A judge has questioned whether a defendant with no criminal history was truly "stone cold sobre" when he made a threat to police after a domestic violence call-out last May.
Unsatisfied by the defence lawyer's explanation on mitigating circumstances, the judge asked: "What can you tell me about your client's cognitive capacity? Is he just stupid?"
35-year-old Kallun Green had his pregnant partner's support in Darwin local court this week, facing a charge of 'Threats of Injury or Cause Detriment'.
The prosecution told the court that an argument over a washing machine had escalated to a police call-out, where the threat was made while exercising their power to remove Green from the residence.
Green's defence lawyer said: "I just want to mention from the outset, that this has occurred in circumstances of domestic violence. Mr Green has not been charged with assault.
"This is something that he said that was particularly stupid. It was said in the heat if the moment, and he immediately regretted it.
"He's has certainly regretted it after spending 39 days away from the home. Living in his car, other friends' couches, and temporary accommodation.
"Not being able to assist around the big five-acre block. Not being able to support his pregnant partner, and trying to maintain his work at the same time.
"That could be considered extra-curial punishment.
"General deterrence is a particularly relevant matter in this. We would argue this is probably at the lower end of the scale of what comes before the court in relation to domestic violence.
Judge: "No you see this is the trouble. There has been events in the last 10 or 20 years which have been very widely reported of men making threats to seriously harm their women.
"The courts have been persuaded that these are just empty threats made in the heat of the moment.
"They have granted them bail, or not sentenced them particularly harshly. The man involved has carried-out the threat.
"It's very much on tenterhooks when somebody actually goes so far as to express a threat of this nature. How can we dismiss it lightly."
- Judge MacDonald
Defence lawyer: "I do understand there are circumstances in the media of men not coming to the attention of police; the first time that is, and then all of a sudden there's a murder that's occurred.
"What I would say though, your honour, is that [Green's partner] has stood up in court today to support her partner Mr Green.
Judge: "She's not really in a position where she could do easily do otherwise.
"She's 26 weeks pregnant. She's been in a relationship with this man for three years.
Defence lawyer: "She didn't need to turn up to court today to support her partner. She has her own employment.
"I think the fact that she has, and provided a character reference is a significant point that your honour might wish to take into account.
"I think it shows Mr Green is essentially a good partner, and that she continues to believe that."
In further submissions to the court on the incident, Green's lawyer said: "They've had an argument over something pretty minor, as the facts state, is over the washing machine, and the fact that they couldn't go crabbing that weekend.
"It's then escalated to what is described as a physical altercation.
"Now our client instructs that the physical altercation, in his version, is putting his hands on the victim and walking her out of his shed and backward."
- Defence lawyer
"Mr Green acknowledges that his comment had the potential to cause significant harm and distress to his partner.
"On the one hand, he has said something terrible.
Judge: "I'm not aware that his partner was present, on these facts, when the comment was made."
Defence lawyer: "That's correct your honour. It's not exactly clear as to whether she was in earshot, however, she's become aware afterwards that he has been arrested and charged.
"But it appears he said that in the presence of the police officer."
Judge: "He said it to the police officer."
Defence lawyer: "He said something terrible. I'm sure the court's aware that threats such as this can escalate pretty quickly to being carried out.
"On the other hand, this is something that is completely out of character for my client, as demonstrated by the fact he has no criminal history, and there has been no involvement by the police.
Judge: "There's nothing in these facts before me which suggest the involvement of alcohol.
"But the reference from his partner, the victim, suggests that alcohol was a significant contributor to problems in their relationship around this time.
"What more can you tell me about alcohol on this occasion?"
Defence lawyer: "On this occasion there has been no indication that he had been drinking, your honour, and they're my instructions."
Judge: "He said this to the police officer, stone cold sobre?"
Defence lawyer: "Yes your honour."
Judge: "What can you tell me about your client's cognitive capacity? Is he just stupid?"
Defence lawyer: "I'd say he probably is, your honour, yes."
Unsatisfied with all the circumstances, the judge said: "This is where I'm asking you to tell me more. What appears in the agreed facts; it seems to be limited to the washing machine nonsense.
"Clearly something more was going on."
Defence lawyer: "Well, the position I'd like to take on that point, is that it probably does go back, to the loss of the child, some four months earlier.
Judge: "What brings you to speculate about that."
Defence lawyer: "Well it might be some speculation as well. There might be some mental health issues, but I don't have anything to provide in support on that, because nothing significant has occurred on that.
"What would cause a man to lose it. Lose his balance so extensively so as to behave like this, simply because of something stupid going on about a washing machine."
- Judge MacDonald
Defence lawyer: "Well when you put all these things together. Barking dogs over the course of the weekend, which he asked his partner to lock out back.
"The fact that he couldn't go out and do something he enjoyed, which is crabbing, because his partner had changed her mind.
"And also the fact that they lost a child four months earlier which has probably caused a lot of stress."
Judge: "You come back to this again and again.
"I'm in no position to dismiss that as a contributing factor, but it seems to me you're not in much of a position to put it forward as a contributing factor, unless of course your instructions are this was weighing on the client's mind.
"Or did you just pluck this from the barrel of facts."
Defence lawyer: "I just don't have anything to provide you in court your honour in the way of supporting evidence from a doctor.
"I don't wish to go down that particular path. That mental health is a particular issue on why this has occurred.
"Looking at section five of the sentencing act. I spoke about punshiment. Some of that has already occurred in our submission.
"Deterence. Obviously domestic violence, and the courts note that threats can quickly escalate to very-very serious forms of domestic violence.
"The court may wish to consider general denunciation is a relevant factor in this, although I don't think rehabilitation is something that the court would wish to consider.
"And also protect the community from the offender. I say that because this is completely out of character for Mr Green. I don't think it's likely he'll be before the courts again.
"For this reason I don't think rehabilitation is a relevant factor in this.
"I just wanted to mention this your honour. I understand in circumstances of domestic violence that family hardship is not a factor to consider, but on a five-acre block that requires significant maintenance.
"I think it has been pretty difficult for [Mr Green's partner] to do that the past 39 days.
"Are you concerned that I might send your client to prison?"
- Judge MacDoanld
Defence lawyer: "No your honour."
Judge: "I'll just give you the indication now that I'm not going to do that. So you don't need to make submissions on the need for him to be available."
Defence lawyer: "But I was thinking if there was say a community work order or something like that, that was potentially open to the court, that that may be something that wouldn't be so appropriate, in our submission.
"A good behaviour bond is something that would be more appropriate in this circumstance."
In his submission on sentencing, the prosecutor said: "The victim was pregnant at the time of the threats of murder and suicide. The threats of murder and suicide are very disconcerting, given the circumstances. And given the manner in which domestic violence can escalate.
"We seek specific [inaudible] and denunciation [inaudible] in sentencing your honour."
During his sentencing remarks, Judge MacDonald said: "The circumstance in this offending are still a little murky, even after I've heard from [defence and prosecutor].
"Clearly the crown facts in exhibit b1 do not properly reflect all the matters that were troubling the relationship between the offender and his partner on the 26th May last.
"Clearly the trigger that the partner used the wrong washing machine, could not remotely explain the indication of what took place against them.
"And the threat made by Mr Green directly to a police officer that had been called because of an altercation between the two people.
"Police were there, and Mr Green said to the police officer: 'I'll fucking do it when I get back then. It'll be a fucking murder suicide, you watch mate.'
"It's caused me to ask what entirely, rhetorically, whether Mr Green might suffer some cognitive difficulties. In short, whether he's in fact very stupid.
"What could possibly lead a man, sober I'm told, to say such a thing to a police officer about his pregnant partner in the context of some domestic dispute."
- Judge MacDonald
"It's very hard to follow. It's also very hard to ignore it. To treat it as nothing more than the utterances born of anger by an inadequate man. That would put the matter at its lowest.
"Of course concerns exist that Mr Green might in fact present a greater risk of harm to his partner than that.
"Given how much we have learned as a society about the links between threats of this nature and the implication of violence.
"On the plus side, Mr Green comes before this court with no criminal history. Certainly no history of violence either.
"I accept the terms of his bail which has kept him away from his own premises where the partner lives has been onerous, and has been tough over that time to now.
"I accept in all probability the risk to his partner raised by this one event, this one utterance is probably extremely low. We have to be concerned.
"The most important sentencing principal here of course would have to be protection of the community in the form of protection of the partner.
"The other important principals are not only general deterrence but also specific deterrence. Mr Green has to understand that the sentence impose is [inaudible] to him, and that he may learn from it.
"I am of the view, he is 35 years of age. He's been a hardworking man all his days. He has no criminal history. These matters are extremely positive in the sentencing calculus."
- Judge MacDonald
"I'm going to impose a conviction, in circumstances of this matter. That in itself is a serious sentence. You'll have that on your record Mr Green, going forward, is no small thing.
"I'm gong to impose a bond of good behaviour from 12 months from today, on condition that you comply fully with the domestic violence orders made on the 31st May 2024.
"Those orders are varied by me today.
"I amend the domestic violence orders made [inaudible] May 2023, pursuant to section 83 of the domestic and family violence act as follows."
With a degree of ambient noise in the courtroom, it was difficult to get all of the words in the judge's spoken sentences spoken accurately, towards the end. Also the prosecutor's voice.
Unfortunately courtroom audio recordings of the hearing and the statement of facts document could not be obtained by close of business yesterday for the story.
The judge said during his sentencing remarks: "Even though there is no mention of alcohol in the police facts, exhibit a2 which is the reference from Mr Green's partner, clearly raises alcohol as an issue between the two of them in current time."
Breath analysis for alcohol appeared to be added to the domestic violence order, although the precise wording couldn't be ascertained clearly.
People probably don't realise a court room is almost like an office. You can literally hear a stapler when it's being banged over words being said on the record.
The judge continued: "The second variation I make is that I reduce the life of this domestic violence order from three years to one year from today.
"It is very unusual indeed to see a domestic violence order imposed for a period of three years, but I'm told there's no prior history of domestic violence, and no prior criminal history of any relevance from Mr Green.
"The period of the good behaviour bond and the domestic violence order are now the same. One year from today.
"Mr Green. If you breach the domestic violence order you'll be dealt with no doubt by a criminal charge of contravening a domestic violence order, but you'll also be brought back to court to be re-sentenced on this file.
"Do you understand that?"
The judge's voice became sterner: "I'm asking you Mr Green to listen hard. This is a wake-up call.
"If things don't go well for you and your partner, then perhaps you'll separate. As difficult as that might be, given there is a child soon to be born.
"But there can be no future for you and your partner and for your unborn child in a relationship which includes threats of this nature.
"If there's any further domestic violence involvement, you find yourself at risk of being sent to prison."
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