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Local Court 18 December 2015

Director of Public Prosecutions (NSW) v Johnson

[2015] NSWLC 31

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCING DOMESTIC VIOLENCE OFFENCES CONTRAVENTION OF ADVO WITH VIOLENCE AGGREGATE SENTENCE LOCAL COURT JURISDICTIONAL LIMIT

Citation: Director of Public Prosecutions (NSW) v Johnson [2015] NSWLC 31
Court: Local Court of NSW (sitting at Dubbo)
Date: 18 December 2015
Judge(s): Stewart LCM

Background

The offender, aged 22 at the time of the offences, was in a six-year relationship with a 19-year-old victim. A Final Apprehended Domestic Violence Order (ADVO) was already in force. In the early hours of 19 May 2015, following a period of drinking at the offender's premises, he subjected the victim to a prolonged and severe assault spanning multiple locations within and outside the home.

The assault involved kicking, dragging the victim by her hair, throwing heavy objects including a scooter and a motorbike at her, stabbing her three times with a small knife, striking her repeatedly with a wooden stick, and choking her on two occasions for approximately 30 seconds each. The victim eventually escaped by feigning a need to get toiletries, wrapped herself in a towel, hid in a car in the driveway, and was later taken to hospital by ambulance. Police attending the scene found extensive blood staining throughout the premises and recovered the knife and the wooden stick.

The offender faced numerous charges, including wounding with intent and aggravated kidnapping. Following plea negotiations, the more serious charges were withdrawn and guilty pleas were entered to reckless wounding (s 35(4) Crimes Act 1900), intentionally choking a person with recklessness (s 37(1) Crimes Act 1900), contravening an ADVO (s 14(1) Crimes (Domestic and Personal Violence) Act 2007), destroying or damaging property, and entering inclosed lands. At the time of sentencing, the offender was already serving a prison sentence for earlier domestic violence offences against the same victim.

  • What discount for the utilitarian value of guilty pleas applied, given that some pleas were entered early and others were delayed following plea negotiations?
  • How should the court assess the objective seriousness of individual offences, particularly the choking offence, when they form part of a sustained and prolonged course of violent conduct?
  • How does the Local Court's jurisdictional sentencing limit interact with the principle that the court should sentence to reflect the objective seriousness of the offence?
  • How does the principle of totality apply when imposing an aggregate sentence that is to be served consecutively with an existing sentence, including the s 58 Crimes (Sentencing Procedure) Act 1999 five-year ceiling?
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio, and how that interacted with the weight given to general deterrence?
  • Whether the existing ADVO should be extended under s 75 of the Crimes (Domestic and Personal Violence) Act 2007?

Decision

On the question of guilty plea discounts, the Magistrate allowed a full 25% utilitarian discount for the reckless wounding charge, which had been laid shortly before the plea was entered. For the remaining matters, where pleas were not entered at an early opportunity, a reduced discount of 10% applied. The Magistrate applied the principle from R v Dib and R v Borkowski that a delayed plea, even where part of a plea bargain, carries reduced utilitarian value.

On the objective seriousness of the offending, the Magistrate rejected any assessment of individual offences in isolation. The choking offence, in particular, was characterised as extremely serious when viewed in its proper context: it followed a prolonged and brutal assault during which the victim had already been stabbed, beaten, kicked, and dragged through the house. The Magistrate rejected the Crown's submission that the choking was below mid-range. The court noted the relevant principle from R v Doan that, where the Local Court exercises summary jurisdiction over offences with higher maximum penalties on indictment, sentencing should still reflect the objective seriousness of the conduct, limited only by the jurisdictional ceiling.

The Magistrate imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, to be served consecutively with the existing sentence. The principle of totality was applied to the combined effect of both sentences, as required by Hiron v R and Mill v The Queen. The statutory five-year ceiling in s 58 of the Crimes (Sentencing Procedure) Act 1999 (which limits a consecutive sentence so that the total does not exceed five years from the commencement of the existing sentence) constrained the overall length of the new sentence.

The Magistrate made a finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999, citing the offender's age and his need for drug and alcohol rehabilitation on release. Drug use had commenced at an age when the offender was unable to make a fully informed choice about its consequences, a consideration drawn from R v Henry. Despite the finding of special circumstances, the Magistrate noted the strong weight of general deterrence in domestic violence matters and observed that consideration had been given to increasing the non-parole period rather than reducing it. Ultimately, and having regard to totality, the non-parole period was reduced. The existing ADVO was extended for five years under s 75 of the Crimes (Domestic and Personal Violence) Act 2007.

Orders Made

  • Aggregate sentence of 4 years imprisonment, commencing 18 December 2015 and concluding 17 December 2019.
  • Non-parole period of 2 years and 6 months, commencing 18 December 2015 and expiring 17 June 2018.
  • Conviction recorded for the enter inclosed lands offence with no further penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
  • The final Apprehended Violence Order extended for 5 years from the date of sentence, with existing mandatory conditions and specified orders (1A, 1B, 1C and 7) unchanged.

Note: On 26 February 2016, the District Court dismissed the offender's appeal against the severity of the sentence.

Key Takeaways

  • A delayed guilty plea, even one entered as part of a plea bargain, attracts a reduced utilitarian discount. The Magistrate applied 10% rather than the full 25% for pleas not entered at the first available opportunity, consistent with R v Dib and R v Borkowski.
  • Individual offences forming part of a sustained course of violence cannot be assessed in isolation. The victim's progressively diminished capacity to resist, and the cumulative effect of the assault, elevated the objective seriousness of each discrete offence.
  • Under the principle confirmed in R v Doan, the Local Court's jurisdictional sentencing ceiling does not operate as a de facto maximum reserved for "worst cases." The court assesses objective seriousness without reference to that ceiling, subject only to not exceeding it.
  • A finding of special circumstances does not automatically reduce the non-parole period where general deterrence is of significant weight. The Magistrate acknowledged that the non-parole period could justifiably have been increased, and reduced it only after applying the totality principle.
  • Section 75 of the Crimes (Domestic and Personal Violence) Act 2007 permits a court, upon a guilty plea to domestic violence offences, to vary an existing AVO to provide greater protection to the victim. The Local Court exercised that power here by extending the order for five years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35, 37, 59, 61, 86, 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 9, 11, 14, 75
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22, 44, 47, 48, 49, 53A, 58
- Inclosed Lands Protection Act 1901 (NSW), s 4

Cases
- Bugmy v The Queen [2013] HCA 37
- Hiron v R [2007] NSWCCA 336
- JM v R [2014] NSWCCA 297
- Khanwaiz v R [2012] NSWCCA 168
- McIntosh v R [2015] NSWCCA 184
- Mill v The Queen (1988) 166 CL