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District Court 4 April 2019

R v Leonard

[2019] NSWDC 628

Assault & violenceDomestic & family violence
SENTENCE DYSFUNCTIONAL BACKGROUND CHILDHOOD ABUSE AND TRAUMA VIOLENCE DRUG AND ALCOHOL USE HISTORY OF OFFENDING

Citation: R v Leonard [2019] NSWDC 628
Court: District Court of New South Wales
Date: 4 April 2019
Judge: Norrish QC DCJ

Background

The offender, a man aged 45 at the time of the offending, was in a relationship with the victim, AJ, who was 17 years old. They had been together since late 2017 and shared accommodation at the offender's unit in Coffs Harbour. Following the victim's admission of infidelity, an argument persisted over an entire weekend.

On the morning of 12 March 2018, as the victim attempted to leave for work, the offender pulled her back, threw her to the floor face-first, and placed his hands around her throat. He then rolled her onto her back, smashed her head into the carpet multiple times, and squeezed her neck until she lost consciousness. The victim sustained petechial haemorrhages in both eyes, bruising to the throat and chin, a swollen neck, and voice changes caused by internal swelling. Later that same morning, the offender bit and struck her, causing further injuries.

The offender had been arraigned on six counts. He pleaded not guilty to four counts, which were accepted in discharge of the indictment, and entered guilty pleas to two counts: assault occasioning actual bodily harm (s 59, Crimes Act 1900) and intentionally choking a person with recklessness as to rendering her unconscious (s 37, Crimes Act 1900). The pleas were entered partway through trial, after the victim had substantially completed her evidence-in-chief.

  • What guilty plea discount was appropriate given the pleas were entered mid-trial, after the victim had nearly completed her evidence-in-chief?
  • What was the objective seriousness of the two offences, particularly the choking offence?
  • How should the offender's background, including childhood trauma, mental health, substance abuse, and criminal history, bear on the sentence?
  • How should the principles of totality and partial accumulation be applied across the two principal counts and the summary offences?

Decision

Guilty plea discount: The court allowed a 10% discount on each sentence for the utilitarian benefit of the guilty pleas, noting these proceedings pre-dated the current statutory regime for calculating such discounts. Although the discount was lower than it would have been had the pleas been entered at the outset of the trial, the court noted the victim was spared cross-examination, which would have significantly added to her distress. The court applied the guideline in Thomson and Houlton v R.

Objective seriousness: The choking offence was assessed as slightly above the middle range of objective seriousness. The court identified several aggravating features: the significant physical disparity between the offender and the 17-year-old victim, the fact the offending occurred in the victim's home, and the medical evidence confirming full loss of consciousness and voice changes requiring more than minimal pressure. The assault occasioning actual bodily harm, which involved biting and hitting, was treated as serious but separately characterised from the choking.

Subjective factors: The court acknowledged the offender's highly dysfunctional background, including childhood abuse, exposure to violence, entrenched substance use, and significant mental health issues. It drew on R v Bugmy in recognising that such a background can moderate the weight given to general deterrence. However, the court found a notable absence of genuine contrition, with the offender's attitude to the offending remaining a concern. He was assessed as presenting a medium to high risk of reoffending.

Totality and accumulation: Consistent with Pearce v The Queen and the principle that separate criminality warrants partial accumulation, the court made the sentences on the two principal counts partially accumulative rather than wholly concurrent. Summary offences, including possessing cannabis and failing to comply with child protection reporting obligations, were made concurrent with one or other principal sentence. The court expressly applied the totality principle to ensure the overall sentence was not disproportionate.

Orders Made

  • Count 4 (intentionally choking with recklessness as to render unconscious): custodial sentence imposed, forming the head sentence.
  • Count 1 (assault occasioning actual bodily harm): custodial sentence partially accumulative on Count 4.
  • Possessing cannabis: one month's imprisonment, commencing 12 March 2018, expiring 11 April 2018, made concurrent.
  • Failing to comply with child protection reporting obligations: six months' imprisonment, commencing 12 March 2018, expiring 11 September 2018, made concurrent.
  • Total sentence: four years and five months, with a non-parole period of two years and ten months.

Key Takeaways

  • A guilty plea entered mid-trial, after the victim has substantially completed evidence-in-chief but before cross-examination, may still attract a discount for utilitarian value, though at a reduced rate compared to an early plea. Here the court fixed that discount at 10%.
  • The District Court assessed a choking offence involving full loss of consciousness, significant physical disparity between the parties, and domestic context as falling slightly above the middle range of objective seriousness, even without a standard non-parole period as a formal reference point.
  • Under R v Bugmy, a severe and dysfunctional upbringing involving childhood abuse and exposure to violence can reduce the weight placed on general deterrence, though it does not eliminate considerations of community protection and specific deterrence, particularly where the risk of reoffending is assessed as medium to high.
  • Partial accumulation of sentences for distinct acts of violence occurring within the same episode reflects settled principle: where separate criminality is established, wholly concurrent sentences are generally not appropriate.
  • An absence of contrition, even where a guilty plea has been entered, remains a relevant sentencing consideration and may limit the subjective discount otherwise available to an offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37, 59
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Thomson and Houlton v R [2000] NSWCCA 309
- R v Bugmy [2013] NSWSC 1885
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Pearce v The Queen (1998) 194 CLR 610
- Veen (No 2) v The Queen (1989) 164 CLR 465
- DPP v De La Rosa [2010] NSWCCA 194
- R v Astill (1992) 63 A Crim R 148
- R v Engert (1995) 84 A Crim R 67
- Mill v The Queen (1988) 166 CLR 59