Citation: R v RX; MX [2008] NSWDC 356
Court: District Court of New South Wales
Date: 19 December 2008
Judge(s): Cogswell SC DCJ
Background
The two offenders, brothers referred to as RX and MX, were convicted following a jury trial of offences arising from a violent early-morning incident on 12 November 2005. RX was the estranged husband of the victim, Mrs RX, who had moved into a separate unit in North Parramatta after experiencing violence in the marriage. At 7am, the two brothers arrived at her unit armed with a sledgehammer, broke through two locked doors, and dragged Mrs RX from the building.
MX drove Mrs RX and RX to the brothers' parents' home in nearby Guildford, where Mrs RX was detained for six to seven hours. During that detention, RX assaulted her. The offences reflected a domestic violence context and involved a degree of planning evidenced by phone records showing repeated contact between the brothers throughout the night before the attack.
Both men contested the charges at trial and were convicted. The sentencing hearing required the District Court to resolve several contested issues before fixing appropriate penalties.
Legal Issues
- What weight should be given to MX's credibility as a witness at the sentencing hearing, given inconsistencies between his account and the phone records and other witness evidence?
- To what extent were the offences premeditated or planned, rather than spontaneous?
- What relevance did RX's psychiatric or psychological condition have to his sentence?
- How serious were the offences when assessed against comparable crimes of the same type (objective seriousness)?
- What emotional harm had the offences caused to the victim?
- What sentences were appropriate for each offender across the multiple charges?
Decision
The court found MX to be an unreliable witness. Phone records (Exhibit T) showed repeated calls between MX's and RX's phones from late the previous night through to shortly before the attack. MX claimed he could not recall those calls. The court rejected that explanation as implausible, and also rejected his denials of physical involvement at the scene, preferring the accounts of the victim and a neighbour who described both men breaking down doors and MX making threatening remarks to Mrs RX.
On the question of premeditation, the pattern of overnight phone contact strongly supported a finding that the offending was planned rather than impulsive. The court treated this as an aggravating feature in sentencing both men.
RX's psychiatric and psychological condition was a matter specifically addressed in the sentencing proceedings. The court weighed expert material on his mental state as a relevant factor in assessing his moral culpability and the appropriate sentence structure. The emotional harm caused to Mrs RX was also treated as a significant aggravating consideration in fixing the sentences.
The sentences imposed on RX were structured with a longer overall term than those for MX, reflecting RX's greater role as the primary instigator and the additional offence of assault occasioning actual bodily harm. An apprehended violence order was also made for Mrs RX's protection.
Orders Made
RX:
- Aggravated break and enter and commit serious indictable offence: non-parole period of 6 years, balance of term 6 years
- Kidnapping: non-parole period of 4 years, balance of term 3 years
- Assault occasioning actual bodily harm: non-parole period of 2 years, balance of term 1 year
MX:
- Break and enter and commit serious indictable offence: non-parole period of 5 years, balance of term 4 years
- Kidnapping: fixed term of 4.5 years
Apprehended Violence Order:
- Made under s 39 of the Crimes (Domestic and Personal Violence) Act 2007 for the protection of Mrs RX, against RX, commencing 19 December 2008 and expiring 18 November 2019. The order prohibited RX from assaulting, molesting, harassing, threatening, intimidating, or stalking Mrs RX or persons with whom she has a domestic relationship, and from entering premises where she resides or works.
Key Takeaways
- The District Court treated phone records showing repeated overnight contact between the brothers as strong evidence of premeditation, rejecting claims that the offending was unplanned.
- Where an offender's account at a sentencing hearing is contradicted by documentary evidence and multiple witnesses, the court may find that offender lacks credibility and make findings adverse to them on all contested factual issues.
- Domestic violence context, detention of the victim over an extended period, and the use of significant force to breach secured premises were all treated as factors elevating the objective seriousness of the offences.
- A standard non-parole period attached by Parliament to an offence (here, five years for the aggravated break-and-enter charge under s 112(2) of the Crimes Act 1900) operates as a relevant benchmark in sentencing, signalling legislative assessment of the offence's gravity.
- Apprehended violence orders under the Crimes (Domestic and Personal Violence) Act 2007 can be made at the conclusion of a criminal sentencing proceeding, providing continuing protection for victims of domestic violence after sentence is imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 112(2) (aggravated break, enter and commit serious indictable offence)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 39 (apprehended violence orders)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A (aggravating and mitigating factors)
Cases:
- Regina v Dunn (2004) 144 A Crim R 180
- Regina v Edigarov (2001) 125 A Crim R 551
- Regina v Fahda [1999] NSWCCA 267
- Regina v Glenn (CCA, unreported, 19 December 1994)
- Regina v Hamid [2006] NSWCCA 302
- Regina v O'Donoghue (2005) 151 A Crim R 597