Citation: R v Ballenden [2010] NSWDC 86
Court: District Court of New South Wales
Date: 13 April 2010
Judge(s): Berman SC DCJ
Background
The offender, a 40-year-old man, pleaded guilty to three serious offences arising from events over the night of 12 to 13 November 2009 and the following morning. The offences were committed against his de facto partner in her home. Critically, at the time of the offending the offender was on parole, having been released from custody only four days earlier. His parole had originally been revoked after he was sentenced for maliciously damaging the same complainant's property, at which time an apprehended domestic violence order (ADVO) was also made for her protection.
The offending began around 1:00 am when the offender entered the complainant's bedroom armed with a silver carving knife approximately 20 centimetres long. He pointed the knife at her, made threatening sexual statements intended to intimidate her, grabbed her by the throat, and banged her head against the wall. This conduct continued for approximately three hours. The following morning, after the complainant's children left for school, the offender prevented her from leaving the premises, disconnected the telephone when she attempted to call police, and struck her twice with a closed fist, causing bruising and a split lip.
The complainant ultimately escaped by telling the offender she needed to use a public toilet during a walk to a nearby supermarket, where she called triple-0. Police attended and arrested the offender shortly after.
Legal Issues
- What sentences were appropriate for the offences of being armed with intent to commit an indictable offence (intimidation), detaining with intent to obtain an advantage, and assault occasioning actual bodily harm?
- How should the sentences be structured and cascaded, having regard to the principle of totality?
- Whether the additional offences on the Form 1 (a further assault occasioning actual bodily harm and contravening an ADVO) should be taken into account in sentencing for the principal assault offence.
- Whether the section 86 (detaining for advantage) and section 59 (assault occasioning actual bodily harm) matters should be recorded on the offender's criminal history as domestic violence related offences under the Crimes (Domestic and Personal Violence) Act.
Decision
Berman SC DCJ found the objective gravity of the offending to be high. The offences were sustained over many hours, committed with a weapon, in the complainant's home, while the offender was on parole for a prior offence of violence against the same complainant, and in direct contravention of an existing ADVO. The court noted that the complainant endured prolonged terror before physical violence was inflicted.
The court acknowledged several matters in mitigation. The offender pleaded guilty at an early opportunity, was remorseful, and had a difficult personal history including the early death of his mother, an upbringing with a violent and alcoholic father, leaving school at age 13, and long-term drug and alcohol dependency. The court also noted evidence that the offender had experienced undiagnosed mood-related difficulties and had taken steps while in custody to engage with programs addressing his behaviour. However, the court found these mitigating factors were substantially outweighed by the seriousness of the conduct and the need for specific and general deterrence.
The sentences were structured consecutively to reflect the distinct nature and timing of each offence, with a totality adjustment applied so that the effective overall sentence was a non-parole period of three years and a head sentence of five years. The court also imposed an ADVO and directed that the relevant offences be recorded as domestic violence related matters on the offender's criminal history.
Orders Made
- Detaining for advantage: Non-parole period of 1 year commencing 13 November 2009; head sentence of 2 years.
- Being armed with intent: Non-parole period of 1.5 years commencing 13 November 2010; head sentence of 3 years.
- Assault occasioning actual bodily harm (taking into account Form 1 matters): Non-parole period of 1 year commencing 13 November 2011; head sentence of 3 years.
- Effective total sentence: Non-parole period of 3 years; head sentence of 5 years. Eligible for parole on 12 November 2012.
- ADVO imposed for 4.5 years from the date of sentence, prohibiting assault, harassment, intimidation, stalking, approaching the protected person within 12 hours of consuming alcohol or drugs, and damaging the protected person's property.
- Direction made under section 12 of the Crimes (Domestic and Personal Violence) Act that the section 86 and section 59 matters be recorded as domestic violence related offences on the offender's criminal history.
Key Takeaways
- Offending committed while on parole for prior violence against the same complainant is a significant aggravating factor that weighs heavily in favour of substantial custodial sentences.
- Where multiple serious offences arise from a sustained course of conduct over a discrete period, consecutive sentences may be appropriate, subject to a totality adjustment to ensure the overall sentence is not disproportionate.
- Personal hardship, including childhood trauma and substance dependency, may be recognised in mitigation but does not displace the sentencing objectives of specific and general deterrence when the offending is serious domestic violence.
- Under section 12 of the Crimes (Domestic and Personal Violence) Act, a court may direct that relevant offences be recorded on an offender's criminal history as domestic violence related matters, with the agreement of the parties.
- An ADVO can be imposed at sentencing as a protective measure alongside a term of imprisonment, with its duration calibrated to the circumstances of the offending and the relationship between the offender and the protected person.
Legislation and Cases Referenced
Legislation:
- Crimes (Domestic and Personal Violence) Act (NSW), sections 12, 59, 86