Citation: R v Phillip Michael Summerfield [2019] NSWDC 126
Court: District Court of New South Wales
Date: 16 April 2019
Judge: His Honour Judge Lerve
Background
The offender had been in an intimate domestic relationship with the victim from 2014. The relationship was characterised by persistent jealousy, arguments, and violence. After the relationship ended in mid-2016, the pair briefly reconnected in early 2017.
On 10 May 2017, the offender collected the victim from Leeton to travel to Young. During the journey he stopped the car and punched her repeatedly in the face, causing significant bleeding. Later that night, at a Young address, he engaged in penile-vaginal intercourse with the victim without her consent, the Crown case resting on recklessness as to consent.
The offender was also sentenced on charges arising from a severity appeal out of Wagga Wagga Local Court, relating to threatening a witness in judicial proceedings and contravening a domestic violence order. Those offences were committed while the offender was on bail for the principal matters.
Legal Issues
- What discount, if any, applied for the utilitarian value of guilty pleas entered at different stages of proceedings, including one entered on the day fixed for trial?
- How should the standard non-parole period for sexual intercourse without consent (7 years, against a 14-year maximum) inform the sentencing exercise?
- How should the various offences, including those arising from the severity appeal, be structured into a coherent total sentence that reflects totality principles?
- Whether the severity appeal against the aggregate Local Court sentence of 26 months should be upheld.
Decision
Guilty plea discounts. His Honour allowed a 20% discount for the utilitarian value of the guilty pleas to the intimidation and assault charges, entered shortly after committal though before a trial date was fixed. The sexual intercourse without consent charge was only pleaded guilty to on the day fixed for trial, attracting a 10% discount. In both instances, His Honour noted he was erring on the side of generosity, citing R v Borkowski [2009] NSWCCA 102.
Sexual intercourse without consent. The offence carries a maximum of 14 years imprisonment and a standard non-parole period of 7 years. His Honour acknowledged the one-step instinctive synthesis required in such cases, treating the maximum penalty and the standard non-parole period as the two principal guideposts. A starting point of 6.5 years was arrived at, producing a sentence of 5 years and 10 months with a non-parole period of 4 years and 4 months.
Intimidation and assault. The intimidation charge produced a total sentence of 2 years (starting point of 2.5 years), and the assault occasioning actual bodily harm charge produced a total sentence of 2 years (starting point of approximately 2 years). His Honour noted that while these offences ordinarily attract Local Court jurisdiction, it was entirely inappropriate to deal with them other than on indictment given the gravity of the third count.
Severity appeal. His Honour dismissed the severity appeal against the Local Court sentence of 26 months (non-parole period 15 months) imposed for threatening a witness and contravening a domestic violence order. Those offences were committed while the offender was on bail, which weighed against any reduction.
Orders Made
Severity appeal (file 2018/00384329):
- Appeal dismissed; convictions confirmed
- Aggregate sentence of 26 months with a non-parole period of 15 months confirmed
- Non-parole period: 28 December 2017 to 27 March 2019
- Balance of term: 28 March 2019 to 27 February 2020
Principal sentence matters (file 2017/00150225):
- Offender convicted on each count to which guilty pleas were entered
- Aggregate sentence of 7 years and 4 months, with a non-parole period of 5 years
- Non-parole period: 28 December 2018 to 27 December 2023
- Balance of term: 28 December 2023 to 27 April 2026
- Offender recommended for release to parole at expiration of non-parole period
- Recommendation that the offender participate in the Violent Offenders Treatment Programme while in custody
- Recommendation that any parole release be supervised by the Department of Community Corrections
Total effective sentence: 8 years and 4 months, with a period in actual custody of 6 years (72% of the total effective sentence).
Key Takeaways
- A guilty plea entered on the day fixed for trial attracted only a 10% utilitarian discount, while pleas entered shortly after committal (before a trial date was fixed) attracted 20%, with His Honour noting both figures reflected generosity rather than strict entitlement.
- Where an offence carries a standard non-parole period, the sentencing exercise remains a one-step instinctive synthesis, with the maximum penalty and standard non-parole period serving as the two principal guideposts rather than as prescriptive floors or ceilings.
- Offences that ordinarily fall within Local Court jurisdiction may appropriately be dealt with on indictment when joined on an indictment with a more serious charge, such as sexual assault.
- Offending committed while on bail for other matters is treated as a significant aggravating factor, directly informing both the severity appeal outcome and the structure of the total sentence.
- In dismissing the severity appeal, the District Court confirmed that an aggregate Local Court sentence of 26 months for threatening a witness and contravening a domestic violence order was not manifestly excessive in the circumstances, including the fact that the conduct occurred on bail.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61I, 326(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 54(3)(a)
Cases:
- R v Borkowski [2009] NSWCCA 102
- Bugmy v The Queen [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Hili & Jones v The Queen [2010] HCA 45
- Brown v R [2014] NSWCCA 215
- Cherry v R [2017] NSWCCA 150
- Collins v R [2010] NSWCCA 13
- Zreika v R [2012] NSWCCA 44
- Quinn v R [2018] NSWCCA 297
- R v Biles (No 2) [2017] NSWSC 525
- Hamid [2006] NSWCCA 302
- Stanford v R [2007] NSWCCA 73
- Marinellis v R [2006] NSWCCA 307
- Efthiamadis v The Queen (No 2) [2016] NSWCCA 9
- Church [2012] NSWCCA 149
- Eckermann [2013] NSWCCA 188
- Hiron [2007] NSWCCA 336
- Vragovic [2007] NSWCCA 46