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Local Court 18 February 2014

Police v Poolman

[2014] NSWLC 3

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCING DOMESTIC VIOLENCE PRINCIPLES NEED FOR DETERRENCE CUSTODIAL SENTENCES CALLED FOR

Citation: Police v Poolman [2014] NSWLC 3
Court: Local Court of New South Wales
Date: 18 February 2014
Judge(s): Magistrate Dare SC

Background

The offender pleaded guilty to four charges arising from a sustained assault on his domestic partner at her home in Grenfell on 2 June 2013. The complainant was a semi-invalid woman who used a wheelchair and suffered from a spinal condition. Her three children, two of whom had autism, were present during the attack.

The assault was severe. The offender grabbed the complainant by the throat on multiple occasions, kneed her in the face, pulled her hair, threw her onto a bed, and sat on top of her. The eldest child put headphones over her younger sibling's ears to shield her from what was happening. When the offender returned later to retrieve a phone battery, he slapped the complainant again and threatened to burn down her house. The complainant was taken to hospital and found to have a broken nose, several broken ribs, and a swollen, blackened eye.

The offender had no prior criminal history. He had been in an on-and-off relationship with the complainant for several years and claimed to have provided her with personal care throughout that period. A pre-sentence report assessed him as a medium-to-low risk of reoffending but noted limited insight into the impact of his conduct and a tendency to minimise his responsibility by blaming the complainant.

  • What sentences were appropriate across four charges arising from the same domestic violence incident?
  • How should the principle of totality and partial cumulation of sentences be applied?
  • What weight, if any, should be given to the apparent reconciliation between the offender and complainant?
  • What discount, if any, was available for the guilty pleas given that they followed charge negotiations?
  • Were "special circumstances" established so as to justify a longer non-parole period relative to the head sentence?

Decision

Magistrate Dare imposed a custodial sentence for the primary charge of assault occasioning actual bodily harm, finding that the objective seriousness of the offending, the vulnerability of the victim, and the presence of children demanded a sentence that emphasised both specific and general deterrence. The Magistrate declined to treat this offending as a private matter between the parties, citing established appellate authority that domestic violence cannot be viewed through that lens.

On the question of the guilty pleas, the Magistrate noted that the pleas followed charge negotiations, which reduced the weight they could carry. Two charges had been withdrawn as part of that process, meaning the discount available to the offender was more limited than it would have been for early pleas of guilty at first instance.

The Magistrate applied partial cumulation across the sentences, combining the assault occasioning actual bodily harm charge with the common assault charge rather than making all sentences wholly concurrent or wholly cumulative. Special circumstances were found to exist, having regard to the offender's age, his lack of prior custodial experience, and the need for supervision upon release. This justified a longer non-parole period relative to the head sentence than the statutory default.

On the question of reconciliation, the Magistrate was explicit: the apparent resumption of the relationship between the offender and the complainant, evidenced by the complainant's disruptive conduct outside the court in support of the offender, was irrelevant to sentencing. The Magistrate observed that domestic violence cannot be treated as a private matter and that consistent application of deterrence principles across all levels of the justice system was necessary.

Orders Made

  • Assault occasioning actual bodily harm (seq. 1): Convicted and sentenced to imprisonment. Non-parole period to commence 15 March 2014. Special circumstances found.
  • Common assault (seq. 5): Convicted and sentenced to a fixed term of 3 months, commencing 15 March 2014 and expiring 14 June 2014, partially cumulative on the principal sentence.
  • Intimidation (seq. 4) and damage to property (seq. 6): Convicted and ordered to enter into good behaviour bonds of 12 months pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions including good behaviour and notification of any change of residential address.
  • Parole condition: Supervision by the Probation and Parole Service for such period as that service deemed necessary, with participation in any recommended programme or treatment.
  • Apprehended Domestic Violence Order: Final orders made for a period of 2 years, with the complainant's three children added as protected persons. The proximity condition was set at 50 metres.

Key Takeaways

  • A sentencing court cannot treat domestic violence as a private matter between the parties, regardless of any apparent reconciliation or the complainant's own expressed wishes. Established appellate authority requires that deterrence remain a primary sentencing consideration.
  • The apparent reconciliation of the parties is irrelevant to the sentencing exercise. The Magistrate expressly held that what followed was beyond the complainant's control once the matter was before the court.
  • Where guilty pleas follow charge negotiations and the withdrawal of some charges, the discount available to the offender is reduced compared to a plea entered at the first available opportunity without any concession by the prosecution.
  • Partial cumulation of sentences is available and appropriate where multiple offences arise from related conduct, provided the overall sentence does not exceed what is proportionate to the totality of the offending.
  • Special circumstances justifying a longer non-parole period relative to the head sentence may be established by a combination of factors, including the offender's youth, first-time custody status, and the imposition of partially cumulative sentences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61, 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 51
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW), s 268

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Dodd (1991) 57 A Crim R 349
- R v Yin (unreported, NSW CCA, 9 November 1988)
- R v Glen (unreported, NSWCCA, 19 December 1994)
- Gallegos v R [1999] WASCA 191
- R v Berry [2000] NSWCCA 451
- R v Quach [2002] NSWCCA 173
- R v Zamagias [2002] NSWCCA 17
- Attorney-General for Tasmania v O [2004] TASSC 53
- R v Hamid [2006] NSWCCA 302
- R v MMK [2006] NSWCCA 272
- R v Stambolis [2006] NSWCCA 56
- Cahyadi v R [2007] NSWCCA 1
- Hiron v R [2007] NSWCCA 336
- Nguyen v R [2007] NSWCCA 14
- Blundell v R [2008] NSWCCA 92
- R v XX [2009] NSWCCA 115
- Melbom v R [2013] NSWCCA 210
- Montero v R [2013] NSWCCA 214