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District Court 20 March 2020

Nashar v R

[2020] NSWDC 940

Domestic & family violencePublic order & justice offences

Citation: Nashar v R [2020] NSWDC 940
Court: District Court of New South Wales
Date: 20 March 2020
Judge: P Taylor SC DCJ

Background

The appellant had pleaded guilty in the Local Court to two charges of stalking or intimidating another person with intent to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The two victims were a friend of his wife and his wife's sister. Both women became involved in a series of escalating incidents on a single evening in which the appellant pursued, screamed at, and physically lunged at his wife in their presence.

The Local Court imposed an aggregate sentence of two years' imprisonment to be served by way of an intensive correction order (a community-based alternative to full-time custody involving strict supervision and conditions). The appellant appealed to the District Court on the ground that the sentence was excessive.

The Crown did not contend that the offences were among the most serious of their kind. The central question on appeal was whether the aggregate sentence of two years fell within the appropriate range, having regard to the maximum penalty in the Local Court jurisdiction of two years' imprisonment for each offence.

  • Whether the aggregate sentence of two years' imprisonment (by way of intensive correction order) was manifestly excessive for two charges of stalking or intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007
  • What parts of the Facts Sheet could properly be considered at sentencing, consistent with the principle in R v De Simoni, where some charges were not pursued by the prosecutor
  • Whether the imprisonment threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 was met
  • Whether a sentence of imprisonment to be served by intensive correction order remained appropriate

Decision

The District Court allowed the appeal and reduced the sentence. His Honour applied the principle from R v De Simoni (1981) 147 CLR 383, which prohibits a sentencing court from punishing an offender for an offence of which they have not been convicted. Accordingly, the Court disregarded facts from the Facts Sheet that related only to charges the prosecution did not pursue. Conduct involving the appellant's behaviour towards his wife was treated as relevant only to the extent that the two victims had witnessed it or been informed of it, and to the extent it bore on whether a pattern of violence could be established.

The Court accepted that the imprisonment threshold was crossed: imprisonment was the only appropriate penalty given the nature of the offending. However, his Honour found the original sentences were too high. The maximum penalty for the offence in the Local Court jurisdiction is two years' imprisonment, and the Crown itself did not submit that these were offences at the most serious end of the range. The Court treated the existence of multiple victims as already addressed by the fact that each victim was the subject of a separate charge.

His Honour also took into account, as mitigating factors, the appellant's plea of guilty and the unplanned nature of the evening's events. The Court further noted that while the appellant had prior criminal history, he had avoided convictions in the five years preceding these offences, reflecting some improvement.

The aggregate sentence was reduced from two years to 12 months and 9 days, to continue to be served by way of intensive correction order.

Orders Made

  • Leave to appeal granted
  • Severity appeal allowed and sentence varied
  • Aggregate sentence of imprisonment of 12 months and 9 days imposed
  • Indicative sentences of 12 months for each offence
  • Sentence directed to be served by way of intensive correction order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 20 March 2020 and expiring 28 March 2021

Key Takeaways

  • The District Court confirmed that the De Simoni principle applies at sentencing appeals: facts from a Facts Sheet that relate only to charges not pursued by the prosecution cannot be used to aggravate the sentence for the charges that were prosecuted.
  • Conduct by a defendant towards a third party (in this case, the wife) was treated as relevant to charges involving other victims only to the extent those victims had witnessed or been informed of that conduct, or where it demonstrated a pattern of violence bearing on the stalking or intimidation analysis.
  • A domestic relationship under s 5 of the Crimes (Domestic and Personal Violence) Act 2007 can extend to a close friend where the relationship is an intimate, personal (though non-sexual) one, bringing such a person within the ambit of the Act's protections.
  • Multiple victims do not automatically warrant a penalty beyond what is reflected in separately charged offences; the District Court here declined to treat the multiplicity of victims as a further aggravating factor over and above the separate charges.
  • The absence of planning and a plea of guilty were treated as mitigating factors capable of reducing what would otherwise have been an appropriate sentence, even where the conduct was serious enough to cross the s 5 imprisonment threshold.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5, 7, 8, 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7

Cases:
- R v De Simoni (1981) 147 CLR 383