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District Court 2 November 2018

R v Roberts

[2018] NSWDC 473

Assault & violenceFirearms & weaponsDomestic & family violence
CRIME SENTENCE PAROLE PERIOD OF12 YEARS AT END OF THAT NON

Citation: R v Roberts [2018] NSWDC 473
Court: District Court of New South Wales
Date: 2 November 2018
Judge: Neilson DCJ

Background

The offender, a 56-year-old man at the time of sentencing, pleaded guilty to three counts on an indictment and asked the court to take into account a further four charges on a Form 1. All offences occurred on 31 August 2015 and were committed against his wife in their caravan at Doonside.

The offending took place over the course of a single evening. It escalated from verbal abuse and physical assault through to the offender producing two knives, placing them at the victim's neck, and threatening to decapitate her. He then used an aerosol can of insecticide as an improvised flamethrower, directing flames at the victim's face close enough to singe her eyebrows and hair, before throwing the can at her. He also threatened to kill himself and frame the victim for murder.

At the time of sentencing, the offender was already serving a sentence of 18 years imprisonment with a 12-year non-parole period, imposed by Judge Culver, for child sexual assault offences. That earlier sentence meant the offender would be approximately 65 years old when first eligible for parole on that matter. The present sentencing had to be crafted against that existing custodial backdrop.

  • What was the appropriate objective seriousness of each offence, including the s 114(1) Crimes Act 1900 "armed with intent" counts and the count of common assault involving open flame?
  • How should the aggregate sentence for these domestic violence offences be structured relative to the existing long-term sentence being served?
  • Whether special circumstances existed to justify departing from the standard statutory ratio between head sentence and non-parole period.
  • Whether the sentence should run wholly concurrently, wholly cumulatively, or partially cumulatively with the existing sentence, and from what date.

Decision

His Honour assessed the s 114(1) counts as falling towards the middle of the range of objective seriousness for that offence. Although offences under that provision commonly involve robbery or housebreaking, the court accepted the Crown's submission that using two knives against a domestic partner while threatening decapitation properly sat in that middle range. Both parties agreed with that characterisation.

The court treated the common assault constituted by directing open flame at the victim's face as a very serious example of its kind, falling towards the upper end of the range for common assaults. His Honour observed it was difficult to conceive of a common assault of much greater seriousness, given the deliberate use of an improvised flame directed at a sensitive and vulnerable part of the body.

On the question of accumulation, his Honour rejected a wholly concurrent sentence on the basis that it would allow the offender to escape any real punishment for these offences. However, a wholly cumulative sentence was also not imposed. Neilson DCJ found special circumstances, having regard to the offender's age, physical and mental health, and the real risk of institutionalisation given the length of time the offender would spend in custody. The court ordered partial accumulation, directing that the present head sentence commence on 27 May 2026, running concurrently with only the final year of the non-parole period imposed by Judge Culver.

Orders Made

  • The offender was convicted on each of the three counts in the indictment.
  • An aggregate sentence of 3 years imprisonment was imposed.
  • A non-parole period of 2 years was fixed, commencing 27 May 2026 and expiring 26 May 2028, with an additional period of 1 year expiring 26 May 2029.
  • Indicative sentences: Count 1 (armed with intent, knife thrown): 1 year 4 months; Count 2 (armed with intent, knives at victim's neck): 2 years 8 months; Count 3 (common assault by flame): 1 year 4 months.
  • Form 1 matters were taken into account on the indicative sentence for Count 2.
  • Special circumstances were found.
  • Breach of s 9 bonds to be dealt with at Wyong Local Court.
  • The court directed a copy of the psychologist's report (Exhibit 2) be sent to Corrective Services at Hunter Correctional Centre.

Key Takeaways

  • Using an aerosol can as an improvised flamethrower and directing flame at a victim's face with enough proximity to cause singeing was characterised by the District Court as falling towards the upper end of objective seriousness for common assault.
  • Where an offender is already serving a lengthy sentence, a wholly concurrent sentence will generally be wrong in principle because it allows the offender to avoid real punishment for separate, serious offending.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established by a combination of factors including the offender's age at the time of anticipated release, physical and mental health, and an identifiable risk of institutionalisation flowing from an extended period of continuous custody.
  • Partial accumulation, rather than full accumulation or full concurrency, was available as a discretionary tool to balance these competing considerations.
  • Offences under s 114(1) of the Crimes Act 1900 are not confined to robbery or housebreaking contexts; the provision applies where a person is armed with intent to commit any indictable offence, including intimidation in a domestic violence setting.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 114(1) (armed with intent to commit an indictable offence)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Cases: No cases were cited in the judgment as provided.