R v SDS
[2016] ACTSC 165
•6 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SDS |
Citation: | [2016] ACTSC 165 |
Hearing Date: | 6 June 2016 |
DecisionDate: | 6 June 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 20 months’ full-time imprisonment to be suspended on 7 June 2016 upon the offender entering into a five-month good behaviour order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm and common assault – domestic violence – offender on conditional liberty at time of offences – in contravention of a protection order at time of offences – considerable objective seriousness |
Parties: | The Queen (Crown) SDS (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 5 of 2015 |
MURRELL CJ:
The offender pleaded guilty to charges of common assault and assault occasioning actual bodily harm. The offences were part of an episode that occurred on 11 May 2014.
The maximum available penalties are:
(a)assault occasioning actual bodily harm five years’ imprisonment
(b)common assault two years’ imprisonment
The pleas entered today were foreshadowed. By a letter dated 26 May 2015, the offender advised the Director of Public Prosecutions that he was willing to plead to the offence of assault occasioning actual bodily harm. At that stage he was facing a raft of offences including more serious matters.
Although the most relevant plea was entered very late, given the early indication of a willingness to plead, it is my view that the offender should receive a discount of about 20% on the sentence for the principal charge and some discount on the sentence for the lesser charge of common assault.
The prosecution case presented at the sentencing hearing was very different from the original case.
Facts
The complainant and the offender were in an on-and-off relationship from about 1991. They have 11 children together.
There have been a number of instances of domestic violence by the offender towards the complainant. These have not always been reported to the police, but the criminal history contains three incidents that were reported. On 6 September 2006, the offender contravened an order protecting this complainant in New South Wales. He received a 50-hour community service order. On 9 May 2008, he committed a common assault against the complainant for which he received a 12-month good behaviour order. It was a condition of that order that he not assault or interfere with the complainant. In January 2012, he contravened a protection order that protected the complainant in the ACT. He was sentenced to one month’s imprisonment to be served as a full-time sentence.
The relationship between the offender and the complainant ended in early 2014. Thereafter, the complainant resided at an address in Tuggeranong. The offender continued to attend the residence from time to time. He attended briefly on 9 May 2014 and was invited back on 10 May 2014. He returned to the Tuggeranong residence on the evening of 10 May and stayed overnight.
The complainant was upset because she had recently learned that the offender had been seeing someone else. She had harboured the hope that the offender would return to live with her and the children. She had recently been given custody of two of her young children who had been in foster care. Her vision of a family was shattered when she learned that the offender had been seeing someone else.
On the morning of 11 May 2014, there was a heated discussion about the offender’s disloyalty. The complainant and the offender shouted at each other and there was pushing and shoving. The complainant punched the offender several times and told him to leave. The offender shouted back at the complainant. He got off the bed and there was more pushing and shoving. At about this time the offender struck the complainant to her face with an open hand, causing her nose to bleed. He then pushed the complainant. The offender committed the common assault by applying pressure to the complainant’s neck and throat which left red marks and scratches in that area. The complainant then said that she would call the police. As a result, the offender left.
Police attended and observed the injuries to the complainant’s nose. The offender was arrested on 15 November 2014 as he was unable to be located prior to that time. He was detained in custody from 15 November.
About two days after this offence of assault occasioning actual bodily harm, the complainant was still sporting two black eyes and the bruising lasted for about a week.
On 26 February 2015, the Magistrates Court sentenced the offender to imprisonment for a driving matter and failures to appear at Court. As a result of those sentences, the offender was in custody until 25 June 2015 serving the Magistrates Court sentences. Since 26 June 2015, he has been in custody solely in relation to the matters for which I am to sentence him.
Objective seriousness
At the time of the offences, the offender was on bail on a charge of contravening a protection order that protected the complainant and her children. It was a bail condition that the offender was not to attend the complainant’s residence. The complainant suffered serious injuries, as the photographs show.
The objective seriousness of the offences was considerable. Domestic violence offences are always serious matters. In this case, the previous history of offending by the offender towards the complainant adds to the seriousness.
Subjective factors
The offender is in his early forties. He has a lengthy criminal record. However, over the past decade, apart from committing offences against the complainant, his criminal history consists primarily of driving offences and failures to appear at court. In the 1980s and 1990s, there was a broader range of offences.
Sentence
These offences are serious. They call for a sentence of full-time imprisonment. In this regard, I note that in 2012 the Magistrates Court imposed a short sentence of full-time imprisonment for an offence committed against the complainant, but that did not deter the offender when he committed these offences.
However, the period that the offender has spent in custody is adequate to address sentencing purposes such as punishment, denunciation and accountability. In my view the offender has served adequate time in custody. He should be released in the near future to serve a short period in the community, enabling him to be supervised upon re‑entry to the community so as to minimise the risk of further offending of the type in question.
The offender is convicted of each offence. I impose the following sentences.
(a)For the offence of common assault, but for the plea of guilty I would have sentenced the offender to six months’ imprisonment. The offender is sentenced to five months’ imprisonment to run from 26 June 2015 to 25 November 2015.
(b)For the offence of assault occasioning actual bodily harm, but for the plea of guilty I would have sentenced the offender to 18 months’ imprisonment. The offender is sentenced to 15 months’ imprisonment to run from 26 July 2015 to 25 October 2016.
(c)I make a suspended sentence order suspending the sentence of imprisonment from 7 June.
(d)I make an associated good behaviour order requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of five months.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: 11 July 2016 |
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