PTR v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Crawford CJ,Blow J,Tennent J
• Judgment Date: 23 August 2012
• Docket Number: 948/2011
• Date: 23 August 2012

[2012] TASCCA 8

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Blow and Tennent JJ

948/2011

PTR

and

State of Tasmania

Murphy v R [2000] TASSC 169 , referred to.

Aust Dig Criminal Law [3521]

Aust Dig Criminal Law [3542]

Community Protection (Offender Reporting) Act 2005 (Tas), ss6, 24.

Traynor v McCullough [2011] TASSC 41 , referred to.

Aust Dig Criminal Law [3572]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate.

Criminal Law — Appeal and new trial — Procedure — Powers of court on appeal — To consider fresh evidence — Evidence available at time of sentence and unlikely to have had any impact on sentence.

Criminal Law — Appeal and new trial — Procedure — Miscellaneous matters — Tasmania — Order under Community Protection (Offender Reporting) Act 2005 — Length of order — Whether term of order disproportionate to offending and assessment of risk of re-offending.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ

1 I agree, for the reasons given by Tennent J, that the appeal should be dismissed.

Blow J

2 I agree that this appeal should be dismissed, for the reasons stated by Tennent J. The order that the appellant comply with the reporting obligations under theCommunity Protection (Offender Reporting) Act 2005 for a period of 10 years from the date of sentencing was not unreasonable or plainly unjust: House v R (1936) 55 CLR 499 at 505. The Facebook material that the appellant sought to rely on was not sufficiently significant to warrant this Court receiving it as evidence. The global sentence of 5¹/₂ years' imprisonment and the non-parole period of three years were not manifestly excessive. A somewhat longer head sentence, and a somewhat longer non-parole period, would have been unimpeachable in my view.

Tennent J

3 On 11 October 2011, the appellant, having been found guilty by a jury of one count of rape, five counts of aggravated sexual assault, one count of aggravated assault, one count of assault and one count of indecent assault, was sentenced to serve a term of five and a half years imprisonment with a non-parole period of three years. It was also ordered that, pursuant to theCommunity Protection (Offender Reporting) Act 2005, his name be placed on the register for a period of 10 years. The complainant in respect of all crimes was the appellant's estranged wife.

4 The appellant now appeals the sentence imposed on the sole basis that it was manifestly excessive in all the circumstances of the case. However, there would appear to be six issues which underpin the appellant's submissions. These are:

• • an asserted failure by the learned sentencing judge to take into account or give sufficient weight to the appellant's emotional state at the time of the offending;

• • an asserted failure by the learned sentencing judge to take into account or give sufficient weight to prior good character and work history;

• • an assertion that the length of time for which the appellant's name has been placed on the register is in itself excessive;

• • an assertion that the sentence of imprisonment imposed was simply too long;

• • an assertion that what purports to be copies of Facebook entries showing activities of the complainant during the course of the trial are inconsistent with her victim impact statement, thus, I infer, suggesting that that statement was inaccurate and should not have been given any significant weight; and

• • an assertion that photos of the home in which the events occurred which were tendered at the trial were somehow not consistent with events as the complainant described them.

Factual background

5 In her comments on passing sentence, Wood J set out the facts of this matter in some detail. I set out the substance of her comments generally because they, not only provide a useful summary of the facts but also, refer to matters which are the subject of argument on this appeal. The comments (edited to delete identifying material) are in the following terms:

‘PTR has been found guilty of assault and aggravated assault, five counts of aggravated sexual assault, one count of indecent assault and one count of rape relating to a course of conduct on 17 November 2010. His wife is the victim of these crimes.

The defendant and his wife had separated. The separation had occurred approximately two months before the commission of the crimes, after a period of difficulties in the marriage. The defendant had moved out of the family home and his wife was living with their two young sons on her own. Mrs R had resolved that the marriage was at an end while the defendant could not accept that this was so. Mrs R was steadfast in her resolve and had made that clear to her husband.

The couple were endeavouring to maintain family routines and an appearance of normality for the sake of the children. There was an arrangement for the defendant to see his sons on a regular basis during some evenings, and some mornings he took them to school. On those mornings he helped with the morning routine: preparing breakfast and getting the boys ready for school.

On the morning of the 17 November 2010, the defendant went to the address where his wife was living and as arranged helped with the morning routine. The night beforehand he had written a suicide note. He wanted to read his wife the note and he held some hope that by doing so she may change her mind about their relationship. Otherwise he planned to take his life that day. His intentions were a culmination of distress about the end of the relationship and some unrelated problems. Before leaving the house that morning he asked his wife if he could speak with her after he had taken the boys to school and she declined as she was afraid of being alone with him. He told her that he wanted to talk about matters regarding their separation and necessary arrangements. That was not true. Reluctantly she agreed to speak with him on his return but only if he did not park behind her vehicle in the driveway and only if she could leave the house if she felt unsafe with him. He agreed.

On his return to the house the defendant had a shower and changed his clothes. He went into her bedroom which had been the bedroom the couple had shared before the separation and closed the blinds and put a blindfold on the bed, and placed a sex aid, a dildo, and handcuffs in an accessible position nearby. The complainant was unaware that he had been in her bedroom. In the lounge room the defendant read the complainant a lengthy suicide note. In that note he referred to the fact that she had killed him and made it clear that he could not accept that the relationship was over.

Afterwards, the complainant responded with a comment that it did not change the way she felt about the relationship. She told him that she had to leave and went to the front door. As she reached the door and tried to undo it he put his hand over the top of hers, held the door shut and told her she was “not fucking going anywhere”. He told her he wanted to see her naked and make love to her again before he killed himself. The complainant told him she did not want it to happen and asked him to leave. She backed away from him. He then grabbed her by the sleeve of her jacket. The complainant screamed and yelled at him to let her go. The defendant told the complainant that it was going to happen whether she wanted it or not and that he had nothing to lose. The complainant tried to escape the house through the backdoor but the defendant blocked her exit. The complainant grabbed a knife from the kitchen bench and threatened him saying if he did not let her out of the house she would cut him. The defendant grabbed her wrist, twisted it and banged it forcefully onto the kitchen bench and the knife fell out of her hand.

The defendant then committed an assault, by twisting the complainant's arm up behind her back and pulling it up towards her shoulder blades. He pushed her forward into the hallway and held her against a wall. While he had her pinned against the wall he grabbed her mobile phone from her pocket and threw it some distance away. The complainant told him she would kick and punch and bite and do whatever she could to stop him from doing what he intended to do. He said it did not matter and he was going to do it anyway. He told her he had “nothing to lose” as he had lost her and the kids and he did not care.

After the defendant loosened his grip the complainant went into her son's bedroom and sat on the bed hoping that those surroundings and the reminders of his son may deter the defendant. It did not, and the defendant forcefully moved her into her bedroom. At this stage he committed an aggravated assault with the intent to commit the crimes of indecent assault and/or aggravated sexual assault and/or rape. The complainant fought him by punching, scratching and kicking him as best she could. The defendant got her on the ground and dragged her backwards down the hallway by her hair and underneath her arm. The complainant was screaming and telling him to stop. He dragged her into the bedroom, pulled her upright and twisted her arm uparound her back and pushed her face down onto the bed. The defendant pushed down on the back of her head as she was face down. The complainant was flailing her arms around and clawing at the sheets and screaming. The defendant said to her “shut up you fucking bitch”. The defendant pulled both of her arms around to her back and placed a pair of handcuffs on her wrists. The complainant was struggling and she screamed and begged him to stop. The defendant obtained a pair of socks and tried to push them into her mouth. He managed to do so partially with the complainant resisting. The defendant told the complainant to shut-up and that if she did then he would not keep trying to put them in her mouth. The complainant saw a bandanna on the...