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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Martin (a pseudonym) (No 2) |
Citation: | [2025] ACTSC 181 |
Hearing Date: | 10 April 2025 |
Decision Date: | 6 May 2025 |
Before: | McCallum CJ |
Decision: | (1) For the offence of aggravated assault occasioning actual bodily harm (CC2024/7301), you are convicted. I sentence you to a term of imprisonment for a period of 3 years and 3 months commencing on 18 July 2024 and ending on 17 October 2027 with a non-parole period of 2 years ending on 17 July 2026; (2) For the offence of contravening a family violence order (CC2024/7304), you are convicted. I sentence you to a term of imprisonment for one month commencing on 18 July 2024 and ending on 17 August 2024. |
Catchwords:
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Aggravated Assault Occasioning Actual Bodily Harm – Contravention of Family Violence Order – seriousness of offences – consideration of discount for guilty plea in family violence circumstances |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24(1), 48C Crimes (Sentencing) Act 2005 (ACT) ss 10(2), 33(1)(e), 33(1)(f), 34B Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(j) Family Violence Act 2016 (ACT) s 43(2) Human Rights Act 2004 (ACT) |
Cases Cited: | DPP v Sullivan (No 3) [2025] ACTSC 134 R v Tran [1999] NSWCCA 109 |
Parties: | Director of Public Prosecutions ( Crown) Casey Martin (a pseudonym) ( Offender) |
Representation: | Counsel T Kelliher ( DPP) G Le Couteur ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) |
File Number: | SCC 334 of 2024 SCC 335 of 2024 |
McCALLUM CJ:
Introduction
1․ Casey Martin stands to be sentenced after pleading guilty to one offence of aggravated assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT) and one offence of contravening a family violence order contrary to s 43(2) of the Family Violence Act 2016 (ACT). The maximum penalty for the aggravated assault is seven years’ imprisonment. The offender is liable for the aggravated form of the offence because it involved family violence: s 48C of the Crimes Act. The maximum penalty for breach of the family violence order is five years’ imprisonment. That offence also carries an alternative penalty of a fine but that would not be appropriate in the circumstances of the present case.
2․ The guilty pleas were entered in this Court following the offender’s participation in a criminal case conference. In accordance with orthodox principle, he is entitled to a discount to reflect the utilitarian value of the pleas. The prosecution submitted that the appropriate discount would be in the range of 15% to 20%, noting the timing of the pleas. I propose to allow a discount towards the upper end of that range as I consider a plea that obviates the need for a victim of family violence to give evidence to have particular value. As the offender was arrested at nearly midnight on 17 July 2024, it is appropriate to fix his sentence to commence on 18 July 2024.
Nature and circumstances of the offences
3․ The offender and the victim were in a romantic relationship. On 11 April 2024, the offender was served with a family violence order under which he was prohibited from being within 100m of the victim or engaging in family violence towards her.
4․ At about 7:00pm on the evening of 17 July 2024, the offender was at his home, as required by his conditions of bail. She apparently attended his home, putting him in breach of that order. Later in the evening, an argument developed between them. The offender became extremely angry and told the victim that, although police had confiscated his gun, he still had a sword. The victim messaged her son asking him to come to her place to help her. In the meantime, police received an anonymous report of a “domestic dispute”, the caller saying the offender was going “off his head”, as indeed it appears he was. He threw his phone at the television, breaking both devices. He then retrieved a sword with a 60cm blade from the bedroom.
5․ The offender held up the sword and swung it at the victim’s face, hitting her in the chin. She felt immediate pain and began bleeding. As the victim was attempting to stem the bleeding, her son rang. She screamed for him to come and help her as she had been stabbed by the offender. Police arrived at around the same time. When they approached the front door, they heard the victim pleading for her life. She later conveyed to police her belief that, had they not arrived when they did, she would be dead.
6․ I am required to have regard to any injury, loss or damage resulting from the offence and its effect on the victim: ss 33(1)(e) and (f) of the Crimes (Sentencing) Act 2005 (ACT).
7․ The physical injury inflicted by the sword is an element of the offence and accordingly cannot be regarded as an aggravating factor. That said, I regard this as an extremely serious instance of the offence of assault occasioning actual bodily harm, which can involve harm as minor as a bruise or a small cut. The victim in the present case suffered two open wounds on her chin, one of which required stitches under local anaesthetic, and a linear abrasion on her neck. Those two open wounds will leave her permanently scarred. A medical report tendered by the DPP stated that she may also suffer permanent or long-lasting sequelae, being ongoing pain and discomfort in her chin and ongoing psychological symptoms resulting from the traumatic nature of the offence.
8․ That prediction of psychological harm proved true. In a victim impact statement read on the victim’s behalf at the proceedings on sentence, the victim spoke of thinking she was going to die that night. She stated that she has post traumatic stress disorder as a result of the offence and that this causes her to have panic attacks and to feel paranoid and mentally exhausted. She has lost her employment as a result of the offence and states that she was at risk of losing her children because of the seriousness of the offence. To her credit, the victim stated that, although some of the impacts of the offence will take her years to recover, this will not stop her from working towards her goals, enjoying her life and moving on.
9․ I note that I have disregarded one sentence in the victim impact statement (“you wouldn’t let me leave”) as that is inconsistent with the discontinuance of a charge of detaining the victim. She may have felt that she could not leave but I cannot have regard to any suggestion that the offender in fact prevented her from doing so.
10․ In all the circumstances, I assess this to be an extremely serious instance of the offence of assault occasioning actual bodily harm, indeed, one that approaches the most serious end of the range for that offence. It involved the use of a highly dangerous weapon wielded deliberately against the victim causing significant actual harm to one of the most vulnerable parts of the body. Her fear that, but for the timely arrival and direct action of police, she might have died that night reflects no exaggeration. The evidence establishes that the psychological impact for the victim has been grave.
Circumstances of the offender
11․ The offender’s personal circumstances are set out in the pre-sentence report. He is currently 48 years old. He enjoyed a positive upbringing. He was educated to year 9 and engaged in steady employment until suffering injuries in a motorcycle accident in 2010, as a result of which he is now on a disability pension. He continues to enjoy the support of his parents. His conduct in prison has been positive. He is employed as a sweeper, which is known to be a position of responsibility in the jail.
12․ The offender became a father at the age of 14 and reports being traumatised as a result of being separated from that child six months after the child was born. He subsequently had seven more children with his ex-partner with whom he was in a relationship for 23 years.
13․ The offender’s account of his history of substance abuse is inconsistent with the objective records. He acknowledges using amphetamine, ecstasy, cannabis and alcohol from a young age. He states that he was introduced to heroin and amphetamine when he was injected with those drugs at the age of 14 by older peers. He told the author of the pre-sentence report his history of using drugs and alcohol but claimed to have ceased all drug use at the age of 30. He denied being under the influence of any substances or struggling with his mental health at the time of the offences. However, leaving aside the inference that the offending was likely drug or alcohol-fuelled, for why else would a man seek to resolve a domestic argument by slashing his partner’s face with a sword, there are objective records indicating that the offender had two involuntary admissions to a psychiatric ward in 2024 due to “suicidal ideations in the context of psychosocial stressors and substance misuse”. Furthermore, upon admission to the AMC upon his induction into custody, the offender informed AMC staff that he was “intoxicated” at the time of his arrest.
Prior convictions
14․ The offender has a recent prior conviction for breach of a family violence order in November 2021. As the penalty he received for that offence was a fine, I infer as urged by counsel for the accused that it was not a serious instance of the offence. However, he has a number of prior convictions for offences dating back to 2012 and earlier. Those convictions include offences of violence and breaches of family violence orders, but no convictions for serious family violence offences. The significance of the prior convictions is tempered by the fact that there has been a significant intervening period during which there were no convictions. On the other hand, the pre-sentence report provided in respect of Mr Martin states that his compliance with previous community-based orders was unsatisfactory due to failure to comply with periodic detention obligations and further re-offending. This history of violence and failure to engage with rehabilitation indicates that personal deterrence must be given significant weight in the present case.
Conditional liberty
15․ At the time the offender committed the offences, he was on bail for other indictable offences that are listed for trial later this year. The fact that an offence is committed while the offender is on conditional liberty (such as parole or bail) does not bear upon the objective seriousness of the offences, but it is a relevant factor in determining the appropriate sentence. The NSW Court of Criminal Appeal identified the rationale for that principle (before it was enshrined in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) as being that it reflects a “betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail”, which is “regarded very seriously”: R v Tran [1999] NSWCCA 109 at [15] (Wood CJ at CL; Spigelman CJ and Newman, R S Hulme and Simpson JJ agreeing at [1], [38], [39] and [40]). The principle has been applied many times in the Territory, most recently in DPP v Sullivan (No 3) [2025] ACTSC 134 at [78] (Taylor J).
Remorse
16․ I am not satisfied that the offender has any remorse for these offences. He told the author of the pre-sentence report that he “mainly disagreed” with the statement of facts. In the submissions presented on his behalf it was stated that he disagrees with that part of the pre-sentence report and that he is willing to undertake rehabilitation in relation to domestic violence offences. While I appreciate that the rules of evidence do not apply in proceedings on sentence unless the court orders otherwise, I am not prepared to disregard the content of the pre-sentence report on the offender’s say so, expressed to his lawyer before the proceedings on sentence but unsubstantiated by any action on his part. He could have gone into the witness box to express his remorse in person. He could have picked up a pen and written to the victim that he was sorry for the violence inflicted on her. I am not permitted to have regard to the fact that he chose not to give evidence, but nor am I required to suspend disbelief. The contents of the pre-sentence report should be accepted.
17․ The offender denied to the author of the report that he was under the influence of any substances at the time of the offences. That is contrary to the observations of police who attended the scene and had to contend with his difficult behaviour when he was arrested. It is also contrary to what he told the officers at the AMC. As already noted, the pre-sentence report reveals inconsistencies between the offender’s reported substance abuse status and objective records available to the author of the report.
18․ Most significantly, the pre-sentence report records that the offender “placed responsibility for his offending onto the victim”. He now denies that statement but I do not accept his denial, for the reasons I have given. Blaming the victim is a recurring trope in the narrative of family violence. The victim was not responsible for being attacked with a sword. This point can be made most eloquently in her own words. She wrote in her victim impact statement, “you brought out a sword instead of having a conversation with me”. For the act of slashing the victim’s face with a sword, the person who bears 100% responsibility is the offender. His statement suggesting otherwise is a further indication that personal deterrence must be given significant weight in this case.
Extra-curial punishment
19․ The offender submitted that the Court could have regard to extra-curial punishment inflicted on him at the time of his arrest. When police entered the house, they instructed the offender to drop the sword. At that time, one police officer had drawn his firearm and another had drawn his taser. The offender threw the sword in what is described in the statement of facts as “an underhand motion” between the two officers, landing it on the couch. He then began to step towards police, who grabbed him by the shirt and pulled him physically out of the house. Once outside the house, police instructed the offender to get on the ground. He turned around so they could handcuff him from behind but did not sit down, instead repeatedly trying to go back into the house. At this time police formed the view that the offender appeared agitated, had slurred speech and was unsteady on his feet. At some point during this scuffle, the offender was injured, suffering a small bleeding head wound and possible seizure. He was lying on the ground motionless and largely incommunicative. He was taken from the scene by ambulance.
20․ As submitted by the DPP, there is insufficient evidence to establish that the injury incurred by the offender during his arrest amounts to extra-curial punishment. The agreed facts reveal that, while the offender did cooperate in being handcuffed, he did not cooperate in getting onto the ground or sitting down after being handcuffed, as directed by police. The officers attending the scene of a woman covered in blood and a man holding a sword would be expected to take firm action to eliminate further danger. The offender continued to pose a threat after being handcuffed by continually attempting to enter the premises rather than complying with the direction that he sit down. If his arrest was less than tidy, I am satisfied that was likely due to his own conduct.
Sentencing options
21․ A term of imprisonment can only be imposed if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate: s 10(2) of the Crimes (Sentencing) Act 2005 (ACT). The offender accepts that threshold is met. There can be no dispute about that.
22․ The offender submitted however that the Court could appropriately deal with these offences by permitting him to serve his sentence by way of intensive correction in the community. He has been assessed as suitable for an intensive correction order. However, he has been assessed as not suitable for a community service work condition because there are significant issues with his physical health, being the disabilities he suffers as a result of his motorcycle accident.
23․ In any event, I do not accept that an intensive correction order would be appropriate in the present case. First, as submitted by the DPP, an intensive correction order would not reflect the seriousness of the principal offence of assault occasioning actual bodily harm. Further, as already noted, the offender has a history of non-compliance with community-based orders. Assuming his new-found commitment to undertaking rehabilitation in relation to domestic violence is genuine, the offender’s history of violence and non-compliance with community-based orders nonetheless indicates that he poses a risk to women in the community. I have reached that conclusion, notwithstanding his significant gap in offending, because it is apparent from his recent psychiatric admissions and current medication that, contrary to what he says (and possibly believes) about himself, he has unresolved substance abuse and mental health issues that must have been in play on the evening of these offences.
Sentencing for family violence offences
24․ As the offences are both family violence offences, I am required to consider the matters specified in s 34B of the Crimes (Sentencing) Act 2005 (ACT). I am also required to have regard to the matters mentioned in the preamble to the Family Violence Act.
25․ Those matters relevantly include the following principles:
(a) that family violence is unacceptable in any form;
(b) that freedom from family violence is a human right;
(c) that the justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 (ACT) and international law;
(d) that family violence is best addressed through a coordinated legal and social response of assistance to victims and the prevention of violence by such things as promoting the accountability of perpetrators of family violence and the appropriate intervention by the police and the courts.
26․ The offending in this case was a serious incident of family violence warranting stern denunciation in accordance with those principles.
27․ The fourth principle speaks of addressing family violence through a coordinated legal and social response that seeks to prevent violence by promoting the accountability of perpetrators. As already explained, the offender does not hold himself accountable for attacking the victim with a sword as a means of resolving a verbal argument. For those who do not accept responsibility for conduct of such a reprehensible kind, condemnation and accountability must be imposed by the court.
Current sentencing practice
28․ The Crown provided a table of “comparable cases” but noted, and I agree, that those cases are of limited if any assistance in the present case. The circumstances of this case are unique.
Sentences
29․ Having regard to the high level of seriousness of the offence of assault occasioning actual bodily harm, I consider the appropriate starting point for the sentence to be a term of imprisonment for 4 years against the maximum penalty of 7 years. Applying the discount of almost 20% give a head sentence of 3 years and 3 months. I propose to fix a non-parole period of two years to allow for a period of meaningful supervision on parole, reflecting the principle that family violence is best addressed through a coordinated legal and social response of assistance to victims and the prevention of violence by promoting the accountability of perpetrators of family violence and the appropriate intervention by the police and the courts.
30․ The Director of Public Prosecutions accepts that there is a significant degree of overlap between the two offences as the aggravated assault offence also forms the basis for the breach offence. Acknowledging the circumstance that the victim attended the offender’s home and the need to avoid double punishment, I have determined to impose what is in effect a nominal sentence for the breach of the family violence order and to make that sentence wholly concurrent with the sentence for the assault, which is the offence that reflects the offender’s principal criminality.
Orders
31․ In light of the separate proceedings pending against the offender, I propose to publish this judgment using the pseudonym Casey Martin for him. Any reporting of the judgment must avoid identifying the offender by his real name for the time being. His other trial is listed for hearing in September 2025.
32․ Casey Martin, please stand:
(1) For the offence of aggravated assault occasioning actual bodily harm (CC2024/7301), you are convicted. I sentence you to a term of imprisonment for a period of 3 years and 3 months commencing on 18 July 2024 and ending on 17 October 2027 with a non-parole period of 2 years ending on 17 July 2026;
(2) For the offence of contravening a family violence order (CC2024/7304), you are convicted. I sentence you to a term of imprisonment for one month commencing on 18 July 2024 and ending on 17 August 2024.
I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: |