Citation: R v Mabb [2017] NSWDC 225
Court: District Court of New South Wales
Date: 8 June 2017
Judge: Berman SC DCJ
Background
The offender was the former partner of the complainant and father of her two children. On 8 August 2015, while the complainant was at a local oval with their six-year-old son, the offender left a threatening voicemail message on her phone in which he repeatedly threatened to kill her. He then made further calls and, after the complainant warned she would contact police, drove to her home.
At the complainant's home, the offender struck a glass sliding door with his hand, shattering it in front of the couple's two-year-old child. Despite the complainant calling triple-0 and ordering him to leave, the offender entered the home through an unlocked front door, laughed at the visibly distressed complainant, and picked up a piece of shattered glass. The complainant gathered her children and retreated to her bedroom. The offender left before police arrived but was arrested on 28 August 2015 and had remained in custody since then.
The offender pleaded guilty to two offences: using a carriage service to menace (a Commonwealth offence), and aggravated break, enter and commit a serious indictable offence (intimidation). His plea was entered on the first day of trial rather than at the earliest opportunity.
Legal Issues
- What aggregate sentence was appropriate for the two offences, taking into account their objective seriousness and the domestic violence context?
- What weight should be given to the offender's mental illness in sentencing, particularly in relation to general and personal deterrence?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory standard, given the offender's need for post-release psychiatric care?
- What discount applied to the sentence in light of the late guilty plea?
Decision
Berman SC DCJ rejected the submission that conduct of this kind is not atypical of relationship breakdowns, describing the offending as "seriously criminal" and "disgraceful." The domestic violence context significantly increased the objective seriousness of the offending. Aggravating factors included that the offender was on bail at the time, his children were present during the offending, and the offences occurred at the complainant's home. The court accepted, however, that the shattering of the glass door appeared unintentional, and that no actual physical violence occurred after the offender entered the premises.
The offender's long-standing mental illness, recently diagnosed as bipolar disorder, was accepted as relevant to the sentencing exercise. Consistent with established authority, this reduced the weight given to general deterrence. The court declined, however, to accept the parties' joint submission that it equally reduced the case for personal deterrence, finding nothing in the material to suggest the offender was incapable of understanding that further serious offending would result in imprisonment.
The late guilty plea attracted a reduction of approximately 10 percent. The court found special circumstances existed, primarily because of the offender's undoubted need for long-term psychiatric care upon release, which justified setting a non-parole period shorter than would otherwise apply. The sentencing judge also noted that the offender's mental illness had made his time in custody more difficult and that he had experienced problems accessing psychiatric review while imprisoned.
An apprehended violence order was imposed with the offender's consent for a period of two years from the date of sentence.
Orders Made
- Aggregate sentence of four years imprisonment with a non-parole period of two years, commencing 27 September 2015, making the offender eligible for parole from 26 September 2017.
- Special circumstances found, resulting in a non-parole period shorter than the standard, to account for the offender's need for long-term psychiatric care upon release.
- Apprehended violence order imposed for two years from the date of sentence, with conditions including: no approach within 100 metres of any premises where the complainant lives or works; no contact with the two children of the relationship except through a legal representative, by written agreement with the complainant, or pursuant to Family Law Act orders.
- Matters on the section 166 certificate withdrawn and dismissed.
Key Takeaways
- The District Court confirmed that the domestic violence context of an offence is a significant factor that increases objective seriousness, even where no actual physical violence is inflicted.
- A diagnosis of mental illness that reduces the weight given to general deterrence does not automatically reduce the weight given to personal deterrence; the sentencing court will assess whether the offender is capable of understanding the consequences of future offending.
- Where an offender's post-release need for psychiatric care is substantial and demonstrated, this can constitute special circumstances justifying a longer parole period relative to the head sentence.
- A guilty plea entered on the first day of trial, rather than at the earliest opportunity, attracted only a modest discount of approximately 10 percent rather than the fuller discount available for an early plea.
- The presence of children during the commission of domestic violence offences, and the fact that offending occurred at the complainant's home, were each treated as discrete aggravating features.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth) (using a carriage service to menace, with a maximum penalty of three years imprisonment)
- Crimes Act 1900 (NSW) (aggravated break, enter and commit serious indictable offence; intimidation)
- Family Law Act 1975 (Cth) (referenced in apprehended violence order conditions)
Cases cited: No cases were cited in the judgment text provided.