Citation: R v Peifeng Yu [2016] NSWDC 257
Court: District Court of New South Wales
Date: 18 January 2016
Judge(s): Tupman DCJ
Background
The offender, a Chinese national living in Auburn, pleaded guilty in the Local Court to a series of domestic violence offences against his de facto partner, with whom he had lived since migrating from China in 2007. The couple had two young children who were present in the home during the offending. All principal offences occurred in the early hours of 25 January 2015.
The violence arose from the offender's jealousy over his partner's mobile phone contact with a male friend. Over the course of that night, he slapped her, squeezed her thighs with force, whipped her with two belts (one with a silver buckle), threatened to pour boiling water on her, and ultimately forced both her hands into a container of boiling water. The victim suffered bruising, welt marks with belt buckle indentations, and burns with blistering to both hands.
A separate related offence was also before the District Court: while remanded in custody, the offender made approximately 63 telephone calls to the victim between 1 February and 25 April 2015, contravening an apprehended domestic violence order (ADVO).
Legal Issues
- What sentences were appropriate across the four principal charges and the related ADVO breach, having regard to the objective seriousness of each offence?
- How should the sentences be structured and accumulated so that the overall term was proportionate to the totality of the offending?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- What weight should be given to guilty pleas, limited remorse, and the offender's personal circumstances (including language difficulties and first-time imprisonment)?
Decision
Tupman DCJ characterised the offending as serious domestic violence, with the belt assaults described as humiliating and degrading, and the boiling water burns likened to "a form of torture." General deterrence was identified as a significant sentencing consideration, given what the court noted was a high prevalence of domestic violence. The guilty pleas were accorded weight, but the offender's limited insight, remorse, and contrition reduced the mitigatory value of those pleas.
On the ADVO breach, the court noted that 63 calls from prison to the victim was a serious course of conduct. Her Honour also criticised Corrective Services for failing to prevent the calls, and separately criticised the offender's legal representatives for sending a letter written by the offender in gaol directly to the victim rather than routing it through the Director of Public Prosecutions.
Special circumstances were found to exist, based on the offender's first period of imprisonment and the additional hardship arising from his language difficulties. This justified a longer parole period relative to the non-parole period than the statutory default. The court declined to fix non-parole periods for the fixed-term sentences, treating them as part of the overall parole structure anchored to the choking offence.
Applying the totality principle (which requires that the overall sentence reflect the full criminality without becoming disproportionate), her Honour arrived at a total effective term of three years, with a two-year non-parole period.
Orders Made
- Breach of ADVO (s 166 related offence): Fixed term of 3 months imprisonment, commencing 25 January 2015, expiring 24 April 2015.
- Sequence 5, assault occasioning actual bodily harm: Fixed term of 12 months imprisonment, commencing 25 March 2015, expiring 24 March 2016.
- Sequence 7, assault occasioning actual bodily harm: Fixed term of 12 months imprisonment, commencing 25 September 2015, expiring 24 September 2016.
- Sequence 6, intentional choking with recklessness: Non-parole period of 12 months commencing 25 March 2016, expiring 24 March 2017; parole period of 12 months commencing 25 March 2017, expiring 24 March 2018 (total term of 2 years). Form 1 offence (assault occasioning actual bodily harm) taken into account.
- Sequence 4, intimidation: Fixed term of 9 months commencing 25 March 2016.
- The court noted an existing ADVO protecting the victim remained in force until October 2017.
Key Takeaways
- The District Court treated the belt assaults and the forced immersion of the victim's hands in boiling water as, respectively, mid-range and more serious versions of assault occasioning actual bodily harm, with the latter characterised as approaching torture in its nature.
- General deterrence carries particular weight in domestic violence sentencing, and the court identified this as a reason to impose a sentence that would signal community condemnation of such offending.
- Approximately 63 phone calls from prison to a protected person constituted a serious breach of an ADVO; the court noted systemic failures by Corrective Services in allowing those calls to occur.
- Sending correspondence from an imprisoned offender directly to a victim, rather than through the DPP, drew explicit criticism from the court as an inappropriate course of conduct by the defence lawyers involved.
- Under the totality principle, the court reduced what would otherwise have been four years of cumulative imprisonment to three years, with a two-year non-parole period, on the basis that full accumulation would have been disproportionate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37(1) (intentional choking with recklessness), 59 (assault occasioning actual bodily harm)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation with intention to cause fear of physical or mental harm)
- Criminal Procedure Act 1986 (NSW), s 166 (related offences referred to higher court for sentencing)
Cases: No cases were cited in the judgment.