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District Court 11 November 2008

Ledwidge, Anthony v D.P.P

[2008] NSWDC 313

Assault & violenceDomestic & family violence
CRIMINAL LAW SEVERITY APPEAL FROM LOCAL COURT DDOMESTIC VIOLENCE ASSAULTS (X2) BREACH OF C.S.O.

Citation: Ledwidge, Anthony v D.P.P [2008] NSWDC 313
Court: District Court of New South Wales
Date: 11 November 2008
Judge(s): Nicholson SC DCJ

Background

The appellant had been convicted in the Local Court of two domestic violence assaults against his partner, committed on 12 October 2007. The first assault involved grabbing her by the throat, lifting her off the ground, pinning her head to the floor with his foot, and threatening to kill her. The second occurred shortly afterwards and involved trapping her leg in a doorway, causing bruising, after which she struck her head on falling.

For those offences the Local Court imposed community service orders totalling 150 hours. The appellant's compliance was poor: he failed to attend on multiple occasions, his performance when present was considered inadequate, and he completed only three of approximately 20 program sessions. Following a breach, the Local Court resentenced him to six months' custody for the first offence and three months for the second.

The appellant appealed to the District Court against the severity of those sentences. His appeal was heard on 10 November 2008 and judgment delivered the following day.

  • Whether the sentences imposed by the Local Court for the domestic violence assaults, following breach of the community service orders, were manifestly excessive.
  • Whether the appellant's circumstances, personal history, and capacity for rehabilitation warranted a different sentencing approach on appeal.
  • Whether sentencing should be adjourned under section 11 of the Crimes (Sentencing Procedure) Act 1999 to allow an assessment of the appellant's rehabilitation prospects.

Decision

Nicholson SC DCJ convicted the appellant and, rather than immediately finalising sentence, exercised the power under section 11 of the Crimes (Sentencing Procedure) Act 1999 to adjourn the sentencing proceedings. That provision allows a court to defer sentencing for the purpose of assessing an offender's capacity and prospects for rehabilitation, and of assessing whether rehabilitation has actually taken place.

The court acknowledged the seriousness of both assaults and the pattern of non-compliance with the community service orders, noting that the appellant's absences appeared largely attributable to alcohol misuse. The court also noted, however, that the appellant had successfully completed a community service order in 2002, which indicated some capacity for compliance when motivated.

The court determined that releasing the appellant on bail with a detailed set of conditions directed at rehabilitation, including alcohol abstinence, engagement with Probation and Parole, domestic violence counselling, anger management, mental health support, and structured community activity, was the appropriate course. The matter was adjourned to February 2009 for a progress report. The court indicated that if the appellant demonstrated genuine progress, the sentences would be suspended with credit for time already served; if he failed, he would return to custody to complete the sentences.

Orders Made

  • Appellant convicted.
  • Sentencing adjourned to 20 February 2009 at Sydney District Court pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 for a progress report on rehabilitation.
  • Bail granted on the following conditions:
  • Be of good behaviour.
  • Reside at the specified address.
  • Report to Probation and Parole at Maitland within 48 hours of release.
  • Obey all reasonable directions of Probation and Parole, including counselling regarding domestic violence, self-image, and anger management.
  • Consult Probation and Parole before changing address; notify the registry within two working days of any change.
  • Re-engage with the Wesley Uniting Employment Agency within five days of release.
  • Make contact with the Local Mental Health Unit for psychological or psychiatric counselling.
  • Undertake at least 15 hours per week of community-based activity while unemployed.
  • Abstain completely from alcohol for six months, and thereafter only drink in consultation with Probation and Parole regarding a responsible drinking program.
  • Submit to random urine analysis at least four times monthly; a positive result or substituted sample to constitute a breach of bail.
  • Attend court as required.
  • Failure to attend Probation and Parole as directed to be deemed a breach of bail.
  • Court to be notified within 48 hours of any breach.

Key Takeaways

  • Section 11 of the Crimes (Sentencing Procedure) Act 1999 permits a court to adjourn sentencing to assess an offender's capacity for, and progress in, rehabilitation before a final sentence is imposed.
  • The District Court treated Probation and Parole not merely as an enforcement mechanism but as a rehabilitative resource, and structured the bail conditions around that role.
  • Prior compliance with a community service order, even years earlier, was treated as relevant evidence of an offender's underlying capacity to meet the requirements of a non-custodial sentencing regime.
  • Alcohol misuse featured prominently in both the commission of the offences and the breach of the community service orders, and the court responded by making complete abstinence a central bail condition rather than leaving the issue unaddressed.
  • The court's approach preserved the prospect of suspended sentences for successful rehabilitation while making clear that return to custody remained the consequence of further non-compliance.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (adjournment for rehabilitation assessment)

Cases cited: None cited in the judgment.