Citation: R v Van Drunen [2019] NSWDC 411
Court: District Court of New South Wales
Date: 6 August 2019
Judge: Bright DCJ
Background
The offender, a 38-year-old man, was in a three-year domestic relationship with the victim, who was aged 50 at the time of the offending. They lived together at rented premises in Mooney Mooney, NSW. On 15 February 2018, an argument led to the victim locking the offender out of the house.
The offender kicked in the back door, entered the premises, grabbed the victim by the throat, choked her, and struck her on the head. He then pushed her off the veranda, straddled her on the ground, and struck her at least three times on the head using her own mobile phone. The assault was captured on CCTV. The victim sustained two deep lacerations to the head requiring a total of 13 sutures, as well as bruising and tenderness to the throat.
The offender pleaded guilty in the Local Court on 23 November 2018 to reckless wounding, assault occasioning actual bodily harm, and destroying or damaging property. He was sentenced in the District Court on 6 August 2019.
Legal Issues
- What was the appropriate objective seriousness of the reckless wounding and assault offences, taking into account the domestic violence context?
- What weight should be given to specific and general deterrence, denunciation, and community protection in sentencing for domestic violence offences?
- Whether any mental health considerations affected the sentence.
- Whether special circumstances existed justifying a variation of the statutory ratio between the non-parole period and the balance of sentence.
- Whether the sentence could be served by way of an intensive corrections order (ICO), or whether full-time imprisonment was required.
Decision
Bright DCJ assessed the reckless wounding offence as falling in the middle of the range of objective seriousness. Although the physical injuries were not the most severe conceivable for a wounding offence, the domestic violence context, the sustained and callous nature of the attack visible on CCTV, and the use of a mobile phone as a weapon elevated the overall assessment. The assault occasioning actual bodily harm was separately assessed, with the choking and head-striking taken into account.
The court applied established High Court and Court of Criminal Appeal authority emphasising that domestic violence offences attract significant weight to deterrence, both specific and general, as well as denunciation and community protection. Drawing on Munda v Western Australia and The Queen v Kilic, Bright DCJ noted that current sentencing practice reflects changed community attitudes to domestic violence and the state's obligation to vindicate the dignity of victims. A 25 per cent discount was applied to reflect the timing of the guilty plea.
The court found special circumstances under section 44(2B) of the Crimes (Sentencing Procedure) Act 1999, warranting a variation of the standard ratio between the non-parole period and the balance of sentence. The judgment notes mental health as a relevant subjective consideration, though the court did not allow it to diminish the weight given to deterrence and denunciation.
The court rejected the submission that the sentence be served by way of an ICO. Applying section 66 of the Crimes (Sentencing Procedure) Act 1999, which requires community safety to be the paramount consideration, Bright DCJ concluded that full-time imprisonment was the only appropriate sentence given the seriousness of the domestic violence offending.
Orders Made
- The offender was convicted of all three offences.
- For reckless wounding and assault occasioning actual bodily harm: an aggregate sentence of 2 years and 9 months, commencing 7 July 2019 and expiring 6 April 2022, with a non-parole period of 1 year and 7 months expiring 6 February 2021. The offender was directed to be released to parole on 6 February 2021.
- Special circumstances were found, and the statutory non-parole period ratio was varied under section 44(2B) of the Crimes (Sentencing Procedure) Act 1999.
- For destroying or damaging property: a Community Corrections Order for 12 months, commencing 6 August 2019 and expiring 5 August 2020, subject to standard conditions (no offending; attendance before the court if called upon).
Key Takeaways
- The District Court confirmed that the domestic violence context elevates the objective seriousness of assault and wounding offences, even where the physical injuries might otherwise fall in a lower range.
- Under the framework from Munda v Western Australia (2013) 249 CLR 600 and The Queen v Kilic (2016) 259 CLR 256, sentencing courts are required to give significant weight to deterrence, denunciation, and community protection in domestic violence cases, reflecting contemporary societal attitudes.
- Community safety is the paramount consideration when a court assesses an ICO application under section 66 of the Crimes (Sentencing Procedure) Act 1999; here, the gravity of the domestic violence offending meant full-time custody was the only appropriate outcome.
- Special circumstances can justify varying the statutory ratio between the non-parole period and the balance of sentence, producing a longer supervision period on parole, even within an aggregate sentence of under three years.
- A guilty plea entered at the Local Court stage attracted a 25 per cent discount on sentence, consistent with the approach to timing of pleas under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(4), 59, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 8, 44(2B), 66
Cases
- Cherry v R [2017] NSWCCA 150
- Majzoub v R [2019] NSWCCA 94
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Patsan v R [2018] NSWCCA 129
- R v Endigarov (2001) 125 A Crim R 551
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48