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District Court 19 September 2008

R v TIMBERY

[2008] NSWDC 340

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE TRIAL MALICIOUS WOUNDING SEXUAL INTERCOURSE WITHOUT CONSENT ACTS OF CRUELTY

Citation: R v Timbery [2008] NSWDC 340
Court: District Court of New South Wales
Date: 19 September 2008
Judge(s): Berman SC DCJ

Background

The offender, a man aged 30 at the time of sentencing (23 at the time of the offences), was sentenced following a re-trial for eleven serious offences committed against his partner, LB, between April and December 2000. The couple had begun living together in October 1999, and the relationship quickly became characterised by repeated and escalating violence. A re-trial was ordered after the Court of Criminal Appeal identified errors in the conduct of the first trial.

The offences included multiple counts of aggravated sexual intercourse without consent, sexual intercourse without consent, malicious wounding, and maliciously inflicting grievous bodily harm. The acts of violence involved weapons including an iron bar, wooden chisel, metal fork, baseball bat, golf club, ceramic plate shard, and an electrical cord used to choke the complainant during a rape. Several incidents left LB with permanent scarring.

The offender had been sentenced previously by Judge Donovan for the same offences, receiving an effective non-parole period of 24 years and a total term of 33 years. The Court of Criminal Appeal had quashed those convictions without determining the sentence appeal, returning the matter for a new trial.

  • What sentence was appropriate for eleven serious violent and sexual offences committed against an intimate partner over approximately eight months?
  • What weight should be given to the principle that an offender should not ordinarily receive a longer sentence on re-trial than that originally imposed?
  • Whether special circumstances existed that would warrant adjustment to the standard ratio between the non-parole period and the head sentence.
  • What significance should be attached to the offender's criminal history, lack of remorse, and personal circumstances in fixing the sentence?

Decision

The sentencing judge described the offences as demonstrating "brutal depravity" requiring no elaboration beyond the facts themselves. The repeated use of weapons, the sustained nature of the violence across multiple incidents, and the combination of physical assault with sexual violence were all identified as seriously aggravating features. The complainant suffered significant and permanent physical scarring.

The offender's background was considered. He came from a supportive family with no history of domestic violence or alcohol problems, yet had accumulated a serious criminal history. The court found that his failure to accept responsibility for the offences, and what the judge characterised as a lack of meaningful change, reduced the weight available to mitigating factors. The offender was assessed as posing an ongoing risk.

The court acknowledged the principle, drawn from Veen v The Queen (No 1) and Veen v The Queen (No 2), that proportionality in sentencing must be observed, and that an offender should not receive a longer sentence merely because they successfully appealed their conviction. The sentence imposed was substantially lower than that originally handed down by Judge Donovan. No special circumstances were found beyond the accumulation of sentences, which the court addressed by imposing fixed terms for several of the lesser counts.

Orders Made

  • Count 1 (malicious wounding): fixed term of 4 years, commencing 19 May 2005
  • Count 2 (sexual intercourse without consent): fixed term of 5 years, commencing 19 May 2006
  • Count 7 (maliciously inflicting grievous bodily harm): fixed term of 5 years, commencing 19 May 2007
  • Count 12 (aggravated sexual intercourse without consent): fixed term of 6 years, commencing 19 May 2008
  • Counts 5 and 6 (aggravated sexual intercourse without consent): fixed term of 12 years, commencing 19 May 2010
  • Counts 8, 9 and 10 (aggravated sexual intercourse without consent): non-parole period of 9 years, head sentence of 12 years each, commencing 19 May 2012
  • Count 4 (aggravated sexual intercourse without consent): non-parole period of 8 years, head sentence of 14 years, commencing 19 May 2015
  • Overall: total term of 24 years with a non-parole period of 18 years, expiring 18 May 2023
  • Recommendation that parole not be granted until the offender has successfully completed the CUBIT program or a comparable program

Key Takeaways

  • The District Court confirmed that an offender sentenced following a successful appeal and re-trial should not ordinarily receive a longer sentence than that imposed at first instance, even where the original sentence is later quashed on conviction grounds rather than sentence grounds.
  • Where multiple serious offences are sentenced cumulatively, fixed terms may appropriately be imposed for lesser counts where setting a separate non-parole period would serve no practical purpose given the structure of the overall sentence.
  • A finding that an offender has not accepted responsibility for serious offences and shows little evidence of rehabilitation can reduce the weight accorded to mitigating personal circumstances, even where those circumstances (such as a supportive upbringing) are genuinely present.
  • Sentencing for prolonged domestic violence involving repeated sexual assault and physical wounding will attract significant accumulation of sentences, particularly where weapons are used, multiple distinct incidents are established, and the complainant suffers lasting physical harm.
  • Under the Veen principles, proportionality remains a constraint on sentences even for serious and dangerous offenders, balancing community protection against the requirement that punishment not exceed what is proportionate to the gravity of the offending.

Legislation and Cases Referenced

Cases:
- Regina v Timbery (unreported, Court of Criminal Appeal, 1 April 1996)
- Veen v The Queen (No 1) (1979) 143 CLR 458
- Veen v The Queen (No 2) (1988) 164 CLR 465

Legislation:
- No specific legislation was cited by name in the provided text. The offences referenced carry the following maximum penalties under the relevant New South Wales criminal law provisions in force at the time: malicious wounding (7 years), sexual intercourse without consent (14 years), aggravated sexual intercourse without consent (20 years), and maliciously inflicting grievous bodily harm (7 years).