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District Court 2 October 2019

R v ES

[2019] NSWDC 921

Assault & violenceTheft & propertyDomestic & family violence
SENTENCING AGGRAVATED ENTER DWELLING HOUSE ASSAULT OCCASIONING ACTUAL BODILY HARM DOMESTIC VIOLENCE OFFENCES

Citation: R v ES [2019] NSWDC 921
Court: District Court of New South Wales
Date: 2 October 2019
Judge: Payne DCJ

Background

The offender, a 29-year-old man of Aboriginal and Torres Strait Islander heritage, appeared for sentencing in relation to two offences committed on 25 February 2018 at Parkes. He and the victim had been in a domestic relationship for approximately four and a half years and had two young children together. An apprehended domestic violence order (AVO) protecting the victim had been in place since 2016.

On the night of the offending, the offender first attended the victim's mother's house, yelling aggressively for the victim. He then attended the victim's home, smashed a window with a stick, entered the premises, and confronted the victim in her bedroom where she lay with their two-year-old child. He then dragged her into the lounge room, punched her in the head causing pain, swelling, bruising and a bleeding nose, and placed both hands around her throat for a second or two, causing redness and bruising. The two-year-old child witnessed the entire incident.

The offender was arrested approximately five weeks later at Coffs Harbour and was refused bail. He pleaded guilty to both counts on the indictment and asked the court to take a further assault into account on a Form 1 document. A contravention of the AVO was also dealt with by way of a section 166 certificate.

  • The appropriate objective seriousness of aggravated enter dwelling-house under section 111(2) of the Crimes Act 1900 and assault occasioning actual bodily harm under section 59(1)
  • The weight to be given to the offender's personal circumstances, including his Aboriginal and Torres Strait Islander background and childhood exposure to violence (the Bugmy principles)
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • The role of general deterrence in sentencing for domestic violence offences
  • The application of totality in setting an aggregate sentence

Decision

Payne DCJ assessed both the section 111(2) offence and the section 59(1) offence as below mid-range in objective seriousness, but not significantly so. The Crown and defence were largely aligned on this point, and the court accepted the Crown's formulation. The domestic violence context, the presence of a young child, the commission of the offences in the victim's home, and the offender's status on conditional liberty were all noted as relevant circumstances.

The offender's prior criminal record disentitled him to leniency but, in the court's assessment, did not operate as an aggravating feature of the offence itself. The court accepted that planning was present but declined to elevate it to a formal aggravating factor. The offender's parole was revoked as a consequence of these offences, and he served approximately eight and a half months before a further sentence for a police pursuit offence was imposed.

The court applied Bugmy principles, acknowledging the offender's difficult background including witnessing parental violence during childhood and both parents having served custodial sentences. His Aboriginal and Torres Strait Islander heritage and the associated disadvantage were treated as relevant to the sentencing exercise. A physical disability resulting from a serious accident at age 14 was also noted.

Special circumstances were found, based on the risk of institutionalisation, the offender's need for rehabilitation and drug treatment, and the principle of totality. General deterrence was identified as a significant sentencing consideration, consistent with repeated Court of Criminal Appeal authority concerning domestic violence offending. A 15 percent discount was applied to each offence for the utilitarian value of the guilty pleas.

Orders Made

  • Offender convicted of count 1 (aggravated enter dwelling-house, s 111(2)) and count 2 (assault occasioning actual bodily harm, s 59(1))
  • Form 1 offence (assault occasioning actual bodily harm, hands around throat) taken into account on count 1
  • Section 166 certificate offence (contravene AVO) dealt with
  • Indicative sentence for count 1 (including Form 1): 2 years 6 months (after 15% discount)
  • Indicative sentence for count 2: 1 year (after 15% discount)
  • Indicative sentence on the s 166 certificate: 10 months (after 15% discount)
  • Aggregate sentence of 3 years imposed, commencing 1 August 2018 and expiring 31 July 2021
  • Aggregate non-parole period of 20 months, commencing 1 August 2018 and expiring 31 March 2020
  • Special circumstances found

Key Takeaways

  • The District Court treated both the aggravated enter dwelling-house and assault occasioning actual bodily harm offences as below mid-range in objective seriousness, but declined to place them significantly below that mark given the circumstances of the offending.
  • General deterrence carries particular weight in domestic violence sentencing, a principle the court reaffirmed by reference to consistent Court of Criminal Appeal authority.
  • Under the Bugmy principles, an offender's exposure to violence, deprivation, and parental incarceration during childhood remains relevant to the sentencing exercise, even where those circumstances do not reduce the objective gravity of the offences.
  • Special circumstances can be established by a combination of factors, including risk of institutionalisation, rehabilitation needs, and the principle of totality, rather than any single consideration alone.
  • A guilty plea entered in proceedings of this kind attracted only a 15 percent utilitarian discount, reflecting the stage and circumstances of the plea rather than a fixed proportion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 166 (AVO contravention)

Cases:
- Bugmy v The Queen [2013] HCA 37 (principles regarding the relevance of social disadvantage and background in Aboriginal and Torres Strait Islander offender sentencing, referenced but not formally cited in the metadata)