Citation: R v Maranda [2020] NSWDC 696
Court: District Court of New South Wales
Date: 22 October 2020
Judge: Bennett SC DCJ
Background
The offender, a 34-year-old man, and the victim had a brief intimate relationship that began on 2 January 2020. When the victim ended the relationship on 10 January 2020, the offender embarked on a sustained campaign of contact: over the following five days he called her 96 times and sent 54 text and WhatsApp messages, receiving no response. The victim had blocked him, yet messages continued to reach and be stored on her phone.
On the evening of 15 January 2020, the offender entered the victim's unit at Illawarra Road, Marrickville, knowing other persons were present inside. He was also found outside the premises carrying a knife in a public place and in possession of a Myer One card belonging to another person that may reasonably have been suspected of being stolen.
The offender pleaded guilty in the Local Court to the principal offence of aggravated entry of a dwelling house with intent to intimidate, and entered pleas of guilty to the summary offences when the charges were read to him on the day of sentencing. He also asked the court to take into account, on a Form 1, a separate charge of stalking and intimidating the victim with intent to cause her to fear mental harm.
Legal Issues
- What was the appropriate starting point for sentencing on the principal offence of aggravated entry of a dwelling house with intent to intimidate (maximum: 14 years), having regard to the objective seriousness of the conduct?
- What discount applied for the guilty pleas?
- How should the Form 1 stalking and intimidation offence influence the overall sentence?
- What were the appropriate indicative sentences for the summary offences (custody of a knife; goods in custody), and how should those be aggregated into a single sentence?
- Whether special circumstances existed to justify departing from the standard ratio of non-parole period to head sentence.
Decision
The court assessed the principal offence as sitting at the lower to middle range of objective seriousness. The serious indictable offence that the offender intended to commit, namely intimidation, carries a maximum of five years on its own, placing it at the lower end of available penalties. However, the court weighed against that the sustained and escalating pattern of contact in the days before the entry, the deliberate act of entering a home where the offender knew people were present, and the domestic violence context. The court noted that domestic violence offences must be treated seriously, observing the potential for such conduct to result in great tragedy.
On subjective matters, the court considered the offender's personal circumstances and his guilty pleas. A discount of 25 per cent was applied to the synthesised starting point, reflecting the utility of the pleas and taking into account contrition, remorse, and prospects for rehabilitation. The court noted it was not satisfied the offender's criminal record elevated the matter to the level of the principle discussed in Veen No 2.
The court found special circumstances existed, justifying a longer parole period than the statutory norm. This produced an aggregate sentence of 3 years and 6 months, with a non-parole period of 2 years.
Orders Made
- The offender was convicted of each offence to which he pleaded guilty.
- The Form 1 stalking and intimidation offence was taken into account in sentencing on the principal offence.
- Indicative sentence for aggravated entry of a dwelling house with intent to intimidate: 3 years and 3 months (after a 25% discount).
- Indicative sentence for custody of a knife in a public place: 6 months (after a 25% discount).
- Indicative sentence for goods in custody: 3 months (after a 25% discount).
- Aggregate sentence: 3 years and 6 months imprisonment, comprising a non-parole period of 2 years and a parole period of 1 year and 6 months.
- Sentence commenced 15 January 2020; non-parole period expires 14 January 2022; parole expires 14 July 2023.
- Special circumstances found.
Key Takeaways
- Aggravated entry of a dwelling house with intent to intimidate carries a 14-year maximum, but the objective seriousness of a given case depends significantly on the gravity of the intended serious indictable offence. Where that offence is intimidation, carrying a five-year maximum in its own right, the court treated this as placing the conduct toward the lower range.
- A sustained domestic violence pattern preceding a physical intrusion, including 96 unanswered phone calls and 54 messages over five days, was treated as a material aggravating feature that informed both the Form 1 and the principal offence.
- Under the aggregate sentencing regime in the Crimes (Sentencing Procedure) Act 1999, the District Court determined indicative sentences for each offence before arriving at a single aggregate term, demonstrating how summary offences dealt with pursuant to s 166 of the Criminal Procedure Act 1986 are incorporated into the overall sentencing exercise.
- A 25 per cent discount for a guilty plea was applied to the synthesised starting point, which already incorporated contrition, remorse, and rehabilitation prospects, consistent with established New South Wales authority.
- Finding special circumstances permitted the court to extend the parole period beyond the statutory default, producing a non-parole period of 2 years against a head sentence of 3 years and 6 months.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 111(2), 527C(1A)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 37
- Criminal Procedure Act 1986 (NSW), s 166
- Summary Offences Act 1988 (NSW), s 11C(1)
Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Imbornone v R [2017] NSWCCA 144
- PB v R [2016] NSWCCA 258
- R v Henry (1999) 46 NSWLR 346
- R v Qutami [2001] NSWCCA 353