STATE OF TASMANIA v AMALI LEA DE JONGE 25 JULY 2024
COMMENTS ON PASSING SENTENCE JAGO J
Ms De Jonge, you have pleaded guilty to one count of causing grievous bodily harm, contrary to s 172 of the Criminal Code. When the crime was committed you were aged 18 years. You pleaded guilty to this crime, at an early stage, when the matter was in the Magistrates Court. The victim of your crime is your brother-in-law, Brent Cruse. He was 23 years of age at the time of the crime. He is the partner of your eldest sister.
In November 2023, your sister and brother-in-law lived opposite the home where you lived with your mother. You shared a close relationship with your sister and brother-in-law until about a week and a half prior to this crime. At that time, you were at their home and you witnessed them having an argument. The argument was described by your sister as a relatively minor one, arising because both she and the complainant were tired, as young children in the household were not sleeping well. Your sister describes you as completely over-reacting to the argument, but your perception was that the complainant was mistreating your sister and you accused him of the same. This led to a falling out between you and the complainant.
In the week that followed, there were a number of acrimonious text messages exchanged between the two of you. You also revved your vehicle outside of the complainant and your sister’s home at one point. The complainant responded by breaking the tail light on your vehicle when he attempted to punch it. The tail light on the complainant’s vehicle was also broken around this time, although it is not clear how exactly that occurred. In any event I think it fair to say that each of you were behaving immaturely.
On 16 November 2023, the complainant and his brother, Ashley Cruse, were travelling in Cressy. They observed you travelling in your vehicle in the same area. They describe you as coming up behind their vehicle, driving quite quickly and overtaking their vehicle, before accelerating away. A couple of minutes later, whilst the complainant and his brother were still travelling on the streets of Cressy, they again say you came up behind them, overtook them at high speed and then sped off. You say as to this interaction on the streets of Cressy that you were following their vehicle because your partner had reported to you that he had received threatening messages from the complainant and his brother, and you were concerned that they were going to attend at his house and cause trouble. You say during the drive the complainant “nudged” the passenger side of your vehicle with his, and you were all exchanging verbal obscenities.
The complainant drove his motor vehicle and parked it outside of your boyfriend’s home. Apparently the complainant’s intention was to speak to your boyfriend to see how the animosity that had developed between you and he might be resolved. As noted you, however, thought the complainant was attending at your boyfriend’s residence to cause trouble because of the earlier threats which had been reported to you. There is obviously a difference in opinion as to what exactly occurred in the lead up to this incident. I do not consider it necessary to make definitive findings of fact, as to what happened because, in my view, what occurred subsequently is simply inexcusable even if the complainant had been behaving inappropriately. That said, I do accept that given what had been occurring in the week or so prior to this incident, you believed the complainant was attending at your boyfriend’s home for mischievous reasons.
The complainant tooted the horn of his vehicle a couple of times, opened the door and began to exit his vehicle. At that point, you drove your vehicle directly at him. His brother estimated that you were travelling at about 70 kilometres per hour. He described your vehicle as driving “straight into Brent who was half out of the open driver’s door”. The complainant said that as he began to step out of his car, he turned and “Amali was like not even two metres away from me and I just jumped. My reaction when I saw Amali driving at me was to jump so I didn’t go under the car. I didn’t even hear her coming, I think because I was honking the horn.”
The force at which you struck the car was sufficient to push it on an angle of about 45 degrees from where it was initially parked. The driver’s side door was also pushed back a considerable distance. The complainant’s right foot was severely injured. He was transported to the Launceston General Hospital and placed into a medically induced coma. The foot could not be saved. His right foot was amputated just below the right knee. The complainant also suffered a dislocated elbow and a stretched ligament in his right arm.
Whilst you initially left the scene to go inside at your boyfriend’s residence, when police arrived you exited and spoke with them and admitted that you were the driver of the motor vehicle. You were then conveyed to the Launceston General Hospital for blood tests, which revealed THC in your blood. Pursuant to s 385A of the Criminal Code, I will also deal with the related summary matter of drive a motor vehicle whilst a prescribed illicit drug is present in your blood contrary to the provisions of the Road Safety (Alcohol and Drugs) Act.
The State accept that when you committed this crime, your state of mind was one of subjective recklessness, that is, you drove the motor vehicle at the complainant realising that you may cause him serious injury, and acted regardless of the risk that you would do so. Whilst I accept you did not intend to harm the complainant as you did, your actions involved a very high degree of recklessness in my view, and the likelihood of serious harm was obvious. I accept you were in a state of heightened agitation, arising from your interactions with the complainant over the preceding week, but your response was extreme and had dire consequences.
The complainant has suffered not only serious and permanent physical disability as a consequence of your actions, but the psychological impact upon him has been pronounced. His impact statement outlines the life changing impacts the amputation of his foot have had upon him. It is unlikely that he will be able to continue in his previous employment as a labourer and apprentice painter. He has been financially impacted by this crime. He has endured months of physiotherapy in an attempt to learn to walk in a prosthesis. This has been a painful experience for him. He continues to suffer from “phantom pains” where his foot used to be. He used to enjoy a number of past times, such as motor bike riding. He is doubtful he will be able to return to such past times. The emotional toll on him and his young family has been significant. His partner had to make the very difficult decision to permit the surgeons to amputate. This has had an impact upon her and has put a strain on their relationship. Their two young children have also obviously been adversely affected because of the physical limitations that are now imposed upon the complainant. Much of the day to day care of the children has fallen to the complainant’s partner, which again has increased stress and anxiety for the complainant. In short, your criminal conduct has inflicted severe psychological trauma and long term permanent disability upon the complainant.
As noted, you were 18 years of age at the time of the crime. You are now 19. Save for one traffic infringement matter for a minor speeding offence, you have no prior convictions. At the time of the crime you were working in a traineeship. Following the crime, given the close proximity in which your sister and the complainant lived to where you lived, you relocated to St Mary’s and went to live with your grandparents. Since moving there, you have obtained work in a café and are undertaking an online Certificate III in retail and hospitality. Your employer has provided a reference. You are clearly well regarded and valued in that employment.
You retain the support of your family and your partner. Obviously, your family has been put into a very difficult position because the victim of your crime was your brother-in-law. You have lost your relationship with your eldest sister. You were previously very close to her. This has had a salutary impact upon you. I am told you greatly regret your actions and the impact it has had upon the complainant, your sister and their two young children. You also regret the impact your crimes have had on the extended family. You recognise that there will now always be a divide within the family for which you are responsible.
I take into account your plea of guilty. It was entered at an early stage. I accept the plea of guilty is indicative of your genuine remorse and regret.
I also accept that this behaviour is out of character for you. There had clearly been a build up of animosity between you and the complainant in the preceding week. I have seen some of the text messages. As I have noted, it would have to be said that both you and he acted in an immature and childish manner. Your behaviour, however, in driving your motor vehicle directly at the complainant is inexcusable. There was nothing the complainant had done which warranted such an extreme reaction. I accept it was an impetuous act but it was also a mindless act.
The severity of the complainant’s injuries and the extent of the permanent disability to which he is now subject is a fundamental sentencing consideration. Your crime has, in many ways, changed his and his family’s life irretrievably.
Your young age, lack of prior convictions and solid prospects are strong mitigating factors which count in your favour but, of course, any entitlement to leniency flowing from such factors must be balanced against the serious nature of your conduct and the strong need for general deterrence and denunciation. You used your car as a weapon with reckless indifference to the possibility that it could cause very serious injury, or even death to the complainant.
Your counsel urged me to consider the imposition of a Home Detention Order. I had you assessed as to that. The contents of the report confirm the genuineness of your remorse and your sorrow for the harm you have caused. You have been assessed as suitable. I have found this a difficult sentencing exercise and with some considerable hesitation, given the gravity of the harm you have caused, I have determined that a Home Detention Order, coupled with a requirement that you perform community service, is an appropriate sentencing response. Given your young age and solid prospects it is justifiable, in my view, to impose a sentence which emphasises your rehabilitation. That is not only in your interests, but also the broader community’s interests. I am satisfied that the sentence I impose will have a considerable punitive effect upon you because it will be a significant imposition upon your liberty, particularly given your age and your residence in St Marys. You will be able to pursue your employment which I consider to be important in terms of your ongoing rehabilitation, and you will contribute to the community by the performance of community service.
I am satisfied it is unlikely that you will ever behave in this way again. The fracturing of your family, and the destruction of your relationship with your sister, has been salutary and will serve as a constant reminder of your extreme foolishness. You should clearly understand, however, Ms De Jonge, that this was a finely balanced determination. Should you breach any of the provisions of the conditions of the Home Detention Order, or fail to complete your community service then, in my view, it would be almost inevitable that you would be re-sentenced and a period of actual imprisonment imposed upon you.
I make the following orders. You are convicted of the crime of causing grievous bodily harm and the offence contrary to the Road Safety (Alcohol and Drugs) Act. I make a Home Detention Order in respect to the crime. The operative period of the order is 18 months from today. I specify the premise at which you are to reside during the operation period of the order as [address stated]. I order that as at 10 am tomorrow, you report to the office of Community Corrections at 111 Cameron Street, Launceston for induction into this order. The order will be subject to all of the core conditions set out in the Sentencing Act 1997, s 42AD(1). These will be set out in the written document that will be given to you, but include that you will submit to electronic monitoring. I specify that you must be at the Home Detention premises at all times unless for a relevant reason. In short, that means that you must be at those premises unless there is a need for urgent medical treatment, there is a serious risk of death or injury, or you already have the approval of a probation officer to be absent, for example, for your employment. It will be for the probation officer to determine what to approve so as to allow for treatment or rehabilitation or to enable you to undertake your employment, or for any other purpose. The conditions imposed include a condition that you must not commit another offence punishable by imprisonment and that you comply with all directions given to you by a probation officer.
Additionally, the following special conditions will be imposed:
- You must permit a probation officer, a police officer, or other prescribed officer to enter the home detention premises.
- You must permit a police officer to conduct a search of the premises, conduct a frisk search of you and take a sample of any substance found on the premises or on your person.
- You must submit to electronic monitoring, including the wearing or carrying of an electronic monitoring device.
- You must not remove, tamper with, damage, disable or interfere with the proper functioning of that device or equipment used for the purpose of electronic monitoring, or allow anyone else to do so.
- You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring device, including directions relating to the installation, attachment or operation of the device, if those directions are given to you by a police officer, a probation officer, another prescribed officer or any other person whose functions involve the installation or operation of the electronic monitoring device, or a system used for that purpose.
- You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through that device at all times.
- You must not take any illicit or prohibited substances.
- You must not take any medication containing an opiate, benzodiazepine, buprenorphine, hydrochloride or pseudoephedrine unless you provide written evidence from your medical practitioner that you have been prescribed that medication.
- You must not during the operational period of the order consume alcohol and you must, if directed to do so by a police officer, or community corrections officer, submit to a breath test, urine test or other test for the presence of alcohol.
- You must submit to the supervision of a Community Corrections Officer as and when required by that Officer.
I also impose a Community Correction Order with an operational period of two years from today. It will contain all of the standard conditions provided for in the Sentencing Act. Additionally, there will be a special condition requiring you to perform 240 hours of community service.
I reiterate that if you do not comply with the conditions now imposed, imprisonment is likely upon re-sentence. If you breach the order by committing another offence, the order must be cancelled unless there are exceptional circumstances and, in that case, imprisonment would be almost inevitable.
Pursuant to s 55 of the Sentencing Act, I order that you are disqualified from holding or obtaining a driver’s licence for a period of two years from today’s date.
In respect to the Road Safety (Alcohol and Drugs) Act matter, you are disqualified from holding or obtaining a driver’s licence for a period of three months. That will operate concurrently with the disqualification just imposed. You are fined the sum of $500.00.
I make a compensation order in favour of Brent Leon Cruse in an amount to be assessed.