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District Court 22 March 2019

R v Tanbuz

[2019] NSWDC 199

Assault & violenceDomestic & family violence
CRIMINAL LAW ASSAULT OCCASIONING ACTUAL BODILY SPECIAL CIRCUMSTANCES.

Citation: R v Tanbuz [2019] NSWDC 199
Court: District Court of New South Wales
Date: 22 March 2019
Judge(s): Colefax SC DCJ

Background

The offender, a 24-year-old man, was in a domestic relationship with the primary victim. Following an argument in October 2017, he pursued her to her mother's home in the early hours of the morning, armed with scissors and heavily affected by both alcohol and methylamphetamine.

At the mother's home, the offender grabbed the primary victim by the hair, pushed her against a vehicle, and attempted to cut her hair, injuring her hand in the struggle. When two other women, the victim's mother and a friend, came to her assistance, he punched both of them in the face, causing lacerations, bruising, and injuries requiring stitching.

After the three women retreated inside and locked the doors, the offender kicked the back door open with sufficient force to break it, then punched the primary victim in the face. He was on bail at the time of all the offending.

  • What were the appropriate objective seriousness ratings for each principal offence under ss 59(1) and 112(2) of the Crimes Act 1900 (NSW)?
  • What aggregate sentence, including non-parole period, was warranted having regard to the offending, the offender's subjective circumstances, and his early guilty plea?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Colefax SC DCJ assessed each assault occasioning actual bodily harm as slightly below mid-range for offences of that type, and the aggravated break and enter as a mid-range offence. Both categories of offence were aggravated by the fact that the offender was on bail at the time, and by the circumstance that the offending occurred at the home of the primary victim's mother.

The offender received a 25% discount on sentence for entering guilty pleas at the first available opportunity. His Honour identified a number of subjective factors, including that this was the offender's first time in custody, his youth, and his prospects of rehabilitation. These factors grounded a finding of special circumstances under the sentencing legislation, justifying a non-parole period below the standard 75% ratio of the head sentence.

The indicative sentence for each assault occasioning actual bodily harm, after the plea discount, was 18 months imprisonment. For the aggravated break and enter, taking into account the Form 1 matters, the indicative sentence after discount was 6 years with an indicative non-parole period of 3 years. His Honour then imposed an aggregate sentence, backdated to the date the offender was taken into custody on 21 October 2017.

Orders Made

  • The offender was convicted of two counts of assault occasioning actual bodily harm (s 59(1), Crimes Act 1900) and one count of aggravated break and enter and commit serious indictable offence (s 112(2), Crimes Act 1900).
  • An aggregate sentence of 7 years imprisonment was imposed.
  • A non-parole period of 3 years and 6 months was fixed, commencing 21 October 2017 and expiring 20 April 2021.
  • The balance of term of 3 years and 6 months was fixed to run from 21 April 2021, expiring 20 October 2024.

Key Takeaways

  • The District Court assessed two domestic violence assaults as slightly below mid-range and the aggravated break and enter as mid-range, illustrating how objective seriousness is calibrated against the full spectrum of conduct for each offence type.
  • Being on bail at the time of offending, and committing offences at a victim's family home, were each treated as aggravating factors going to the overall sentence.
  • A first-time custodial term, the offender's youth, and enhanced rehabilitation prospects through a longer parole period together constituted special circumstances, warranting a non-parole period below the standard ratio established in cases such as R v Edigarov [2001] NSWCCA 436.
  • An early guilty plea attracted a 25% discount, consistent with established sentencing principle, and was applied to both the indicative sentences and the aggregate.
  • Form 1 matters do not automatically produce a meaningful increase in sentence; the sentencing court here found that the property damage matters on the Form 1 had no meaningful effect, whereas the additional assault on the Form 1 did warrant some uplift.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter and commit serious indictable offence)

Cases
- R v Edigarov [2001] NSWCCA 436