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District Court 16 December 2019

R v Misdale

[2019] NSWDC 858

Assault & violenceDomestic & family violence
30 YEAR OLD MALE NEED FOR TREATMENT AND SUPERVISION.

Citation: R v Misdale [2019] NSWDC 858
Court: District Court of New South Wales
Date: 16 December 2019
Judge: Neilson DCJ

Background

The offender, a 31-year-old man with a long history of alcohol-fuelled violence, pleaded guilty to three offences arising from two separate incidents in January 2019. The victims were his former and current partner (referred to here as the complainant) and a male friend who was assaulted on his 37th birthday.

The first incident, on 12 January 2019, involved a sustained and severe attack on the complainant at the offender's home. The offender punched her repeatedly to the head, throttled her for approximately one minute, and then struck the back of her head four times with great force, rendering her unconscious. She suffered a laceration requiring stitches, bruising and a haematoma. While at hospital, the offender whispered a threatening remark in the complainant's ear, which formed the basis of an intimidation charge taken into account on a Form 1.

The second incident, on 28 January 2019, took place at a bowling club. The offender threw a plastic chair at the complainant after becoming angry that another man had bought her a drink. He then attacked the male friend in a nearby laneway, knocking him unconscious in a cowardly and unprovoked assault. The offender had no apparent provocation for any of these attacks. Two Form 1 matters (common assault from 11 January and the intimidation at the hospital) were taken into account on sentence.

  • What sentence was appropriate for three offences of: wounding with intent to cause grievous bodily harm (s 33(1)(a) Crimes Act 1900), assault occasioning actual bodily harm (s 59(1) Crimes Act 1900), and reckless wounding (s 35(4) Crimes Act 1900)?
  • Whether special circumstances existed to justify a longer-than-standard parole period.
  • How the individual sentences should be structured, including the degree of accumulation, to produce a just aggregate sentence.

Decision

Neilson DCJ assessed each offence individually before constructing an aggregate sentence. For the wounding with intent charge (the most serious, carrying a 25-year maximum and a standard non-parole period of seven years), the court imposed an indicative sentence of five years and three months with a non-parole period of three years and eleven months. For the assault occasioning actual bodily harm, a fixed term of six months was imposed. For the reckless wounding of the male friend, the court imposed three years and nine months with a non-parole period of two years and nine months.

Full accumulation of those individual sentences would have produced a head sentence of nine years and six months and a total non-parole period of seven years and two months. The court considered that outcome disproportionate and instead exercised its discretion to impose an aggregate sentence by way of partial accumulation.

The court found special circumstances, noting the offender's significant need for drug and alcohol treatment and the benefit of maximising his time under Community Corrections supervision on release. The standard ratio between parole and sentence was adjusted accordingly, resulting in a parole period of three years rather than the default proportion. The court noted that without sustained efforts to address his substance use, the offender risked revocation of parole and return to custody, as had occurred in the past.

Orders Made

  • The offender was convicted on all three charges.
  • An aggregate sentence of seven years and six months imprisonment was imposed.
  • Non-parole period: four years and six months, commencing 28 January 2019 and expiring 27 July 2023.
  • Balance of sentence: three years, commencing on expiry of the non-parole period and expiring 27 July 2026.
  • Special circumstances found; the offender is eligible for parole at the expiry of the non-parole period.
  • Two Form 1 matters (common assault and intimidation) taken into account in relation to the s 33(1)(a) offence.

Key Takeaways

  • Where an offender is sentenced for multiple offences arising from distinct incidents, full accumulation of individual sentences may produce a disproportionate result; partial accumulation to form an aggregate sentence is an available and commonly used approach in the District Court.
  • A finding of special circumstances can justify extending the parole period beyond the standard ratio where the offender has a demonstrated need for structured post-release treatment and supervision.
  • Domestic violence offences were the dominant category here, with all but the reckless wounding of the male friend classified as domestic violence offences under the Crimes (Domestic and Personal Violence) Act 2007.
  • The standard non-parole period of seven years under the Crimes (Sentencing Procedure) Act 1999 for wounding with intent (s 33(1)(a)) was a relevant reference point, though the indicative sentence imposed fell below that benchmark, reflecting the individual circumstances of the offending and the offender.
  • Cowardly and unprovoked attacks, sustained physical violence, and the vulnerability of victims (including rendering a victim unconscious) were treated as significant aggravating factors in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4), 59(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 66(1)

Cases cited: No cases were cited in the judgment.