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District Court 5 December 2008

R v Meehan, Taris

[2008] NSWDC 334

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW STANDARD NON PAROLE PERIOD OFFENCE S.166 MATTER EX BOYFRIEND BREAKS AND ENTERS EX GIRLFRIEND'S HOME OCCUPANTS ASLEEP

Citation: R v Meehan, Taris [2008] NSWDC 334
Court: District Court of New South Wales
Date: 5 December 2008
Judge(s): Nicholson SC DCJ

Background

The offender was a 29-year-old man who, on the morning of 9 September 2007, broke into the Newcastle home of his former partner while she and several others, including children, were asleep or resting inside. An apprehended domestic violence order (ADVO) was already in force, prohibiting him from approaching the premises or harassing the former partner or those in a domestic relationship with her.

Armed with two iron bars and two kitchen knives, the offender smashed a bedroom window and entered the dwelling. He kicked a teenage boy who was trapped on the floor, then pursued the former partner through the house before turning on her new partner. He struck the new partner about the head with iron bars and stabbed him at multiple sites, causing wounds at five distinct injury locations. After leaving the premises, the offender used a rock to smash every window and panel of the new partner's Mazda sedan.

The offender pleaded guilty before a magistrate to aggravated break and enter committing malicious wounding while armed with an offensive weapon, and was committed to the District Court for sentencing. The ADVO contravention was dealt with under section 166 of the Criminal Procedure Act, and malicious damage to the vehicle was taken into account as a Form 1 matter.

  • What was the appropriate sentence for aggravated break and enter and commit malicious wounding, a standard non-parole period offence, having regard to the objective criminality of the offending?
  • Whether the standard non-parole period should be imposed or whether a departure was warranted?
  • Whether special circumstances existed under the sentencing framework to justify a non-parole period shorter than the statutory proportion of the overall term?
  • What weight should be given to subjective factors, including mental health issues, an early guilty plea, and cooperation with police?
  • What sentence was appropriate for the ADVO contravention dealt with under section 166, described by the court as a worst-case example of that offence?

Decision

The court assessed the objective criminality as very serious. The offending involved deliberate pre-planning, the targeting of a domestic partner's home while children were present, a sustained and prolonged attack, the use of multiple weapons, and significant injuries at five discrete sites to the new partner. The ADVO contravention was characterised as a worst case of that offence.

The court accepted mitigating subjective factors. The offender was 29 years old and a first-time custodial offender. He entered an early guilty plea, attracting a 25 percent discount on the head sentence. He cooperated fully with police. The court also noted mental health issues, acknowledging that the offender had told both a forensic psychiatrist and police that part of his motivation for offending was to be placed in custody to receive treatment, a fact treated as indicative of serious disturbance rather than as a dominant explanation for the conduct.

On the question of the standard non-parole period, the court declined to impose it. The combined effect of the subjective factors, particularly the guilty plea and mental health issues, warranted a departure. The court set a head sentence of five years and three months (reduced from a notional seven years by the 25 percent plea discount) for the aggravated break and enter.

Special circumstances were found for three reasons: it was the offender's first time in custody; mental health issues created a need for an extended period of supervised community-based mental health monitoring following release; and the break and enter sentence ran cumulatively upon the fixed-term sentence for the ADVO contravention by fifteen months. The sentencing judge noted release would be a matter for the Parole Board, and the offender would need to demonstrate his mental health had been adequately addressed.

Orders Made

  • ADVO contravention (s 166, Criminal Procedure Act): Convicted. Fixed term of 18 months imprisonment commencing 9 September 2007, expiring 8 March 2010.
  • Aggravated break and enter committing malicious wounding while armed (principal offence): Convicted. Non-parole period of 3 years and 6 months commencing 9 December 2008, expiring 8 June 2012. Balance of term expiring 8 March 2014. Special circumstances found.
  • Malicious wounding (backup charge) and malicious damage to property (s 166 matter): Both dismissed. The malicious damage was taken into account as a Form 1 matter in sentencing on the break and enter. The malicious wounding was dismissed as a backup charge.
  • Overall combined sentence: approximately 6 years and 6 months, with a combined minimum term of approximately 4 years and 9 months.

Key Takeaways

  • Special circumstances were established in this matter on three cumulative grounds: first-time custody, diagnosed mental health issues requiring supervised post-release treatment, and the fact that the principal sentence ran cumulatively on a prior fixed term.
  • A 25 percent discount on the head sentence was applied in recognition of the early guilty plea, reducing the notional seven-year sentence for aggravated break and enter to five years and three months.
  • The District Court declined to impose the standard non-parole period despite the offence carrying one, finding that the combination of subjective factors, including the plea, cooperation, and mental health, justified a departure.
  • Where an ADVO contravention offence is committed in circumstances involving a prolonged armed incursion into a former partner's home with children present, a sentencing court may characterise the contravention as a worst-case example of that offence, even where it is dealt with as an ancillary matter.
  • Malicious damage taken into account on a Form 1 is not separately sentenced but is reflected in the overall sentence for the principal offence, and a backup charge for the same conduct as the principal offence is dismissed rather than sentenced separately.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act (NSW), s 166 (finalisation of related charges in superior court)

Cases
- R v Gladue (1999) 1 SCR 688 (Canadian Supreme Court, cited on the individualised sentencing task)
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740