AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 February 2016

R v Abousleiman

[2016] NSWDC 80

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE DOMESTIC VIOLENCE

Citation: R v Abousleiman [2016] NSWDC 80
Court: District Court of New South Wales
Date: 26 February 2016
Judge(s): Berman SC DCJ

Background

The offender was in a de facto relationship of about eight months with a woman referred to as C, who had two young children: A, aged four, and J, aged two. The offender was not the biological father of either child. A dispute arose after the offender became angry that C would not answer repeated calls from a private number on her mobile phone.

In the presence of both children in the bedroom, the offender kicked C in the lower back and struck her repeatedly to the head and face. In the course of assaulting C, he came into contact with both children. All three were later taken to Canterbury Hospital, where C was found to have bruising and swelling to her face, head, and hip. A had bruising and a swollen cheek. J had a fractured left femur.

The offender was arrested the following day and initially denied all allegations when interviewed by police. He was remanded in custody for approximately three and a half months before being released on bail and directed to attend residential rehabilitation for six months.

  • What sentence was appropriate for three counts of assault occasioning actual bodily harm, given the objective gravity of domestic violence offending involving very young child victims?
  • Whether the fracture to J's femur could be treated as grievous bodily harm for sentencing purposes, or whether doing so would breach the rule in R v De Simoni.
  • What discount, if any, was appropriate for the late guilty pleas entered after negotiations between counsel?
  • Whether an intensive corrections order was a more appropriate sentencing disposition than a suspended sentence, having regard to the objective seriousness of the offending and the offender's prospects of rehabilitation.

Decision

His Honour found the objective gravity of the offending to be high. The children were very young, and while the offender may not have deliberately targeted them, he acted with recklessness in continuing to assault C while the children were present and in such proximity that he caused them physical injury. The court described this as a matter of grave concern.

On the question of J's fractured femur, Berman SC DCJ noted that a femur fracture would ordinarily constitute grievous bodily harm. However, sentencing the offender on that basis would have breached the principle in R v De Simoni (1981) 147 CLR 383, which prohibits a sentencing court from taking into account circumstances that would have constituted a more serious offence than the one charged. Accordingly, the court treated the fracture as a minor one, noting there was no evidence that J was significantly in pain or unable to walk.

The guilty pleas, entered after negotiations between legal representatives, attracted a 15 per cent sentence reduction. The court also took into account the offender's time in pre-sentence custody, the six months spent in residential rehabilitation as a form of quasi-custody, evidence of successful rehabilitation and drug abstinence, and his employment as an apprentice spray painter with a supportive employer. The priors from 2007 and 2008 were noted, but there had been no offending since.

The court rejected a suspended sentence as insufficiently punitive given the seriousness of the conduct. His Honour was satisfied that a custodial sentence of less than two years was appropriate and that an intensive corrections order was the right form, subject to the offender being assessed as suitable.

Orders Made

  • Bail continued until 27 May 2016.
  • The offender referred for assessment of suitability to serve a custodial sentence by way of an intensive corrections order.

Key Takeaways

  • The District Court confirmed that the rule in R v De Simoni (1981) 147 CLR 383 operates to prevent a sentencing court from treating an injury as constituting a more serious offence than the one actually charged, even where the facts might otherwise support that characterisation.
  • A 15 per cent discount on sentence was applied where guilty pleas were entered after negotiations between counsel, reflecting a lesser utilitarian value than an early plea.
  • Recklessness in the commission of a domestic violence assault, where very young children are present and are themselves injured, is treated as a significant aggravating feature going to objective gravity.
  • Demonstrated rehabilitation through completed residential treatment, sustained drug abstinence, and stable employment were accepted as relevant mitigating factors bearing on both sentence length and sentencing form.
  • A suspended sentence was found to be inadequate where the objective seriousness of the offending was high, even where the offender showed genuine prospects of rehabilitation; an intensive corrections order was preferred as a more appropriate punitive response.

Legislation and Cases Referenced

Cases:
- R v De Simoni (1981) 147 CLR 383

Legislation:
- No specific legislation was cited in the judgment text.