Bradshaw, Benjamin John v Tasmania

• Jurisdiction: Tasmania
• Court: Supreme Court of Tasmania
• Judge: Evans J,Tennent J,Porter J
• Judgment Date: 09 April 2009
• Docket Number: 543/2008
• Date: 09 April 2009

[2009] TASSC 22

COURT OF CRIMINAL APPEAL (TAS)

Evans, Tennent and Porter JJ

543/2008

Bradshaw, Benjamin John

and

Tasmania

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Applications to reduce sentence — When refused — Particular offences — Offences against the person — Unlawful act intended to cause grievous bodily harm.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 Arising from a series of events that culminated in the appellant, Benjamin Bradshaw, stabbing the complainant, Kristi Wolfe, the appellant was convicted of a number of crimes and offences for which he received a global sentence of six years' imprisonment and made eligible to apply for parole after serving four years of that sentence. He appeals against that sentence.

2 The appellant pleaded guilty to all of the crimes and offences that are the subject of the sentence, save for the crime of aggravated burglary, as to which he was found guilty by a jury. The offences that are the subject of the sentence that are not crimes under theCriminal Code Act 1924, were dealt with by the learned sentencing judge pursuant to the Code, s385A. The crimes to which the sentence relates were committed on the night of 21 October 2007 and are:

• • Aggravated burglary. The appellant having broken a window in the complainant's residence, climbed through it with the intention of attacking either the complainant or a man in the residence, Riley Hamill, or both of them.

• • Committing an unlawful act intended to cause bodily harm. Having entered the complainant's residence, the appellant stabbed her twice to the right side of her stomach as she sat on a lounge.

• • Committing an unlawful act intended to cause bodily harm. After inflicting the wounds that are the subject of the above conviction, the appellant took a few steps away from the complainant and then returned to stab her twice to the left side of her stomach.

3 The learned sentencing judge's findings in relation to the circumstances of the crimes and offences have not been challenged. They include the following. I have added, in italics, references to the offences dealt with pursuant to s385A that are also the subject of the sentence.

‘Mr Bradshaw cohabited with the complainant at her home in Queenstown for over a year until shortly before the night in question. The complainant's daughter also lived in the house. She was seven years old when her mother was stabbed. Mr Bradshaw had psychological problems and a drug problem.

On the 8^th of September 2007, the complainant went to a netball dinner against the wishes of Mr Bradshaw. He became angry and somewhat violent towards her after the dinner. He was arrested and charged and was granted bail by a magistrate. The order of the bail included a condition requiring him not to approach the complainant directly or indirectly. In breach of that condition he resumed sleeping with the complainant on his return to Queenstown. … (This occurred between 10 September 2007 and 14 October 2007 and for this Mr Bradshaw was convicted of a charge of breach of bail.)

Mr Bradshaw subsequently obtained a copy of the statement that the complainant had made to police officers following the incident after the netball dinner. In that statement she said something about Mr Bradshaw having firearms. Mr Bradshaw spoke to her about that. She gave evidence that she told him that she was scared that he had a gun and that he responded, “Well why do you think I need a gun to kill you,Kristy, when you've got a hundred knives in your drawer?” That piece of evidence was neither challenged nor contradicted. I'm satisfied that Mr Bradshaw uttered words to the effect of those attributed to him. The idea of him stabbing the complainant with one of her kitchen knives had crossed his mind and he'd spoken to her about it weeks before he did that very thing.

On the 14^th of October 2007, the complainant terminated the sexual relationship between Mr Bradshaw and herself. Mr Bradshaw was not happy with that decision; in fact he has wanted her to reverse that decision ever since.

On the night of the 20^th of October 2007, the complainant met up with a Mr Hamill at a hotel, spent a long time talking to him, took him home and spent the night with him. Mr Bradshaw learned of that the next day and was disturbed by that news. As a result he visited the complainant at her home on at least four occasions on the night of the 21^st of October, including the visit when he stabbed her. Each time he visited her contravened the bail condition that prohibited him from approaching her. … (For these four visits on 21 October 2007 Mr Bradshaw was convicted of four charges of breach of bail.)

On the 22^nd of January 2007, in the Court of Petty Sessions at Queenstown, a family violence order had been made against Mr Bradshaw. It was still in force on the 21^st of October. That order required him not to damage the premises of the complainant's address. By breaking the window he contravened that family violence order. … (For this damage, Mr Bradshaw was convicted of a charge of breaching a family violence order.)

At some stage during the evening before the stabbings, Mr Bradshaw injected himself with amphetamine. … (For this, Mr Bradshaw was convicted of consuming a controlled drug.)

During one of his visits prior to the stabbings Mr Bradshaw … told the complainant that he was going to kill himself and left her house. She rang two of his friends. He returned about twenty minutes later. The complainant saw him with his rifle in his mouth. His friend subsequently arrived and took him away. … (Arising from this, Mr Bradshaw was convicted of a charge of possessing a loaded firearm – a.22 rifle – in a public place when not the holder of a firearm licence and a charge of possession of ammunition when not the holder of the appropriate firearm licence. It was established that in addition to the .22 rifle, Mr Bradshaw had a double barrel shotgun at his home that night. For his possession of the firearms he was convicted of a charge of possessing a firearm when not the holder of a firearm licence of the appropriate category.)

Before the stabbings Mr Bradshaw spent some time looking for Mr Hamill at a number of different addresses in Queenstown without success. Mr Hamill had gone to visit the complainant. Mr Bradshaw's enquiries took him to a house within walking distance of the complainant's home. No one was home there. Until then Mr Bradshaw had been travelling in his car. Its engine made a loud distinctive noise. He decided to go to the complainant's house again thinking Mr Hamill might be there. He chose to walk rather than drive in his car. He arrived at the house silently. He was empty handed. Through a front window he glimpsed Mr Hamill and the complainant in bed together. Without hesitation he smashed the window and climbed through it. Mr Hamill and the complainant fled to different parts of the house. Mr Hamill, fearing for his safety, fled to the bathroom and held its door firmly closed. The complainant ran past her cordless phone, picked it up, and rang 000 from the loungeroom. A recording of that phone call was tendered by the Crown. It was during that call that Mr Bradshaw stabbed the complainant. Twice on the first occasion and twice on the second occasion.

There are a number of facts and circumstances that strongly suggest that Mr Bradshaw intended quite serious violence if he found Mr Hamill at the complainant'shome. He approached silently on foot when all his earlier visits had involved arriving in his noisy car. He had been looking for Mr Hamill for some time. As he walked to the house he had time to think about what he would do if he found Mr Hamill there. Using a kitchen knife as a weapon was something that he had thought about in the last weeks of his relationship with the complainant. He had injected amphetamine. He had been so disturbed that he'd contemplated suicide. Once he got through the bedroom window the evidence suggests that he made for the kitchen knives without delay.

Having regard to those matters, I'm satisfied that Mr Bradshaw walked to the house because he intended to launch a violent surprise attack if he found Mr Hamill there. I'm satisfied beyond reasonable doubt that when he climbed through the window after having seen Mr Hamill, he'd already made up his mind to arm himself with a kitchen knife and use it as a weapon if he could. However, 1“m not able to make a finding as to whether, at the time he climbed through the window, he'd reached the stage of deciding whether he intended to attack the complainant or Mr Hamill or both of them.

The complainant gave evidence that all four stab wounds were inflicted when she was sitting on a lounge with her daughter sitting right beside her pushing up against her. … I'm satisfied beyond reasonable doubt that when each stab wound was inflicted her daughter was sitting hard up against her left side and that Mr Bradshaw knew exactly where the child was.

The complainant was taken to the hospital in Queenstown and then airlifted to the Royal Hobart Hospital for treatment. The higher wound to the left side was particularly serious. The knife had bruised a rib, pierced the lining of the abdominal cavity, passed into and through the stomach, and pierced the other side of the stomach. That wound would have been fatal without treatment. Surgeons saved the complainant's life. She spent five nights in hospital. She was in pain for weeks. She was incapacitated for months. She's been left with scars from the four stab wounds and a very long surgical scar. She continues to suffer from psychological symptoms. She had to leave her job and obtain social security benefits. Because she lives in Queenstown, travelling for counselling and psychological treatment has cost her a lot of...