Citation: DPP v Rennie [2019] NSWLC 11
Court: Local Court of New South Wales
Date: 2 October 2019
Judge(s): P Stewart LCM
Background
The offender was a 31-year-old man who had moved into the home of a 19-year-old woman with whom he entered a domestic relationship. An Apprehended Violence Order (AVO) had been made against him following a physical incident in April 2018. He returned to the victim's home in August 2018 after being released on parole.
Over November 2018, while the AVO remained in force, the offender committed a series of violent and controlling acts against the victim. These included physically pinning her down and forcing her fingers onto her phone's fingerprint scanner, body-slamming her onto a bed, and digitally touching her vulva without consent while she cried and said "stop." He also prevented her from leaving the house after the second incident.
The offender pleaded guilty to five offences: two counts of contravening an AVO, two counts of common assault (domestic violence related), and one count of assault with an act of indecency (domestic violence related). All offences were domestic violence related, and all were committed while he was on parole for earlier domestic violence offending.
Legal Issues
- What aggregate sentence was appropriate for five domestic violence offences, having regard to the offender's extensive criminal history and status on parole?
- What weight should be given to the utilitarian value of the guilty pleas?
- How should the principle of totality apply when the offender was already serving a sentence (on parole) at the time of the fresh offending?
- Whether any sentence other than full-time custody was appropriate.
- What, if any, allowances should be made for the offender's circumstances as an Aboriginal man serving a sentence away from his community?
Decision
The magistrate allowed a 25% discount on sentence to reflect the utilitarian value of the guilty pleas, entered immediately after a strictly indictable charge was withdrawn. This discount was applied in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383.
The magistrate determined indicative sentences for each offence: 13 months each for the two common assault counts, 13 and 16 months respectively for the two AVO contraventions, and 2 years for the indecent assault. These produced an aggregate of 3 years and 2 months. Because that term exceeded 3 years, no alternative to full-time custody was available under the Crimes (Sentencing Procedure) Act 1999. The magistrate also concluded that, in any event, any non-custodial sentence would have failed to give proper weight to the purposes of sentencing and the established case law on domestic violence offending.
Applying the totality principle, the magistrate reduced the aggregate from what would otherwise have been a longer term, to account for the sentence the offender was already serving at the time of the fresh offences. The magistrate separately treated the offender's parole status as an aggravating factor, noting that committing offences on parole reflects poorly on prospects of rehabilitation. The sentence was backdated to 23 November 2018, the date the offender entered custody.
The magistrate made a modest allowance for the additional hardship the offender would face as an Aboriginal man unable to serve his sentence in Broken Hill, near his community, and for the fact that he would likely serve his sentence on protection, making custody more onerous. The offender's conduct was described as "controlling, manipulating, demeaning, shameful, cowardly and violent."
Orders Made
- The offender was sentenced by way of aggregate sentence to 3 years and 2 months imprisonment, commencing 23 November 2018 and expiring 22 January 2022.
- A non-parole period of 2 years was set, from 23 November 2018 to 22 November 2020.
Note: A sentence appeal to the NSW District Court was upheld in part. The term of imprisonment was varied to 2 years 6 months, with a non-parole period of 1 year 3 months.
Key Takeaways
- Repeat domestic violence offending committed while on parole, in contravention of an existing AVO, attracted strong weight to the sentencing purposes of specific and general deterrence, community protection, and denunciation.
- Where an aggregate sentence exceeds 3 years in the Local Court, full-time custody is mandatory under the Crimes (Sentencing Procedure) Act 1999; the magistrate also found that no lesser sentence could have adequately reflected the seriousness of the conduct regardless.
- The totality principle required the sentencing court to account for the parole sentence the offender was already serving, resulting in a reduction from what would otherwise have been a longer term, even though the parole status itself was treated as an aggravating factor.
- A 25% discount for guilty pleas was applied, consistent with R v Thomson; R v Houlton, where pleas were entered promptly upon withdrawal of the strictly indictable matter.
- Sentencing adjustments were available to reflect the additional hardship of imprisonment away from community and service on protection, though the District Court on appeal reduced both the head sentence and non-parole period substantially.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61, 61L (repealed 30 November 2018)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2), 53A, 66
Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Doan (2000) 50 NSWLR 115
- Munda v Western Australia [2013] HCA 38
- The Queen v Kilic [2016] HCA 48
- Cahyadi v R [2007] NSWCCA 1
- Cherry v R [2017] NSWCCA 150
- R v Edigarov [2001] NSWCCA 436
- R v Hamid [2006] NSWCCA 302
- R v Patsan [2018] NSWCCA 129
- Vragovic v R [2007] NSWCCA 46