New South Wales District Court CITATION: R v BALLENDEN [2010] NSWDC 86 HEARING DATE(S): 13 April 2010 EX TEMPORE JUDGMENT DATE : 13 April 2010 JURISDICTION: Disstrict Court Criminal JUDGMENT OF: Berman SC DCJ For the offence of detaining for advantage, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 13 November 2009 and a head sentence of two years. For the offence of being armed with intent, the offender is sentenced to imprisonment. I set a non-parole period of one and a half years to commence on 13 November 2010 and a head sentence in that matter of three years. For the offence of assault occasioning actual bodily harm, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 13 November 2011 and a head sentence of three years. DECISION: I also impose an apprehended violence order on the offender, for a period of four and a half years from today. Under s12 the Crimes (Domestic and Personal Violence) Act, I direct that the s 86 and the s 59 matters are recorded on the offender's criminal history as domestic violence related matters. CATCHWORDS: CRIMINAL LAW - Sentence - Armed with intent to commit an indictabe offence - Intimidation - Detaining with intent to obtain an advantage - Assault occasioing actual bodily harm - Contravene apprehended violence order LEGISLATION CITED: Crimes (Domestic and Personal Violence) Act, PARTIES: The Crown Todd Andrew Ballenden FILE NUMBER(S): DC 2009/251123 COUNSEL: Mr J Fitzgerald - Offender SOLICITORS: Director of Public Prosecutions Legal Aid Commission - Offender SENTENCE 1 HIS HONOUR: The offender Todd Ballenden appears for sentence today after having pleaded guilty at an early opportunity to three serious offences. The first is being armed with intent to commit an indictable offence, namely, intimidation. That carries a maximum penalty of seven years imprisonment. The second offence is detaining with intent to obtain an advantage, in this case to have a conversation with his de facto partner. That carries a maximum penalty of fourteen years imprisonment. And the third offence is an offence of assault occasioning actual bodily harm. When sentencing him for the last of those matters he asks that I take into account two other matters on a Form 1, namely, a further offence of assault occasioning actual bodily harm and an offence of contravening an apprehended violence order. 2 All of these offences took place over the evening on 12 November 2009 and the following day. The offender had been in a relationship with the complainant since January 2009; however, in May 2009 he was sentenced to imprisonment for maliciously damaging her property. On that day an apprehended domestic violence order was also made for the protection of the complainant. At the same time parole was revoked. The offender was on parole, it is to be noted for an offence of assault occasioning actual bodily harm, and thus he was taken into custody. He was released from custody only a few days before committing this very serious series of offences. He was released, on parole it must be noted, on 9 November 2009. 3 On 12 November 2009 he and the complainant began to argue. At one stage the complainant decided to sleep on the lounge, but the offender came out and disturbed her. The offender then said he would sleep on the lounge and the complainant decided to go back to bed, which she did. Throughout the night the offender however came into the bedroom waking the complainant each time. Things escalated to the point where at about one o'clock in the morning of 13 November 2009 the offender came into the bedroom once more and woke up the complainant. This time he was armed with a silver carving knife about twenty centimetres long. He pointed this at the complainant. Not surprisingly, she felt frightened and threatened. Her fears no doubt escalated when the offender told her that he was going to have sexual intercourse with her and sodomise her. It seems to be accepted by the Crown that by saying those things the offender wished to intimidate the complainant and make her afraid. It further seems to be accepted by the Crown that the offender did not in fact intend at that stage to have sexual intercourse with the complainant against her will. 4 The offender then grabbed the complainant by the throat and banged her head against the wall saying, "If I can't have you, no-one else is going to have you either." The complainant was asking him to stop. She was saying, "Don't do this. I love you. You love me. I don't want you to go to gaol." Notwithstanding this very sensible advice, the offender simply seemed to get angrier. This continued until it was about four-thirty in the morning. Thus the complainant had been terrorised in this manner for about three hours before finally the offender put the knife down saying, "It's only because I love you." He then began to cry and fell asleep. The complainant fell asleep a short time later. 5 The evidence suggests that the reason that the offender gives for his violent behaviour which he admits terrorised the complainant was that she told him that whilst in custody her ex-boyfriend stayed the night. Of course, this in no way at all justifies or excuses or even mitigates the offender's disgraceful conduct. Unfortunately, he had not finished. The next morning after the complainant's children left for school, the complainant said that she was going to go to a friend's house, but the offender prevented her from doing so, blocking the doorway. The complainant realised what had happened. She realised that she was being held prisoner by the offender. She tried to call the police, but the offender simply pulled the phone cord out of the wall. 6 The complainant told the offender that she had dialled three numbers which the offender decided meant that she was calling the police because she wanted him to go back to gaol. Rather than taking stock of matters and realising what he had done, the offender decided to inflict actual violence on the complainant. Thus far he had merely terrorised her, but he went so far this time as to hit her with a closed fist, once to the shoulder and then in the face. This blow was so forceful that it knocked the complainant off the armrest where she was seated and caused her to be bruised. That assault forms the basis of the assault occasioning actual bodily harm offence on the Form 1. 7 The complainant tried to get away, heading towards the front door, but the offender grabbed her by her shoulders and pulled her to the ground. She screamed, resulting in the offender simply putting his hand over her mouth. He then pulled her to her feet and held her against a wall near the bedroom before again hitting her in the face with his fist, making the complainant dazed and dizzy and splitting the inside of her cheek causing it to bleed. This is the assault occasioning actual bodily harm offence for which the offender is to be specifically sentenced. 8 Eventually the complainant was able to calm the offender down. He agreed to walk with her to the supermarket to buy some cigarettes. The complainant said she needed to go to the toilet and she took her handbag with her. Whilst there she called police on triple 0. They arrived a short time later. The complainant pointed out the offender, who ran away, but he was arrested soon thereafter. 9 As a result of this the complainant was left with reddening to her face, a split lip, a laceration inside her cheek, heavy bruising to the top of her chest and bruising to her arm. The offender admitted most of what he did when speaking to police, saying that he was jealous of other men. 10 The offender has now been in custody since the date of his arrest, 13 November 2009. 11 These were very serious offences committed over a lengthy period of time against a woman in her own home whilst the offender was on parole for an offence of violence. The objective gravity of the offender's conduct requires that significant sentences of imprisonment are imposed for each of these three offences. 12 The offender is now forty years of age, almost forty-one. He was raised in Cooma by his mother, but tragically she died when the offender was in Year 9. As a result of that he moved to Newcastle to live with his father. He was about thirteen at the time and has not been to school since. The time with his father was difficult because his father was a violent alcoholic. As a result of that circumstance the offender spent a lot of time out of the house where he engaged firstly in petty crime and then more serious offending. He started using drugs at the age of about thirteen or fourteen and drinking as well. Since then he has committed many, many offences, all of which he attributes to his drug and alcohol use. 13 The offender gave evidence today and said that he had in the past experienced mood swings, that he would just snap, lose his temper and get angry and violent without any warning. He said that that has been a feature of his life since his teenage years. However, he has recently seen a psychiatrist whilst in custody. That psychiatrist has prescribed some medication for him which helps with the mood swings. The offender says that he feels a lot better, that things do not irritate him as much as they used to and he does not lose his temper as often as he did. As the offender grew up he has worked and regards himself as a good worker. He has had employment as a labourer, storeman and packer, did some time concreting and on traffic control. He was last employed in late 2007. 14 He said that he was not using drugs as at the date of the offence in November 2009 nor was he drinking. He said that he had given up drugs since going into custody and sees himself as capable of being a good partner to his de facto wife upon his release from custody. His evidence was that his partner has told him that she wants to try living with him in the future. The offender says that because of the medication he is taking he does not he think will ever put his partner through a similar experience. He is now calmer, although he accepts that he will need ongoing care upon his release and is thus willing to continue to go to either a psychiatrist or a psychologist. There are thus prospects of rehabilitation, but I cannot say they are good. He has only been on medication whilst in custody. That may help matters, but it remains to be seen how he will behave upon his release from custody whilst under that medication. 15 The offender's plea of guilty has a significant utilitarian benefit and thus the sentences I will shortly announce are in each case 25 per cent less than they would otherwise have been. Although all of these offences arose at the same time, that does not mean that concurrent sentences should be imposed. Each of the offences is aimed at a different aspect of the offender's misconduct, that is, that he was armed with a knife with intent to intimidate the complainant at one stage and that he detained her at another stage and that during the period of detention he assaulted her on two occasions. It would be thus quite wrong for wholly concurrent sentences to be imposed. On the other hand there is a significant overlap in the offender's criminality and so I will impose sentences which are partially cumulative on each other. 16 Mr Fitzgerald who appeared for the offender said that there were special circumstances in this case, they relating to the circumstance that the offender has for the first time been put on medication to control his mood swings and that the offender himself accepts that he will need assistance upon his release from custody. I accept what Mr Fitzgerald says and thus will make a finding of special circumstances in the offender's favour, enlarging the period of eligibility for parole at the expense of the non-parole period. However, there is a significant constraint in this case and that is that the objective gravity of the offender's conduct must bear a reasonable relationship to the sentence and in particular the non-parole period which I will impose. 17 The offender accepts that he terrorised his de facto partner over a significant period. He has apologised to her and thus I am satisfied that he has expressed his remorse. It appears that whilst the complainant may or may not have actually forgiven the offender, general deterrence as well as personal deterrence require that lengthy custodial sentences are imposed. The offender is sentenced as follows: 18 For the offence of detaining for advantage, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 13 November 2009 and a head sentence of two years. For the offence of being armed with intent, the offender is sentenced to imprisonment. I set a non-parole period of one and a half years to commence on 13 November 2010 and a head sentence in that matter of three years. For the offence of assault occasioning actual bodily harm, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 13 November 2011 and a head sentence of three years. 19 The effective sentence is thus one of a non-parole period of three years with a head sentence of five years. The offender is eligible to be released to parole on 12 November 2012. 20 I also impose an apprehended violence order on the offender, the terms being as follows. The offender must not assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship. The offender must not engage in conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship. The offender must not stalk the protected person or a person with whom the protected person has a domestic relationship. The offender must not approach the protected person or any such premises or place at which the protected person from time to time resides or works within twelve hours of consuming intoxicating liquor or illicit drugs. The offender must not destroy or deliberately damage or interfere with the property of the protected person. The protected person in this case is Deborah Hewson and the AVO will be for a period of four and a half years from today. Now, is there any other matter, Mr Fitzgerald, Mr Crown? 21 FITZGERALD: Thank you, your Honour. 22 OUTRAM: Only one-- 23 HIS HONOUR: What's that? 24 OUTRAM: --further matter that's required or envisaged under the Crimes (Domestic and Personal Violence) Act, your Honour, and that's under s 12. Would your Honour direct that the s 86 and the s 59 matters are recorded on the offender's criminal history as domestic violence related matters. 25 HIS HONOUR: That's appropriate, is it, Mr Fitzgerald? 26 FITZGERALD: I think it is, your Honour. 27 HIS HONOUR: I will make that order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.