R v Tonkin
[2019] ACTSC 101
•18 April 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tonkin |
Citation: | [2019] ACTSC 101 |
Hearing Date: | 18 April 2019 |
DecisionDate: | 18 April 2019 |
Before: | Murrell CJ |
Decision: | The offender is sentenced to a total of 20 months’ imprisonment, with a nine-month non-parole period. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Assault occasioning actual bodily harm – Forcible confinement – Recklessly damage property – Family violence offences – When the offence was committed while the offender was on conditional liberty – When prospects of rehabilitation unclear |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 34 Crimes (Sentencing) Act 2005 (ACT) s 35 Criminal Code 2002 (ACT) s 403(1) |
Parties: | The Queen (Crown) Michael Tonkin (Offender) |
Representation: | Counsel Ms E Wren (Crown) Mr B Shelton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Number: | SCC 314 of 2018 |
Murrell CJ
Introduction
The offender is to be sentenced for four offences committed on 16 November 2018: two offences of assault occasioning actual bodily harm, one offence of forcible confinement, and one offence of recklessly damaging property. The victim of each offence was the offender’s mother.
Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT) (Crimes Act) and carries a maximum penalty of five years’ imprisonment. The offence of forcible confinement is an offence against s 34 of the Crimes Act and carries a maximum penalty of 10 years’ imprisonment. The offence of recklessly damaging property is an offence against s 403(1) of the Criminal Code 2002 (ACT) (Criminal Code) and carries a maximum penalty of 10 years' imprisonment.
The offender has been in custody since his arrest on 16 November 2018. The sentences that I impose will commence from that date.
The pleas of guilty were entered virtually immediately, on 17 November 2018. They have a high utilitarian value. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT), the offender is entitled to a discount of 25 per cent on the sentences that would otherwise have been imposed.
At the time of the offences, the offender was on conditional liberty as he was serving a suspended sentence in New South Wales for offences against his sister. This Court cannot deal with the breach of the good behaviour order associated with that suspended sentence.
Facts
On the evening of 16 November 2018, the victim was at her home with the offender. At the time, the victim was 62 years old. The offender had been drinking. He had also consumed ecstasy and methamphetamine.
The offender asked for the keys to the victim’s car and she refused. The offender became angry and punched the victim in the face with a closed fist, causing her left eye to become bruised. That incident comprises the first offence of assault occasioning actual bodily harm.
The offender proceeded to damage several items in the lounge room. He smashed a glass cabinet door, damaged the curtains and threw an ornamental glass dish into a plasterboard wall, causing the dish to become lodged in the wall and creating a hole in the wall. The extent of the disruption to the premises is apparent from photographs. It was considerable. These events comprise the offence of damaging property.
The victim attempted to escape by asking to use the toilet. The offender told the victim that she must not take her mobile telephone into the toilet, but the victim took it with her. She locked the door to the toilet and attempted to call her partner. While the victim was in the toilet, the offender smashed a hole through the toilet door, then reached in and unlocked the door. He took the victim’s mobile telephone from her and forcibly removed her from the toilet. In the course of doing so, he struck her to the left shoulder, causing severe pain and resulting in significant bruising. The strike to the left shoulder comprises the second offence of assault occasioning actual bodily harm.
After screaming at the victim, the offender decamped into the backyard, where he had a cigarette. As he was doing so, the victim tried to escape from the premises through the front door. However, the offender heard her and, while she was unlatching the screen door, he returned, grabbed her by the hair and dragged her back inside.
The forcible confinement continued from when the offender punched the hole in the toilet door until shortly after he dragged the victim back inside the premises; soon after that, the offender left the premises and banged on the door of his neighbours’ house, asking them to help his mother.
The neighbours observed the offender to be speaking erratically. When the male neighbour left his house, he saw the victim; at that stage, she was coming across the front yard, yelling for help. He provided her with sanctuary and called the ACT Ambulance Service. Meanwhile, the offender stayed at the front of the neighbour's house.
When police arrived, they saw that the victim was bleeding from the left side of her forehead and had bruising around her left eye. She was treated at Canberra Hospital. Photographs show significant bruising and swelling to the areas of the victim's left eye, hand and left shoulder. I infer that she was in significant physical pain as well as substantial psychological distress.
Police observed that the offender was unsteady on his feet and smelled strongly of alcohol.
At the time of the offences, the offender was subject to an 11-month suspended sentence and associated 11-month good behaviour order that had been imposed by Wollongong Local Court in July 2018 for offences of damaging property and stalking/intimidation with intention to cause fear of harm committed in March 2018. In relation to both offences, the victim was the offender’s sister.
Objective seriousness
The offences committed on 16 November 2018 occurred within the victim’s home to the offender’s mother who, while not elderly, was not as youthful as the offender. They were offences of family violence.
The offence of forcible confinement was brief. However, it was associated with an episode of physical aggression: the offender grabbed the victim by the hair and dragged her back inside, which would not only have been painful, but also frightening and demeaning.
The damage to property was an offence of significant objective seriousness in that it involved malicious damage to the victim’s home, and multiple items were damaged.
Subjective circumstances
The offender is 34 years old. He was 33 at the time of the offences.
In addition to the two offences committed in March 2018, the offender’s criminal history in New South Wales includes offences of stalking, intimidation and common assault committed in 2015, and contravention of a domestic violence order committed in 2016. For the common assault offence, he received an intensive corrections order.
It is notable that, prior to 2015 when the offender was about 29 years old, there are no offences recorded against him except for one matter of driving with a low range concentration of alcohol in 2012. It is unusual to see the commencement of a criminal history in a person’s late twenties.
The pre-sentence report states that the offender had a positive upbringing with no significant trauma. As an adult, he spent 10 years living in Sydney, before moving to Wollongong and then returning to Canberra in 2018. He has one sister, who was the victim of the offences committed in 2018 in Wollongong. The incident in November 2018 was disruptive to the offender’s relationship with his mother, but he has since reconciled with her. His mother is at court today with the offender’s father. The offender’s father resides in Sydney and the offender has described a positive relationship, although there is limited contact. There is also limited contact with his sister.
The offender completed Year 12, and then commenced work as a plasterer’s apprentice. He became a sole trader, doing plastering work in Sydney. He was self-employed for about 12 years, up until 2018. In the three months prior to the incident, the offender was unemployed.
The offender has a long-standing history of psychological problems. He has suffered from depression since adolescence. He attempted suicide when he was 15 years of age and has experienced chronic depression, emotional dysregulation and sequential memory problems. He has received some support for his mental health problems over the years, but the support appears to have been limited and largely ineffective. Until recently, medication has been ineffective. Since coming into custody in November 2018, the offender has been prescribed a different medication for depression, and he finds it to be effective. It has elevated his mood and he is feeling much better.
It would appear that the offender’s depression and the unfortunate circumstances in which he found himself in mid to late 2018, being unemployed and back living with his mother, may have caused the offender to engage in significant substance abuse, and that substance abuse was largely causative of the offences. Drug and alcohol abuse have been implicated in previous offences committed in a family violence context.
The offender reported to the authors of the pre-sentence report that he first used illicit substances during his early twenties and had used ecstasy about a week prior to the offences. When he was brought into custody, he was tested for drugs and there was a positive result for amphetamines and methamphetamines. On a positive note, when tested in January 2019, there was a negative result for illicit substances.
The offender has a history of heavy alcohol consumption; he stated that, prior to his arrest, he consumed alcohol three or four times a week, drinking seven to 10 standard drinks per session.
The offender acknowledges his difficulty with substances and, while in custody, he has participated in appropriate programs.
The offender has little recollection of the offences. While acknowledging that the offences have affected his relationship with his mother, he displays limited awareness of the extent of the victim impact. However, he does accept responsibility for the offences. He acknowledges that alcohol consumption was a contributing factor.
The offender has been assessed as at medium risk of general re-offending, with key risk factors being unemployment, financial difficulties, drug and alcohol use, lack of stable accommodation, strained family relationships, and mental health.
Regrettably, the offender has not put any proposal to the court as to where he will reside upon his release, what mental health plan will be in place, and how he will occupy himself in terms of employment. He does have a long-term goal of returning to Sydney, where his father resides, and resuming employment as a plasterer. However, his plans for activities in the short to medium term are less focused.
Sentencing considerations
I take into account relevant sentencing purposes, in particular the purpose of general deterrence, which is very important in the context of family violence offences, especially when they are associated, as they so frequently are, with the consumption of substances.
Personal deterrence is also a very important consideration, given the history of family violence offences, and the fact that the offender was on conditional liberty for offences of a similar nature at the time that he committed these offences. The Court must also recognise the harm to the victim, and to the community generally, through the commission of family violence offences. Accountability and denunciation are important sentencing objectives. An appropriate level of punishment must be imposed.
It was submitted that the offender has good prospects of rehabilitation. I assess those prospects as moderate and somewhat uncertain. If the offender continues with suitable treatment for depression, then that will assist him to avoid substance abuse. He needs additional treatment and support for substance abuse, and he certainly needs support to find appropriate housing and obtain employment. If he is given appropriate support in all areas, there probably are good prospects of rehabilitation, but it is not certain that this will occur. It is regrettable that the Court’s Drug and Alcohol Court Program has not commenced, because the offender would have been a highly suitable candidate.
The parties agree that a sentence of imprisonment is the only appropriate sentence. At least impliedly, the defence concedes that some period must be served by way of fulltime imprisonment. Since his arrest, the offender has not sought bail.
Sentence
I impose the following sentences:
(a) For the first offence of assault occasioning actual bodily harm (the punch to the victim’s face)—three months’ imprisonment, reduced from four months’ imprisonment, from 16 November 2018 to 15 February 2019.
(b) For the second offence of assault occasioning actual bodily harm (the strike to the victim’s shoulder)—four months’ imprisonment, reduced from six months’ imprisonment, from 16 January 2019 to 15 May 2019.
(c) For the offence of recklessly damaging property—six months’ imprisonment, reduced from eight months’ imprisonment, from 16 March 2019 to 15 September 2019.
(d) For the offence of forcible confinement—14 months’ imprisonment, reduced from 18 months’ imprisonment, from 16 May 2019 to 15 July 2020.
The total sentence is 20 months’ imprisonment, from 16 November 2018 to 15 July 2020.
This will be the offender’s first time in prison. His prospects of rehabilitation are unknown. I hope that, with adequate treatment and support, the offender will be capable of rehabilitation. I consider that it is important for the offender to have a significant period in the community on parole. Therefore, I fix a non-parole period of nine months, from 16 November 2018 to 15 August 2019.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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