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District Court 28 July 2017

R v Steller

[2017] NSWDC 274

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM COMMON ASSAULT RECKLESSLY WOUND.

Citation: [2017] NSWDC 274
Court: District Court of New South Wales
Date: 28 July 2017
Judge: Bright DCJ

Background

The offender, a woman aged 55, pleaded guilty to eleven counts spanning assault occasioning actual bodily harm, common assault, and reckless wounding. The victims were her two children, a boy (born 2000) and a girl (born 2003), who lived with her at Lakelands in New South Wales.

The offending occurred between April 2012 and October 2013. The offender imposed extreme and controlling routines on the children, including elaborate cleaning rituals, severe food restriction, forced confinement in a bathroom for days at a time, and physical violence. She also required the children to rehearse cover stories (which she called "safety lies") to conceal the injuries she caused.

The children's father had separated from the offender but remained involved in the children's lives until his death from cancer in 2014. The children were removed from the offender's care when she was arrested in October 2013, following concerns raised by teachers at their school.

  • What sentences were appropriate for each of the eleven counts, having regard to the maximum penalties, the standard non-parole period for reckless wounding, and the aggravating and mitigating factors present?
  • What discount, if any, should be applied for the guilty pleas, given they were entered in the week before the matter was listed for trial?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify departing from the standard statutory ratio between the non-parole period and balance of term.
  • How the totality principle should be applied to determine an aggregate sentence that properly reflected the overall criminality, including two Form 1 offences.

Decision

Bright DCJ found that no penalty other than imprisonment was appropriate for any of the offences, having considered all alternatives under s 5(1) of the Crimes (Sentencing Procedure) Act 1999. The court took into account the purposes of sentencing under s 3A of that Act, the maximum penalties, and the prescribed standard non-parole period of three years for reckless wounding under s 54B(2).

The pleas of guilty were entered approximately one week before the matter was due to proceed to trial. The court allowed a discount of 15% to reflect the utilitarian value of that plea, a reduction at the lower end of the range given the late timing.

The court found special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting a variation of the standard statutory ratio between the non-parole period and the parole period. Bright DCJ noted that the offender was 55 years old, was serving her first period of custody, and that an extended period on parole would be appropriate to assist her transition from imprisonment.

An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, with indicative sentences set for each individual count. The court applied the totality principle by partially accumulating the sentences to reflect the separate episodes of criminality and the involvement of two separate victims.

Orders Made

  • The offender was convicted on each count.
  • Two Form 1 matters were taken into account (two common assault and child neglect offences, one set relating to each victim).
  • An aggregate sentence was imposed with a non-parole period of 2 years and 4 months, commencing 28 July 2017 and expiring 27 November 2019.
  • A balance of term of 1 year was imposed, expiring 27 November 2020.
  • Total term: 3 years and 4 months (starting point of 4 years, discounted by 15% for the guilty plea).
  • Earliest eligible release date on parole: 27 November 2019.

Key Takeaways

  • A late guilty plea (entered one week before trial) attracted a discount of only 15%, reflecting the limited utilitarian value of such a plea at that stage of proceedings.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established on the basis of the offender's age, her status as a first-time prisoner, and the need for an extended period of supervision on parole.
  • Where multiple offences involve separate episodes and separate victims, the totality principle requires partial accumulation of sentences rather than a simple concurrent structure, to ensure the final sentence properly reflects the full extent of the criminality.
  • The District Court applied the standard non-parole period for reckless wounding as a reference point under s 54B(2), consistent with the statutory framework governing that offence.
  • Prolonged domestic violence against children involving coercive control, physical harm across multiple incidents, and deliberate concealment was treated by the court as warranting full-time imprisonment, with no alternative sentencing option considered appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2) and (3), 44(2), 53A, 54B(2)
- Crimes Act 1900 (NSW), ss 35(4), 59(1), 61

Cases:
- Attorney General's Application No 1 of 2002 (2002) NSWCCA 518
- R v De Simoni (1981) 147 CLR 383
- R v Pitcher (unreported, 19 February 1996)
- R v Smith [2005] NSWCCA 286
- R v Palmer [2005] NSWCCA 349