offender is sentenced to four months imprisonment commencing on 25 June 2022.
6.In respect of the assault committed on 24 February 2018 (CC2020/12005) the offender is sentenced to four months imprisonment commencing on 25 July 2022. A discount for the last four sentences of imprisonment would be impractical.
7.In respect of Count 1 (assault on 27 October 2017) the offender is sentenced to eight months imprisonment commencing on 25 August 2022. Had the offender not pleaded guilty I would have sentenced the offender to nine months imprisonment.
8.In respect of Count 2 the offender is sentenced to five months imprisonment commencing on 25 November 2022. If the offender had not pleaded guilty the sentence would have been six months.
9.In respect of Count 3 the offender is sentenced to one year and seven months imprisonment commencing on 25 January 2023. If he had not pleaded guilty the sentence of imprisonment would have been one year and nine months imprisonment.
10.The total term of imprisonment is two years and three months. I suspend the sentence of imprisonment for a period of two years and six months.
11.The offender is required to sign an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years and six months with a probation condition that the offender be under the supervision of the Director-General or his or her delegate for two years or such lesser period as the supervising authority deems appropriate and obey all reasonable directions of the supervisor especially as to appropriate programs in relation to the prevention of domestic violence offences.
| I certify that the preceding one hundred and thirty-four [134] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: 8 June 2022 |
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