Citation: R v AK [2019] NSWDC 456
Court: District Court of New South Wales
Date: 19 June 2019
Judge(s): Wilson SC DCJ
Background
The offender, a man born in 1959, was sentenced following guilty pleas entered approximately two days into his trial to four charges arising from events on 10 May 2016 at a residential property in Bonnyrigg, NSW. The offences were committed against his wife (SM) and his 15-year-old stepdaughter (PC) and occurred in a context of prior domestic violence, including an earlier assault conviction and a current AVO prohibiting him from attending the premises.
On the morning in question, the offender entered the dwelling in contravention of the AVO. When his wife arrived with the stepdaughter and a young child, he physically restrained both women, preventing them from leaving for several hours. During that time, he pressured his wife to retract her evidence in pending court proceedings and, in a locked bedroom, had sexual intercourse with her without her consent.
The offender had a history of domestic violence against his wife, including a conviction for assault in December 2014 and a further assault in April 2016 for which he had only recently been released on bail. Psychiatric evidence was before the court and considered in the sentencing exercise.
Legal Issues
- The appropriate head sentences and non-parole periods for four indictable offences: two counts of detaining a person for advantage (s 86(1)(b), Crimes Act 1900), one count of acting to procure an acquittal by influencing a witness (s 323A, Crimes Act 1900), and one count of sexual intercourse without consent (s 61I, Crimes Act 1900)
- How to apply the totality principle when imposing an aggregate sentence across multiple offences of varying gravity
- The relevance and weight of the offender's psychiatric conditions to the sentencing exercise
- The discount to be afforded for the guilty plea, entered at a relatively late stage (mid-trial, while the complainant was giving evidence)
- The weight to be given to the standard non-parole period as a guidepost for the sexual assault offence, noting it does not apply to guilty plea convictions
- How prior domestic violence offending and the Form 1 charge (entering a dwelling with intent to intimidate) should affect the overall penalty
Decision
Wilson SC DCJ sentenced the offender on the four Indictment counts and four related charges on the s 166 certificate. The Form 1 charge (entering the dwelling with intent to intimidate) was also taken into account in relation to the Count 2 detention offence, increasing the weight given to personal deterrence and retribution.
The judge set indicative sentences of five years imprisonment for each of the detention counts (Counts 2 and 3), five years for the witness-influencing offence (Count 4), and five years with an indicative non-parole period of three years and eight months for the sexual assault (Count 5). The standard non-parole period of seven years for the sexual assault was noted as a guidepost, though it does not formally apply where there has been a guilty plea.
The late timing of the guilty plea, entered after the trial had commenced and while the complainant was in the witness box, limited the discount available. The court considered the offender's psychiatric conditions but they did not substantially reduce the overall sentence.
Applying the totality principle as discussed in Pearce v The Queen, the court stood back from the indicative sentences and imposed a single aggregate term to reflect the overall criminality across all offences, adjusting for both accumulation and concurrency.
Orders Made
- The offender was convicted of Counts 2, 3, 4, and 5 on the Indictment (detention for advantage x2, acting to influence a witness, and sexual intercourse without consent)
- The offender was convicted of four charges on the s 166 certificate: contravening an ADVO (s 14(1)), common assault x2 (s 61), and stalking/intimidating with intent to cause fear of physical harm (s 13(1))
- An aggregate sentence of 10 years imprisonment was imposed, commencing 20 June 2016 and expiring 19 June 2026
- A non-parole period of 7 years was set, expiring 19 June 2023, at which time the offender would be eligible for parole consideration
Key Takeaways
- The District Court applied the totality principle from Pearce v The Queen to impose a single aggregate sentence across multiple serious domestic violence offences, adjusting individual indicative terms to ensure the overall sentence reflected the total criminality without being manifestly excessive.
- A guilty plea entered mid-trial, while the principal complainant was actually giving evidence, attracts only a limited sentencing discount compared with an early plea.
- Under s 61I of the Crimes Act 1900, the seven-year standard non-parole period for sexual intercourse without consent operates as a guidepost even where, following a guilty plea, it does not formally apply.
- Prior domestic violence convictions and a Form 1 charge for entering a dwelling with intent to intimidate reinforced the weight given to personal deterrence and retribution in the overall sentencing calculus.
- Psychiatric conditions were relevant to the sentencing exercise but did not substantially reduce the aggregate sentence where the offending was serious, premeditated, and committed in a context of ongoing domestic violence against vulnerable victims.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 61, 61I, 86, 111, 323A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW): ss 13, 14
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 3A
Cases
- Pearce v The Queen (1998) 194 CLR 610
- Munda v Western Australia (2013) 249 CLR 600
- The Queen v Kilic (2016) 259 CLR 256
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1