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District Court 11 October 2019

R v Mansour

[2019] NSWDC 840

Assault & violenceDrugsFraud & dishonestyDomestic & family violence
CRIMINAL SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM FROM 1 MATTER COMMON ASSAULT S166 MATTER

Citation: R v Mansour [2019] NSWDC 840
Court: District Court of New South Wales
Date: 11 October 2019
Judge: King SC DCJ

Background

The offender, a man in his late thirties, had been in a relationship with his former partner, with whom he had a two-year-old son. Following their separation in early 2017, the former partner was living with her parents in St Peters. The events giving rise to the charges occurred over several hours in the early morning of 30 January 2017.

During the first incident, the offender picked up his former partner to discuss their son and struck her in the face with his mobile phone (the Form 1 common assault). Later that morning, the offender handed her a shoulder bag containing $3,115 in cash and several mobile phones, pleading with her to take it. When she contacted police and the offender returned to the house demanding the bag back, he forced his way inside and struck her in the face, dislocating her jaw (assault occasioning actual bodily harm). When police arrived, they found the cash on a companion and the offender's bag was found to contain 0.97 grams of MDMA.

The offender was charged with assault occasioning actual bodily harm, dealing with property suspected of being the proceeds of crime ($3,115), and possession of a prohibited drug (MDMA). He also asked the court to take a common assault into account on a Form 1, and entered a guilty plea to the drug possession charge on a Section 166 certificate.

  • The appropriate sentence for assault occasioning actual bodily harm in a domestic violence context, including the assessment of objective seriousness
  • The appropriate sentence for dealing with property suspected of being proceeds of crime
  • Whether special circumstances existed justifying a variation of the standard ratio between non-parole period and head sentence
  • How to weigh the offender's criminal history, subjective circumstances (including health, remorse, and rehabilitation prospects), and the domestic violence context in arriving at an overall sentence

Decision

King SC DCJ assessed the Form 1 common assault as being at the lowest range of objective seriousness, noting no significant injury resulted. The assault occasioning actual bodily harm was assessed as more serious, sitting between the lowest end and the middle of the range. The judge emphasised that the former partner had the right to feel safe in her own home, and that the offender had intruded into the premises and lunged at her in front of her mother, dislocating her jaw. There was no evidence of adverse ongoing physical consequences from the jaw dislocation.

The proceeds of crime charge arose from the offender's possession of $3,115 in cash that he had accepted was suspected to be the proceeds of supplying a prohibited drug. His criminal history included a prior conviction for a similar offence, as well as prior drug-related and property offences. His record in Queensland, including incidents occurring after the New South Wales offending when a domestic violence order was in force, was also before the court.

On subjective matters, the judge found genuine remorse and contrition, supported by evidence from the offender's brother and the offender's own conduct. However, a pre-sentence report assessed rehabilitation prospects as only guarded, noting concerns about ongoing drug use and attitudes toward offending. The judge found special circumstances existed, warranting an adjustment to the non-parole period, given the need for the offender to undertake supervision, domestic violence programs, and drug and alcohol counselling upon release.

Orders Made

  • Assault occasioning actual bodily harm (Count 1): sentence imposed (specific term not reproduced in the provided text)
  • Deal with property suspected of being proceeds of crime (Count 2): sentence imposed
  • Possession of prohibited drug (MDMA, Section 166 certificate): taken into account
  • Form 1 common assault: taken into account
  • Two additional sequences (common assault charges) withdrawn and dismissed by leave
  • $3,115 in cash forfeited to the State of New South Wales pursuant to Section 18(1)

Key Takeaways

  • The District Court treated the domestic violence context as a significant aggravating factor, particularly because the assault occurred inside the victim's home after the offender forced entry, which directly affected the assessment of objective seriousness.
  • A plea of guilty to dealing with property suspected of being the proceeds of crime, under Section 193C(2) of the Crimes Act 1900, constitutes an acceptance that the money was appropriately suspected to derive from drug supply.
  • Remorse and contrition may be accepted by a sentencing court as genuine even where rehabilitation prospects are assessed as only guarded, and the two findings do not necessarily cancel each other out.
  • Special circumstances justifying a variation of the standard non-parole period ratio were found where the offender required structured post-release supervision and participation in domestic violence, drug, and anger management programs.
  • A prior criminal history that includes relevantly similar offences, such as an earlier proceeds of crime conviction and drug-related matters, bears on the weight given to an offender's subjective circumstances and prospects for rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166

Cases:
- R v Edigarov [2001] NSWCCA 436
- The Queen v Kilic [2016] 259 CLR 256
- Thomson & Houlton (2000) 49 NSWLR 383