STATE OF TASMANIA v BGM 3 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE WOOD J
A jury has found BGM guilty of two counts of assault and two counts of rape and one count of perverting justice.
On 1 April 2019, the defendant assaulted and raped his partner. The complainant and the defendant had been in relationship for many years. The relationship was marked by the defendant’s abusive, violent and controlling behaviour towards the complainant. At the time in question there was a family violence order in place for an indefinite period prohibiting the defendant from approaching the complainant, entering her premises at Huonville and from threatening, abusing or assaulting her.
The facts as I find them to be, to the requisite standard, are as follows. During the day the defendant came to the complainant’s house at Huonville. He was affected by drugs, probably methamphetamine, perhaps other drugs and alcohol. He was in a highly aggressive mood. The complainant asked him to leave her house.
He did not leave. He took hold of her throat with one or both of his hands, strangled her and pushed her face into a cushion (assault). He said to her that he would suffocate her until she died. She was unable to breathe and began to lose consciousness. She remembers regaining consciousness and the defendant slapping and hitting her.
The complainant telephoned her general practitioner, concerned about the defendant and that he was having a bad reaction to some medication. The doctor could hear the defendant in the background being abusive and threatening towards the complainant. The doctor contacted the police. The police attended the complainant’s home to check on her. She told them she was fine because in her words: “I always stuck up for him because I wanted to give him a chance to change and be a better person and be a father to our kids.”
The complainant had urinated during the strangulation and she went to the toilet. The defendant dragged her off the toilet by her hair and dragged her some distance towards the bedroom and he spat on her five to seven times (assault). He pulled out some of her hair in the process of dragging her.
The defendant was complaining that she did not ever give him a “head job”. He had her by the hair and tried to force his naked penis into her mouth. She had her mouth closed, he was trying to force her to give him oral sex and hitting her face with his penis. His penis went into her mouth at one stage (oral rape).
The defendant had forced her into the bedroom and onto the bed. He removed her clothes and held her down on the bed. He put his fingers down her throat and while she choked on his fingers, he raped her vaginally. He removed his fingers from her throat and with his other hand held her down and strangled her while he continued to have vaginal intercourse with her. Evidently, he was sexually aroused by seeing her strangled and in distress. As she choked and struggled to breathe, he removed his penis and held it while he ejaculated over her breasts and stomach (rape).
She called her friend in a highly distressed state and told her that the defendant had raped her.
The following day, the defendant was in a rage. The complainant was frightened and she went and sat in her car with the doors locked. At one point the defendant came out of her house and kicked the window. Her mother arrived and found her daughter visibly shaking and upset. The complainant became very worried that her mother was in danger. She realised it was not just her that was at risk because of the defendant’s conduct but also her family. This informed the decision she made later that morning to report the rapes and assaults to the police.
Later that morning, two of her friends arrived to see how she was and found the complainant very upset and disturbed. While they were there, the defendant returned to the complainant’s home. The complainant and the defendant argued and the complainant rang 000 and left the line open so that the police could hear and would attend. During the course of the argument, the defendant was threatening and abusive towards the complainant and her friends. When the police arrived, the defendant was still at the house. In the presence of the police, the defendant switched, and spoke pleasantly to the complainant.
The complainant was examined by a forensic nurse. Her voice was hoarse and her throat felt swollen. She had pinpoint petechiae on the back of her head where the defendant had dragged her by the hair. There were two areas of petechiae on the side of her neck, consistent with strangulation. Between those areas was swelling consistent with pressure. Her neck was tender. There was a bruise above her left eyebrow and areas of bruising to both arms, her right shoulder and left leg, consistent with having been caused during the violence recounted by the complainant. Because of some of her symptoms, she was considered to be at risk of adverse side effects from the strangulation and it was recommended she receive medical attention. These symptoms were hoarse voice, neck pain, history of loss of consciousness, headache, bruising, tenderness to her neck and incontinence (urine) during the assault.
Strangulation is a particularly serious type of assault. The conduct of obstructing the complainant’s breathing and strangling her during the vaginal rape is an aggravating factor. In both instances, that is, in terms of the assault and the rape, it was carried out as a form of domination and control by instilling terror. The consequence of instilling terror on its own is a grave matter. Moreover, strangulation is an inherently dangerous act that may give rise to internal injuries, affecting long-term health or may lead to death. This Court has referred to the consequences of strangulation in a number of comments on passing sentence. Death can easily result, and it is most likely to result not from the restriction of breathing but from the blockage of the arterial blood supply to the brain. There are long term physical impacts leaving the victim susceptible to ongoing symptoms. It is also well known that it can have profound psychological long-term effects on its victims.
The defendant’s conduct with respect to each of these four crimes showed an utter and complete disregard for the dignity, personal integrity and welfare of the complainant.
I am conscious that the defendant was intoxicated. However self-induced consumption of alcohol or drugs is not a matter that reduces, to any extent, his criminal culpability.
On the 4 April, while the defendant was held on remand for these crimes, he rang his sister and asked her to pressure the complainant to change her account or have the charges dropped. He spoke in code, conscious that his call was being recorded. He referred to the complainant as “Chantelle”. He asked that the complainant be offered an incentive of $700, that she be emotionally manipulated and that it be conveyed to the complainant that he needed her to sort this out or clear it out and twist things around for him or otherwise he would be in a “world of shit”. Clearly, he expected he could emotionally manipulate the complainant and mould her account to police.
His sister agreed and visited the complaint on 4 April. A police officer happened to attend while she was there and found the complainant upset and shaking.
On 6 April there was a second phone call in which the defendant’s sister reported to the defendant that the police had attended.
This conduct gives rise to the crime of perverting the course of justice. It is a serious example of such a crime.
I have been provided with a victim impact statement from the complainant. She has suffered considerable trauma and her life has been deeply affected. She experiences recurring nightmares, she is very stressed and unable to handle the most straightforward activities. She needs help with leaving the house going to her appointments. She is a fearful person now and has lost confidence. She sees her doctor weekly and needs medication to cope.
The defendant is aged 33 years. He has a significant number of relevant prior convictions commencing in 2007. He has two offences of breach of family violence order by uttering verbal abuse at the complainant and being outside her premises. He has a prior conviction for two breaches of family violence order and two offences of common assault committed in March and June 2007. The two offences of assault involved acts of violence committed in relation to the complainant, on one occasion holding a hand over her nose and mouth with his hand around her neck, and the other occasion slapping her head. By committing those acts of assault he was in breach of the family violence order. He committed another act of common assault involving the complainant in 2009 by punching her to the head four times and throwing an eight ball at her hitting her to the stomach. By committing an assault he was in breach of the family violence order. For these offences and breaches of bail he received a term of imprisonment of four months, three months of which was suspended on condition he commit no offences of violence for 12 months. He was given the opportunity of probation and he was required to complete the family violence intervention program.
He also committed breaches of the family violence order by being at the complainant’s house in September and November 2010. He was given a wholly suspended sentence of four months’ imprisonment. He committed a common assault in May 2015 by biting the complainant to her nose and hand, and by committing that assault he was in breach of the police family violence order. For these crimes he was sentenced in September 2016 to five months’ imprisonment wholly suspended on conditions he complete his mental health plan and engage with his clinical psychologist. I have not been informed about a psychological or psychiatric condition which would warrant that kind of order despite an opportunity to provide that information.
The defendant committed two breaches of an interim family violence order by being at the complainant’s house in August and September 2017. He received a suspended gaol sentence of two months.
In October 2018 and January 2019, he committed two breaches of a family violence order by being at the complainant’s house. For this and other offending he received a total of three months’ imprisonment imposed in January 2019. He was released from prison in March and committed these crimes, approximately three weeks later, on 1 April 2019.
The defendant and the complainant had been in a relationship for some 17 years. The relationship had been fraught and problematic for some time. The defendant and the complainant have three children who have been placed in the care of the complainant’s mother.
I have mentioned a history of violence by the defendant towards the complainant which is plain from his prior convictions. In the past he has been aggressive, verbally abusive and engaged in belittling conduct that made her feel worthless.
I emphasise that the defendant is to be sentenced today for the crimes with which he is charged before the Court, not past conduct. While this is so, I proceed on the basis that it was not out of character for the defendant to act with violence towards the complainant. Further, court orders, whether they be protective or punitive orders, were not only ineffective on this occasion in keeping the complainant safe, but have been ineffective in the past.
I accept that his past offending does not involve conduct which approaches the seriousness of the crimes of violence before the Court today.
The defendant has been in custody since 2 April 2019. While on remand he has had limited access to courses due to the Covid-19 pandemic. However, he has completed an anger management program which is called the “Resilience” Program. He intends to participate in other programs that are available to him during his prison sentence.
The defendant is convicted of each of the crimes he has been found guilty of. I have determined a global sentence is appropriate for the two counts of rape and two counts of assault. The crimes were committed as part of a course of conduct involving brutal, degrading, domineering and violent behaviour. A heavy and substantial sentence is required. I impose eight years’ imprisonment. The commencement of the sentence is backdated until 2 April 2019.
A lesser sentence would not adequately reflect the seriousness of the crimes committed by you and the grave harm to the complainant.
In relation to the crime of perverting the course of justice, I make allowance for the totality principle by reducing the length of this sentence. Still, a tangible and significant sanction is required in addition to the other lengthy sentence. The defendant sought to avoid criminal responsibility by threatening and inducing the complainant to discontinue her complaint of very serious crimes. It is in the community’s interest that violent offenders be brought to justice. This carries particular force in connection with sexual and violent crime that occurs behind closed doors and when often the victim is the only witness. I impose a cumulative sentence of 12 months’ imprisonment.
I note that in relation to all crimes, a strong general and personal deterrent is required. The defendant has shown no remorse for his crimes.
In relation to the eight year sentence, the defendant is not eligible to apply for parole until he has served five years imprisonment. In relation to the 12 month sentence, the defendant is not eligible to apply for parole until he has served seven months of his sentence.
Pursuant to s 13A of the Family Violence Act 2003, I direct that the crimes for which the defendant has been sentenced today be recorded on the defendant’s criminal record as family violence offences.
With respect to the two counts of rape, I make an order under the Community Protection (Offender Reporting) Act 2005. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of 12 years commencing from the date of your release from prison.