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District Court 5 June 2020

R v Collins

[2020] NSWDC 276

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SEVERITY APPEAL TIME CUSTODY

Citation: R v Collins [2020] NSWDC 276
Court: District Court of NSW
Date: 5 June 2020
Judge: Abadee DCJ

Background

The appellant was sentenced in Gosford Local Court on 19 November 2019 following a guilty plea to indecent assault, contrary to s 61L of the Crimes Act 1900 (NSW). Two further offences, intimidation and common assault, were taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate conviction). The offending occurred on 27 October 2018 and arose in the context of a deteriorating domestic relationship between the appellant and his former wife.

The facts were serious. Over the course of that evening, the appellant took the complainant's phone, prevented her car from leaving a lookout, grabbed her by the hair, and then subjected her to a prolonged sexual assault in the family home. The complainant repeatedly refused sexual contact, stated she had her period, and physically resisted. The appellant ignored all of this. He made significant admissions in a police interview shortly after the events.

The Local Court imposed 21 months' imprisonment with a 12-month non-parole period. The appellant obtained bail pending the appeal and had not entered custody at the time of the District Court hearing. He sought to have the sentence varied, arguing that an Intensive Correction Order (a community-based custodial sentence served in the community under strict supervision) should be substituted for full-time imprisonment.

  • Whether the sentence imposed by the Local Court was excessive in the circumstances.
  • Whether an Intensive Correction Order was an appropriate alternative to full-time custody, having regard to the nature of the offending and the sentencing objectives at play.
  • What weight should be given to the appellant's rehabilitation prospects against the competing considerations of general deterrence, specific deterrence, denunciation, and the protection of victims of domestic violence.

Decision

The District Court conducted a full de novo rehearing on the evidence, including fresh psychological evidence and sworn evidence from the appellant. Abadee DCJ acknowledged mitigating factors, including the guilty plea and evidence of rehabilitation prospects. However, the court found that those considerations were subordinate to the dominant sentencing objectives in cases of this kind.

Drawing on the Court of Criminal Appeal's decision in Patsan v R [2018] NSWCCA 129, the court emphasised that in domestic violence matters, general deterrence, specific deterrence, denunciation, and community protection must be given significant weight. The court also applied the High Court's reasoning in Munda v Western Australia [2013] HCA 38, which stresses the importance of vindicating the dignity of victims of domestic violence and holding offenders properly accountable.

While the court accepted that community safety would not be seriously imperilled by a non-custodial order, it held that community safety was not the paramount consideration here. The gravity of the offending conduct, amplified by the Form 1 offences, meant that full-time custody remained the appropriate sentence. Abadee DCJ noted the Magistrate's sentence could even be considered lenient given the seriousness of the conduct, and declined to vary it.

The court confirmed that special circumstances justified the departure from the standard statutory ratio between the total sentence and the non-parole period, primarily to facilitate the appellant's rehabilitation after release.

Orders Made

  • The appeal against severity is dismissed.
  • The appellant is sentenced to 21 months' imprisonment, commencing 5 June 2020 and ending 4 March 2022.
  • Non-parole period of 12 months; first eligible for release on 4 June 2021.

Key Takeaways

  • In dismissing the appeal, the District Court confirmed that rehabilitation, while relevant, is subordinate to general deterrence, denunciation, and adequate punishment where the offending involves serious domestic violence and sexual assault.
  • The principle from Munda v Western Australia [2013] HCA 38, that sentencing courts must vindicate the dignity of victims of domestic violence, applied directly to the court's refusal to substitute a community-based order for full-time custody.
  • A severity appeal in the District Court proceeds as a full de novo rehearing, meaning the court exercises the sentencing discretion afresh and may receive fresh evidence, though it is not bound by the original sentence.
  • Where the maximum penalty for an offence differs depending on whether it is tried summarily or on indictment, the higher indictable maximum remains a relevant reference point when assessing the objective seriousness of the conduct, even in summary proceedings.
  • The court found that special circumstances existed to justify a shorter non-parole period relative to the total term, primarily on the basis that a shorter period would better support the appellant's rehabilitation upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61L, 61M
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66

Cases:
- Munda v Western Australia [2013] HCA 38
- Patsan v R [2018] NSWCCA 129
- Peiris v R [2014] NSWCCA 58
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] 56 NSWLR 146