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District Court 10 October 2018

R v Suleiman

[2018] NSWDC 542

Domestic & family violencePublic order & justice offences

Citation: R v Suleiman [2018] NSWDC 542
Court: District Court of New South Wales
Date: 10 October 2018
Judge(s): Bennett SC DCJ

Background

The offender, a 31-year-old man, pleaded guilty to two offences under the Crimes (Domestic and Personal Violence) Act 2007. The charges arose from a deteriorating domestic relationship with the victim, referred to by her initials SH, following a publication restriction imposed by the court.

The first count alleged stalking between 1 and 30 December 2016 at Mortdale, where the offender repeatedly waited in his car outside SH's workplace, admitted doing so up to six times via WhatsApp messages, and sent her a photograph taken from his vehicle of her place of employment. The second count alleged intimidation on 30 December 2016 at Canterbury, directed at causing SH to fear physical harm.

The matter had been listed for trial on 27 August 2018 but was resolved through charge negotiations the following day. The Crown accepted pleas to the two counts and directed no further proceedings on a third charge of assault occasioning actual bodily harm under the Crimes Act 1900.

  • What sentence was appropriate for two counts of stalking or intimidation in a domestic violence context, where the offender had prior domestic violence antecedents and had already spent 241 days in custody?
  • What discount, if any, was warranted for the utilitarian value of late guilty pleas?
  • Whether a Community Correction Order, rather than a further custodial sentence, was appropriate having regard to the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999, including rehabilitation.
  • Whether the safety of the domestic violence victim was adequately addressed by the proposed sentencing disposition, as required before making a Community Correction Order under s 4B(3) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether a final Apprehended Violence Order was required as a consequence of the proceedings under s 39 of the Crimes (Domestic and Personal Violence) Act 2007.

Decision

Bennett SC DCJ declined to impose a further period of imprisonment, notwithstanding the offender's relevant prior record. The court noted that the offender had already spent 241 days in pre-sentence custody referable to these offences and had served concurrent two-month sentences for contravening an apprehended violence order against the same victim. In those circumstances, the judge was satisfied that supervised rehabilitation through a Community Correction Order was the appropriate response.

The court acknowledged the late timing of the guilty pleas, concluding that had a custodial sentence been imposed, a discount of approximately 15 per cent would have applied to reflect their utilitarian value. Because no term of imprisonment was ultimately imposed, the precise calculation was not required.

The judge applied s 4A(b) of the Crimes (Sentencing Procedure) Act 1999, which requires a court to consider rehabilitation as a sentencing purpose, and was satisfied that supervision under a Community Correction Order would best serve that objective. The court also addressed the mandatory victim safety consideration under s 4B(3) before making the order, and noted that if the order were breached and imprisonment became necessary, the requirements of any Intensive Correction Order would need separate consideration.

On the question of the apprehended violence order, the court found that s 39 of the Crimes (Domestic and Personal Violence) Act 2007 required a final order to be made as a consequence of the domestic violence offending, and made such an order with standard conditions.

Orders Made

  • The offender was convicted of both counts (stalking and intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007).
  • A Community Correction Order of 3 years was imposed in respect of each offence, pursuant to s 85 of the Crimes (Sentencing Procedure) Act 1999.
  • Standard conditions applied: the offender must not commit any offence and must appear before the court if called upon during the term of the orders.
  • The orders were supervised: the offender was required to submit to supervision by a Community Corrections officer for as long as the officer considered supervision appropriate.
  • The offender was directed to report to the Community Corrections Office at Burwood within three working days.
  • A Final Apprehended Violence Order was made with standard conditions under s 39 of the Crimes (Domestic and Personal Violence) Act 2007.
  • The third count (assault occasioning actual bodily harm) was withdrawn and dismissed, with no further proceedings.

Key Takeaways

  • Under s 4B(3) of the Crimes (Sentencing Procedure) Act 1999, a court must consider the safety of a domestic violence victim as a paramount factor before imposing a Community Correction Order or Conditional Release Order for a domestic violence offence.
  • The District Court treated the 241 days of pre-sentence custody already served as a significant factor weighing against the imposition of a further custodial sentence, even where the offender had prior domestic violence antecedents.
  • A late guilty plea, entered on the eve of trial following charge negotiations, still attracted utilitarian value for sentencing purposes, though the court assessed the applicable discount at approximately 15 per cent rather than the higher discounts available for earlier pleas.
  • Section 39 of the Crimes (Domestic and Personal Violence) Act 2007 requires a court to make a final Apprehended Violence Order as a matter of course upon finalisation of domestic violence proceedings, regardless of the sentence imposed.
  • Where rehabilitation is identified as the primary sentencing purpose under s 4A(b) of the Crimes (Sentencing Procedure) Act 1999, a supervised Community Correction Order may be preferred over imprisonment even where the offender has prior relevant convictions, provided victim safety is adequately addressed.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 39
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4A, 4B, 9, 85, 87, 88, 89
- Crimes Act 1900 (NSW), s 59(1)

Cases cited: None cited in the judgment.