The Queen v In
[2001] ACTSC 102
•2 November 2001
THE QUEEN v IN [2001] ACTSC 102 (2 November 2001)
CATCHWORDS
CRIMINAL LAW – sentencing – unlawful confinement and assault occasioning actual bodily harm – offences committed on wife after marital separation – aggravating features included threats to kill children – offences committed by prisoner of previously good character, suffering from psychological illness who broke off his violent conduct – subsequent plea of guilty and genuine remorse – need to protect community from such offences – relevance of subjective factors.
Crimes Act 1900, s 429A
No. SCC 88 of 2001
Judge: Crispin J
Supreme Court of the ACT
Date: 2 November 2001
IN THE SUPREME COURT OF THE )
) No. SCC 88 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:THE QUEEN
v
IN
ORDER
Judge: Crispin J
Date: 2 November 2001
Place: Canberra
THE COURT ORDERS THAT:
On the charge of unlawfully detaining his wife the prisoner be sentenced to imprisonment for a period of six years.
On the charge of assault occasioning actual bodily harm the prisoner be sentenced to imprisonment for a period of three years.
Both sentences be served concurrently.
A non-parole period of eighteen months be imposed.
Both the sentences and the non-parole period be backdated to 27 February 2001 when the prisoner was first taken into custody.
The prisoner pleaded guilty to one count of unlawful confinement and one count of assault occasioning actual bodily harm.
Both assaults were committed upon his wife whilst several children were present in the house and I directed that there be no publication of his name, lest the wife and children suffer further distress by being indirectly identified by any publicity.
Both offences occurred in the early hours of 27 February 2001. The prisoner and his wife had separated on 7 February 2001 and he had moved out of the family home. During the ensuing weeks he visited the house to see his children and occasionally stayed overnight, sleeping in his son’s bedroom. During the evening before the offences he stayed at the house to mind the children whilst his wife attended a meeting at the children’s school. She was subsequently driven home by the school Principal and they kissed before she left his car. Whilst they had stopped about four doors down the street, the prisoner had been waiting outside for his wife to return and saw this occur. He proceeded to ask her about her relationship with the Principal and an argument developed. The prisoner then left the house and his wife showered and went to bed.
During the early hours of the morning the prisoner returned to the house and knocked on a window. His wife let him into the house in the expectation that he was again intending to stay overnight in his son’s room and returned to her own bedroom. The prisoner then entered her bedroom, closed the door behind him and proceeded to sit on top of her with his legs on either side of her stomach. He placed a sharp object against her throat and said “This is a knife. If you move I will fucking kill you”. He then removed a number of strips of duct tape which he had pre-cut and placed on his stomach and placed them over her mouth and eyes. He bound her wrists and ankles with further pieces of tape and then used a strap to tie her hands and feet to each other. He said “You’ll have your wish – you’ll see me die tonight, you’ll see me die”.
His wife experienced some difficulty in breathing and the prisoner removed the tape from her mouth. He then proceeded to interrogate her about her relationship with the Principal. She said that he placed the knife under her nose and told her that he was going to cut it off if she was lying to him. She told him that she had seen the Principal on the previous Sunday and the prisoner then struck her several times around the head and shoulders. He broke off the assault and left the room saying “If you fucking move I’ll kill you”. Shortly afterwards he returned with the telephone book, asked his wife for the Principal’s telephone number and left the room to telephone him.
His wife said that she heard the prisoner go into the kitchen where the telephone is located and heard him run some water. He then entered the nearby bedroom which was occupied by two of their daughters and she heard him say “Now take this darling. I know it tastes awful, doesn’t it”.
The prisoner then returned and continued to question his wife about her relationship with the Principal. During the course of this conversation he told her that he was going to kill himself and take the children with him. He again struck her around the head and shoulders. Later he said “I’m going to take you all out to the bush, tie you to a tree and you can sit and watch us all die and think about [the Principal]”. He also told her that “You will wake up in the morning and know what it’s like to lose your family”. Later in the conversation he added “I was going to leave you [her eldest daughter], but she’s coming too”.
The prisoner eventually became tearful, untied the strap and the tape from one of his wife’s wrists and left the house. His wife hopped down the hall and rang the “000” emergency number. She asked for an ambulance “for her babies” obviously believing that they had been poisoned.
Her eldest daughter woke and found her mother in the kitchen making the call. The prisoner returned to the house and she asked him to untie her mother. He complied with this request and then helped to carry her to the bedroom. When the ambulance arrived he proceeded to show them the other children who appeared to be sleeping normally. The police were called and he again left the house. He subsequently rang a number of times to speak to his wife, threatening to kill himself.
Later that morning the prisoner attended the Tuggeranong Police Station where he was interviewed. His car was subsequently searched and a number of items including a six metre length of garden hose were found. A hardware store receipt indicated he had purchased a roll of duct tape and six metres of garden hose at about 2.00 pm on 25 February 2001.
During the proceedings before me the prisoner admitted that he had tied his wife up as she had alleged. He also admitted he had told her that she would see him die. He claimed that he had, in fact, intended to kill himself. He denied threatening to kill the children and denied placing the knife under his wife’s nose and threatening her as she had claimed.
Both the prisoner and his wife gave evidence before me and were subjected to searching cross-examination. I found his wife a very impressive witness and, despite the prisoner’s denials, I was satisfied beyond reasonable doubt that the incident occurred essentially as she had described. It was clear from her evidence that the prisoner had been in a state of extreme agitation throughout much of the incident and I formed the impression that he had not lied about the extent of his behaviour but rather that he had no present memory of having acted as he did, and could not accept that he had done so.
Whilst the threats to the prisoner’s children naturally evoke grave concerns for their safety it should be noted that both the psychological evidence and the report of an experienced probation and parole offer assigned to the prisoner's case suggest that there is a low risk of him committing any further offences.
As Mr Brady, who appeared on his behalf, pointed out, there were a number of subjective factors which must be taken into account.
First, the prisoner pleaded guilty. Whilst the plea of guilty was the product of some negotiation with the Crown and occurred very late, it is a matter that must be taken into account for a number of reasons. It has long been accepted that such a plea provides some evidence of remorse. It also saves the community the time and expense involved in prosecuting a trial, though in the present case the need to hear evidence to resolve the factual dispute as to the ambit of the prisoner’s conduct tended to reduce the weight that might otherwise have been given to this factor. A plea of guilty may also be significant because it spares the victim, and perhaps other people, from the ordeal of having to give evidence about the relevant facts. In the present case, the wife was required to recount the relevant events but her eldest daughter was spared the need to give evidence against her step father.
Second, at the time the prisoner entered the house he did not intend to threaten his wife with the knife or threaten to kill his children. As mentioned earlier, I accept that those threats probably occurred during a time of extreme agitation and that, whilst the decision to confine and interrogate his wife had been attended by some measure of premeditation, I accept that the use of the knife to threaten her and his threats to kill the children had not been pre-planned but occurred in what might be described as the agony of the moment.
Third, the prisoner had apparently come to his senses, broken off the course of threats and violence and released his wife without external intervention.
Fourth, the prisoner had been suffering from serious psychological illnesses including acute depression and an adjustment disorder. I accept Mr Brady’s submission that it was unlikely that he would have behaved in this manner had it not been for the severity of his psychological condition. Whilst there is no suggestion that he was completely unable to control his behaviour I accept that the severity of his psychological condition is relevant to an assessment of his moral culpability. Mr Brady also submitted that that condition and the fact that he had subsequently taken sensible steps to address his problems suggested that considerations of specific deterrence should be given less weight. He also submitted that it may be inappropriate to make him a vehicle for general deterrence. Whilst I accept the former submission I am unable to accept the latter.
The extent of his psychological condition is relevant to the issue of general deterrence but, in my view, the need to protect former spouses or partners from conduct of this nature cannot be so easily dismissed. Many people no doubt experience great stress upon the break up of their marriages or other close relationships and in some cases they may suffer from symptoms of an underlying psychological illness or even become psychologically ill for the first time. One may and should respond with sympathy. However, when a person commits serious criminal acts against a former spouse or partner the court must take into account the need to deter other people from similar conduct. The risk of serious injury and, as in this case, grave emotional trauma may be at least as serious when the offender is psychologically ill. Accordingly, the need for deterrence should be given due recognition, though the weight which should be given to that factor will vary according to the circumstances of the case, and the actual sentences must be determined by reference to all relevant factors referred to in s 429A of the Crimes Act 1900.
There were other relevant factors. The prisoner is plainly remorseful and, I think, generally ashamed of what he has done. He has no previous convictions and there is an abundance of evidence that he has hitherto been an excellent father and a person of impeccable character. This is not a case of an offender acting in a manner which reflects an underlying propensity for violence but rather one in which a man who has led an apparently blameless life for forty-seven years has committed serious offences during the course of a single episode of violence at a time of severe psychological stress.
The prisoner has since taken the initiative to obtain psychological counselling and achieved a significant measure of rehabilitation, though he recognises that he needs further assistance. His employer has held his job open for him and given evidence on his behalf. He also has a network of friends willing to support him. Consequently, there are some grounds for optimism that he will not again lapse into acute depression or succumb to some other psychological illness.
It is also true that the prisoner has now been held in custody for eight months and that his conduct and subsequent incarceration has led to a loss of contact with his children. He has previously been a devoted father and I accept that this has hurt him deeply.
I am also concerned that there may be some continuing risk of suicide and that any such risk might be aggravated by the strains involved in serving a substantial term of imprisonment. The prisoner’s suicide would be a tragedy not only for him, but also his children. He is the father of all but one of the complainant’s children, and the step-father of the other. Whilst they have now been separated from him for some months, they might be quite devastated to hear of his death in such circumstances.
In all these circumstances Mr Brady submitted that whilst the offences were very serious it would be appropriate to impose a head sentence sufficient to mark the gravity of his conduct but to impose a non-parole period equal to the eight months that the prisoner has already served. He would then be free to resume work, maintain psychological counselling and attempt to re-establish a relationship with his children. Regrettably, I am unable to accede to this submission.
In my view the offences which the prisoner committed were too serious to be dealt with in that manner. His wife was confined for an extended period and, whether he now remembers it or not, he behaved in a manner which was clearly calculated to terrify her. He plainly made no attempt to conceal his identity, yet put tape over her eyes. It is difficult to imagine any explanation for that conduct other than that it was calculated to cause fear. Even if he did not intended to carry them out, it is obvious that his threats to kill the children were also made for that purpose. Furthermore, his conduct in turning on the tap in the kitchen, going to his daughter’s bedroom and saying in a voice loud enough for his wife to hear “Now take this darling, I know tastes awful, doesn’t it” amounted, in my view, to an exercise in sadistic cruelty. A tape recording of his wife’s telephone call to obtain an ambulance was admitted in evidence. It records what one might have expected, a mother almost incoherent with fear that her children may have been poisoned.
I accept that the prisoner acted at a time of acute stress and under the influence of serious psychological illness, that he had not initially intended to act in such a cruel manner and that he is genuinely remorseful and ashamed of what he has done. I also accept that if further tragedy is to be avoided, it may be necessary to limit the time he has to serve before becoming eligible for parole in order to reduce the risk of suicide and ensure that the support network to which I have referred is still available to help him consolidate his recovery and avoid further unpredictable behaviour. It should be recognised that in the case of a psychologically ill offender, a lengthy prison sentence is not always the safest course even for the purpose of protecting the victim from further criminal conduct. In some cases the stress of confinement and the constant risk of brutality may hinder the offender’s recovery or even exacerbate the psychological condition and ultimately increase the risk of violent or irrational behaviour. It is necessary, even in the interest of potential victims, to seek to strike a delicate balance between the need for deterrence and the need to facilitate his or her recovery.
However, even when these and the other factors to which I have referred are taken into account in his favour I think a significant sentence of imprisonment is required. The non-parole period will be substantially less than I would otherwise have considered appropriate but the head sentence should reflect the gravity of the offences and also provide a substantial continuing sanction in the event of any failure to comply with the conditions of his parole.
On the charge of unlawfully detaining his wife I sentence the prisoner to be imprisoned for a period of six years. On the charge of assault occasioning actual bodily harm I sentence the prisoner to be imprisoned for a period of three years. I direct that both sentences be served concurrently. I impose a non-parole period of eighteen months and direct that both the sentences and the non-parole period be backdated to 27 February 2001 when the prisoner was first taken into custody.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 2 November 2001
Counsel for the Crown: Mr A Robertson
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the prisoner: Mr G Brady
Solicitor for the prisoner: Pappas j, attorney
Date of hearing: 26 October 2001
Date of judgment: 2 November 2001
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