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District Court 19 June 2019

R v Gordon

[2019] NSWDC 528

Assault & violenceDomestic & family violence

Citation: R v Gordon [2019] NSWDC 528
Court: District Court of New South Wales
Date: 19 June 2019
Judge: Buscombe DCJ

Background

The offender pleaded guilty to a series of offences arising from the breakdown of a domestic relationship. After his former partner ended their relationship in early December 2016, the offender engaged in a sustained pattern of surveillance, harassment, and threatening behaviour directed at her and the man she had begun seeing. The conduct escalated over several days in December 2016.

On 15 December 2016, the offender made 23 unanswered calls to the male victim, threatened him, and kicked and damaged the victim's car. Later that night, police obtained and served on the offender an interim Apprehended Domestic Violence Order (ADVO) prohibiting him from approaching or contacting his former partner or going within 200 metres of her home. He breached that order the very next day.

On 17 December 2016, the offender followed the two victims by car, tailgating them at high beam, driving on the wrong side of the road, and eventually ramming the male victim's car to force it to a stop. He then smashed the driver's side window with a tyre iron and inflicted wounds to the male victim's forehead, nose, and forearm. The female victim remained on the phone to emergency services throughout the incident.

  • What sentence was appropriate for the principal offence of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, which carries a maximum of 25 years imprisonment and a standard non-parole period of seven years?
  • What weight should be given to the offender's mental health condition, and was there a causative connection between that condition and the offending?
  • How should the degree of planning and the escalating nature of the conduct bear on objective seriousness?
  • What was the appropriate aggregate sentence across all matters, having regard to both subjective and objective factors including the offender's age?
  • On the disputed facts, how were the wounds inflicted, and had the Crown established that version beyond reasonable doubt?

Decision

Buscombe DCJ resolved a factual dispute about how the wounds to the male victim were inflicted, applying the correct standard that the Crown bears the onus of proving any facts adverse to the offender beyond reasonable doubt. The judgment does not reproduce the resolution of that dispute in the portions available, but the finding informed the assessment of objective seriousness.

His Honour assessed the wounding offence as serious, noting the considerable degree of planning evident across the entire sequence of events. The offender had conducted surveillance of the victims' movements, made repeated threatening communications over several days, and brought a tyre iron to smash the window before inflicting the wounds. These were not impulsive acts.

The offender's mental health condition was taken into account as a mitigating factor, but His Honour assessed the causative connection between that condition and the offending. Because of that assessment, together with the overall objective seriousness, His Honour departed downward from the seven-year standard non-parole period for the wounding offence. The court treated the standard non-parole period as a legislative guidepost in accordance with the High Court's direction in Muldrock v The Queen (2011) 244 CLR 120, rather than as a rigid floor.

The offender's age was treated as a relevant subjective consideration. The sentence was structured to include a component of personal deterrence alongside other sentencing purposes. His Honour utilised the aggregate sentencing provisions and recorded indicative sentences for each offence before imposing a single aggregate term.

Orders Made

  • Convicted on all offences to which guilty pleas were entered, and on the breach ADVO offence recorded on the s 166 certificate.
  • Intentionally damage property: indicative sentence of 18 months imprisonment.
  • Intimidation (17 December 2016, indictment): indicative sentence of 14 months imprisonment.
  • Wound with intent (taking into account Form 1 matters): indicative sentence of 3 years and 9 months imprisonment, with an indicative non-parole period of 2 years.
  • Breach ADVO (s 166 certificate): indicative sentence of 6 months imprisonment.
  • Aggregate sentence: 4 years and 9 months imprisonment, with an aggregate non-parole period of 2 years and 9 months.
  • Sentence commences 17 December 2016 and expires 16 September 2021; non-parole period expires 16 September 2019.
  • Earliest parole eligibility: 16 September 2019, subject to the State Parole Authority's determination.

Key Takeaways

  • The District Court confirmed that the standard non-parole period for wounding with intent (7 years under the Crimes Act 1900) operates as a legislative guidepost, not a mandatory minimum. Departure is available where objective seriousness and subjective factors, including mental health, warrant it.
  • A causative connection between an offender's mental health condition and the offending is required before that condition carries significant mitigating weight in sentencing. The court examined and assessed that connection expressly.
  • Conduct across several days, including surveillance, repeated threatening communications, breaching an ADVO within hours of service, and arming oneself with a weapon before confronting victims, will bear heavily on a finding of significant planning and therefore on objective seriousness.
  • Breaching an ADVO is treated as a discrete and separately punishable matter. Here, the offender committed fresh offences the morning after the ADVO was served on him, a circumstance that informed the overall sentencing exercise.
  • The aggregate sentencing provisions were applied to produce a single operative term and non-parole period, with indicative sentences recorded for each individual offence to preserve transparency in the reasoning.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a) (wound with intent to cause grievous bodily harm), 195(1)(a) (intentional damage to property)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 166 (certificate procedure for taking further offences into account)

Cases
- Muldrock v The Queen (2011) 244 CLR 120 (standard non-parole periods as legislative guideposts)
- Bullock v The Queen [2016] NSWCCA 131
- DPP v De La Rosa (2010) 79 NSWLR 1
- Lawson v The Queen [2018] NSWCCA 215