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District Court 11 September 2009

R v Shepherd, Archie

[2009] NSWDC 386

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE DOMESTIC VIOLENCE RECKLESSLY WOULD GIRLFRIEND SUSTAINED ASSAULT FOURTEEN INJURY SITES

Citation: R v Shepherd, Archie [2009] NSWDC 386
Court: District Court of New South Wales
Date: 11 September 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a young Aboriginal man, pleaded guilty to recklessly wounding his girlfriend during a sustained assault that took place over several days in Broken Hill between 29 October and 4 November 2008. The assault began after a consensual sexual encounter when the offender became enraged over a longstanding family feud. He used a piece of curtain tubing, approximately 600 to 800 millimetres long, to beat the victim repeatedly and attempted to use it to sexually assault her.

Medical examination later recorded fourteen sites of injury on the victim's body, including lacerations, bruising, and a bite mark on her thigh still visible seven days after the assault. The offender also prevented the victim from seeking medical help throughout the period of the offending, including threatening further violence when she asked to go to hospital.

At the time of the offending, the offender was already on bail in relation to an earlier unrelated assault upon the same victim, and a domestic violence order was in place protecting her. He had been released from prison less than three months before this incident and had accumulated four periods of custody since reaching adulthood in 2004.

  • What was the appropriate sentence for the reckless wounding, accounting for the objective seriousness of the offence and the offender's subjective circumstances?
  • How should the principles in R v Fernando (concerning the sentencing of Aboriginal offenders) apply to balance community protection, rehabilitation, and the risk of further offending?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory ratio.
  • How to deal with the related back-up charges brought from the Local Court, including contravening an apprehended domestic violence order.

Decision

The sentencing judge assessed the offence as serious in objective criminality, noting the sustained nature of the assault, the number of injury sites, the use of an improvised weapon, the attempted sexual assault, and the ongoing detention of the victim. The judge acknowledged the victim's vulnerability as an Indigenous woman in a violent domestic relationship, noting that the purpose of the law extends to protecting such individuals.

Applying the principles from R v Fernando, the court balanced the significant personal disadvantage faced by the offender, including a deeply troubled background and poor prospects for rehabilitation within the prison system, against the overriding imperative of community protection. The judge identified that the offender's cycle of incarceration had not been broken by prior custodial sentences and expressed genuine concern about his long-term welfare, including the risk of a traumatic death in custody.

The judge set the head sentence at three and a half years before discount, then reduced it by approximately twelve and a half per cent to reflect the guilty plea, arriving at a total sentence of three years and one month. Special circumstances were found, producing a non-parole period of eighteen months and a balance of term of nineteen months, a ratio consistent with the approach taken in Fernando of extending the parole period to allow for supervision and rehabilitation on release.

Orders Made

  • Convicted of recklessly wounding Twylla Dutton between 29 October and 4 November 2008 at Broken Hill.
  • Non-parole period of 18 months, commencing 11 January 2009 and expiring 10 July 2010.
  • Balance of term of 19 months, expiring 10 February 2012.
  • Assault occasioning actual bodily harm charge: leave granted to the Crown to withdraw.
  • Contravening apprehended domestic violence order: 6 months imprisonment, commencing 11 January 2009 and expiring 10 July 2009 (concurrent).
  • Apprehended Personal Violence Order issued in favour of Twylla Dutton on standard conditions, including no direct or indirect approach, expiring 10 February 2012.

Key Takeaways

  • The District Court applied the Fernando principles to navigate the tension between the objective seriousness of a sustained domestic violence offence and the significant personal disadvantage of an Indigenous offender with a chronic cycle of incarceration.
  • Community protection was identified as the primary focus of sentencing, consistent with the line of authority in Cuthbert, Rushby, and Hayes, and was not displaced by the offender's personal circumstances, however difficult.
  • A finding of special circumstances justified a non-parole period below the standard ratio, extending the supervision period on release to support rehabilitation prospects, however limited.
  • The sentencing judge expressly acknowledged that the law's protective purpose extends to Indigenous women in violent domestic relationships, framing this as a relevant consideration in assessing the public interest dimension of the offence.
  • Where agreed facts are tendered, a sentencing judge retains an independent fact-finding responsibility and is not bound simply to adopt the agreed account if it does not reflect the evidence placed before the court.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 166 (finalisation of back-up charges)
- Criminal Procedure Act 1986 (NSW), s 39 (apprehended violence orders)

Cases:
- R v Fernando (1992) 76 A Crim R 58
- Gladue v The Queen [1999] 1 SCR 688
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby [1977] NSWLR 597
- R v Hayes [1984] 1 NSWLR 740