R v UG
[2019] ACTSC 290
•16 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UG |
Citation: | [2019] ACTSC 290 |
Hearing Date: | 16 October 2019 |
DecisionDate: | 16 October 2019 |
Before: | Elkaim J |
Decision: | See paragraph [19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Damage property – Possess offensive weapon with intent – Common assault – Presence of children |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 32(1)(a), 381(1) Magistrates Court Act 1930 (ACT) ss 90A, 90B Road Transport (General) Act 1999 (ACT) s 63(3) |
Cases Cited: | R v HC [2018] ACTSC 49 |
Parties: | The Queen (Crown) UG (Offender) |
Representation: | Counsel P Dixon (Crown) J Maher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Numbers: | SCC 200 of 2019; SCC 201 of 2019 |
ELKAIM J:
On 13 August 2019 the offender entered pleas of guilty to three charges in the Magistrates Court. The charges were committed for sentence under s 90A of the Magistrates Court Act 1930 (ACT). The charges and their maximum penalties are:
(a) Damaging property over $1,000 in value (CC2019/3061) contrary to s 403(1) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $160,000, 10 years imprisonment or both;
(b) Aggravated furious, reckless, dangerous driving (CC2019/3063) contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty is a fine of $48,000, 3 years imprisonment or both, as well as an automatic disqualification from holding or obtaining a driver licence for 12 months under s 63(3) of the Road Transport (General) Act 1999 (ACT); and
(c) Making a demand with threat to kill (CC2019/3746) contrary to s 32(1)(a) of the Crimes Act 1900 (ACT). The maximum penalty is 20 years imprisonment.
Three other offences were transferred as related charges under s 90B of the Magistrates Court Act (ACT). Pleas of guilty were also entered to those charges on 13 August 2019. The charges and their maximum penalties are:
(a) Two charges of common assault (CC2019/3064; CC2019/3065) contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty is 2 years imprisonment; and
(b) One charge of possession of an offensive weapon with intent (CC2019/3747) contrary to s 381(1) of the Crimes Act 1900 (ACT). The maximum penalty is a fine of $2,000, 1 year imprisonment or both.
The facts of the offences describe domestic violence at its worst. The offender terrified his partner with an axe. He swung it dangerously close to her head. He used it to break assorted items in the home. He drove a car with his four children in it at dangerous speeds. He threatened one of his children with the axe and told his partner to get into the car or he would use the axe on the child.
The first charge of common assault involves the offender pushing his partner off a bed. The second common assault is him pushing his partner to the ground. Swinging the axe next to her head makes up the possession of an offensive weapon with intent charge. The assorted damage to the house relates to the property damage charge. The making of a demand with a threat to kill is constituted by the threat to kill a child if his partner did not get into the car. The dangerous driving charge relates to the manner of driving with the family aboard.
The offender was born in 1992. He is one of five siblings. He appears to have had a good upbringing in a hard-working family. The offender completed Year 12 in Victoria and has been employed as a labourer for the last few years.
The offender has a problem with alcohol although he told the pre-sentence report authors that he gave up drinking about six months ago. He has used some illicit drugs but they do not seem to be the type of problem that exists with alcohol. He has had some problems with depression and was admitted to hospital when he was 16 after a suicide attempt. There have been two more recent suicide attempts. He is currently attending an anger management course. He has been assessed at having a medium risk of general reoffending.
The lead up to the offences may have been at a low point in the offender’s life. His partner was apparently trying to talk him out of suicidal ideation when his errant behaviour escalated. It did not help that he was drunk at the time. There is support from his partner through her reference. She said she called the police because she “didn’t want to lose him” rather than for him to be apprehended as a criminal.
The references say the offender is close to his children. That sentiment was obviously suspended when he threatened one of them with an axe.
There is a letter from a psychologist saying the offender will benefit from further treatment. She refers to significant depression during the offender’s teenage years. Dr Lau, from the ACT Adult Mental Health Unit, says that anti-depressant medication should be reviewed and drug and alcohol counselling is necessary.
10. The offender has a criminal record which includes matters of domestic violence. He has been in custody for the current offences for 54 days. He is entitled to a discount because of his pleas of guilty, which I assess at about 20%.
11. I think the threat charge is objectively serious. A child was involved, an axe was used and there were other children present. The presence of the children puts the dangerous driving charge in the same category. The other charges are just above medium objective seriousness. The breach of trust as between the offender and the children aggravates the offences.
12. General deterrence is a major factor here. Fathers and partners must know that behaviour that threatens or harms their family is unacceptable and will not be tolerated by the law.
13. I have been asked to consider an Intensive Correction Order assessment. I have some sympathy for this approach but ultimately the seriousness of the offending, in particular in relation to the threat charge and the involvement of the children means that full-time imprisonment is the only option.
14. However I do not think the whole period of imprisonment needs to be served by way of full-time custody. The offender has shown remorse and a willingness to engage in rehabilitation. This must be encouraged. I intend to suspend a part of the sentence.
15. Finally, I would like to say something about the support now coming from the offender’s partner. It is indeed admirable upon her part that, having witnessed the horrific events that led to the charges, she can bring herself to support the offender. I also understand that she will suffer financial hardship if he is not working for a period of time.
16. Nevertheless I do not see I have any choice. The children may not have apparently suffered any ill effects from the incident. I have no doubt however that emotionally and mentally there has been an impact.
17. The Crown referred me to R v HC [2018] ACTSC 49 where I made comments about domestic violence matters. In that case I imposed a fully suspended sentence. The distinction in the facts however is sufficient to illustrate why such a course is not open here.
18. Although there are six separate offences, they all arise from the same incident. I intend to apply a good deal of concurrency. I will commence the sentences from 23 August 2019 to take account of the 54 days already spent in custody.
19. I make the following orders:
(a) For the offence of damaging property (CC2019/3061) the offender is sentenced to 6 months imprisonment (reduced from 9 months) to commence on 23 August 2019 and end on 22 February 2020.
(b) For the offence of dangerous driving (CC2019/3063) the offender is sentenced to 9 months imprisonment (reduced from 12 months) to commence on 23 March 2020 and end on 22 December 2020. I note the automatic licence disqualification period.
(c) For the offence of making a demand with a threat to kill (CC2019/3746) the offender is sentenced to 14 months imprisonment (reduced from 18 months) to commence on 23 August 2019 and end on 22 October 2020.
(d) For the offence of common assault (CC2019/3064) the offender is sentenced to 3 months imprisonment (reduced from 4 months) to commence on 23 August 2019 and end on 22 November 2019.
(e) For the offence of common assault (CC2019/3065) the offender is sentenced to 3 months imprisonment (reduced from 4 months) to commence on 23 August 2019 and end on 22 November 2019.
(f) For the offence of possessing an offensive weapon with intent (CC2019/3747) the offender is sentenced to 6 months imprisonment (reduced from 9 months) to commence on 23 August 2019 and end on 22 February 2020.
(g) The total term of imprisonment is 16 months commencing on 23 August 2019 and ending on 22 December 2020.
(h) The whole of the term of imprisonment is suspended after four months, the suspension to take effect on 22 December 2019, on the condition that the offender enter into a Good Behaviour Order for a period of 12 months under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) with the following additional conditions:
(i) to be subject on probation to the supervision of the Director-General of Corrective Services or delegate, and obey all reasonable directions of that person for a period of 12 months, or such lesser period as deemed appropriate by the supervisor;
(ii) to supply samples of breath, saliva, blood or urine for alcohol or drug testing, if required by a corrections officer; and
(iii) to attend assessments, programs and counselling as directed, particularly in relation to alcohol rehabilitation.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim. Associate: Date: 16 October 2019 |
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