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District Court 25 October 2019

R v Bohun

[2019] NSWDC 807

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsDomestic & family violencePublic order & justice offences
SENTENCING MULTIPLE OFFENCES CRIME SPREE AGGRAVATED STEAL FROM A PERSON POSSESS PROHIBITED WEAPON ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: [2019] NSWDC 807
Court: District Court of New South Wales
Date: 25 October 2019
Judge: Haesler SC DCJ

Background

The offender was sentenced for ten offences arising from a single afternoon of escalating violence on 5 September 2018 in the Batemans Bay region of New South Wales. What began as a domestic dispute ended in a series of serious assaults, a break and enter, the theft and dangerous driving of a motor vehicle, and the possession of a prohibited weapon (knuckledusters).

The offender first assaulted his then-girlfriend, breaching an Apprehended Violence Order in force for her protection, and stole her handbag. He then forced his way into a nearby residential unit, assaulted the male occupant and the occupant's elderly mother, stole car keys, and reversed a vehicle over the mother's lower limbs as she tried to stop him leaving. He drove the stolen car erratically until it was disabled by collision damage, then swung at a bystander who came to check on him. Knuckledusters bearing his DNA and the DNA of one of the victims were found in the abandoned vehicle.

At the time of these offences, the offender was subject to a bond and a suspended sentence for earlier matters. He had a prior record that included acts of violence extending outside New South Wales and had been disqualified from driving.

  • What individual sentences were appropriate for each of the ten offences, having regard to their objective seriousness and the circumstances of the offending?
  • How should the total sentence be structured under the principle of totality, so that it reflected the full criminality of the conduct without being disproportionately crushing?
  • Whether special circumstances existed, within the meaning of sentencing law, that justified departing from the standard ratio between non-parole period and total sentence.
  • What weight should be given to the offender's prospects of rehabilitation, his intoxication at the time, his prior record, and the impact on multiple victims?

Decision

Haesler SC DCJ described the offending as a series of unprovoked and escalating acts of violence against multiple people, several of whom were vulnerable. His Honour noted that the offences were committed while the offender was on conditional liberty, that he had breached a domestic violence order, and that his prior record precluded any leniency ordinarily extended to first offenders. Full-time custody was the only appropriate sentencing outcome for all offences.

The victim impact material, particularly from the mother of the occupant whose home was broken into, illustrated severe and lasting physical and psychological consequences. She underwent significant surgery arising from her injuries, lost her independence, and became hypervigilant. Haesler SC DCJ treated the absence of victim impact statements from other victims as carrying no mitigating weight.

On rehabilitation, the court accepted there were signs that, with support and appropriate intervention, the offender might change. His Honour found special circumstances existed, partly because the sentence commenced on 26 January 2019 (meaning a substantial portion of pre-sentence custody had already been served before sentencing) and partly because of the extent of rehabilitation work required both in custody and under supervision. This justified a longer-than-standard parole period to allow for supervised reintegration.

Applying the totality principle (the requirement that the combined sentence reflect the overall criminality without being oppressive), Haesler SC DCJ imposed an aggregate sentence of six years with a non-parole period of three years and six months. The parole period of approximately six months reflects the special circumstances finding.

Orders Made

  • Aggravated steal from a person (victim: Ms Smit): 9 months' imprisonment
  • Assault occasioning actual bodily harm (victim: Ms Smit): 1 year and 10 months' imprisonment
  • Aggravated break, enter and commit serious offence: 3 years and 4 months' imprisonment; non-parole period of 2 years
  • Assault occasioning actual bodily harm (victim: Ms Green): 9 months' imprisonment
  • Drive in a dangerous manner occasioning grievous bodily harm: 3 years' imprisonment; disqualification from driving of 2 years
  • Assault (victim: Mr Fisher): 3 months' imprisonment
  • Possess prohibited weapon: 4 months' imprisonment
  • Drive while disqualified: 3 months' imprisonment; disqualification from driving of 1 year
  • Take and drive conveyance: 1 year and 1 month's imprisonment
  • Contravene apprehended violence order: 3 months' imprisonment
  • Aggregate sentence: 6 years' imprisonment, commencing 26 January 2019
  • Non-parole period: 3 years and 6 months; eligible for parole on 25 July 2022
  • Total sentence expiry: 25 January 2025
  • Other matters on the section 166 certificate noted withdrawn and dismissed

Key Takeaways

  • Where an offender commits multiple serious offences during a single episode of criminality, the District Court will impose an aggregate sentence calibrated to the total criminality rather than simply accumulating each individual term.
  • A finding of special circumstances, which allows a court to extend the parole period beyond the standard proportion, can be supported both by an unusually early sentence commencement date and by a demonstrated need for extended post-release supervision to support rehabilitation.
  • Offending while subject to a bond and a suspended sentence is a significant aggravating factor; the offender was also required to serve a period of custody referable to the earlier suspended sentence because he had broken his promise to the court not to reoffend.
  • The absence of victim impact statements from some victims does not reduce the sentence; Haesler SC DCJ confirmed that no mitigating inference arises from that absence.
  • Intoxication, while relevant context, does not reduce the objective seriousness of violent offending, particularly where multiple victims suffer lasting physical and psychological harm.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 52A(3)(c), 59(1), 95(1), 112(2), 166
- Weapons Prohibition Act 1998 (NSW): s 7(1)

Cases
- Mill v The Queen (1988) 166 CLR 59
- Ponfield (1999) 48 NSWLR 327
- R v Dunn (2004) 144 A Crim R 180
- R v Errington (2005) 157 A Crim R 553
- Whyte (2002) 55 NSWLR 252
- Weininger v The Queen (2003) 212 CLR 629