Citation: R v Watkins [2018] NSWDC 103
Court: District Court of New South Wales
Date: 23 March 2018
Judge(s): Hatzistergos DCJ
Background
The offender pleaded guilty to nine offences involving two complainants, his former partner (referred to as LP) and a subsequent partner (referred to as AK). At the time of the offences, the offender was subject to three good behaviour bonds imposed at Mudgee Local Court in July 2015. He was unemployed, receiving government benefits, and had been diagnosed with an acute form of Asperger's syndrome.
The offences involving LP arose from incidents in March 2015 and December 2015. The March 2015 incident involved a serious physical attack, including the offender holding a steak knife to LP's throat, strangling her, and threatening to slit her throat while she was five months pregnant and their 13-month-old child was present in an adjacent room. The December 2015 incidents included further assaults and, on New Year's Eve, sexual intercourse without consent.
The offences involving AK arose from an incident in October 2015, when the offender punched her in the face with a closed fist during an argument, causing a black eye. The commission of these further offences also constituted a breach of the three existing good behaviour bonds.
Legal Issues
- Whether the existing good behaviour bonds should be called up as a result of the offender's further offending
- The appropriate sentences for each of the nine offences, including assault occasioning actual bodily harm, common assault, use of an offensive weapon with intent to commit an indictable offence, intimidation, and sexual intercourse without consent
- The applicable aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether a discount of 15% was appropriate for the guilty plea
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the overall sentence
- How the principles of accumulation, concurrency and totality should govern the aggregate sentence
Decision
The court addressed the bond breach first, consistent with the procedural requirement established in DPP v Cooke. No submission was advanced that the breach was trivial or otherwise excusable. Hatzistergos DCJ called up all three bonds and imposed 12 months imprisonment on each count to which they related.
On the substantive offences, the court identified several aggravating factors: the offences were committed in the victim's home; the offender was on conditional liberty at the time; he had prior convictions; and the sexual assault offence involved a victim who was particularly vulnerable, being a former domestic partner in circumstances of ongoing coercive conduct. Self-intoxication was expressly excluded as a mitigating factor. The court accepted that the offender had demonstrated genuine remorse and gave weight to his guilty plea, applying a discount of 15%.
The court found that special circumstances existed, having regard to the overall length of the custodial term, the offender's personal circumstances including his Asperger's diagnosis, and the need to ensure a meaningful period of supervised parole. This finding justified a non-parole period that departed from the standard statutory ratio. The court sentenced the offender to an aggregate term of 9 years imprisonment, with a non-parole period of 5 years commencing 13 February 2017.
Orders Made
- All three good behaviour bonds called up; 12 months imprisonment imposed on each related count
- Count 1 (Assault Occasioning Actual Bodily Harm): 1 year and 8 months imprisonment (after 15% plea discount from 2 years)
- Count 7 (Common Assault): 12 months imprisonment (after plea discount from 15 months)
- Count 8 (Sexual Intercourse Without Consent): 5 years and 1 month imprisonment, with a non-parole period of 3 years and 6 months (after plea discount from 6 years)
- Count 9 (Common Assault): 15 months imprisonment (after plea discount from 18 months)
- Aggregate sentence of 9 years imprisonment, commencing 13 February 2017
- Non-parole period of 5 years, expiring 12 February 2022
- Parole period from 13 February 2022 to 12 February 2026
- Earliest release date: 12 February 2026
Key Takeaways
- The District Court confirmed that where a further offence constitutes a breach of a good behaviour bond under s 12 of the Crimes (Sentencing Procedure) Act 1999, the breach must be addressed before sentencing on the new offences, following the procedure endorsed in DPP v Cooke.
- Self-intoxication is not available as a mitigating factor in sentencing, regardless of the offender's level of intoxication at the time of the offences.
- A finding of special circumstances allows a court to reduce the non-parole period relative to the head sentence to ensure an extended period of supervised parole, particularly where the aggregate sentence is lengthy and the offender has rehabilitative needs.
- Offences committed in the victim's home, while the offender is on conditional liberty, and against a victim in a vulnerable domestic situation, each operate as distinct statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.
- Where multiple offences span two complainants and different time periods, the principles of accumulation, concurrency and totality govern how individual sentences are combined into an aggregate term that reflects the overall criminality without being crushing.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A, 28, 47, 98(3)
- Crimes Act 1900 (NSW), ss 33, 59, 61, 61I, 61J
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Cases
- Yates v Commissioner for Corrective Services of NSW [2014] NSWSC 653
- Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2
- Georgopoulos v R [2010] NSWCA 246
- R v Hibberd [2009] NSWCCA 20
- R v Baines [2016] NSWCCA 132
- Frigiani v R [2007] NSWCCA 81
- R v Gommerson (2014) A Crim R 534; [2014] NSWCCA 159
- R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302