New South Wales

District Court

  • R v Argyle [2021] NSWDC 267 (18 June 2021) – New South Wales District Court
    Aggravated sexual intercourse without consent’ – ‘Coercive control’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Pregnant people’ – ‘Sexual abuse’ – ‘Sibling abuse’ – ‘Victim as (alleged) perpetrator

    Charges: Aggravated sexual intercourse without consent x 2; Form 1 attached to count 1.

    Proceedings: Sentencing.

    Facts: The then 21-year-old female offender was pregnant and living in a de-facto relationship with the male co-accused. She assisted the male co-accused to rape her 17-year-old sister on multiple occasions.

    Issues: Sentence to be imposed.

    Decision and reasoning: A Community Corrections Order for 2 years was made.

    Aside from pure objective considerations, there were a number of factors which, likely individually and certainly in combination, powerfully diminished the offender’s moral culpability. Those factors included:

    • The deprivations and the enduring trauma of her developmental background, including the untreated trauma of the sexual abuse she herself had suffered as a child and young adult.
    • Her cognitive impairment and the psychological and other compromises that may or may not have been connected to her developmental background.
    • Her experience of the coercive controlling behaviour of the co-accused and the attendant duress and fear that he would harm her unborn child and/or herself. In the whole of the circumstances, the offender was under the coercive control of the co-accused and unable to think through the consequences either of her actions or of her failure to respond differently to, and to report, what had happened to her sister.
    • There was a causal connection between the offender’s impaired intellectual capacity and her offending.

    The court rejected the prosecution’s submission that the offender played an important role in restraining the victim and encouraging the victim’s compliance. This was in light of the objective reality of the circumstances and particularly taking into account the offender’s particular compromises including:

    • The co-accused could have, and almost certainly would have, done what he did, with or without the physical participation he exacted from the offender. He was large, stronger than both women, forceful and determined, and needed no assistance either in terms of restraint or securing compliance.
    • The likelihood that the offender was herself in genuine fear of the co-accused if she failed to be compliant.
    • The likelihood that the offender, with the deficits in agency and cognitive compromises she suffered, and bearing in mind her own fear, was attempting (in a misguided way) to make the situation better for her sister than it otherwise may have been.

    Due to the offender’s diminished moral culpability, she was an inappropriate vehicle for general deterrence and her circumstances meant specific deterrence had no substantial operation. The offender had to be made accountable for her actions but had accepted criminal responsibility for her conduct. While her guilty plea was late, this seemed directly connected to complications or delays in advising her properly without first ensuring her intellectual and psychological capacity was properly explored and exposed (as opposed to any reluctance to accept responsibility). The offender was genuinely remorseful. At the time of the offending she was young and vulnerable. She was unlikely to re-offend.

  • Barber v DPP [2021] NSWDC 7 (3 February 2021) – New South Wales District Court
    Appeal against conviction’ – ‘Strangulation’ – ‘Victim experiences of court processes

    Charges: Common assault x 1.

    Proceedings: Appeal against conviction.

    Facts: The male appellant was convicted of assaulting his then female partner by strangulation. The appellant alleged that the complainant was the initial aggressor. He also gave evidence of past incidents, alleging that the complainant was “prone to act erratically or unpredictably.”

    Grounds of appeal:

    1. The complainant was not a credible witness due to inconsistencies in her evidence and, accordingly, the prosecution did not prove that the assault occurred to the requisite standard.
    2. If an assault did occur, it was done in self-defence and the Crown did not negative that defence to the requisite standard.

    Held: Appeal dismissed.

    Ground 1: The appellant’s argument that the Crown did not prove that the elements of the offence of common assault beyond reasonable doubt was rejected, notwithstanding some differences in detail in the complainant’s evidence. “As to the suggested materiality of inconsistencies in detail in the complainant’s account, the Magistrate observed that the complainant had certain issues with her language, which she was entitled to take into account”: at [9].

    Ground 2: In light of recent instances of the complainant throwing items at the accused and his laptop, “there was a reasonable possibility that the appellant subjectively perceived the prospect of further attack.” However, “a reasonable person would not have shared the same belief. There was, in truth, nothing to stop him from diffusing the situation simply by leaving the room”: at [30].

  • R v Corak Phan [2021] NSWDC 3 (28 January 2021) – New South Wales District Court
    Assault’ – ‘Breach protection order’ – ‘Bugmy principles’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Separation’ – ‘Sibling abuse

    Charges: Common assault x 2; Knowingly contravene a prohibition or restriction in an Apprehended Domestic Violence Order x 1.

    Proceedings: Sentencing.

    Facts: The male offender and the female first victim had previously been in a domestic relationship (they had a child together) and had separated. The offender breached a protection order by being in the vicinity of the victim, and subsequently punched her a number of times to the head and upper body. The second victim was the offender’s sister. The offender pulled his sister by her ankles off a couch. The offender had an extensive criminal history and was on conditional liberty at the time of the offending. He had a dysfunctional childhood, and an extensive history of drug and alcohol misuse. A psychologist opined that he met the criteria for Substance Induced Psychotic Disorder, and Post-Traumatic Stress Disorder.

    Decision and reasoning: An aggregate sentence of 20 months imprisonment was imposed, with a non-parole period of 10 months.

    The offences against the offender’s former partner fell in the mid-range of objective seriousness, as she was protected by an Apprehended Domestic Violence Order at the time and there was clear contravention of a court order ([43]-[44]). The assault of the offender’s sister fell in the lower range of objective seriousness ([45]).

    Mahoney SC DCJ noted at [46]-[47], discussing the principles in Bugmy v R:

    “That the offending occurred whilst the offender was in the grip of a drug addiction, does not mitigate the seriousness of the offending. Notwithstanding that the offender gave no evidence, and the court must approach self-serving reports to psychologists with some caution, I do take into account the subjective matters outlined in the report of Ms Minovski, namely, a dysfunctional childhood marred with neglect, physical and sexual abuse and exposure from an early age to drug and alcohol abuse, together with domestic violence, giving rise to the principles outlined by the High Court in Bugmy v R……

    “I am therefore satisfied that the offender’s recourse to violence in the circumstances outlined above, albeit fuelled by his drug addiction, are such that the offender’s moral culpability for his inability to control his impulses must be somewhat reduced.”

  • R v French [2020] NSWDC 767 (17 December 2020) – New South Wales District Court
    Animal abuse’ – ‘Controlling, jealous, obsessive behaviours by the perpetrator’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Stalking’ – ‘Step-children

    Charges: Animal cruelty x 1; Detain for advantage x 1; Intimidation x 1; Common assault x 1; Aggravated break and enter and commit serious indictable offence (and two related offences of stalking/intimidation and maliciously damaging property) x 1.

    Proceedings: Sentencing.

    Facts: The male offender and the female victim (who had two children) had been in an on-off relationship for 12 months. The offender killed the victim’s cat in a planned way (animal cruelty). Two weeks later, the offender, while affected by drugs and alcohol, forcibly took the victim from a neighbour’s home and detained her for 1-2 minutes (detain for advantage). Later, the offender’s behaviour caused the victim to hide in the toilet and wardrobe of her home (intimidation), and when the offender started punching a wall, another person present who tried to stop him and the offender struck the bystander on the head (common assault). The victim told the offender that the relationship was over, and to move out. One month later, the offender damaged his sister’s car while she was at the victim’s house, and later sent persistent calls/texts to the victim (malicious damage and stalk/intimidate). That same evening, the offender broke into the victim’s house and intimidated her and her children (aggravated break and enter). Sentence and reasoning: A non-parole period of 2 years, with a balance term of 15 months.

    The animal cruelty offence was just below the mid-range of objective seriousness ([14]).

    The objective seriousness of the other offences ranged from the lower-end to just below mid-range. Relevant factors included repeated attempts to control and intimidate the victim (a form of domestic violence) ([16]-[32]). The offender’s subjective circumstances were given some weight (including his family history, mental health issues, and drug and alcohol misuse at [35]-[50]), but did not result in any marked reduced need for both general and specific deterrence ([57]). Priestley SC DCJ took into account the totality principle ([51]-[53]), and special circumstances due to the need for rehabilitation with drug/alcohol issues and counselling ([54]).

  • James v James No 3 [2020] NSWDC 797 (16 November 2020) – New South Wales District Court
    Assault and assault and battery’ – ‘Assessment of damages’ – ‘Civil matter’ – ‘Emotional and psychological abuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Social abuse’ – ‘Tort

    Proceedings: Assessment of damages for the torts of assault and assault and battery.

    Facts: The plaintiff woman brought proceedings against her former husband, and obtained default judgment, which the court refused to set aside ([1]). The plaintiff and the defendant had two children, and previously lived on a farm (the subject of settlement proceedings in the Federal Circuit Court) ([4], [18]).

    The first torts occurred on 26 September 2017. The defendant caused the plaintiff to fear that she would be battered by calling her names in an aggressive and violent manner, restrained the defendant by her shoulders and arms, and then ordered her to leave the property with her daughter ([2], [5]-[8]). The defendant was prosecuted but the charges were dropped by way of an apparent plea bargain ([7]).

    The second torts occurred on 20 February 2018. There was an audio recording of these events, which the plaintiff was permitted to tender despite a ‘technical breach’ of the Surveillance Devices Act 2007 (see decision in James v James No 2 [2020] NSWDC 796 (13 November 2020)) ([11]). The defendant physically assaulted and verbally assaulted the plaintiff ([10]-[17]). The defendant was also prosecuted for this offending, and sentenced to an Intensive Corrections Order for 16 months and an Apprehended Violence Order for two years ([19]).

    Issues: Assessment of damages.

    Decision and reasoning: Judgment for the plaintiff, damages of $358,520 plus costs.

    For the torts on 26 September 2017, the court held at [9] that “[t]he tort of assault and the tort of assault and battery are actions which do not depend upon proof of damage. In any event there was actual bodily harm sustained by the plaintiff”. For the torts on 20 February 2018, the court again held that the torts were actionable per se without proof of damage but here there was “grave damage proven to the Court’s satisfaction”. This included evidence of chronic post-traumatic stress disorder, a recurrent major depressive disorder, and recurrent panic attacks caused by the events of 20 February 2018 ([28]-[32]). The court noted that the plaintiff’s ongoing psychiatric problems would have a continuing impact on her (including her earning capacity) and that (at [29]):

    “When this case is finished no doubt she can try to put the events of the past behind her and try to get on with her life. Not having to relive the events by coming to Court and telling the Court of them will no doubt assist in her recovery”.

    The plaintiff was awarded compensatory damages, aggravated damages and exemplary damages ([9], [32]). The plaintiff was also awarded damages for past and future economic loss ([33]-[35]).

    See also: James v James No 2 [2020] NSWDC 796 (13 November 2020) – New South Wales District Court.

  • James v James No 2 [2020] NSWDC 796 (13 November 2020) – New South Wales District Court
    Application to tender recordings’ – ‘Assessment of damages’ – ‘Evidence’ – ‘Tort

    Proceedings: Application to tender recordings.

    Facts: The recordings were made of the interactions between the plaintiff and the defendant on 20 February 2018 at their former home. The recordings were of a private conversation between the plaintiff and the defendant made without the defendant’s consent, thereby in contravention of s 7(1)(b) of the Surveillance Devices Act 2007.

    Issues:

    1. Whether it was reasonably necessary for the plaintiff to make the recording for the protection of her lawful interests, per the exception in s 7(3)(b)(i) of the Surveillance Devices Act 2007.
    2. Whether the recording nonetheless admissible as the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in an unlawful manner, per the exception in s 138(3) of the Evidence Act 1995.

    Decision and reasoning: The recording did not fall within the exception under s s 7(3)(b)(i) of the Surveillance Devices Act 2007. The meaning of “lawful interest”, referring to the decisions in DW v R [2014] NSWCCA 28 and Corby v Corby [2015] FCCA 1099, did not extend to the plaintiff’s purpose which was to record the abuse to replay to the defendant later and change his behaviour: (at [3]-[4]). The recording was instead admitted into evidence in the exercise of the court’s discretion under s 138(3) of the Evidence Act 1995: at [7]-[9]. It had probative value of the extent of the plaintiff’s damages for her claim in tort. The impropriety of the contravention was not great. The recordings were referred to in the assessment of damages judgment: see James v James No 3 NSWDC 797 (16 November 2020).

  • R v Collins [2020] NSWDC 276 (5 June 2020) – New South Wales District Court
    Appeal against sentence’ – ‘History of abuse’ – ‘Indecent assault’ – ‘Obsessive behaviours’ – ‘Separation

    Offences: Indecent assault; The appellant requested that the learned Magistrate take into account two additional offences on a Form 1, they being, that on the same date and in the same place, the appellant:

    1. intimidated Kristy Rochester with the intention of causing her to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and
    2. assaulted Kristy Rochester, contrary to s 61 of the Crimes Act 1900 (NSW).

    Proceedings: Appeal against sentence

    Facts: The male appellant and female victim had been married since 2003 and had a child together. They divorced in 2008 but recommenced a relationship in 2014 and started living together. In 2015, the appellant assaulted the victim, giving rise to an Apprehended Violence Order. In July 2017, their relationship began to deteriorate. In the lead up to the offending, the victim obtained alternative accommodation and was in the process of moving her belongings. One night, the appellant exchanged text messages with the victim, requesting they have sex (though acknowledging that the victim was moving on), but the victim refused. The appellant went to the lounge room where the victim was on the couch listening to music on her phone, took her phone and refused to give it back unless they talked. The couple began yelling and the victim felt scared so she picked up a knife and told the appellant that she would stab him if he came near her. The appellant left the home with the victim’s phone and refused to return it. The victim slashed two tyres on the appellant’s car then went back inside and locked all the windows and doors, except for a window in her bedroom. The appellant accessed the victim’s phone then returned to the house and demanded she speak to him outside. The victim complied as she was afraid of the appellant, the appellant throwing a beer over her when she got there.

    After this, the victim drove to a nearby lookout and fell asleep. The appellant arrived in his truck and parked the victim in so she could not drive away. The appellant demanded that the victim open the doors. She complied as she was afraid. The appellant grabbed the victim’s hair and told her that she had to talk to him to get her phone back. They returned to the house separately and the appellant told the victim he wanted to talk to her in the bedroom. He told her to lie on the bed; she complied. He then started touching her, took her clothes off, pinned her wrists above her head, rubbed his groin all over her and ejaculated on her, despite her cries that she did not want to engage in sexual activity. The appellant told the victim to leave, which she did. The appellant was convicted and sentenced to 21 months’ imprisonment with a 12-month non-parole period.

    Judgment: The judge dismissed the appeal, holding that the sentence could be regarded as "lenient" [65]. Her Honour rejected that the appellant’s conduct involved a low level of criminality [59] and further held that there was a greater need for personal deterrence and retribution in this case [61]. Her Honour held that, "whilst acknowledging the relevance of the appellant’s rehabilitation, that consideration is subordinate to the considerations of general deterrence, denunciation and the imposition of adequate punishment, which factor recognises the indignity inflicted upon the complainant" and that "the safety to the community is not seriously imperilled by the appellant if a penalty other than full-time incarceration is imposed. But that consideration is not, in my opinion, paramount in the circumstances of this case" [64].

    Her Honour found that the appellant’s contention that the sex occurred as ‘make-up sex’ was a "rank distortion" of what objectively occurred, because the relationship had completely broken down [27]. The appellant did not wish for the relationship to have ended as it did, "So he resorted to the exertion of psychological and physical force against the complainant in order to get her to do what he wanted her to do" [28]. Her Honour found that the appellant knew his conduct was non-consensual and there was nothing to suggest the victim wanted to make up with the appellant [30], and that there was a "humiliating overtone" to the activity [31]. As such, her Honour held the conduct to be above the mid-range of objective gravity [32].

    Her Honour rejected the contention that the appellant was sorry for his conduct and had acquired real insight into the wrongfulness of his conduct [47]. However, her Honour found that the likelihood of reoffending was low [55].

  • R v Shepherd [2020] NSWDC 273 (3 June 2020) – New South Wales District Court
    Appeal against sentence’ – ‘Breach of protection orders’ – ‘Covid-19 pandemic’ – ‘History of domestic violence’ – ‘People affected by substance misuse’ – ‘Significant criminal history

    Charges: Contravening a prohibition or restriction under an Apprehended Violence Order (AVO) x 2

    Case type: Appeal against severity of sentence

    Facts: The appellant man was sentenced to 12 months’ imprisonment with a non-parole period of 9 months. He pleaded guilty to 2 charges that he contravened a prohibition or restriction under an AVO. The appellant has remained in custody for a period of around 2 months. Although he lodged an appeal in May 2020, he was refused bail.

    The appellant was in a relationship with his then female partner (the victim). As at 26 March 2020, there was an enforceable AVO for her protection which named the appellant as the defendant. A condition of the order was that the appellant not approach or be in her company for at least 12 hours after drinking alcohol or taking illicit drugs. At about 1:00 am on 26 March 2020, police attended the couple’s residence after a domestic dispute. The appellant admitted that he had breached the AVO and had consumed a large quantity of alcohol. There was no suggestion that the appellant was likely to inflict imminent violence or commit some other more serious contravention of the AVO at that time. He was arrested and released on conditional bail at 3:00 am. At about 4:00 am on the same day, police returned to the same address following another complaint of a domestic dispute, and found the appellant intoxicated again.

    Grounds: Whether an Intensive Correction Order (ICO) is more appropriate than a period of full time custody; whether there are special circumstances to justify variation of non-parole period.

    Held: The appeal was dismissed, but the Court varied the statutory ratio for the non-parole period on account of special circumstances in order to assist with rehabilitative efforts with respect to the appellant’s alcohol consumption issues. Consequently, the Court varied each sentence to 1 year imprisonment, with a non-parole period of 7 months, to be served concurrently ([43]-[47]).

    Held: Aggravating circumstances included the fact that the offending conduct occurred not only in contravention of an AVO, but whilst the appellant was subject to an ICO. Further, the second offence occurred when he was on conditional bail after having committed the first offence ([12]-[15]). There was little evidence of the appellant’s circumstances that directly explained why he acted as he did. In May, the appellant acknowledged to a community corrections officer that he breached the condition of the AVO because he had "no choice". However, the Court accepted the characterisation of the community corrections officer that he "blatantly disregarded" the condition twice on the one night ([16]-[18]). The appellant also has a significant criminal history, and has been convicted of several domestic violence offences in the past. Most of these offences were the product of alcohol consumption ([22]). There was no evidence before the Court to indicate remorse or contrition: the appellant blamed the victim and was said to have showed no insight into his offending ([24]). The appellant had a long history of alcohol dependence, and had been diagnosed with depression, post-traumatic stress and attention deficit hyperactivity disorder. He made attempts to rehabilitate himself, but relapsed into consuming alcohol on a regular basis ([25]-[27]).

    The ICO breach report noted that since the order had been imposed, the appellant had minimal engagement with community corrections, which impeded his attempts to treat his alcohol usage. The report also expressed concerns for the victim’s safety. The appellant’s prospects of rehabilitation were no more than reasonable. Despite his demonstrated ability to overcome illicit substance abuse, he has struggled to deal with his alcoholism. The Court also noted that the level of community service work that the appellant needs to undertake may be reduced or altered as a result of the COVID-19 pandemic ([28]-[33]).

    The ICO breach report noted that since the order had been imposed, the appellant had minimal engagement with community corrections, which impeded his attempts to treat his alcohol usage. The report also expressed concerns for the victim’s safety. The appellant’s prospects of rehabilitation were no more than reasonable. Despite his demonstrated ability to overcome illicit substance abuse, he has struggled to deal with his alcoholism. The Court also noted that the level of community service work that the appellant needs to undertake may be reduced or altered as a result of the COVID-19 pandemic ([28]-[33]).

  • R v Ragg [2020] NSWDC 210 (18 May 2020) – New South Wales District Court
    Aggravated sexual assault’ – ‘Controlling, jealous, obsessive behaviour’ – ‘History of abuse’ – ‘Lack of remorse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Poor prospects of rehabilitation’ – ‘Protection of the community’ – ‘Protection order’ – ‘Risk of reoffending’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Step-children in home’ – ‘Substance abuse’ – ‘Threat to set on fire’ – ‘Threats to kill’ – ‘Weapon

    Offences: Common assault; Reckless wounding; Intimidation; Using explosive fluid; Attempted cause grievous bodily harm to person with intent x 2; Aggravated sexual assault x 4; Contravene Apprehended Violence Order; Threaten witness to withhold true evidence; Aggravated detention with the intention of assaulting and intimidating the victim (at the time of the detention actual bodily harm was occasioned to the victim)

    Proceedings: Sentencing

    Facts: The male offender and female victim were in an on and off domestic relationship for 12 years. The victim had three children, one of which was the son of the offender. Throughout the relationship, the offender was physically and mentally abusive towards the victim and both parties used drugs. One night, the offender and victim stayed up smoking marijuana and ice. The next morning, the couple were in their car and the offender accused the victim of sleeping with up to 20 men at one time while the offender had been in custody for other charges. The victim denied this, but the offender got angry and cut the victim’s hair with scissors before punching her in the face multiple times, one of these being so hard that the victim’s head hit the windscreen (Common assault). The offender then ordered the victim into the back seat and told her that every time she lied, he would stab her with the scissors (which were small and blunt, not sharp). The offender stabbed the victim on her legs about 30 times (four of which punctured her skin – the others resulted in bruises only) whenever she gave an answer he did not like (Reckless wounding). He also stabbed her left ear and cut open her shirt, exposing her breasts and stomach (Reckless wounding).

    The offender than threatened to cut off the victim’s nipples and vagina/clitoris (after removing her pants). The victim tried to deflect the offender and pleaded for him to stop (Intimidation). The offender locked the windows and doors of the vehicle to stop the victim from escaping. A while after a man walked past the vehicle and looked inside, the offender unlocked the car and the victim ran outside screaming for help, although the man could not be seen. The victim ran down the riverbank and saw the offender get out of the car with a jerry can. The offender tipped the can containing diesel over the victim’s head and body (Using explosive fluid). The victim ran down to the river and hid, but the offender chased the victim and told her she needed to wash the diesel out of her hair. The victim complied.

    The offender told the victim to go back to the car and she complied. When there, the offender tried to light the victim’s hair on fire with a cigarette lighter (Attempted cause GBH with intent). The victim put it out with her hands, but the offender lit her hair another two times (Attempted cause GBH with intent). The offender and victim then travelled to the offender’s friend’s house, stopping at various places along the way. The offender threatened to harm or kill the victim if she drove off, so the victim complied and did not leave. After visiting the friend’s house, the offender and victim drove to a deserted scrub area where the offender continued to question the victim. The victim told the offender false stories to keep him happy, then the offender told the victim to get in the backseat because he was going to do what they did to her (implying that he would rape her but she would like it). The offender got some lubricant and put this in the victim’s vagina and anus. He then penetrated her vagina and anus, the victim crying the whole time (Aggravated sexual assault x 2). The offender then inserted his entire first into the victim’s vagina and then anus, while the victim screamed in pain and begged the offender to stop (Aggravated sexual assault x 2). The offender could see blood on the ground, running down her legs and on the offender’s hand. The offender then punched the victim in the throat and told her he would do it again to knock her out. He then left her in the bush and drove off. She made it to a road and was picked up by a man passing by in a ute who took her to the police station. When the victim was recovering in hospital later, the offender called her and threatened to shoot the victim’s mum and dad if she pressed charges (Threaten witness to withhold true evidence).

    Medical reports showed that the victim may suffer long term issues as a result of her injuries and were potentially life threatening if they had not been treated.

    Judgment: The judge convicted the offender of all charges and sentenced him to an aggregate of 24 years’ imprisonment, with an 18-year non-parole period. Although a discount was given for the utilitarian value of the offender’s early pleas, His Honour found that most offences were in the mid-range of objective seriousness, with the Aggravated sexual assault charges being in the highest range of seriousness, having been committed as "deliberate sadistic torture" [36]. His Honour further emphasised that the offender’s "warped and sadistic desire to gratuitously inflict pain, dominate and terrorise overcame any empathy or concern for the wellbeing of his long-time partner, the mother of his child" [7].

    All of the offences were committed in the context of a long-term relationship, so were each domestic violence offences. His Honour held that "It has long been recognised that such offences, particularly where the offender is a repeat domestic violence offender, require emphasis in sentencing on specific and general deterrence, together with powerful denunciation by the community of such conduct and the need for the protection of the community" [54].

    The judge accepted that the offender’s "long history of emotional and behavioural dysregulation, emanating from his early adolescence, and his complex trauma background, including a history of physical and sexual abuse, loss of family stability and structure from his childhood and a lack of positive and nurturing influences, his exposure to drug and alcohol abuse" had normalised his offending behaviour and desensitised him to the anti-sociality of his crimes, so the offender’s moral culpability should be reduced according to principle in Bugmy v R [2013] HCA 37 [77]. However, His Honour held that, due to the nature of the offending, the offender’s antecedents and his criminal history, there was a need in this case to give significant weight to retribution, specific deterrence and protection of the community, over and above diminution of the sentence by virtue of lessened weight to general deterrence and reduced moral culpability [79].

    The judge specifically noted that the offender still blamed the victim for his violent offending, had no insight into his offending, had no compassion, and continued to hold negative attitudes towards interventions [80]. Furthermore, the offender lacked genuine remorse, with all representations on this point being entirely self-serving [91]. His Honour held that the offender had extremely poor prospects of rehabilitation and his risk of reoffending was medium to high [98], finding that he had "a significant history of hostility and aggression towards women, especially his female family members and intimate partners, including expressions of intention to kill" [82].

  • R v Barnett [2020] NSWDC 193 (12 May 2020) – New South Wales District Court
    Alcohol abuse’ – ‘Jealous behaviours’ – ‘Physical violence and harm’ – ‘Relevance of covid-19 pandemic to sentencing considerations- breach protection order.’ – ‘Sentencing’ – ‘Threat to kill’ – ‘Weapon

    Offences: Aggravated detention of a person with intent to obtain advantage occasioning actual bodily harm x 2; Reckless wounding causing actual bodily harm x 1; Contravention of a prohibition/restriction under an AVO x 1

    Proceedings: Sentencing

    Issues: The relevance of a pre-existing alcohol disorder to the assessment of the objective seriousness of the offending; relevance of the COVID-19 pandemic to sentencing considerations.

    Facts: The female victim was married to the offender man, although they had not resided together for eight to nine years. The victim was the subject of an Apprehended Domestic Violence Order (AVO) that protected her from the offender. A condition of the order prohibited the offender from approaching the victim or being in her company for at least 12 hours after drinking alcohol or taking illicit drugs. The offender asked the victim to stay with him for a few days at a caravan park where he lived. The victim agreed. On one night, the victim and offender met with Mr Wallace at his caravan and drank alcohol. The offender left earlier than the victim, but later returned and accused Mr Wallace and the victim of being unfaithful together. The offender produced a knife and pressed it to Mr Wallace’s chest before placing it on Mr Wallace’s throat, creating a superficial laceration. The victim attempted to grab the offender’s arm but the offender pushed her backwards where she fell and hit furniture, losing consciousness. Every time the victim tried to get up, the offender hit her against the walls and furniture. He also cut her right leg, causing three wounds. Mr Wallace tried to remove the knife from the offender, but the offender lacerated Mr Wallace’s finger. He told the victim that if she screamed, he would kill Mr Wallace, and told them both that they could not leave.

    During the period when the victim and Mr Wallace were detained, the victim also suffered a subdural haematoma, bruising under her right eye, a fractured rib and many abrasions. The offender was heavily intoxicated at the time, having suffered from an alcohol use disorder since he was nine years old.

    Held: The offender was sentenced to seven years and six months’ imprisonment, with a non-parole period of four years and six months. The sentencing judge found that the prospects of rehabilitation were reasonable to good [62] because the offender entered an early plea, his conduct was out of character (he had not previously engaged in violent conduct) [49], he was sincerely remorseful, he was suffering significant grief over the death of his wife [53], he behaved in an exemplary fashion whilst in custody [56], and he had agreed to avail himself of alcohol and drug treatment programs upon his release [58].

    However, His Honour held that the offending was objectively very serious [70]. The Detention charges fell at the mid-range of objective seriousness for that kind of offence as the detention was relatively short and its purpose was to exert "psychological control" and "emotional ascendency" [21]-[22]. Furthermore, the offender made numerous threats to kill the victim and Mr Wallace when he was unstable. His Honour held that the Wounding charges fell above mid-range as the victim was conscious at the time the wounds were inflicted but was unable to resist [25]-[26]. Breach of the AVO was held to be an aggravating factor [27], as was the use of a weapon [28].

    His Honour held that there was a causal connection between the Offender’s alcohol use disorder and the offending, because the disorder led him to misperceive the dealings between the victim and Mr Wallace [11]. As such, His Honour held that the disorder "mitigate[d] to some degree the level of the objective seriousness of the offending" and also had implications for the offender’s prospects of rehabilitation [11]. However, His Honour found that the offender was still culpable for his actions because he had not previously engaged in violent conduct and had stopped making efforts to manage his alcoholism six years earlier [33]. The judge further held that the offender’s culpability was not reduced because of a combination of intoxication and sexual jealousy because he had previously managed these conditions prior to the offending [38].

    In relation to the relevance of the COVID-19 pandemic as a sentencing consideration, His Honour provided that "in the short term, the [offender] is likely to find custody generally more onerous to some degree as a result of the general restrictions imposed because of the pandemic" [70], however, "because of the objective gravity of his conduct, he will receive a very substantial period of incarceration" [71]. His Honour further stated that "It is realistic and not unfair to say that the incidence and effect of the pandemic may be more keenly felt for an offender who has a short non-parole period … in comparison to someone who will receive a significant head sentence" [71] and warned that "courts should not be too ready, in the absence of express legislative action, to be unduly influenced by the pandemic when weighting its significance in the sentencing exercise" [71].

  • R v Aumash [2020] NSWDC 168 (1 May 2020) – New South Wales District Court
    Controlling and obsessive behaviour’ – ‘People with mental illness’ – ‘Relevance of covid-19 to sentencing’ – ‘Sentencing’ – ‘Separation -stalking’ – ‘Substance abuse’ – ‘Threats to kill

    Offences: Entering dwelling-house (aggravated offence) x 2; Using a carriage service to menace, harass or cause offence

    Proceedings: Sentencing

    Facts: The male offender had been in a relationship with the female victim (who had a child from a previous relationship). The victim ended the relationship after a year due to the offender’s controlling behaviour and anger, but the offender refused to accept that the relationship was over. He continued to contact the victim via telephone and text message (the messages were abusive, controlling and threatening) and attended her home uninvited. One night, the offender repeatedly called the victim and demanded to know who was in her home, threatening to kill anyone who was there. He then went to her house and entered it without her permission. The victim threatened to call police so the offender left the house, but remained outside yelling at her and knocking on doors and windows. He then climbed in through her bedroom window and confronted the victim, standing over her and frightening her (first Entering dwelling house offence). The offender threatened to stab the victim’s male friend and searched the victim’s house. He then picked up a pocket-knife and accused the victim of trying to stab him with it. The victim tried to leave the house and the offender stopped her, but she was ultimately able to get away. The offender followed her into the street and continued to yell at her, despite the victim telling the offender that they were no longer together. The victim ran away and hid in a nearby park, and had a friend call 000. The offender searched for her using the victim’s car but when police arrived, they were unable to find him. An Interim Apprehend Violence Order was obtained by police.

    The next day, the victim and her friend, Mick, were in the victim’s backyard when the offender came out of the garage carrying a piece of wood. He took the victim to her car (where he left it the night before) and she drove it home. The offender remained at the victim’s home but the victim would not let him inside. Later that day, the victim found the offender in her kitchen. The offender left after the victim threatened to call police, but he continued to send her text messages. That afternoon, the victim found the offender under her son’s bed (second Entering dwelling house offence). She locked him in the room and ran to her car, but the offender jumped out the window and entered the car and would not leave. The victim continuously sounded the car horn and police arrived.

    The offender continued to return to the victim’s house over the next few days, threatening to hurt her and her family, and yelling abuse at the victim and anyone she was with. He also continued to send her text messages and make phone calls to her. During the course of one day, the offender made 488 calls to the victim and sent 98 text messages. Many of these messages sought to cajole her into dropping the charges against him and excusing his criminal actions towards her. The police eventually found the offender at the victim’s home, served him with an Apprehended Violence Order and arrested him.

    Sentence: The judge sentenced the offender to three years and three months’ imprisonment for the Entering a dwelling-house offences, with a non-parole period of two years, and nine months’ imprisonment for the Using a carriage service offence. The judge emphasised that the offender’s conduct constituted a "sustained attack on [the victim’s] physical and psychological integrity over a period of weeks" [54] and that "his crimes were so serious he must be removed from the community for a time" [62]. His Honour found that the offender had no concern for the victim’s emotional state and sought to exercise coercive control over her by putting her in fear [31].

    When determining the appropriate sentence for each offence, His Honour also took into account other offences that the offender committed. Regarding the offender’s entry into the victim’s bedroom via the window when he knew the victim would be home, His Honour took into account the offender’s crime of intimidation, taking of the victim’s car, and two entries to the victim’s property without her consent [36]. Regarding the offender being found under the victim’s son’s bed, His Honour also took into account the offender’s three acts of intimidation, entry to the victim’s property without her consent and remaining on her property without her consent [37].

    His Honour specifically noted that the number and content of the calls and text messages showed that the offender’s intention was to seek to control, threaten and demean the victim, and this was part of a pattern of behaviour [33]. His Honour stated that "the extent of [the offender’s] harassment and motivations for his actions make this a particularly serious example of this type of offence [the Using a carriage service offence]" and therefore a custodial sentence was required [34].

    His Honour found that the offender had committed previous domestic violence offences, so was not entitled to any leniency [43]. Although the offender had a history of drug use and mental illness, His Honour held that neither of these mitigated his offending [47]. However, each sentence was reduced to reflect utilitarian value of the offender’s early pleas.

    His Honour also commented on the COVID-19 pandemic, holding that "these concerns and considerations [regarding COVID-19 and its restrictions] apply to every prisoner sentenced" [52]. His Honour considered that "if/when COVID-19 enters gaols, early parole may be given to some but not all prisoners" and that the offender is in a category that can be considered for early release [53].

  • R v Misdale [2019] NSWDC 858 (16 December 2019) – New South Wales District Court
    Domestic violence offences’ – ‘Guilty pleas’ – ‘People affected by substance misuse’ – ‘Physical violence and harm

    Charges: Wounding with intent to cause grievous bodily harm x 1; assault occasioning actual bodily harm x 1; reckless wounding x 1

    Case type: Sentence

    Facts: The male offender pleaded guilty to wounding with intent to cause grievous bodily harm, assault occasioning actual bodily harm and reckless wounding. Neilson DCJ also took into account 2 matters on a Form 1, namely, offences of common assault and intimidation. The female complainant (in respect of the charges of wounding with intent to cause grievous bodily harm, intimidation, assault occasioning actual bodily harm and common assault) was in an intimate relationship with the offender, which ended in October 2017 but recommenced a year later. The victim (in respect of the charge of reckless wounding) was a male friend of the offender and complainant. All but one offence (reckless wounding) were domestic violence offences. The offender’s relationship with the complainant was described as ‘toxic’.

    Issue: The issue for the Court was to determine the appropriate sentence for the offender.

    Held: The offender’s extensive criminal history evidenced a pattern of alcohol-fueled violence and, more recently, offences committed against the current complainant ([28]-[38]). The offender’s personal circumstances were discussed at [39]-[48]: he had a long history of drug and alcohol abuse; he had a problematic pattern of gambling when under the influence of alcohol and cocaine; he only had intermittent and low paying employment; he struggled to maintain stable intimate relationships and his relationship with the complainant was marred by verbal and physical arguments; and he displayed insight into his need for treatment for his addictions and showed no impairment in cognition when he was free of alcohol and drugs. Further, the offender was assessed as being at a high risk of re-offending ([49]), and was considered as requiring ‘as much supervision…and assistance as he can obtain from Community Corrections…to stay free of drugs and alcohol and turn his life around’ ([53]). The Court noted the importance of denunciation, as well as deterrence ‘both of the offender and of others who might want to practise violence, in particular domestic violence’ ([56]). Consequently, the offender was convicted of the 3 charges to which he pleaded guilty, and sentenced to 7 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months ([66]). Special circumstances were established because of the offender’s need for treatment and support for his drug and alcohol addiction ([64]).

  • R v Brisbane (a pseudonym) [2019] NSWDC 785 (12 December 2019) – New South Wales District Court
    Domestic violence’ – ‘People affected by substance misuse’ – ‘Poor prospects of rehabilitation’ – ‘Sentence’ – ‘Sexual and reproductive abuse

    Charges: 1 x sexual intercourse without consent; 1 x general offence of perverting the course of justice; 1 x contravention of an apprehended violence order (AVO)

    Case type: Sentencing

    Facts: The offender was in a domestic relationship with the female victim for 3 years, during the course of which the victim had a child. The relationship was marred by domestic abuse, which eventually led to its termination ([7]-[10]). The offender attended the victim’s house in breach of his bail, told her that she would be raped, and proceeded to have non-consensual intercourse with her ([13]-[20]). The offender also attempted to get the victim to withdraw her cooperation with police, which constituted the breach of the AVO and the pervert course of justice offences ([25]).

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: The offender was sentenced to an aggregate term of imprisonment of 7 years, with a non-parole period of 5 years and 3 months ([47]). The sexual assault offence was aggravated because it occurred in the victim’s home, was committed while the offender was on conditional liberty, and involved threats and the use of actual violence ([27]). The Court addressed the offender’s personal circumstances at [30]-[34]: he was 28 years old, had a criminal history, and used various drugs for a long period of time. His Honour described the offender as a ‘vicious’ sex offender ([32]). Although the offender pleaded guilty, he did not express remorse ([35]-[37]). The material before his Honour did not indicate that the offender was interested in rehabilitation, and thus his prospects were found to be poor ([38]). Further, specific and general deterrence, and the need for community protection were highly relevant ([39]).

  • R v Edwards [2019] NSWDC 825 (13 November 2019) – New South Wales District Court
    Aboriginal and Torres Strait Islander people’ – ‘Breach of bond’ – ‘Domestic violence offences’ – ‘Guilty pleas’ – ‘Intimidation’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Threats to kill

    Charges: Breach of s12 bond by reason of offences of common assault, intimidation, and use of a carriage service to threaten to kill

    Case type: Breach hearing and sentence

    Facts: The male offender was called up in respect of alleged breaches of a s 12 Crimes (Sentencing Procedure) Act bond that was imposed by Norrish QC DCJ in 2017 in relation to an offence contrary to s 25A Drug (Misuse and Trafficking) Act 1985 ([1]). The offences that constituted the breaches involved elements of domestic violence, and included offences of common assault, intimidation, and use of a carriage service to threaten to kill, to which the offender pleaded guilty ([4]). Material presented to the Court included an apology letter from the offender and a report from a psychiatrist working with the Aboriginal Legal Service ([3]).

    Issue: The issue for the Court was whether the breaches were proven and, if so, the appropriate sentence for the offender.

    Held: The offences constituting the breach were the offender’s first domestic violence offences but were considered to be serious matters. Norrish QC DCJ noted that the offender’s mental health significantly deteriorated since 2017: he had been diagnosed with post-traumatic stress disorder, a form of schizophrenia or schizoid condition and a polysubstance abuse disorder ([3]). The offender was un-medicated at the time of the offending and exhibited a motivation to address his drug use and a willingness to comply with the requirements of supervision. While the offender’s deteriorating mental condition did not provide a basis for excusing the breaches, it assisted his Honour in determining the non-parole period. He was assessed as being a medium to high risk of reoffending ([10]). Consequently, the Court found the breaches to be proven, revoked the s 12 bond and fixed a term of imprisonment of 1 year 9 months, with a non-parole period of 6 months.

  • R v Cranston [2019] NSWDC 619 (1 November 2019) – New South Wales District Court
    Assault police’ – ‘Exposing a child’ – ‘Guilty plea’ – ‘Intoxication’ – ‘Physical harm and violence’ – ‘Sentencing’ – ‘Step-child

    Charges: Common assault x 1; assaulting a police officer x 3; attempting to use an offensive weapon with intent to commit an indictable offence x 1; chocking a police officer and being reckless as to render the officer incapable of resistance x 1.

    Proceedings: Sentencing

    Facts: The accused pushed his partner during an argument, causing her to stumble. Concerned by the accused’s actions, his partner instructed one of their children to call the police. The accused became further enraged when the police arrived, kicking one of the officers while being questioned. Two of the officers wrestled with the accused while he continued to physically lash out. The accused then grabbed the cord of one of the officer’s radio as she called for assistance and attempted to choke her. As the officers tried to handcuff him the accused attempted to obtain one of their firearms, threatening to use the gun on the police and then bit the officer. When other officers arrived another officer was also bitten by the accused. The accused was intoxicated at the time of offending. The accused pleaded guilty to all charges.

    Issue: Appropriate sentence

    Decision and reasoning: The accused was sentenced to 3 years and 6 months’ imprisonment with a fixed non-parole period of 1 year and 9 months.

    Objective Seriousness: Regarding the assault against the police officers, Abadee J thought that the assault occurring during a violent struggle and in the presence of children were aggravating factors [32]. Consequently, the conduct was assessed as falling within the mid-range of seriousness for the offence.

    The presence of children when the accused threatened to use the firearm on the officers was considered to be an aggravating factor along with the context of escalating violence. Abadee J ‘characterise[d] the conduct as falling beyond the mid-range and toward the high range of objective seriousness’ [35]. The same circumstances were aggravating factors for the offence of chocking on of the officer, with the conduct also falling within the high range of objective seriousness.

    Subjective Circumstances The accused was 50 at the time of offending and had a criminal history which included some offences of a violent character. The guilty pleas entered by the accused were not made at the earliest opportunity. As the accused was intoxicated, ‘his offending was impulsive or spontaneous; and not pre-planned’. ‘The most significant issue in the sentencing hearing concerned the offender’s background’ of a dysfunctional childhood marked with sexual abuse and moderate alcoholism.

    In considering these circumstances, the objective seriousness of the offences and the general principles of deterrence, Abadee J ordered ‘an aggregate sentence to fit the totality of the criminal conduct overall’ discounted by 15% [76].

  • Best v Rosamond [2019] NSWDC 344 (24 July 2019) – New South Wales District Court
    Bipolar affective disorder’ – ‘Guilty plea’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing

    Offences: recklessly causing grievous bodily harm; assault occasioning actual bodily harm (DV).

    Proceedings: Sentencing

    Facts: The male perpetrator and female victim were married at the time of offending and the male victim was a friend of theirs. The offender became angered after seeing the female and male victims sharing an ‘intimate’ kiss. He punched the male victim in the left eye before pushing the female victim to the ground. He continued to punch the male victim several times in the head and kick him on the left side of his torso until the female victim asked him to stop. The offender turned to the female victim, slapped her forcefully across the face and kicked her thigh while she lay on the ground. The offender left the scene after punching the male victim a few more times. Neither victim provided a statement to police until a year after the offending, despite the male victim being left with substantial injuries requiring surgical treatment.

    The offender was heavily intoxicated at the time of offending.

    Decision: The offender was sentenced to Intensive Corrections Order for 1 year and 10 months’ and to a Community Release Order or 1 year and 8 months’.

    The Court noted that while the offence is a domestic violence offence, the offender’s violence was "primarily directed at the male victim" [53]. The assault occasioning actual bodily harm was at the lower end of the scale. The female victim suffered minor injuries and the forced used against her was considerably less than that used against the male victim. Furthermore, while the Court acknowledged her victim impact statement, they found its length and detail to be "disproportionate to the seriousness of the harm that could reasonably be considered to have been caused" [31].

    In assessing the objective gravity of the offending and sentencing purposes, the Court considered the fact that the offence was unplanned and in response to some form of provocation, the offending was uncharacteristic of the offender, and that the offender’s bipolar affective disorder had some underlying relevance. A discount was given to recognise the utilitarian benefit of the offender’s guilty plea.

  • R v Wyatt [2019] NSWDC 490 (21 June 2019) – New South Wales District Court
    Aboriginal and Torres Strait Islander people’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentence

    Charges: 1 x wounding with intent to cause grievous bodily harm; 1 x reckless wounding

    Case type: Sentencing

    Facts: The offender initially pleaded not guilty to the charges of reckless wounding and wounding with intent to cause grievous bodily harm. On the fifth and final day of trial, the offender pleaded guilty to the alternative Count 2. The victim was in an intimate relationship with a woman for about 13 years, with whom he had 2 children. On the day of the offending, the offender stabbed the victim around 3 times.

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: The offender was sentenced to 3 years’ and 3 months’ imprisonment with a non-parole period of 2 years and 2 months. The objective seriousness of the offending was deemed as being in the middle of the range, given the nature of the violence, the nature and extent of the injuries, the fact that the wounds were inflicted by the use of a knife, and the fact that the wounding was completely unprovoked by the victim ([23]-[24]). Aggravating features of the offending included: the use of a weapon, the offending occurred in the victim’s home, and the offender was on conditional liberty at the time of the offending. Although the offender had previous convictions for violent offences and the conduct was an act of gratuitous violence, the Court did not take these matters into account as aggravating features ([25]-[29]). The offender had a long-standing history of drug use ([50]), as well as an extensive criminal history ([30]). He identifies as Aboriginal, and reportedly witnessed domestic violence as a child and had been assaulted ([44]-[46]). There was no evidence of any mental disorder, although the offender reported symptoms of anxiety ([51]). Given his lengthy drug and criminal history, the Court was unable to find that he was unlikely to re-offend ([53]). The offender’s expression of remorse was given limited weight ([54]). Further, the Court was satisfied that special circumstances existed as it was clear that the offender would need extensive supervision on parole to ensure that he did not relapse into drug use ([55]-[56]).

  • R v AK [2019] NSWDC 456 (19 June 2019) – New South Wales District Court
    Detention’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’ – ‘Social abuse

    Charges: 2 x detain a person with the intent of obtaining an advantage; 1 x sexual assault; 1 x influencing witness; 2 x common assault; 1 x stalking/intimidating with intent to cause fear of physical or mental harm; 1 x contravening Apprehended Domestic Violence Order (ADVO)

    Case type: Sentencing

    Facts: The victim and offender were married and had a child who was 2 years old at the time of the offending. The victim had 2 children from a previous marriage, who were 20 and 15 years of age. The offender pleaded guilty to the charges of detaining his wife and his 15 year old stepdaughter without her consent, with the intention of obtaining an advantage (that is, psychological gratification), and the charge of sexual intercourse with his wife without her consent. He also pleaded guilty to the charge of communicating with his wife, who was to be called as a witness, to persuade her to withhold true evidence with the intent of procuring his acquittal of the assault occasioning actual bodily harm. In addition, the offender also requested that the Court sentence him in respect to the charges of common assault, stalking/intimidating with the intent to cause fear of physical harm, and contravening an ADVO.

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: The Court imposed an aggregate sentence of 10 years’ imprisonment with a non-parole period of 7 years. In relation to the objective seriousness of the detention charges, it was submitted that the Court should consider a number of factors, such as the persons being detained, the period of detention, the circumstances of detention, and the purpose of the detention ([41]). The detainees included his wife, and her 15 year old daughter and 2 year old son. The detention lasted around 10 hours. As part of the detention, there were acts of violence perpetrated against his wife and step-daughter. His wife was also intimidated into changing her story before going to court. Additionally, the offender had sexual intercourse with his wife without her consent while she was being detained ([43]). The purpose of the detention was difficult to ascertain as the offender refused to give evidence on the question. Therefore, the Court could merely speculate ([45]).

    Wilson SC DCJ analysed the offender’s medical history. In 2016, he had been diagnosed with a neurocognitive disorder with possibilities of a dementia type illness with psychotic symptoms. Another expert opined that the offender likely suffered from major depression at the time of the offending ([56]-60]).

    Aggravating factors affecting the sentence included ([61]):

    • The actual or threatened use of violence;
    • The offences were committed in the presence of his wife’s children, aged 2 and 15 respectively. The 15 year old child was also assaulted, and that offending occurred in the presence of the 2 year old child;
    • The offending was committed in the victims’ home, a place where they are entitled to expect to be safe, particularly in light of the fact that an ADVO had been taken out which prevented the offender from attending the premises; and
    • The offences were committed while the offender was the subject of conditional liberty.

    The offender’s prior criminal history did not aggravate the objective seriousness of the offences, however, it did disentitle him to any leniency resulting from a finding of good character ([65]). His Honour declined to find statutory remorse as a mitigating factor ([66]).

  • R v Yee (a pseudonym) [2019] NSWDC 326 (19 June 2019) – New South Wales District Court
    Domestic violence related offences’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with poor literacy skills’ – ‘Physical violence and harm’ – ‘Special circumstances

    Charges: 1 x causing grievous bodily harm to a person with intent; 1 x intentionally choking a person with recklessness

    Case type: Sentencing

    Facts: The offender and victim, with whom he started communicating on a social media app, married in China. After relocating to Australia, the relationship deteriorated. The victim formed a romantic attachment to a customer while she was working as a sex worker. When she was asleep, the offender struck the victim 5 times to her head with a hammer and choked her. He suddenly stopped this attack and immediately assisted the victim. He also called his employer, told him that he had seriously injured his wife and asked him to call an ambulance as his English was poor. The victim was physically and psychologically injured. As a result of the incident, she could not work and was in ‘a state of confusion, helplessness, anxiety and panic’ ([35]).

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: The grievous bodily harm was a mid-range offence, and the choking with recklessness was slightly below a mid-range offence. Each offence was aggravated by the fact that they occurred in the victim’s home. The offender had no issues with alcohol or drugs, expressed genuine remorse, and the offending was ‘completely out of…character’ and was a result of ‘a perfect storm of a mixture of conflicting emotions’ ([37]-[44]). A psychologist highlighted the need for the offender to continue psychological treatment for a persistent depressive disorder, which was in an acute state leading up to the offence ([45]). The offender’s prospects of rehabilitation were found to be ‘very good’ ([46]). The sentence imposed on the offender sought to discourage others from committing similar offences, and encourage his rehabilitation ([47]). He pleaded guilty at the first available opportunity ([48]), and given his problems with English and his social isolation, the Court made a finding of ‘special circumstances’ ([52]). For the offence of causing grievous bodily harm, the offender was sentenced to 7 years’ and 6 months’ imprisonment, with a non-parole period of 4 years. For the offence of intentionally choking a person with recklessness, the offender was sentenced to a fixed term of 3 years’ imprisonment. Both sentences were ordered to be served totally concurrently.

  • R v Casini [2019] NSWDC 376 (18 June 2019) – New South Wales District Court
    Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Remorse

    Charges: 1 x aggravated detention, causing actual bodily harm (kidnapping)

    Case type: Sentencing

    Facts: The offender pleaded guilty to one count of aggravated detention, causing actual bodily harm. The victim and offender had been in an intimate relationship for 5 months and were living together at the time of the offending. The offender was formerly married for 22 years and had 2 children.

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: The offender was convicted, and sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months. In assessing the objective seriousness of the offending, Bright DCJ took into account the following factors ([27]):

    • The conduct was a serious instance of domestic violence;
    • The assault was vicious and sustained, involving multiple forceful blows and punches to the victim’s head and body. The offender would have known that the victim was unlikely to physically retaliate;
    • The offending involved significant emotional intimidation and verbal threats;
    • The nature of the victim’s injuries;
    • The length of the detention was for a period of 2 hours; and
    • The offender sought psychological gratification.

    The objective seriousness of the offending was found to be at the higher end of the mid-range ([28]). An aggravating feature was that the offence occurred at the victim’s home ([29]). The offender began using drugs after separating from his former wife, but otherwise described no use of drugs in his adult life ([47]). While the offender’s self-induced intoxication was not a mitigating factor, his underlying Adjustment Disorder was found to have had an impact on his moral culpability ([60]). He was also remorseful, as evidenced by his letter to the Court ([61]-[63]). His Honour was satisfied that the offender had good prospects of rehabilitation, having regard to his motivation to participate in counselling and rehabilitation, previous employment, insight into his offending behaviour and commitment to being a good father upon release ([64]).

  • R v Halacoglu [2019] NSWDC 384 (7 May 2019) – New South Wales District Court
    Good character’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Sentence

    Charges: 1 x use of a carriage service to menace

    Case type: Sentencing

    Facts: The offender pleaded guilty to one count of using a carriage service to menace. The offender moved to Australia in 2010 on a student visa sponsored by the victim, with whom he was in a relationship. They lived together, with the victim’s 2 children from a previous relationship. ‘Troubles’ in their relationship emerged, and the victim entered into another relationship in the beginning of 2016. A few months later, the parties exchanged a series of text messages. The offender sent a text in Turkish, saying ‘If I’m not going to live, you are not going to live either’. The victim reported feeling threatened by the offender. Although he admitted to using those words, he claimed that they had a different meaning.

    Issue: The issue for the Court was to determine the appropriate sentence for the offence.

    Held: The offence was at the very low end of the scale of objective seriousness. The offender had no previous convictions ([5]). Given the fact that he was on bail with strict conditions and had the matter ‘hanging over his head for almost 3 years without any offending’, Williams SC DCJ dismissed the charges under s 19B of the Crimes Act 1914 (Cth) ([7]).

  • R v Amante [2019] NSWDC 222 (1 May 2019) – New South Wales District Court
    (This decision was the subject of an unsuccessful appeal to the New South Wales Court of Criminal Appeal Amante v R [2020] NSWCCA 34 (11 March 2020) – New South Wales Supreme Court)
    Arson’ – ‘People affected by substance abuse’ – ‘Property damage’ – ‘Special circumstances

    Charges: Destroying or damaging property x 1.

    Case type: Sentencing.

    Facts: As at January 2018, the offender had been in a turbulent domestic relationship with the victim. The situation between them deteriorated to a point where the victim had obtained an apprehended violence order against the offender. The offender started a fire in the victim’s unit ([16]). As a consequence, the fire caused serious damage to the limited personal belongings of the victim, who was in a somewhat perilous financial situation so as to require Housing Commission accommodation ([25]).

    Issue: The Court determined the appropriate sentence for the offence in the circumstances.

    Held: An important consideration in sentencing the offender was the fact that it was a domestic violence offence ([45]). Colefax SC DCJ noted the offender’s long history of offending, and unresolved drug abuse and psychological issues. His Honour stated that the offender is a ‘man of intelligence’, who has been able to work hard and has the support of his immediate family ([51]). The offender’s father was a violent man and he was sexually abused by his brother ([32]-[33]). His mental health problems and excessive drug consumption contributed to the commission of the offence. No rational person would have reacted to a break-up by setting fire to another person’s house, threatening other people’s lives ([42]). Because of his mental health issues, he was not seen as an ‘appropriate vehicle for the full application of general deterrence’ ([44]). The offending was aggravated by the fact that the offender was on bail and that the property damaged was the victim’s home ([28]). He pleaded guilty at the first available opportunity, indicating an element of remorse ([46]). However, remorse is an important but not determinative factor. It was also important to note that the offender had not received effective treatment for his underlying mental health or drug addiction issues ([48]).

    Taking into account his guilty plea, reasonable prospects of rehabilitation and the fact that he was in protection, the offender was sentenced to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years.

  • R v Phillip Michael Summerfield [2019] NSWDC 126 (16 April 2019) – New South Wales District Court
    Bail’ – ‘Following, harassing and monitoring’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charges: The offender pleaded guilty to 3 charges, namely, stalking or intimidation with intent to cause fear of physical or mental harm (Count 1), assault occasioning actual bodily harm (Count 2), and sexual intercourse without consent (Count 3). There was also a charge of driving while suspended.

    Case type: Sentencing.

    Facts: The victim had been in an intimate domestic relationship with the offender for approximately 2 years, during which time the offender sometimes lived at the victim’s home. The relationship was characterised by violence. On 10 May 2017, the offender carried out the attack after picking the victim up from her home. He began shouting at the victim about a man named Adam. The victim tried to escape from the car. The offender stopped the car, opened the passenger’s door and punched the victim several times in the face, causing bleeding (Count 2). The victim moved to the back seat of the car and called 000 on 3 separate occasions in the hope that the operator would hear what was happening. The offender drove to an address in Young, where he committed Count 3. Count 1 related to the offender’s ongoing threatening and violent behaviour towards the victim. The offender later drove the victim to her home, and apologised to her. When he was arrested, he agreed to be interviewed and admitted to assaulting the victim.

    The offender asked the Court to also deal with his appeal against sentence severity in relation to an aggregate sentence of 26 months with a non-parole period of 15 months which had been imposed at the Local Court in respect of two offences (one of which was contravention of a domestic violence order). That offending was committed while the offender was on bail for the other offences for which the offender appeared for sentence.

    Issue: The Court determined the appropriate sentence for the offences in the circumstances.

    Held:

    Severity appeal from the Local Court:

    His Honour dismissed the appeal, and confirmed the convictions and the aggregate sentence of 26 months with a non-parole period of 15 months.

    Sentence matters:

    Judge Lerve noted that the offending was committed in contravention of an apprehended domestic violence order, and highlighted the need for general deterrence in such cases ([35]-[42]). The circumstances in which Count 2 was committed were relevant to the assessment. It was particularly nasty and cowardly as it occurred on the side of the road; however the injuries were limited to bleeding ([19]). Count 1 was found to be serious, as it involved an ongoing course of violent and aggressive threats ([20]). In relation to Count 3, his Honour noted that, in light of the victim’s reaction and the violence which occurred that day, it must have been obvious to the offender that the victim was not consenting ([21]).

    Further, the offender’s criminal history was extensive, and he had previously been convicted of offences including contraventions of domestic violence orders, intimidation of a police officer, damage to property, and a number of assault matters. However, the offender had not previously been charged with a sexual offence ([43]-[48]). He also regularly uses drugs, and self-reported that he was diagnosed with PTSD and experienced trauma as a child. He attended a rehabilitation facility while on bail in 2018, but was discharged because of non-compliance with the requirements of the facility ([54]). Judge Lerve could not be satisfied on balance that the offender had good prospects of rehabilitation ([58]). The evidence before his Honour suggested that, given his lack of treatment, he is at an increased risk of violent re-offending in the future ([57]).

    His Honour recorded a conviction for each of the matters to which the offender pleaded guilty, and imposed an aggregate sentence of 7 years and 4 months with a non-parole period of 5 years. He also recommended that the offender participate in the Violent Offenders Treatment Programme while in custody. The total effective sentence was one of 8 years and 4 months with a period of 6 years in actual custody.

  • R v Lumsden [2019] NSWDC 149 (15 March 2019) – New South Wales District Court
    Burden of proof’ – ‘Credible witness’ – ‘Damaging property’ – ‘Evidence’ – ‘Physical violence and harm

    Charges: Intentionally or recklessly destroy/damage property x 1; common assault x 1.

    Case type: Appeal against conviction.

    Facts: The appellant and complainant had separated and have a child together. They had ongoing issues regarding the complainant’s use of a phone and their separation in general. The appellant grabbed the complainant’s handbag, containing her phone. In cross-examination, he confirmed that he held the bag to taunt her about the phone because he was upset ([11]). The altercation resulted in the complainant suffering bruises and a scratch on her leg.

    Issue: The appellant appealed against the conviction, pursuant to section 18 Crimes (Appeal and Review) Act 2001.

    Held: Grant DCJ allowed the appeal. He quashed the conviction, set aside all other orders of the Local Court, found the appellant not guilty and dismissed the charges.

    The appellant gave sworn evidence of his good character which was uncontested ([10]). The magistrate was faced with a single witness with no independent supportive evidence ([12]). The appellant had the presumption of innocence ([22]).

    Grant DCJ found that, in determining the guilt of the appellant, the Magistrate engaged in ‘illogical, speculative, reverse reasoning’ that led him into error. The Magistrate’s reasoning in respect of the matters listed at para [14] was found to be flawed. He wrongly inferred that because the complainant had not been cross-examined about any inconsistency with a statement made to police, the evidence she gave must be consistent with that statement, therefore supporting her credibility. Such an inference was found to be entirely speculative as no one knew the contents of the statement. Further, Grant DCJ held that making a self-serving statement, or any statement to the police, and giving evidence in accordance with that statement, does not automatically add to a witness’ credibility ([15]-[16]).

    The appellant was given the opportunity to conduct an electronic record of interview which he declined. Grant DCJ found that the Magistrate correctly set out the law in that the refusal to participate in a record of interview cannot be construed as an admission of guilt. However, the Magistrate went on to say that such a refusal was relevant in assessing the accuracy of memories in relation to a certain account noted in [19]. Grant DCJ found that this reasoning would lead to the proposition that ‘if a defendant engaged in a record of interview and it was consistent with his evidence, then a witness could be looked upon as a more credible witness.’ This finding would undermine the appellant’s right to silence and may shift the onus on the appellant to demonstrate his credibility by participating in a record of interview ([18]-[20]).

    To find the appellant guilty, the magistrate would have to disbelieve his account beyond reasonable doubt ([23]). Grant DCJ was not persuaded that the Magistrate could have properly convicted the appellant ([23]).

  • R v Smethurst [2018] NSWDC 488 (9 November 2018) – New South Wales District Court
    Imprisonment’ – ‘Options’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Suffocation

    Charges: Assault occasioning actual bodily harm x 1.

    Case type: Sentencing.

    Facts: The offender had known the complainant for a number of years. In the course of a dispute between the parties at the complainant’s residence, the offender put a pillow over her face (common assault). The complainant then ran out of the house, followed by the offender. The offender pushed her on the ground and started to drag her towards the house by the shirt which caused a graze to her back (assault occasioning actual bodily harm). The complainant ran onto the neighbour’s driveway and told the neighbour to ‘call the police’. The police attended the complainant’s residence soon after the incident and recorded her statement on camera.

    Issues: The Court determined the appropriate sentence for the offence in the circumstances.

    Decision and reasoning: The Court sentenced the offender to an aggregate period of imprisonment of 22 months which, after a discount of 15% for his guilty plea, was a sentence of 18 months ([64]). A non-parole period of 12 months was imposed.

    The Court assessed the objective seriousness of the offending, and found that aggravating factors included the offender’s five good behaviour bonds and a string of intensive corrections orders at the time of offending, the place of the offending (complainant’s home), and the brutality of the consecutive acts committed over a short period of time ([13]-[17]).

    The Court must be satisfied that imprisonment is more appropriate than all other alternatives, such as non-custodial sentences ([54]). The benefits of rehabilitation in the community were found to be outweighed by the fact that the offender previously had the benefit of conditional liberty orders and failed to comply with them ([56]). General principles of sentencing, such as denunciation, accountability, punishment, deterrence and protection were considered at [46]-[52]. The offender had a number of prior convictions, including common assault, contravention of an AVO, and assault occasioning actual bodily harm ([21]). The matter before the Court was the fourth domestic violence type offence for which the offender had been charged ([30]). Although the number of previous offences was a relevant factor, they were of moderate application as there was no evidence of any present risk. Nevertheless, the court observed at [33] that the offender had a history of domestic violence and non-compliance with court-ordered community based sentencing options.

    Although the offender pleaded guilty, the Court was reluctant to accept his expressions of remorse, particularly given his partial attribution of blame to the victim in the Sentencing Assessment Report. The Court referred Munda v Western Australia (2013) 649 CLR 600 at [54]-[55] which held that the State has an obligation to ‘vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence’. The Court noted the offender’s history of drug abuse at [24]-[29], but did not accept that a piece of oral evidence at [29] was sufficient to establish a connection between his domestic violence offending and his substance abuse. The offender’s prospects of rehabilitation were also seen to be ‘guarded’ ([45]).

  • Degampathi Jayasekra [2018] NSWDC 59 (23 March 2018) – New South Wales District Court
    Appeal against conviction’ – ‘Damaging property’ – ‘Gifts’ – ‘Presumption of advancement’ – ‘Property ownership’ – ‘Trusts

    Charges: Destroy or damage property x 1.

    Appeal type: Appeal against conviction.

    Facts: In the course of an argument with the complainant, his wife, the appellant damaged a laptop and mobile phone ([4]). The appellant’s case was that he was the sole owner of the items, and thus could not be convicted of the offence ([5]). The appellant had purchased the items and had given them to his wife and did not say they were gifts ([6]). The complainant had day to day use of both items ([7]).

    Issues: Whether the items were the property of the appellant or another person.

    Decision and reasoning: In reliance on the law of trusts, Scotting J inferred from the actions of the parties that the items were intended to be gifts ([21]-[26]). The presumption of advancement could not be rebutted. The Magistrate’s decision that the items belonged to both the appellant and complainant was affirmed ([28]). Therefore, the appellant’s conviction for property damage is upheld.

  • R v MJ [2016] NSWDC 272 (12 May 2016) – New South Wales District Court
    Assault occasioning bodily harm’ – ‘General deterrence’ – ‘Myths and misunderstandings’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Sexual intercourse without consent’ – ‘Specific deterrence’ – ‘Women

    Charge/s: Assault occasioning bodily harm x 5, sexual intercourse without consent, common assault x 4, breach of AVO x 5.

    Hearing: Sentencing hearing.

    Facts: After being found guilty in a trial by jury, the offender was sentenced for 10 domestic violence offences committed against his former female partner. The offender was also sentenced for a number of other charges namely, driving disqualified and numerous breaches of an Apprehended Violence Order (AVO).

    Decision and Reasoning: Berman J imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 and a half years. At the outset, His Honour noted that: ‘Women, and it is usually women, too often find themselves subjugated to the demands of their partners, who seem to regard it as entirely acceptable for them to control and manipulate someone with whom they are in a relationship through violent and degrading means’ (see [1]).

    Berman J noted that the offender here felt a sense of entitlement and ownership over the victim and blamed her for his violent behaviour. His manipulation of the victim, using violence and protestations of love, was so effective that she did not leave the relationship (even after she had been repeatedly beaten and raped) until she received counselling (see [4]). She was left with significant physical and psychological injury (see [26]).

    Moreover, there were a number of serious features of this offending. The victim was assaulted in her own home. Many of the offences occurred in context of offender’s demands that the victim withdraw a complaint she made to the police about him. There were similarities in the way he had treated a previous partner. Some offences were committed in the presence of the victim’s daughter. Many offences constituted breaches of an AVO and demonstrated contempt of these orders (see [28]-[30]).

    In the context of mitigating factors, His Honour acknowledged that the offender grew up with domestic violence as a feature of his early life. However, this was not a case in which the offender thought that such behaviour was normal and acceptable because his stepfather was a good role model for him (see [33]-[40]). The offender had taken some steps towards rehabilitation and some references spoke positively of his character (showing how an offender can have a very different face in private life) but there was still need for the sentence to reflect an element of specific deterrence (see [42]-[43]). More importantly, the sentence needed to take into account general deterrence. As per Berman J:

    ‘Offences such as these cause enormous harm, both to the individual victims concerned and to the community generally. Offenders who commit crimes such as I have described, particularly after they have been subject to apprehended violence orders, put in place to protect their partners from precisely such conduct, need to be given in sentences which will deter others who may be tempted to act in a similar way. Most fundamentally in assessing the relevant sentence to impose upon the offender is, of course, the objective gravity of what he has done’ (see [42]).
  • Rich v The Queen [2015] NSWDC 71 (18 May 2015) – New South Wales District Court
    Common assault’ – ‘Contravention of a protection order’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Service

    Charge/s: Contravention of a protection order, common assault.

    Appeal Type: Appeal against conviction.

    Facts: A Provisional Apprehended Order was made nominating the appellant’s partner as the protected person and the appellant as the defendant. This was served on the appellant by the police. The appellant then appeared in court represented by counsel from the Aboriginal Legal Service and an interim Apprehended Violence Order (AVO) was made. The appellant assaulted the protected person and was charged. There was a hearing in the Local Court where a plea of guilty was entered with respect to the assault charge and the appellant defended the contravene AVO charge. The Local Court found the appellant guilty of the contravene AVO.

    Issue/s: Some of the grounds of appeal included –

    1. The prosecution was unable to prove service of the Provisional Apprehended Order on the appellant because the Statement of Service submitted breached the hearsay rule in s 59 of Evidence Act 1995.
    2. The magistrate in the Local Court should not have informed himself of the events of the appellant’s appearances in court for the interim AVO.

    Decision and Reasoning: The appeal was dismissed. First, the Statement of Service complied with the Local Court Rules. It did not need to be signed as it was served by a police officer and it was sufficient that the officer wrote ‘Dubbo’ in the space for the address (r 5.12 Local Court Rules). Rule 5.12 exists to serve the purpose of facilitating proof of service of the process (See [29]-[36]). In any event, the appellant was present in court when the Interim Order was made (See [48]). Second, the magistrate informed himself of the course of events by reading the bench sheet. He was entitled to do so (See [49], [57]).