R v Teer
[2019] ACTSC 334
•29 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Teer |
Citation: | [2019] ACTSC 334 |
Hearing Date: | 8 November 2019 |
DecisionDate: | 29 November 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [64] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – assault occasioning actual bodily harm – where offender and victim were in a domestic relationship – where no criminal record – where parties agreed threshold of s 10 of the Crimes (Sentencing) Act 2005 (ACT) has not been crossed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 60 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 35 |
Cases Cited: | Alvares v The Queen; Farache v The Queen [2011] NSWCCA 33; 209 A Crim R 297 Butters v The Queen [2010] NSWCCA 1 |
Parties: | The Queen (Crown) Tyson Teer (Offender) |
Representation: | Counsel T Hickey (Crown) J Maher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 189 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 25 September 2019, Tyson Teer (the offender) pleaded guilty to the following offences:
(a)an act of indecency contrary to s 60 of the Crimes Act 1900 (ACT) (Crimes Act) (CC18/6333), the maximum penalty for which is imprisonment for 7 years; and
(b)assault occasioning actual bodily harm contrary to s 24 of the Crimes Act (SCCAN2019/3797), the maximum penalty for which is imprisonment for 5 years.
A further transfer charge (CC18/5511) was withdrawn by the prosecution.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. What follows is a summary.
On 21 April 2018, the offender and the victim (who were in an intimate relationship) were in bed together at the victim’s home. After having fallen asleep, the offender woke up and rolled towards the victim and tried to initiate sexual activity with her by fondling her breasts. The victim told the offender that she did not want to engage in sexual activity and asked him to stop and to get off her because he was leaning on her. The offender continued and tried to put his hand in her underwear. The victim pushed him away and asked him to stop.
The offender then rolled the victim over and pushed her head into the mattress with her face in the pillow. She started screaming and struggled to breathe. The offender held her in this position for about one minute and told her that she had to stop screaming before letting her partially roll over. The victim continued asking the offender to get off her.
The offender then grabbed her wrist or arm with his hand. He then put his other hand on her chest before moving it and pushing down on her throat. The victim could not breathe and the offender held his hand there for about 5 to 10 seconds. He threatened her if she continued making noise. The offender eventually released the victim, pulled her hair back and told her to “shut up”.
At approximately 5:40am the following day, Dr Amanda Barry examined the victim and documented the following injuries:
(a)Head, face and neck area:
(i)2cm in diameter petechial bruising noted on the left side of the victim’s neck;
(ii)1cm diameter area of petechial bruising lower on the left side of the victim’s neck;
(iii)1cm x 2cm area of petechial bruising on the right side of the victim’s neck;
(iv)1cm diameter region of petechial bruising lower on the right side of the victim’s neck; and
(v)Petechial bruising on the inside of the victim’s right cheek that extended to the pharynx approximately 0.5cm in diameter.
(b)Upper limbs:
(i)1cm blue bruise on the victim’s proximal right upper arm; and
(ii)2cm x 1 cm blue bruise located on the victim’s lateral aspect of the distal right upper arm.
Victim Impact Statement
In evidence before me was a Victim Impact Statement from the victim of the offences. The Victim Impact Statement was read out by the victim at the sentence hearing.
The extent of the impact upon the victim was made clear by the Victim Impact Statement. The reading of the Victim Impact Statement is important as the offender heard what the victim had to say. Courts know the extremely serious effects of such offences as these. Nevertheless, it is valuable to hear the words of the victim.
The Court acknowledges the significant impact that the offences have had and continue to have on the victim.
Objective Seriousness
Counsel for the offender accepted that the offences involved a breach of the trust within a domestic relationship. However, it was submitted the objective seriousness of the offences should also be informed by their short duration and the lack of planning or premeditation.
In respect of the indecency offence, counsel for the offender noted the observations of Refshauge J in R v Ridley [2014] ACTSC 382 at [36]:
As I indicated, committing an act of indecency covers a relatively wide range of inappropriate and sexually related offences from almost non-consensual sexual intercourse to relatively minor sexual indiscretions. For example, kissing a person on the lips can be an act of indecency, though described as “not trivial [but] ... not one of the most serious types of this type of offending” in R v Ang (Unreported, ACTSC, Burns J, 6 June 2013). Touching, in itself, may not render the offence much more serious as when an offender grabbed by the victim by the buttocks and attempted to kiss her, acts described by the Court as “not the most serious acts that constitute an act of indecency” in R v Dhaimat (Unreported, ACTSC, Burns J, 12 March 2014).
Having regard to the two acts constituting the offence in the present case, counsel for the offender submitted that, as these acts had previously been considered acts of “foreplay” prior to this offence, and, that they were of brief duration, the objective seriousness was not “in the higher or even middle end of the range of objective seriousness” (T 10.43).
In respect of the assault occasioning actual bodily harm, counsel for the offender characterised the offending as a disproportionate response to the victim pushing the offender away in an attempt to restrain her. It was underlined, however, that this was not a traversal of his guilty plea. Counsel for the offender distinguished the acts of the offender from other more serious assaults involving strikes or blows.
The prosecution submitted that the breach of trust was a key factor in terms of the objective seriousness of the offending, noting also that it occurred in the victim’s own home. It was submitted that aspects of duration and premeditation “do not aggravate [the offending] but they certainly don’t mitigate it” (T 18.27).
The prosecution did not accept that the assault should be considered excessive self-defence by the offender, submitting “it was an assault, plain and simple” (T 20.4). The prosecution also underlined aspects of the Victim Impact Statement with respect to the harm to the victim, noting in particular the effect on victim’s trust in other aspects of her life.
The prosecution submitted the offending fell below the mid-range. I find the objective seriousness of the offences to be in accordance with the prosecution’s submissions. Nevertheless, it must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]). In this regard I note in particular the breach of trust in an intimate relationship, that the offences occurred at the victim’s home and the injuries noted above.
Subjective Circumstances
In evidence before me is the pre-sentence report (PSR) prepared for the offender.
The offender is one of three children to his parents’ union and described a positive childhood and a strong familial unit of which he continues to enjoy the benefits. He has been with his current partner for approximately four months. His partner is aware of the offences and is reported to be supportive of him.
The offender completed Year 10 and subsequently completed a carpentry apprenticeship. He worked as an apprentice for two years before working in the hospitality industry and as a traffic controller for approximately six years.
The offender denied any issues regarding problematic alcohol consumption or illicit substance use. He described himself as a social drinker and claimed never to have consumed illicit substances.
The PSR notes the offender reported bouts of anxiety and depression since his late teens, exacerbated in times of stress. He was prescribed medication following the offences, however, the author notes the medication has been taken sporadically as the offender “does not deem it necessary to be medicated on a full-time basis”.
In respect of the offences, the author reports the offender denied an intent to cause harm to the victim and alleged he was attempting to defend himself from an “outburst”. He attempted to blame the victim by alleging she had taken a number of substances prior to the offending which changed her behaviour and contributed to the offending taking place.
The PSR author notes the offender made statements attempting to “minimise and justify his offending behaviour”.
The report concludes with the following opinion:
[The offender] is a 37 year old man with no prior criminal history, who has been assessed as a low risk of general re-offending. He appears to have enjoyed a positive upbringing, has strong familial connections, stable accommodation and ongoing employment. Despite these protective factors, he places blame onto the victim and continues to minimise and justify his offending behaviour. It is concerning that [the offender] has since entered into a new relationship and is yet to formally address his offending behaviour. He would benefit from engagement in a domestic violence specific intervention to address his criminogenic risk factors.
The PSR notes the offender is suitable for “low level” intervention and recommends if supervision is required, the length of supervision be at the discretion of ACT Corrective Services.
Remorse
Counsel for the offender accepted that the comments in the PSR “did not assist the offender greatly” with respect to remorse (T 12.18). Nevertheless, it was submitted that remorse was expressed through the letters from referees that were before the court.
The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters vThe Queen [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v The Queen; Farache v The Queen [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v The Queen [2015] NSWCCA 234 (Mun) at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v The Queen [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with R v Imbornone [2017] NSWCCA 144 and R v Harrison [2001] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse. Accordingly I do not ascribe significant weight to the remorse expressed.
References
In evidence before me were a number references in support of the offender, which included:
(a)A letter from a long-term friend and employer of the offender dated 20 October 2019 which included the following:
I have had the pleasure of knowing [the offender] for almost 15 years now and find myself in disbelief that charges such as these have been presented on such a calm, sensitive and extremely caring person.
…
As an employee, [the offender] has strong leadership skills and enjoys working with and meeting new people. He places emphasis on people's needs and responds to those requests as quickly as possible. He is very team orientated and always the first to offer assistance to any team member to help achieve the team goals.
[The offender] shows the same qualities at work as he does in his personal life, he is in a strong, loving relationship and made and incredible bond with her 3 young children in which he has become a devoted father.
(b)A letter from a friend of the offender dated 11 October 2019 which included:
Both of these charges are completely out of character for [the offender]. He is and always has been a respectful and decent person. During the time I have known [the offender], he has shown good character and is a very patient and kind human. I have never known him to raise his voice, let alone commit an act of assault. [The offender] is a reliable and trustworthy friend, and he has on many occasions helped me out with personal issues. [The offender] is always the first to put his hand up to help out his friends and nothing is ever too much trouble for him when it comes to lending a hand.
(c)A letter from a friend of the offender and Major in the armed services dated 20 October 2019 which included the following:
[I] am truly shocked beyond all belief. These are very serious offences, offences that if I had not been informed, [the offender] would have been the last person in my mind to believe had committed them.
He was always in my opinion, an absolute stalwart of the common man, a man whose thoughts are for others, a man who never puts himself first. I always considered [the offender] as very caring, kind and considerate person, always willing to go the extra yards in supporting people not so fortunate as himself and would never walk past a problem.
…
[The offender], I believe, has an awful lot of healing to do and will need a lot of help to get him through this ordeal, which has almost destroyed him mentally. He is but a shadow of a man that he was before the event. He has not only lost his entire savings covering legal costs, but much more importantly he has lost faith in himself and life.
(d)A letter from another friend dated 20 October 2019 which included the following:
Me and m[y] family, including my partner and child, have know[n] and personally engaged with [the offender] on a regular basis, when we were in Canberra from 2011 - 2015, before we had to relocate to Sydney. And never once have we seen [the offender] act out aggressively or be unkind or out of control with any one in the community. [The offender’s] got a heart of gold and always goes out of his way to help his friends and neighbours. I've seen [the offender], help strangers and friends alike, always being big hearted and a gentle person - so the accusations come as a shock frankly.
…
I hope this letter helps in showing that the charges against [the offender] are at odds with his caring and genuinely nice personality - he's a good friend and a kind and thoughtful person and I'm proud to call him my mate.
(e)A letter from another friend dated 6 November 2019 which included the following:
[The offender] has the upmost kind and caring nature and is always putting others before himself. I have never known him to cause harm upon anyone and he would always go out of his way to help others. [The offender] is a very well respected member of [a local club] and no one has a negative word to say about him.
…
Lastly, I would like to end by saying that I have spent a great deal of time with [the offender] leading up to this court date and [the offender] feels remorseful and is very upset with what all parties have had to endure during this process. He is sad that it has reached this point and I personally feel he is sorry for everything [the victim] has had to go through leading up to the court date.
(f)A letter from a family friend (undated) which included the following:
As far as I have known this young man he has been respectful, honest, caring and happy to assist anyone who needed help.
…
[The offender’s] father has been a very good and dedicated friend over these years…They are a genuine family who really do care and I have no hesitation in supporting this family in any capacity I can.
I take these references into account on sentence.
Criminal History
The offender has no criminal history. I accept that the offender is a person of prior good character.
Pleas of Guilty
The offender entered pleas of guilty to the offences one week before a re-trial for the offences, following negotiations between the parties.
The offender was initially charged with a number of other offences and a trial commenced in respect of all charges on 19 March 2019. However, the jury was discharged before the trial could be completed. On 13 May 2019, the matter was listed for re-trial in the week of 30 September 2019. In the meantime, on 17 September 2019, and following negotiations between the parties the offender agreed to plead guilty to these charges in full satisfaction of the indictment.
Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
Despite the timing of the pleas it was submitted by counsel for the offender there was nevertheless utilitarian value, given the court time saved. It was submitted a discount of not more than 10% would be appropriate. By contrast, the prosecution submitted that a discount of 10% was normally afforded to a plea on the first day of trial and noted that, here, one trial had already commenced before the plea was entered.
I therefore allow a discount of approximately 5% for the pleas of guilty.
Time in Custody
The offender has spent 2 days in custody solely referable to these offences.
Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 at [4] that:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
I was referred to the following cases by counsel for the offender.
In R v Ang (Burns J, ACT Supreme Court, 6 June 2013) (Ang), the offender was found guilty of one offence of an act of indecency. The offender forcibly kissed the victim while she was asleep and was not consenting. The offender was 21 years of age, assessed as a low risk of reoffending, had no criminal record and was found to be of prior “positive good character”. No conviction was recorded against the offender but a good behaviour order was imposed for a period of 18 months.
In R v Dune [2018] ACTSC 257 (Dune), the offender pleaded guilty to one offence of an act of indecency. The offending occurred while the victim was asleep, however, the sentencing judge found there to be little premeditation and no “skin to skin” contact by the offender. The offending did not persist when objected to by the victim. The offender was found to have good prospects of rehabilitation and to be unlikely to reoffend. After a discount of approximately 17%, the offender was sentenced to a good behaviour order for a period of 20 months.
In R v NQ [2015] ACTSC 308 (NQ), the offender pleaded guilty to one offence of an act of indecency and one offence of assault with intent to engage in sexual intercourse. The offender had assaulted the victim, his partner for 17 years, for almost an hour attempting to force her to engage in oral sex. The offender was assessed as being a low risk of reoffending, but it was conceded the incident was not an isolated one. Following a discount of 25%, the offender was sentenced to a period of one year and nine months’ imprisonment for the assault and seven months imprisonment for the act of indecency. The sentences were wholly suspended upon the entry into a good behaviour order for three years.
Counsel for the offender noted that the conduct in NQ was “far more degrading” (T 16.17) than the present case, being both physical and mental abuse for a substantial period of time. It was accepted by counsel for the offender that the present case was more serious than Ang and Dune (T 16.35). The prosecution accepted that NQ was more serious than the present case (T 23.44).
Statutory and Other Relevant Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, rehabilitation, denunciation, and recognition of harm to the victim are important sentencing considerations.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison.
Counsel for the offender submitted there was not necessarily a need for full-time imprisonment and the s 10 threshold had not been crossed. It was submitted that the matter could be dealt with by way of a conviction and a good behaviour order with conditions. The prosecution did not disagree with this position stating, “I do not cavil with [the offender’s counsel’s] ultimate submission” (T 17.29).
Counsel for the offender submitted the offender’s risk factors were low but accepted some form of intervention may be appropriate for the offender (T 13.28-34). The prosecution submitted a program directed towards domestic violence would be beneficial for the offender (T 21.16).
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
I also take into account the following observations of Underwood J in Parker v The Queen [1994] TASSC 94 at [39]:
[S]entencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:
'When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live.
In addition, I take into account the following observations from R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47]:
Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat.
The prosecution submitted the first characteristic mentioned in Dunn was evident in the case of the offender, as evidenced by the PSR.
I also note the comments in R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41].
In relation to family violence offences, I note the observations of Refshauge ACJ in R v Stanley [2015] ACTSC 322 at [62]-[63], referring to the observations of Johnson J in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 193 as to family violence being a serious problem in the community:
[D]omestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship …
Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime.
As I underlined in R v EP (No 3) [2019] ACTSC 242 at [88], “the Courts have made it clear that women must not be treated by men as property”.
I take these principles into account on sentence.
Sentence
It must be recognised by the Court that the offences committed against the victim have had a serious and significant impact upon her. Both the short and long-term consequences of being the victim of these offences must be acknowledged.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective matters referred to above.
The appropriate sentence for the offence of an act of indecency contrary to s 60 of the Crimes Act (CC18/6333), is a good behaviour order for a period of 20 months reduced to 19 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act (SCCAN2019/ 3797) is a good behaviour order for a period of 32 months reduced to 30 months on account of the discount for the plea of guilty.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of the offence of an act of indecency (CC18/6333), pursuant to s 13 of the Sentencing Act, the offender is sentenced to a good behaviour order with the core conditions requiring him to sign an undertaking to comply with good behaviour obligations for a period of 19 months, commencing 29 November 2019 and ending 28 June 2021.
(c)In respect of the offence of assault occasioning actual bodily harm (SCCAN2019/3797), pursuant to s 13 of the Sentencing Act, the offender is sentenced to a good behaviour order with the core conditions requiring him to sign an undertaking to comply with good behaviour obligations for a period of 30 months, commencing 29 November 2019 and ending 28 May 2022. The good behaviour order is also subject to the additional conditions that:
(i)The offender attend counselling targeted at addressing domestic violence issues as directed by the Director-General; and
(ii)The offender be subject to the supervision of the Director-General for such a period that the Director-General considers appropriate and obey all reasonable directions of the Director-General.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson Associate: Date: 29 November 2019 |
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