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District Court 4 May 2012

R v Coffey

[2012] NSWDC 282

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE ASSAULT RECKLESSLY CAUSE GRIEVOUS BODILY HARM DOMESTIC VIOLENCE POOR RECORD

Citation: R v Coffey [2012] NSWDC 282
Court: District Court of New South Wales
Date: 4 May 2012
Judge: Nicholson SC DCJ

Background

The offender, a 46-year-old man from Brewarrina, pleaded guilty to recklessly causing grievous bodily harm to his partner. The offence occurred in the early hours of 22 April 2011 following a night of heavy alcohol consumption. The offender argued with his partner at a hotel and continued the dispute after they returned home, punching and kicking her, and continuing the assault while she was unconscious.

The victim sustained a four-centimetre deep laceration near her right eye, bilateral periorbital bruising, multiple rib fractures on both sides, and widespread bruising across her face, arms, chest, and abdomen. She walked to the local police station in the early morning hours to seek help.

The offender had an extensive prior history, having appeared before the Local Court on 23 occasions since December 1995 for AVO breaches or offences of physical violence. In approximately 19 of those matters, his partner was the likely victim. He had a long history of daily alcohol and cannabis use, often drinking and smoking until he blacked out.

  • What was the appropriate objective assessment of the criminality of this offence, having regard to its nature and the injuries caused?
  • What weight should be given to the offender's subjective circumstances, including his Indigenous background, history of alcohol and drug dependency, and limited prospects of rehabilitation?
  • How should the competing sentencing purposes of general deterrence, specific deterrence, community protection, and rehabilitation be balanced?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • What was the appropriate total sentence, non-parole period, and structure of the sentence?

Decision

His Honour described the assault as "unremitting and brutal," noting that the offender continued the violence while the victim was unconscious and had no memory of the attack due to intoxication. The objective criminality was characterised as serious. The court found that the agreed facts, while accepted as a starting point, did not relieve the judge of his independent fact-finding role.

The offender's Indigenous background was taken into account in accordance with the principles drawn from Fernando, which recognise the relevance of social disadvantage, alcohol dependency, and community context when sentencing Aboriginal offenders. His Honour noted the offender's deprived background, lack of education, and long-standing substance dependency. However, these factors did not diminish the gravity of the offending or the need to protect the victim and the community.

The court gave some weight to the offender's guilty plea and his expressed remorse, though the poor criminal history significantly reduced the subjective discount available. His Honour identified the protection of the community, and specifically domestic violence victims in Brewarrina, as the primary sentencing imperative. General deterrence was also treated as a significant factor, with the court emphasising that the certainty of detection and punishment is the most effective deterrent for domestic violence.

Special circumstances were found to exist, given the offender's need for extended supervision on release to address his alcohol dependency and domestic violence behaviour. This justified a non-parole period shorter than the statutory default ratio.

Orders Made

• Sentence of three years and seven months imposed
• Non-parole period of two years fixed, to date from 22 April 2011 and expire on 21 April 2012
• Balance of term of one year seven months to expire on 6 December 2014
• Offender to complete domestic violence programs while in custody
• Offender to attend drugs and alcohol programs while in custody
• Offender remanded to custody

Key Takeaways

  • The District Court applied the Fernando principles to recognise the relevance of an Indigenous offender's background of social disadvantage and alcohol dependency, while affirming that these factors do not operate to reduce the objective seriousness of serious violent offending.
  • Protection of the community was identified as the primary sentencing purpose in this matter, consistent with the approach in R v Cuthbert, R v Rushby, and R v Hayes, particularly where the offending occurred in the context of entrenched domestic violence.
  • Where an offender has an extensive prior record for violence against an intimate partner, the subjective discount available for a guilty plea and expressions of remorse is materially reduced.
  • Special circumstances can be established where an offender requires a longer than usual period of supervised parole to address the conditions, such as substance dependency and domestic violence behaviours, that underlie the offending.
  • The court noted, in strong terms, that the willingness of victims and community members to report domestic violence to police is itself a significant factor in deterrence, and that the certainty of detection represents the most effective check on this type of offending.

Legislation and Cases Referenced

Cases:
- Gladue v The Queen [1999] 1 SCR 688 (on the individualised sentencing inquiry)
- R v Fernando (1992) 76 A Crim R 58 (sentencing principles for Indigenous offenders)
- R v Cuthbert [1967] 2 NSWR 329 (community protection as a primary sentencing purpose)
- R v Rushby [1977] 1 NSWLR 597 (community protection)
- R v Hayes [1984] 1 NSWLR 740 (community protection)

Legislation: Not stated in the judgment.