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District Court 16 April 2019

R v Beaver

[2019] NSWDC 215

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE FORM 1 S 166 CERTIFICATE OFFENDER ON PAROLE AT TIME OF OFFENDING BREACH OF ADVO

Citation: R v Beaver [2019] NSWDC 215
Court: District Court of New South Wales
Date: 16 April 2019
Judge: Hunt DCJ

Background

The offender, Jonathan Edward Beaver, appeared for sentencing on nine offences arising from a sustained course of conduct against his former partner between September and November 2017. The offending included physical assaults, intimidation, being armed with intent to commit an indictable offence, doing an act to influence a witness, and escaping from police custody.

The offender was on parole at the time of the principal offending, and an apprehended domestic violence order (ADVO) protecting the victim was in place for much of the relevant period. He had a prior record that included earlier domestic violence offences, for which he was serving parole when these matters arose.

The victim suffered injuries including a hairline fracture to her ankle after she jumped from a moving vehicle during one of the assaults, demonstrating, as the court observed, the extent of her fear. The offender was arrested on 4 October 2017 and had remained in custody from that date.

  • What indicative sentence was appropriate for each discrete offence, after applying a 25% utilitarian discount for early guilty pleas?
  • How should aggravating factors (offending on parole, existence of an ADVO, prior domestic violence convictions) and mitigating factors (early plea, remorse, absence of planning) be balanced?
  • What aggregate sentence was appropriate, having regard to totality and the principle against a crushing sentence?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default (that is, less than three-quarters of the head sentence)?
  • How should the Form 1 matter (escape from police custody) and the related section 166 matter (contravening an ADVO) be incorporated into the sentencing exercise?

Decision

Hunt DCJ applied a 25% utilitarian discount to each indicative sentence, reflecting the offender's early guilty plea. The court identified the offending on parole and the existence of an ADVO as statutory aggravating factors under section 21A(2) of the Crimes (Sentencing Procedure) Act, while treating the absence of planning, the guilty plea, and demonstrated remorse as mitigating factors under section 21A(3).

The court characterised the objective seriousness of individual offences across a range from midrange to just above midrange, noting the sustained and terrifying nature of the overall conduct. The Form 1 matter (escape from police custody) was taken into account in fixing the indicative sentence for the armed with intent count, placing upward pressure on that component. The section 166 ADVO contravention was sentenced separately and made wholly concurrent with the aggregate sentence.

Having regard to totality, the court imposed an aggregate sentence, noting that an aggregate term invokes notional principles of totality and that partial concurrence of the individual terms was reflected in the final figure. The court found special circumstances justifying a non-parole period of four and a half years on the seven-year aggregate, given the offender's rehabilitation prospects and his position approaching middle age.

Orders Made

  • Aggregate sentence of seven years imprisonment, commencing 1 January 2018 and expiring 31 December 2025.
  • Non-parole period of four and a half years, with the earliest release to parole on 30 June 2022 (special circumstances found).
  • Indicative sentences for each count (after 25% discount):
  • Common assault: 13 months and two weeks
  • Assault occasioning actual bodily harm (18 September 2017): 18 months
  • Armed with intent (Form 1: escape police custody): 27 months
  • Stalk and intimidate: 15 months
  • Assault occasioning actual bodily harm (2 October 2017): 15 months
  • Act with intent to influence a witness: 3 years
  • Assault occasioning actual bodily harm (4 October 2017): 18 months
  • Section 166 matter (contravening ADVO): fixed term of 12 months, commencing 1 January 2018 and expiring 31 December 2018, wholly concurrent with the aggregate sentence.

Key Takeaways

  • Offending on parole and breaching an ADVO are statutory aggravating factors under section 21A(2) of the Crimes (Sentencing Procedure) Act and were treated as such, adding weight to the overall sentence.
  • An aggregate sentence under the Crimes (Sentencing Procedure) Act carries notional totality principles within it, allowing the court to structure partial concurrence across a range of related offences without articulating individual cumulative or concurrent orders for each count.
  • Where no standard non-parole period applies to any of the component offences, the court is not required to state a non-parole period for each indicative sentence, only for the aggregate.
  • Special circumstances can justify reducing the non-parole period below the default statutory proportion, and the District Court here grounded that finding in the offender's rehabilitation prospects and stage of life.
  • A Form 1 matter, while not separately punishable, places upward pressure on the sentence for the count to which it attaches, a principle consistent with the approach in cases such as R v Burton [2008] NSWCCA 128.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61, 59, 114(1)(a), 323(a), 324
- Crimes (Domestic and Personal Violence) Act 2007 (NSW): ss 13, 14
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A(2), 21A(3)
- Criminal Procedure Act 1986 (NSW): s 166

Cases
- Cross v R [2016] NSWCCA 214
- Evans v R [2017] NSWCCA 281
- R v Burton [2008] NSWCCA 128
- R v Callaghan [2006] NSWCCA 58
- R v De Simoni (1981) 147 CLR 383
- R v Hamid [2006] NSWCCA 302; (2006) A Crim R 179