Citation: R v Kaveni Luvu MORO [2016] NSWDC 288
Court: District Court of New South Wales
Date: 8 July 2016
Judge: Tupman DCJ
Background
The offender was convicted by a jury on three counts arising from a series of violent incidents against his partner over a two-month period in early 2015. The couple had been living together in a Woolloomooloo apartment since February 2015, and the relationship was found to be both violent and controlling.
The first incident involved the offender striking the complainant in the face in front of others during an argument, causing bruising around her right eye. The following day, he retrieved a knife from the kitchen and stabbed her three times in the shoulder, thigh, and calf after accusing her of infidelity. The third offence, on 3 April 2015, involved the offender striking the complainant on the head with a TV remote control, causing a laceration that was still bleeding when she received medical attention the next day.
Three related summary charges of common assault were also sent up to the District Court under s 166 of the Criminal Procedure Act 1986 for sentencing alongside the indictable matters.
Legal Issues
- The appropriate sentence for each of the three indictable offences, having regard to objective seriousness, the domestic violence context, and the offender's criminal history
- Whether the counts should be served concurrently or cumulatively, and how the totality principle applied
- How to deal with the three related summary offences of common assault, given the sentences imposed on the more serious counts
- Whether an apprehended domestic violence order should be made
Decision
Tupman DCJ found that Count 2, the stabbing, was the most serious of the offences, though it fell below the mid-range of objective seriousness for offences under s 33(1)(b) of the Crimes Act 1900, which carries a maximum of 25 years imprisonment. The injuries, while amounting to grievous bodily harm, had largely healed by the time photographs were taken, there was no evidence of ongoing disability, and no medical assistance had been sought or provided.
Her Honour accepted that the offender's behaviour throughout the relevant period was not only physically violent but deeply controlling. This included taking away the complainant's phone and medication, restricting her movements, and forcing her to stay awake for extended periods. The court treated the domestic violence context as a significant aggravating factor across all counts.
Turning to the summary offences, Her Honour expressed reservations about the practice of sending relatively minor summary charges to the District Court alongside serious indictable matters. She noted that the inevitable result, given the substantial custodial sentences imposed, was that the only appropriate outcome for the summary offences was a conviction without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999. She cautioned that this approach risked giving the misleading impression that courts treat domestic violence offences as trivial.
Her Honour declined to make an apprehended domestic violence order, citing the length of the sentence, the fact that the interim order was to be revisited by the Local Court, and the absence of current evidence about the complainant's wishes.
Orders Made
- Count 1 (assault occasioning actual bodily harm): convicted; 18 months fixed term imprisonment, commencing 8 September 2015, expiring 7 March 2017
- Count 3 (assault occasioning actual bodily harm): convicted; 18 months fixed term imprisonment, commencing 8 March 2016, expiring 7 September 2018
- Count 2 (grievous bodily harm with intent): convicted; non-parole period of 4 years commencing 8 September 2016, expiring 7 September 2020; parole period of 3 years commencing 8 September 2020, expiring 7 September 2023; total term of 7 years
- Parole conditions recommended: supervision by Probation and Parole; referral for psychiatric treatment and medication; referral for drug counselling
- Summary offences (sequences 3, 4, and 5): convicted; s 10A order (conviction recorded, no further penalty) under the Crimes (Sentencing Procedure) Act 1999
- Apprehended domestic violence order: declined
Key Takeaways
- The District Court treated the domestic violence context as a substantial aggravating factor across all offences, emphasising that violence committed in a victim's own home by an intimate partner is not a private matter and warrants serious sentencing outcomes.
- A stabbing causing three wounds that healed without medical attention and left no permanent disability was assessed as below the mid-range of objective seriousness for s 33(1)(b) of the Crimes Act 1900, though still a very serious offence warranting a seven-year total term.
- Where summary offences are brought to the District Court alongside significantly more serious indictable charges, the sentencing court may find that a s 10A conviction without further penalty is the only proportionate outcome, regardless of the inherent seriousness of the summary matters.
- Tupman DCJ expressed concern that sending minor summary domestic violence charges to the District Court purely to clear the books risks creating a misleading statistical impression that courts do not treat such offences seriously.
- An apprehended domestic violence order was not made, reflecting that the court's discretion in this area is informed by the length of the custodial sentence, pending Local Court proceedings, and the availability of current evidence about the complainant's circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 59, 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166
Cases: No cases were cited in the judgment.