Citation: R v Dane [2020] NSWDC 851
Court: District Court of New South Wales
Date: 27 November 2020
Judge: Haesler SC DCJ
Background
The offender, a former law enforcement officer, pleaded guilty in the Local Court to five offences arising from a single night of violence on 5 December 2019. The offences involved two women: his then-current domestic partner and his former wife, with whom he had three children aged 10, 14, and 15. The offending also occurred in the presence of two of his children.
The night began at his partner's home, where the offender punched her in the face with a closed fist after an argument, fracturing her nose and causing bruising to both eyes. He then drove to his former wife's home, tore a screen door off its frame, smashed a stained glass panel, damaged her vehicle, forced his way into the house, and punched her repeatedly to the head while their children screamed for him to stop. He told her he would "destroy her."
Approximately an hour later, police intercepted the offender outside the home of his former wife's brother. He was carrying a six-inch tyre wrench and told police he intended to "confront" the brother over a threat made months earlier. He acknowledged to police that he knew he was "in the wrong."
Legal Issues
- What aggregate sentence was appropriate across five offences involving multiple victims in a domestic violence context?
- What weight should be given to the utilitarian value of guilty pleas entered in the Local Court?
- How should the court treat the offender's status as a former law enforcement officer, given the potential hardship of custody, without allowing that hardship to distort the proportionality of the sentence?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- What effect, if any, should the offender's mental state at the time of the offending and his ongoing treatment have on sentence?
Decision
His Honour convicted the offender on all five matters and imposed an aggregate sentence of three years and three months, with a non-parole period of one year and ten months.
Each individual sentence was reduced by 25 percent to reflect the utilitarian value of the guilty pleas entered in the Local Court, as required by section 25D of the Crimes (Sentencing Procedure) Act 1999. His Honour also noted the additional benefit that witnesses would not need to be called at trial. Care was taken to ensure that the process of accumulating individual sentences did not erode those individual plea discounts.
The court acknowledged that the offender's former law enforcement status would likely mean a greater degree of hardship in custody, including potential harassment from other prisoners and possible protective custody conditions. His Honour drew on judicial experience rather than direct evidence to make this finding, noting the evidentiary difficulties identified in Jones v R (1985) 20 A Crim R 142. However, the court was clear that this hardship could not and did not reduce the sentence below what was proportionate to the objective seriousness of the offending.
Special circumstances were found, resulting in a longer parole period than would ordinarily apply. His Honour reasoned that community protection was better served by extended supervision and support in the community, and that rehabilitation prospects were linked to restoring some form of contact with the offender's children. The individual sentences were accumulated to reflect that there were three victims across the course of the night's offending.
Orders Made
- Assault occasioning actual bodily harm (DV) against Ms Swinnerton: 1 year 6 months
- Assault occasioning actual bodily harm (DV) against Ms Heydon: 1 year 1 month
- Aggravated enter dwelling knowing people there: 2 years 3 months
- Destroy or damage property (DV): 9 months
- Armed with intent to commit indictable offence: 1 year 1 month
- Aggregate sentence: 3 years 3 months
- Non-parole period: 1 year 10 months, commencing 27 November 2020, with eligibility for parole from 26 September 2022
- Parole period: 1 year 5 months, with the total sentence expiring 26 February 2024
Key Takeaways
- A 25 percent reduction for guilty pleas entered in the Local Court was applied to each individual offence under section 25D of the Crimes (Sentencing Procedure) Act 1999, and His Honour took care to preserve that discount when constructing an aggregate sentence.
- The potential hardship of custody for a former law enforcement officer can be acknowledged as a relevant sentencing factor, even without direct evidence, though it cannot reduce a sentence below what the objective seriousness of the offending demands.
- Where direct evidentiary proof of custodial hardship is unavailable (as noted in Jones v R), the sentencing court may draw on judicial experience, but the absence of evidence does not eliminate the factor entirely.
- Finding special circumstances justified an extended parole period, with the District Court emphasising that prolonged community supervision, mentoring, and the prospect of restored family relationships offered better prospects for rehabilitation and community protection than a longer non-parole period.
- Victim impact material was assessed carefully: the court confined its consideration to consequences that flowed directly from the charged offences, distinguishing the impact of prior disputes and proceedings from the harm caused by the specific criminal conduct on the night in question.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 111(2), 114(1)(a), 195(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 28
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Jones v R (1985) 20 A Crim R 142
- Munda v Western Australia [2013] HCA 38
- R v Burton [2008] NSWCCA 128
- R v Edwards (1996) 90 A Crim R 510
- The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256