Enniss, Graham John v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Crawford CJ,Blow J,Wood J
• Judgment Date: 02 October 2012
• Docket Number: CCA 262/2012
• Date: 02 October 2012

[2012] TASCCA 10

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Blow and Wood JJ

CCA 262/2012

Enniss, Graham John

and

State of Tasmania

Mill v R (1988) 166 CLR 59 , applied.

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Assault — Family violence — Extent of injuries — Application of totality principle.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ Blow J Wood J

1 This an appeal against a sentence of three years' imprisonment, and an order that the appellant not be eligible for parole until he has served two years of that sentence, imposed by Tennent J upon pleas of guilty to five counts of assault. The appellant, Graham Ennis, committed the five assaults upon his partner, Jocelyn Smedley, at their home over a period of between 24 and 30 hours on 29 and 30 May 2011. He contends that the sentence, including the order as to parole, was manifestly excessive. The sentence was cumulative with another sentence that the appellant was already serving.

2 The appellant was originally indicted on seven charges. He pleaded guilty to counts 2, 3, 4, 5 and 6 on the indictment. The Crown did not proceed on counts 1 and 7. The facts upon which the appellant was sentenced were essentially as follows.

3 The appellant and his partner had been living together intermittently for some years. They had had two children, but one of them had died in 2008. In May 2011, they were living together in Smithton. They had an argument on the evening of Saturday, 28 May. The first assault, the subject of count 2, occurred on the night of Sunday, 29 May when the complainant was getting ready for bed. The couple were arguing. The appellant told the complainant that he was going to tie her up. She begged him not to. He grabbed her by the throat with both hands. She attempted to resist. He forced her to the floor, and punched her to the head four or five times. One punch landed to the right side of her nose, one to the left temple, and two to the back of her head. She had her hands up trying to defend herself while she was being punched. The appellant stopped punching her. She stood up. As she was standing up, the appellant kicked her to the left hip. This assault caused bleeding from the complainant's nose and mouth.

4 After the complainant had cleaned herself up the appellant said to her, ‘Before you go to bed you can get kicked in the cunt.’ She became upset. The appellant continued to abuse her. She ran into her daughter's bedroom and got into bed with her. The child was 3 years old at the time. The complainant was wearing a jumper, and had her mobile phone in the pocket of that jumper. The appellant came into the child's bedroom, and tried to seize the mobile phone, but he was unsuccessful. He left the room, went to the kitchen, returned with a knife, and committed the assault that is the subject of count 3. He pointed the knife at the complainant and demanded the mobile phone saying, ‘Give it to me or I will stab you.’ That was not a physical assault. It was an assault by means of a threatening gesture:Criminal Code, s182(1). The child was asleep, and remained asleep, throughout this incident.

5 The next assault, the subject of count 4, occurred the next morning. The complainant had spent the night in her daughter's bedroom. After the complainant awoke, the appellant said to her, ‘Right, I still want to kick you in the cunt.’ He told the complainant to go to a bedroom, which she did. When she was standing in that bedroom, he kicked her between the legs. The kick connected with her inner thigh. He was wearing sneakers. She fell to the floor. The appellant said, ‘Get the fuck up.’ He then kicked the complainant between the legs a second time, closer to her genitals. Both kicks were painful. The complainant had a bruise to the inner thigh as a result of one of the kicks.

6 The appellant went to and from the house a number of times during the day, without further violence. The assault to which count 5 relates occurred at about 8.30pm. The couple's daughter was in bed. In the lounge, the appellant sat in a chair sharpening a pocket knife and a boning knife. He said to the complainant, ‘Tonight's the night I'm going to kill you and I'm going to enjoy watching you take your last breath.’ A little later he said to her, ‘No, I'm not going to kill you. I'm just going to bash the fuck out of you all night. You will wish that you were dead.’ The sharpening of the two knives, accompanied by those threatening words, amounted to a threatening gesture, and thus to an assault: s182(1). There was no physical violence at that time.

7 Over the next couple of hours, the appellant proceeded to commit the assault that is the subject of count 6. He either kicked or punched the complainant to the head. He kicked and punched her to other parts of the body, mainly the rib area. He also threw a porcelain mug at her. It struck her left elbow.

8 There were no further assaults. The appellant told the complainant to lie down on the floor of the lounge room and go to sleep there. She lay down on the floor. The appellant lay down next to her. He had not slept for days as a result of ingesting methylamphetamine, but he had run out of it, and therefore fell asleep.

9 On the Tuesday morning, the appellant told the complainant to take her bed and bedding to the back yard and set fire to it. He told their daughter that this was because her mother had been naughty. He arranged for his mother to come to collect the child. His mother and sister subsequently arrived. He went to the toilet and, while he was there, the complainant escaped with his sister. As a result, the police were called.

10 Police officers arrived at the house. The appellant was arrested, placed in the police car, and driven to the Smithton Police Station. On arrival he jumped out of the car and ran away. He was not found until days later. Between his escape on 31 May and his final arrest on June, he committed a number of burglaries and other offences.

11 When sentencing the appellant, the learned sentencing judge remarked that the five assaults ‘were committed over a three day period’, but that is not accurate. They were committed during a period of probably no more than 30 hours, beginning when the complainant was getting ready for bed on the Sunday night, and ending a couple of hours later than 8.30pm on the Monday night.

12 The physical effects of the five assaults were not serious. The bleeding caused by the first assault was evidently transient. The...