Citation: R v Toufa [2019] NSWDC 438
Court: District Court of NSW
Date: 11 April 2019
Judge: M L Williams SC DCJ
Background
The offender was sentenced in relation to six offences arising from two separate incidents of domestic violence against his then-partner in early 2017. An apprehended domestic violence order was already in place to protect the victim at the time the offences were committed, and the offender was on conditional liberty.
The most serious incident occurred on 25 April 2017. The offender dragged the victim into a taxi, punched her repeatedly in the face during the journey, then dragged her out by her hair in Newtown and kicked and punched her on the street. He then produced a flick knife and brandished it at two members of the public who had intervened.
The charges included assault, assault occasioning actual bodily harm, take and detain with intent to obtain an advantage (the taxi incident), and two counts of being armed with intent to commit an indictable offence (against the two pedestrians). The earlier incident on 15 March 2017 gave rise to a separate assault charge.
Legal Issues
- What aggregate sentence was appropriate across six offences of varying objective seriousness, committed on two separate occasions?
- How should the aggravating factors of conditional liberty and offending in company be weighted?
- Did special circumstances exist warranting a departure from the standard non-parole period ratio, given the offender's rehabilitation needs?
- What weight should be given to the offender's subjective circumstances, including drug dependence, a leukaemia diagnosis, and limited insight into his offending?
Decision
Objective seriousness and the primary offence
The court found the facts of each offence indicated they were objectively serious matters (at [27]). The most serious charge, taking and detaining the victim with intent to obtain an advantage (count 2), was assessed as well below the midrange of objective seriousness (at [27]). Counts 5 and 6 involved separate victims, namely two members of the public threatened with a flick knife in a busy public location, and that distinction required some separate treatment (at [32]).
Aggravating factors
The court accepted the Crown's submissions that the offender was on conditional liberty at the time of the offending, had a significant criminal history commencing in his juvenile years, and that the offending on count 2 was technically committed in company because a friend was seated in the front of the taxi (at [2], [24]). The presence of an operative ADVO heightened the need for specific deterrence, general deterrence, and denunciation (at [2]).
Subjective circumstances and rehabilitation
The court accepted that the offender's father died when he was thirteen, likely contributing to his trajectory toward drug use and crime (at [19]). His leukaemia diagnosis was noted as a matter of significant concern, though no additional hardship was pressed because the condition was under control (at [16], [30]). The Sentence Assessment Report did the offender no favours: he showed no insight, asserted the victim was lying, and claimed it was her responsibility to stay away from him after the ADVO was imposed (at [17]). Both the Sentence Assessment Report and the independent psychologist assessed him at medium-to-high or moderate-to-high risk of reoffending (at [18], [23]). His prospects of rehabilitation were described as guarded, but capable of improvement with meaningful engagement in recommended programs and family support (at [26], [29]).
Special circumstances and totality
The court found special circumstances established, given both Community Corrections and the psychologist identified a clear and lengthy need for rehabilitation programs to address drug dependence and antisocial behaviour (at [33]). Applying the principles in Pearce v The Queen and R v XX, the court adopted an aggregate sentence that adequately captured the criminality of all offending across the two occasions, with some notional accumulation between counts given that each involved a separate episode of criminality (at [31]).
Orders Made
- The offender was convicted of each offence.
- An aggregate sentence of imprisonment of 4 years, 6 months was imposed, commencing 27 May 2017 and expiring 26 November 2021.
- A non-parole period of 2 years, 9 months was imposed, expiring 26 February 2020, with the offender eligible for release to parole on that date.
- Indicative sentences: Count 1 (3 months), Count 2 (2 years), Count 3 (18 months), Count 4 (1 year), Count 5 (2 years), Count 6 (2 years).
- Special circumstances were found.
- A section 166 matter was taken into account with no further penalty.
Key Takeaways
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The District Court confirmed that offences involving domestic violence committed in breach of an apprehended domestic violence order attract heightened weight on specific deterrence, general deterrence, and denunciation, reflecting changes in community standards toward domestic violence (at [1]-[2]).
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Where multiple offences are committed across separate occasions or involve distinct episodes of criminality, some notional degree of accumulation is required even within an aggregate sentence, so that the total sentence adequately reflects the full criminality of all offending (at [31]).
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A lack of insight into offending, combined with assertions that the victim bore responsibility for her own protection, are directly relevant to assessing rehabilitation prospects and can weigh against a finding of guarded or favourable prospects (at [17], [26]).
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Special circumstances warranting a reduction in the non-parole period ratio were established where both Corrective Services and an independent psychologist identified a substantial and lengthy need for rehabilitation programs to address drug dependence and antisocial behaviour (at [33]).
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Drug intoxication at the time of offending is not a mitigating factor, but the court accepted it may illuminate the degree of impulsivity involved and the absence of planning (at [28]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999.
- Crimes Act 1900
Cases
- R v Qutami (2001) 127 A Crim R 369
- Pearce v The Queen (1998) 194 CLR 610
- R v XX (2009) 195 A Crim R 38