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District Court 7 June 2019

R v TL

[2019] NSWDC 239

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM INTIMIDATION COMMON ASSAULT SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v TL [2019] NSWDC 239
Court: District Court of New South Wales
Date: 7 June 2019
Judge: Lerve DCJ

Background

The offender faced sentencing across two separate criminal matters arising from a domestic relationship. The first matter proceeded to a judge-alone trial, concluding with guilty verdicts on 22 February 2019. The second matter was listed for trial on 3 June 2019 but resolved by a late guilty plea, with the Crown having been notified of that plea the week before the trial date.

The offences in the trial matter spanned a period in late 2017 and included assaults on a heavily pregnant complainant, intimidation, and rape. The offences in the plea matter involved a separate count of sexual intercourse without consent against the same complainant. Throughout the relevant period the offender was subject to a Domestic Violence Order.

The sentencing hearing addressed how the two matters should be dealt with together, what discount (if any) applied to the late guilty plea, and what aggregate sentence was appropriate across all nine counts.

  • Whether any discount for a guilty plea applied to the trial matter convictions (which were defended)
  • The appropriate discount for the late guilty plea in the second matter, given the Crown was notified one week before the scheduled trial date
  • The objective seriousness of each individual offence for the purpose of fixing notional individual sentences
  • The weight to be given to the standard non-parole period of seven years for sexual intercourse without consent
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total sentence
  • The appropriate aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999

Decision

Because the trial matter was fully defended, the District Court confirmed that no discount for a guilty plea could be applied to those convictions. The court was careful to note, consistently with established principle, that no additional penalty attached to the offender having put the Crown to proof.

On the second matter, the court accepted that the plea carried some utilitarian value, particularly in sparing the complainant from giving evidence. However, given the advanced state of trial preparation at the time the plea was indicated, the court fixed the discount at 10 per cent rather than the 15 per cent sought by the defence.

The court assessed the individual offences across a range of objective seriousness. The assault on the heavily pregnant complainant (count 1) was placed moderately below mid-range. The intimidation involving prolonged physical harassment in hospital (count 2) was assessed at mid-range. The kick to the complainant's head, which triggered a seizure in a person known to suffer from epilepsy (count 6), was assessed as towards the upper end of the range for common assault. Both rape offences were sentenced by reference to the standard non-parole period of seven years as a guidepost, with the second matter attracting a starting point of five years before the 10 per cent plea discount was applied.

The court found that special circumstances existed justifying a departure from the standard one-third ratio between the parole period and the total sentence, resulting in a non-parole period of approximately 62.5 per cent of the total. An aggregate sentence was imposed under section 53A, with full imprisonment assessed as the only appropriate disposition given the serious and repeated nature of the domestic violence.

Orders Made

  • The offender was convicted on all eight counts in file 2017/343357 and the single count in file 2018/24012.
  • An aggregate sentence of 7 years imprisonment was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999.
  • The non-parole period was fixed at 4 years and 4 months, commencing 11 January 2018 and expiring 10 May 2022.
  • A parole period of 2 years and 8 months was set, running from 11 May 2022 to 10 January 2025.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.

Key Takeaways

  • No discount for a guilty plea is available where an offender has been convicted after a defended trial; the District Court confirmed that the absence of a discount does not mean the sentence is elevated as a form of punishment for contesting the charges.
  • A late guilty plea notified only one week before trial, in circumstances where the complainant and witnesses were prepared to give evidence, attracted a discount of only 10 per cent rather than the higher figure of 15 per cent argued for by the defence.
  • Where a domestic violence complainant was heavily pregnant at the time of an assault, the court treated that circumstance as an aggravating feature that defence submissions could not properly omit.
  • The standard non-parole period of seven years for sexual intercourse without consent operated as a principal guidepost in the instinctive synthesis process, alongside the 14-year maximum penalty.
  • Special circumstances justifying a longer-than-usual parole period can arise from factors particular to the offender and their prospects of rehabilitation; in this case the court found such circumstances existed and reduced the non-parole period to approximately 62.5 per cent of the total sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61, 61I
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A

Cases
- R v Abboud [2005] NSWCCA 251
- R v AJP [2004] NSWCCA 434
- Beale v The Queen [2015] NSWCCA 120
- R v Biles (No 2) [2017] NSWSC 525
- Cahyadi [2007] NSWCCA 1
- Cherry v R [2017] NSWCCA 150
- Bugmy v The Queen (2013) 249 CLR 571
- DPP v Darcy-Shillingsworth [2017] NSWCCA 224
- Eckermann [2013] NSWCCA 188
- Efthiamadis v The Queen (No 2) [2016] NSWCCA 9
- Hamid [2006] NSWCCA 302
- Hiron [2007] NSWCCA 336
- Jolly v R [2013] NSWCCA 76
- MAK & MSK v R (2006) 167 A Crim R 159
- Locke v R [2010] NSWCCA 296
- Postiglione v The Queen (1997) 189 CLR 295
- Quinn v R [2018] NSWCCA 297
- Vragovic [2007] NSWCCA 46