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District Court 6 May 2016

R v Benjamin Hayward

[2016] NSWDC 67

Assault & violenceFirearms & weaponsDomestic & family violence

Citation: R v Benjamin Hayward [2016] NSWDC 67
Court: District Court of New South Wales
Date: 6 May 2016
Judge(s): Mahony SC DCJ

Background

The offender and the victim had been in a domestic relationship for approximately 17 months and had one child together. On the evening of 7 November 2015, the offender attended the victim's home in Tolland, retrieved two hunting knives with roughly 20-centimetre blades from a shed, and returned inside where an argument developed with the victim and her mother.

During the confrontation, the offender grabbed the victim by the neck and dragged her toward the front door. When the victim's mother tried to intervene, the offender raised a knife directly toward her, causing her to back away in fear. He then dragged the victim outside, forced her into her car, and drove off with the two knives in the vehicle. Police intercepted the car shortly after, observing the victim crying and cowering in the passenger seat.

The offender was committed to the District Court for sentencing on two principal charges: taking and detaining a person for advantage under s 86(1)(b) of the Crimes Act 1900 (maximum 14 years), and intimidation in a domestic violence context under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (maximum 5 years). Two additional matters were placed before the court on a Form 1: possessing a knife in a public place and destroying or damaging property.

  • What sentence was appropriate for the principal offences of taking/detaining for advantage and domestic violence intimidation, having regard to the objective seriousness of the conduct?
  • How should the court treat the offender's significant criminal history, including multiple prior domestic violence offences and prior periods of conditional liberty?
  • What weight should the court give to the offender's diagnosed mental health conditions, including ADHD, social anxiety disorder, and major depressive disorder?
  • How should the totality principle apply when all offences arose from a single course of criminal conduct occurring within a short period?
  • What order should be made in respect of the several outstanding section 9 good behaviour bonds that the current offending had breached?

Decision

His Honour found the objective seriousness of the offending to be significant. The use of knives during a domestic altercation, the terrorising of both the victim and her mother in the presence of children, and the forcible removal of the victim from her home all aggravated the conduct. The offending occurred while the offender was subject to multiple section 9 good behaviour bonds imposed for offences of a similar nature, which weighed heavily against him.

The offender's criminal history was a substantial sentencing consideration. Over the preceding five years he had been convicted on at least three separate occasions for offences including stalking and intimidation, assault occasioning actual bodily harm, contravening an AVO, and possessing an unauthorised firearm. He had previously received the benefit of conditional liberty on multiple occasions and had continued to offend. His Honour noted the offender lacked insight into the effects of his behaviour and had demonstrated a poor attitude toward compliance with mental health treatment during prior supervision.

Some mitigating weight was given to the offender's diagnosed conditions of ADHD, social anxiety disorder, and major depressive disorder, as described in the psychiatric report of Dr Rafe Pulley. However, those conditions did not substantially reduce the sentence in circumstances where the offending was serious and the history of non-compliance was evident. The pre-sentence report indicated the offender was unsuitable for a Community Service Order but would benefit from post-release supervision with case management addressing domestic violence and mental health compliance.

Applying the totality principle as discussed in R v Pearce (1998) 194 CLR 610, R v Cahyadi (2007) 168 ACrimR 41, and R v Caldwell [2016] NSWCCA 55, His Honour ordered the sentence for the intimidation offence to be served concurrently, as all offences arose from the same single course of criminal conduct. In respect of the breached section 9 bonds, His Honour ordered that no further action be taken.

Orders Made

  • The offender was convicted of taking and detaining for advantage (s 86 Crimes Act 1900) and domestic violence intimidation (s 13(1) Crimes (Domestic and Personal Violence) Act 2007).
  • For the s 86 offence: non-parole period of 18 months commencing 7 November 2015, expiring 6 May 2017; balance of term 9 months from 7 May 2017 to 6 February 2018; total term 2 years and 3 months.
  • Eligibility for parole from 6 May 2017.
  • For the s 13(1) offence: 6 months imprisonment commencing 7 November 2015, served concurrently with the principal sentence.
  • The s 13(1) conviction was formally designated a domestic violence offence pursuant to s 12 of the Crimes (Domestic and Personal Violence) Act 2007.
  • In respect of each breached s 9 bond: no further action ordered pursuant to s 98(2)(a) of the Crimes (Sentencing Procedure) Act.
  • Form 1 matters (knife possession and property damage) taken into account.

Key Takeaways

  • A serious pattern of prior domestic violence offences, combined with repeated failures to comply with conditional liberty, can significantly limit the mitigating effect of personal circumstances such as mental health diagnoses.
  • Under the totality principle, where multiple offences arise from a single, continuous course of criminal conduct occurring within a short period, concurrent sentences may be appropriate to ensure the overall sentence reflects the totality of the criminality without becoming crushing.
  • Diagnosed mental health conditions, including ADHD and depressive disorders, were acknowledged by the District Court as relevant to sentencing but did not substantially reduce the sentence where the offending was objectively serious and the offender had demonstrated poor compliance with prior treatment.
  • The formal designation of a conviction as a "domestic violence offence" under s 12 of the Crimes (Domestic and Personal Violence) Act 2007 is a distinct sentencing step that the court must address expressly.
  • Where a defendant has breached good behaviour bonds through further offending, the sentencing court retains discretion under s 98(2)(a) of the Crimes (Sentencing Procedure) Act to take no further action on those bonds, particularly where a custodial sentence is being imposed for the fresh offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(1)(b), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12, 13(1)
- Summary Offences Act 1988 (NSW), s 11C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 98(2)(a)

Cases:
- R v Pearce (1998) 194 CLR 610
- R v Cahyadi (2007) 168 ACrimR 41
- R v Caldwell [2016] NSWCCA 55
- R v Boney [2008] NSWCCA 165