Citation: R v Barnett [2020] NSWDC 193
Court: District Court of New South Wales
Date: 12 May 2020
Judge: Abadee DCJ
Background
The offender was a married man who, though separated from his wife for approximately eight to nine years, had maintained an intermittent intimate relationship with her. A Final Apprehended Domestic Violence Order (ADVO) had been made in December 2018, prohibiting the offender from approaching or being in his wife's company for at least twelve hours after consuming alcohol or illicit drugs.
In April 2019, the offender's wife had been staying with him at a caravan park when both visited a male friend's caravan one evening. After the offender left and became jealous of a conversation between his wife and the friend, he returned to the caravan in an intoxicated state, armed with a knife. Over several hours, he detained both occupants, threatened them, cut his wife's legs causing serious lacerations, caused her additional injuries including rib fractures and a subdural haematoma, and held the knife to the friend's throat, causing a superficial wound.
The offender pleaded guilty to two counts of aggravated detention with intent to obtain advantage causing actual bodily harm (one count each for his wife and the friend), one count of reckless wounding, and a related charge of contravening a prohibition under an ADVO. Sentencing proceeded on agreed facts.
Legal Issues
- What was the appropriate objective seriousness of the offending across multiple related charges?
- How should the offender's alcohol use disorder be weighed as a mitigating or explanatory factor in sentencing?
- Whether the COVID-19 pandemic was a relevant consideration in fixing the sentence.
- Whether special circumstances existed to justify a variation to the standard non-parole period ratio.
- How the sentences for concurrent and accumulated offences should be structured.
Decision
The court assessed the offending as falling in the mid-range of seriousness. The offender had used a weapon, the conduct was sustained over several hours, the victims were vulnerable, and the offending occurred in a domestic violence context where courts have consistently recognised a significant need for general deterrence. The court drew on authority confirming that alcohol-fuelled domestic violence is not treated as a mitigating factor but may be relevant to moral culpability to a limited degree.
On the offender's alcohol use disorder, the court accepted the condition was well-established and had a nexus to the offending. However, consistent with authority such as Carroll v The Queen and Munda v Western Australia, intoxication did not reduce the seriousness of the offences, and the connection between the disorder and the offending was considered only in assessing the moral culpability of the offender rather than as a straightforward mitigating circumstance.
The court considered whether the conditions of imprisonment during the COVID-19 pandemic warranted any reduction in sentence. Referring to Scott v R [2020] NSWCCA 81, which had addressed this issue shortly before sentence, the court acknowledged that harsher conditions of custody could be a relevant consideration, though the weight to be given to the pandemic circumstances was treated cautiously.
On special circumstances, the court accepted that the offender's status as a first-time offender and his positive behaviour in custody supported a finding that an extended parole period would serve the community interest in rehabilitation and reintegration. Accordingly, the non-parole period was reduced below the statutory ratio.
Orders Made
- Convicted on sequences 3, 4, and 6 (the two aggravated detention offences and the reckless wounding offence) and the section 166 certificate offence.
- Aggregate imprisonment of 7 years and 6 months, with an aggregate non-parole period of 4 years and 6 months, commencing 16 April 2019 and expiring 15 October 2026; first eligible for parole on 15 October 2023.
- Indicative sentences: 6 years for each aggravated detention count; 3 years and 4 months (non-parole period of 2 years) for the reckless wounding; 9 months for the ADVO contravention.
- The ADVO contravention sentence to be served concurrently with the aggregate sentence.
- Sequences 3 and 4 recorded as "domestic violence offences" on the offender's criminal record under section 12 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
- Two back-up offences withdrawn by the Crown.
Key Takeaways
- The District Court confirmed that intoxication arising from an alcohol use disorder does not reduce the objective seriousness of domestic violence offending but may inform the assessment of an offender's moral culpability in limited circumstances.
- Sentencing courts recognise a strong public interest in general deterrence where domestic violence offending involves weapons, sustained detention, and serious physical injury.
- Under the approach endorsed in Scott v R [2020] NSWCCA 81, the conditions of imprisonment during the COVID-19 pandemic are capable of being a relevant sentencing consideration, though courts are careful not to apply this factor broadly or mechanically.
- A first-time offender's rehabilitation prospects and positive conduct in custody can constitute special circumstances justifying a departure from the standard non-parole period ratio.
- Where multiple offences arise from a continuous course of criminal conduct involving different victims and distinct acts of violence, partial accumulation of sentences may be appropriate to reflect the full criminality involved.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35, 86
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12, 14
- Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13
- McCullough v R (2009) 194 A Crim R 439
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Patsan v R [2018] NSWCCA 129
- R v Newell [2004] NSWCCA 183
- Scott v R [2020] NSWCCA 81