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District Court 15 May 2015

Boswell v R

[2015] NSWDC 208

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENCES AGAINST THE PERSON ASSAULT OCCASIONING ACTUAL BODILY HARM RELEVANT FACTORS PURPOSES OF SENTENCING

Citation: Boswell v R [2015] NSWDC 208
Court: District Court of New South Wales
Date: 15 May 2015
Judge(s): Cogswell SC DCJ

Background

The appellant had been convicted in the Local Court of assault occasioning actual bodily harm (domestic violence related) and contravening a prohibition in an apprehended domestic violence order (ADVO). The offences arose from an incident in the early hours of 26 July 2014, when the appellant punched the protected person in the face three times while she was driving him home, causing significant facial bruising and swelling.

Magistrate Greenwood sentenced the appellant to an aggregate of 16 months imprisonment, with an eight-month non-parole period commencing 29 September 2014. The appellant was granted appeal bail and had spent only about three days in custody before the appeal was heard.

The appeal came before Cogswell SC DCJ sitting in Albury. Noting that the non-parole period under the original sentence would have expired on 28 May 2015, the judge adjourned the proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow the appellant time to demonstrate genuine rehabilitation progress before the appeal was finalised.

  • Whether the sentence imposed by the Local Court was appropriate in all the circumstances
  • Whether, on appeal, the sentence should be confirmed, reduced, or restructured
  • Whether the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) supported a non-custodial or suspended sentence given the appellant's rehabilitation efforts
  • How to weigh the appellant's criminal history, offending on conditional liberty, limited victim empathy, and subsequent rehabilitation steps

Decision

The District Court found there was no doubt the original custodial sentence was justified. The appellant had a significant criminal history in both New South Wales and Victoria, including prior convictions for stalking, intimidation, contravening a domestic violence order, and common assault. Crucially, the assault on the protected person was committed while the appellant was subject to both an ADVO and an existing good behaviour bond, placing him in clear breach of conditional liberty.

The court expressed serious concern about passages in a supplementary pre-sentence report prepared in March 2015. The report recorded that the appellant denied having an alcohol problem, showed no victim empathy, blamed the complainant for the charges, and made a dismissive remark about women and the criminal justice system. The court tested these concerns in evidence and found the appellant's explanations for those remarks only partially convincing.

However, the court balanced those concerns against meaningful evidence of change during the adjournment period. The appellant had engaged in a men's behaviour change program, demonstrated strong family and community support, had a stable relationship, and was in employment. After receiving what the judge described as a "Parker warning" (a formal caution that the court was considering increasing the sentence), the court concluded that the community's interests were better served by rehabilitation than by immediate imprisonment.

The court increased the sentences modestly but then suspended the entire term, imposing a good behaviour bond with supervision by Community Corrections. The judge made explicit that a suspended sentence carries a strong expectation of compliance, and that a breach would leave little discretion but to impose immediate imprisonment.

Orders Made

• Suspended sentence good behaviour bond imposed
• Supervision by Community Corrections for 16 months
• Appellant to undertake anger management
• Appellant to undertake alcohol counselling
• Appellant to remain at current address and notify courthouse of any address changes
• Appellant to avoid drink driving, brawls, and other criminal behaviour

Key Takeaways

  • The District Court confirmed that offending while on conditional liberty (here, a good behaviour bond and subject to an ADVO) is a seriously aggravating factor in sentencing for domestic violence offences.
  • A court's power to adjourn sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be used to allow an appellant time to demonstrate rehabilitation, and genuine progress during that period may influence how a sentence is ultimately served.
  • Competing sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) do not eliminate the need for a custodial term in serious domestic violence cases, but they may bear on whether that term is suspended.
  • Limited victim empathy and minimisation of offending, as recorded in a pre-sentence report, weigh against leniency, even where some rehabilitation steps have been taken.
  • Upholding a suspended sentence in these circumstances, the District Court emphasised that a breach of a suspended sentence good behaviour bond leaves very little room to avoid immediate imprisonment, unlike a standard Local Court bond.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (contravening ADVO prohibition)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 5, 9, 11, 12

Cases:
- No cases formally cited in the judgment. The decision references a "Parker warning," referring to the well-established practice of alerting an appellant that the court is considering imposing a more severe sentence than the one under appeal.