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District Court 12 March 2020

R v Dickson

[2020] NSWDC 894

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences

Citation: R v Dickson [2020] NSWDC 894
Court: District Court of New South Wales
Date: 12 March 2020
Judge: M L Williams SC DCJ

Background

In the early hours of 5 May 2019, the offender entered the home of his former partner, who was asleep with their two young children present. He confronted her in her bedroom while holding a short silver axe over her head, threatening her and demanding she account for her whereabouts the previous night. She fled the home, called triple-0, and was found by police crying in her car and visibly distressed.

Following his arrest, an apprehended domestic violence order (ADVO) was put in place. Despite being in custody and served with the ADVO, the offender added the victim's number to his approved contact list and called her 42 times between 17 May and 14 June 2019, in breach of the ADVO's conditions. Many of those calls were angry and verbally abusive.

The offender pleaded guilty at an early stage to three principal offences: stalking and intimidating contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007; being armed with intent to commit an indictable offence contrary to s 115 of the Crimes Act 1900; and doing an act with intent to influence a witness contrary to s 323(a) of the Crimes Act 1900. He was also dealt with for contravening the ADVO and for breaches of existing community corrections orders.

  • What weight should be given to the offender's extensive and well-documented subjective circumstances, including his Aboriginal background, childhood trauma, drug addiction, and mental illness (applying the principles from Bugmy v The Queen)?
  • How should the sentencing court balance those mitigating factors against the need for general and specific deterrence and denunciation, particularly in the context of domestic violence and offences against the administration of justice?
  • Whether special circumstances existed justifying a longer parole period relative to the non-parole period.
  • How to deal with the breaches of community corrections orders and the pre-existing conditional liberty at the time of offending.
  • What aggregate sentence was appropriate having regard to totality and accumulation?

Decision

The court accepted that the offender's subjective case was compelling and largely uncontroversial, supported by two psychologist reports. His background included the death of his father before his birth, his mother's severe alcoholism, physical and verbal abuse by the uncle who raised him, social isolation, a disrupted education, and early onset drug use from age 13. He had spent approximately 75 per cent of the prior decade in custody. These circumstances engaged the Bugmy principles, which require courts to give meaningful weight to the effects of profound childhood deprivation and disadvantage on an Aboriginal offender's moral culpability.

Notwithstanding those mitigating factors, the court accepted the Crown's submission that general and specific deterrence and denunciation carried significant weight, given the nature of the domestic violence offending and the separate offences directed at influencing the victim as a witness. The offender's conduct in making 42 phone calls in breach of the ADVO while in custody was treated as a serious aggravating feature. He was also on conditional liberty in multiple respects at the time of the principal offending, which was an aggravating factor under the Crimes (Sentencing Procedure) Act 1999.

The court found special circumstances, noting the offender's need for significant treatment and supervision on parole and the real risk of institutionalisation given the proportion of his life spent in custody. A 25 per cent discount was applied for the utilitarian value of the early guilty pleas. The court described the psychologist's assessment that, with comprehensive supervision, the offender had good prospects of rehabilitation, and characterised his behaviour on the night as a product of substance withdrawal compounded by emotional instability, fear of rejection and abandonment, and inadequate conflict resolution skills.

For the contravention of the ADVO, the court convicted the offender but imposed no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, having regard to the totality of the sentences otherwise imposed.

Orders Made

  • Community corrections orders revoked; conviction confirmed; fixed sentence of three months' imprisonment imposed on each, commencing 5 May 2019.
  • On the three principal offences, aggregate sentence of three years' imprisonment with a non-parole period of two years, commencing 5 June 2019 (accumulation of one month on the community corrections order sentences).
  • Indicative sentences: 15 months, 20 months, and 18 months respectively.
  • Special circumstances found.
  • Contravention of the ADVO: convicted; no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
  • Breaches of the s 9 bonds (dishonestly obtaining financial advantage by deception): no action taken.
  • Sequences 1 and 2 withdrawn.

Key Takeaways

  • The Bugmy principles applied: the District Court gave substantial weight to the offender's Aboriginal background and lifelong disadvantage, treating severe childhood deprivation and its ongoing psychological effects as relevant to, though not excusing, the offending.
  • Where an offender is on multiple forms of conditional liberty at the time of offending, each constitutes an aggravating factor to be weighed in the sentencing exercise.
  • General and specific deterrence and denunciation remain weighty considerations in domestic violence sentencing and cannot be displaced by subjective circumstances, however compelling.
  • Special circumstances can be found where an offender has spent a significant proportion of their adult life incarcerated, creating a real risk of institutionalisation and an acute need for structured post-release supervision and treatment.
  • A s 10A conviction without further penalty remains available for a summary domestic violence contravention where the court is otherwise imposing a substantial aggregate sentence and has regard to totality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 115, 323(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Evans v R [2012] NSWCCA 59
- Marinellis v R [2006] NSWCCA 307
- R v Burton [2008] NSWCCA 128