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District Court 1 May 2020

R v Aumash

[2020] NSWDC 168

Theft & propertyDomestic & family violence
SENTENCE AGGRAVATED BREAK AND ENTER INTIMIDATION. SENTENCE RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA MULTIPLE DOMESTIC VIOLENCE OFFENCES

Citation: R v Aumash [2020] NSWDC 168
Court: District Court of New South Wales
Date: 1 May 2020
Judge: Haesler SC DCJ

Background

The offender formed a relationship with the complainant (referred to by the pseudonym Ms White) in March 2018. Ms White lived in southern Wollongong with her young son. After approximately one year, she ended the relationship due to the offender's controlling behaviour and anger.

Between April and June 2019, the offender carried out a sustained campaign of offending against Ms White. This included entering her home without permission, hiding inside the property on multiple occasions, making repeated threatening phone calls and text messages, taking her car, and returning to the home despite the existence of an interim Apprehended Violence Order. On one occasion, police found Ms White shivering and frightened after she had hidden in a nearby park to escape him.

Three offences were before the court for sentence: two counts of aggravated break and enter under s 111(2) of the Crimes Act 1900 (NSW), and one offence of using a carriage service to menace, harass or cause offence under s 474.17(1) of the Criminal Code Act 1995 (Cth). A further nine related matters were placed on Form 1 (a procedural mechanism by which additional offences are taken into account in sentencing without separate conviction).

  • What sentence was appropriate for two counts of aggravated break and enter and one count of using a carriage service to menace, in the context of a sustained domestic violence campaign?
  • How should the court balance the purposes of sentencing, including denunciation, specific deterrence, community protection, and rehabilitation, given the offender's background, drug use, and limited prospects?
  • What weight should be given to mitigating factors, including an early guilty plea and the offender's personal circumstances?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of sentence.

Decision

His Honour emphasised that domestic violence offending of this nature carries serious sentencing consequences. Drawing on the High Court's decisions in Munda v Western Australia and The Queen v Kilic, Haesler SC DCJ identified three core obligations for sentencing courts in domestic violence cases: vindicating the dignity of victims, expressing community disapproval of such offending, and affording protection to the vulnerable against further violence.

The court found that the offending was aggravated by several features: the offender targeted Ms White specifically, he abused trust arising from the former relationship, he sought to exercise coercive control over her, he continued offending despite police intervention and an AVO, and he appeared to believe his conduct was justified. The victim impact statement reflected the lasting harm caused, including the loss of a sense of security in her own home.

In mitigation, the court acknowledged the offender's early guilty plea, his history of drug dependency, and the need for both drug rehabilitation and psychological treatment. His Honour accepted that special circumstances existed, given the offender's rehabilitation needs and the likelihood that a longer period on parole would better support his reintegration. This justified a departure from the standard one-third ratio between the non-parole period and the total sentence.

The court acknowledged a tension inherent in custodial sentences for this type of offending: that imprisonment, as an inherently violent environment, is an imperfect mechanism for addressing the underlying causes of violence against women. Nevertheless, the needs of community protection and the seriousness of repeated offending required a period of custody.

Orders Made

  • For the s 474.17(1) (carriage service) offence: 9 months imprisonment, commencing 22 June 2019 and expiring 21 March 2020.
  • For the first s 111(2) (aggravated break and enter) offence, taking into account four Form 1 matters: an indicative sentence of 2 years 7 months.
  • For the second s 111(2) offence, taking into account five Form 1 matters: an indicative sentence of 2 years 9 months.
  • Aggregate sentence of 3 years 3 months, with a non-parole period of 2 years commencing 22 September 2019 and expiring 21 September 2021. The balance of 1 year 3 months is to run from 22 September 2021 to 21 December 2022.

Key Takeaways

  • The District Court applied Munda v Western Australia and The Queen v Kilic to confirm that sentencing for domestic violence offending must give real weight to vindicating victim dignity, expressing community disapproval, and protecting vulnerable individuals from further harm.
  • A sustained pattern of coercive and controlling conduct, combined with continued offending in the face of police intervention and an AVO, were treated as significant aggravating features that elevated the seriousness of the break and enter offences.
  • Where an offender has substantial rehabilitation needs, including drug dependency and mental health considerations, those needs can constitute special circumstances justifying a departure from the standard non-parole period ratio, in order to allow for a longer supervised period on parole.
  • The court recognised explicitly that imprisonment has limited utility in addressing the root causes of domestic violence, but held that community protection and the gravity of repeated targeting of a victim nonetheless required a custodial term.
  • Placing additional related offences on Form 1 allowed the court to reflect the full extent of the offending campaign in the sentence without imposing separate convictions for each incident.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 111(2) (aggravated break and enter)
- Criminal Code Act 1995 (Cth), s 474.17(1) (using carriage service to menace, harass or cause offence)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Inclosed Lands Protection Act 1901 (NSW)
- Crimes Act 1914 (Cth)

Key Cases:
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256
- Markarian v The Queen (2005) 228 CLR 357
- R v Henry (1999) 46 NSWLR 346
- R v Burton [2008] NSWCCA 128
- Ahmu v R; DPP v Ahmu [2014] NSWCCA 312
- R v Dunn (2004) 144 A Crim R 180
- Postiglione v The Queen (1997) 189 CLR 295
- Mill v The Queen (1988) 166 CLR 59
- Cahyadi v R [2007] NSWCCA 1
- Xiao v R [2018] NSWCCA 4
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704