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District Court 7 June 2016

R v Jeffreys

[2016] NSWDC 433

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM S166 CERTIFICATE BREACH OF AVO

Citation: R v Jeffreys [2016] NSWDC 433
Court: District Court of New South Wales
Date: 7 June 2016
Judge(s): Sides QC DCJ

Background

The offender pleaded guilty to two counts arising from a domestic relationship. The first was assault occasioning actual bodily harm against the victim on 26 September 2014, after a period of escalating anger during which he punched her in the eye with a closed fist. Both parties had been living in their vehicles and were unemployed at the time.

The second count arose while the offender was in custody. Telephone calls lawfully recorded by corrective services captured him pressuring the victim on 12 February 2015 to tell authorities she had fabricated her account of the assault. This conduct gave rise to the charge of doing an act with the intention of influencing a witness to give false evidence.

The matter was committed for trial on six more serious counts, with a 10 to 12 day trial scheduled for September 2016. The offender ultimately pleaded guilty to the two counts at a "Super Callover" conducted at Parramatta in late May 2016, freeing the trial date for another matter.

  • What guilty plea discount was appropriate given the timing and circumstances of the plea, including the context of the Parramatta District Court backlog?
  • Whether the principles in R v Borkowski [2009] NSWCCA 102 remained directly applicable in light of changed conditions in the court system.
  • Whether a discount for remorse was available under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act.
  • What aggregate sentence and non-parole period were appropriate, having regard to the offender's subjective circumstances, criminal history, and the purposes of sentencing under s 3A.
  • Whether special circumstances existed to justify a variation of the standard non-parole period ratio.

Decision

The Court awarded a guilty plea discount of approximately 20%, reflecting the substantial utilitarian benefit of the plea. Freeing a 10 to 12 day trial slot almost four months before the scheduled trial date was of real practical value to a court experiencing severe backlog and resourcing constraints.

In doing so, the Court expressly departed from giving significant weight to R v Borkowski, on the basis that conditions had materially changed since that 2009 decision. The backlog and delays now experienced by the District Court at Parramatta, which Sides QC DCJ described as among the worst in the State, were not present when Borkowski was decided.

No discount for remorse was available. The Court found that the conditions required under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act were not established on the material before it.

The Court found special circumstances, principally because of the offender's extended period on protection in custody and the need for a lengthened period of supervised parole. The related AVO breach (on the s 166 certificate) was taken into account in assessing the criminality of count 1, with the Court convicting but imposing no separate punishment under s 10A.

Orders Made

  • Aggregate term of imprisonment of 30 months, commencing 26 September 2014.
  • Non-parole period of 20 months; release to parole on 25 May 2016, subject to supervision.
  • Indicative sentences: Count 1 (assault occasioning actual bodily harm) 12 months; Count 2 (influencing a witness) 2 years.
  • Convicted on AVO breach (sequence 8, s 166 certificate); no punishment imposed pursuant to s 10A.
  • Domestic violence order made under s 39(1): not to assault, molest or harass, with a detention period of 10 months.

Key Takeaways

  • The District Court held that the severe backlog and resourcing pressures at Parramatta represented a material change in circumstances since R v Borkowski (2009), justifying reduced reliance on that authority when calibrating guilty plea discounts.
  • A guilty plea discount of approximately 20% was applied where the plea, entered at a "Super Callover," freed a lengthy trial date almost four months before it was listed, producing substantial utilitarian benefit to the court system.
  • Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, a remorse discount requires specific conditions to be established on the evidence; an absence of satisfactory material will preclude that discount.
  • Special circumstances can be found where an offender has spent an extended period on protection in custody, warranting a longer supervisory parole period beyond the standard ratio.
  • Where a related summary matter is dealt with on a s 166 certificate, the court may take that conduct into account in assessing the criminality of a principal count and, pursuant to s 10A, record a conviction without imposing additional punishment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), ss 3A, 21A(3)(i), 10A
- Crimes (Administration of Sentence) Act 1999 (NSW)

Cases:
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R (discussed and distinguished in part)