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District Court 3 June 2020

R v Shepherd

[2020] NSWDC 273

Domestic & family violencePublic order & justice offences
CRIMINAL LAW SEVERITY APPEAL DOMESTIC VIOLENCE OFFENCES PAROLE PERIOD

Citation: R v Shepherd [2020] NSWDC 273
Court: District Court of New South Wales
Date: 3 June 2020
Judge: Abadee DCJ

Background

The appellant pleaded guilty in the Wyong Local Court to two counts of contravening a prohibition under an Apprehended Violence Order (AVO), both occurring on 26 March 2020. The AVO protected his then-partner and prohibited him from approaching or being in her company for at least 12 hours after consuming alcohol or illicit drugs. The Local Court sentenced him to 12 months' imprisonment with a 9-month non-parole period, with both sentences to be served concurrently.

The first offence occurred at around 1:00am when police attended the couple's home following a domestic dispute and found the appellant intoxicated. He was arrested, charged, and released on conditional bail at 3:00am. He immediately returned to the same address by taxi. Police attended again at 4:00am in response to a further complaint, finding the appellant still visibly intoxicated, constituting the second offence.

At the time of the first offence, the appellant was already subject to an Intensive Correction Order (ICO) imposed in November 2019 for a prior AVO contravention. That ICO was due to expire on 10 May 2020. The appellant had remained in custody from the date of arrest and was refused bail after lodging his appeal on 13 May 2020.

  • Whether the sentence imposed by the Local Court was manifestly excessive, warranting intervention on a severity appeal
  • Whether an Intensive Correction Order was a more appropriate sentencing disposition than full-time custody
  • Whether special circumstances existed to justify varying the statutory ratio between the head sentence and the non-parole period

Decision

Abadee DCJ exercised the sentencing discretion afresh, as required on a severity appeal. His Honour found that the objective gravity of each offence, considered in isolation, sat at the lower end of the range for AVO contraventions. There was no suggestion of imminent violence, and the specific AVO condition breached related to the proximity of alcohol consumption rather than a more serious restriction.

However, the aggravating circumstances substantially elevated the seriousness of the overall conduct. The first offence was committed while the appellant was subject to an ICO, itself imposed for a prior AVO breach. The second offence was committed while the appellant was on conditional bail granted only hours earlier for the first offence that same night. His Honour characterised the conduct as a blatant disregard for both the AVO and the ICO, which had been specifically designed to spare him full-time custody.

The appellant's subjective circumstances were described as "lamentable." He had a significant criminal history dating back to 1998, including multiple domestic violence offences. He showed no remorse, had blamed the victim in his sentencing assessment report, and had demonstrated only superficial engagement with alcohol counselling despite longstanding dependence. His Honour accepted the community corrections assessment that he was a medium risk of re-offending, and found that his rehabilitation prospects were no better than reasonable.

His Honour declined to substitute an ICO for the term of imprisonment, finding that full-time custody was appropriate given the need for specific deterrence, the aggravating circumstances, and the appellant's prior failure to engage meaningfully with community-based supervision. The appeal was largely dismissed. The only variation was a finding of special circumstances, which reduced the non-parole period from nine months to seven months to allow for a longer parole period to support alcohol rehabilitation efforts on release.

Orders Made

  • For the first offence (sequence H74134252(1)): 1 year imprisonment, commencing 26 March 2020 and expiring 25 March 2021, with a non-parole period of 7 months; first eligible for parole on 25 October 2020
  • For the second offence (sequence H74806241(1)): 1 year imprisonment, commencing 26 March 2020 and expiring 25 March 2021, with a non-parole period of 7 months; first eligible for parole on 25 October 2020
  • Both sentences to be served concurrently
  • Otherwise, the appeal was dismissed

Key Takeaways

  • Committing a second AVO contravention within hours of being granted bail for a first offence on the same night is a significant aggravating circumstance that weighs heavily against a lesser sentencing disposition.
  • Where an offender has already received an ICO for prior AVO contraventions and proceeds to re-offend in substantially the same manner, the case for full-time custody as a specific deterrent is considerably strengthened.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can justify a non-parole period below the standard statutory ratio where a longer parole period would meaningfully support rehabilitation, even when the overall sentence is otherwise upheld.
  • The District Court confirmed that low objective gravity of individual offences does not preclude a custodial sentence where aggravating circumstances, criminal history, and failed community supervision collectively demand it.
  • Absence of demonstrated remorse, victim-blaming in sentencing materials, and minimal engagement with court-ordered rehabilitation programs are factors that courts will weigh against an offender's submission that community-based sentencing remains appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases: No cases were cited in the judgment.