Citation: R v Reid, John David [2020] NSWDC 946
Court: District Court of New South Wales
Date: 2 April 2020
Judge(s): P Taylor SC DCJ
Background
The offender, a 38-year-old man, pleaded guilty to two counts of assault occasioning actual bodily harm against his domestic partner (referred to by the pseudonym Giada Nixon), contrary to section 59(1) of the Crimes Act 1900. The offences occurred over three days in December 2018 at a shared studio in Surry Hills. At the time, an apprehended violence order (AVO) was already in place prohibiting any contact between the offender and the victim.
The first assault arose from a domestic dispute on the morning of 1 December 2018, when the offender struck the victim causing significant bruising to her right eye. Later that night, he pulled her by the hair, struck her repeatedly with both open and closed fists, spat in her face, and jumped on her with sufficient force to break the bed. She sustained injuries to her neck and ear.
Two days later, a further assault took place both inside the shared room and in public on the street, constituting a common assault taken into account on a Form 1. The offender also faced a separate charge for contravening the AVO. A Form 1 is a mechanism allowing the court to take additional related offences into account during sentencing without recording separate convictions for them.
Legal Issues
- What was the appropriate objective seriousness for each offence?
- What weight should be given to drug addiction (methamphetamine use) as a mitigating or contextual factor?
- What sentencing purposes applied, particularly given the domestic violence context and the offender's prior history?
- What discount applied for the guilty pleas, and how should pre-sentence custody and time in residential rehabilitation be credited?
- Were there special circumstances justifying a departure from the standard non-parole period ratio?
Decision
The court assessed the objective seriousness of count 1 (the first assault) as falling between the lower and mid-range, count 2 (the sustained assault during the night) as towards the middle of the range, and the common assault on the Form 1 as sitting at the middle of the range. The AVO contravention, because it was consensual in the sense that the victim had returned to the premises, was treated as falling at the lower end of its range.
The court found that the offender's methamphetamine use played a role in the offending but that it was not a mitigating factor. His prior criminal history included domestic violence offences such as stalking, property damage, and assault occasioning bodily harm, along with repeated AVO contraventions involving the same victim in the years preceding these offences. The court observed that the offending was not an uncharacteristic aberration.
Applying the principles in McLaughlin v R and Munda v Western Australia, the court emphasised that sentences for repeated domestic violence committed in breach of an AVO must reflect punishment, general and specific deterrence, community protection, and denunciation. The court noted that the offender's expressions of remorse during the offending period had not prevented him from continuing the violence, and assessed his rehabilitation prospects as guarded. The court was satisfied that imprisonment was the only appropriate penalty under section 5 of the Crimes (Sentencing Procedure) Act 1999.
The court found special circumstances justifying a longer-than-standard supervision period on release, given the rehabilitation needs identified and the fact that this was the offender's first period of imprisonment in approximately 15 years. A 25 percent discount was applied for the guilty plea, reducing the aggregate from three years and four months to two years and six months. Credit was given for six months and thirteen days of pre-sentence custody, plus an additional one month and twenty-six days (approximately half the time spent in a residential rehabilitation program). The court also noted the COVID-19 pandemic as a relevant factor increasing the hardship of custody.
Orders Made
- Aggregate sentence of 2 years and 6 months imprisonment, commencing 23 July 2019, concluding 22 January 2022.
- Non-parole period of 18 months, commencing 23 July 2019, expiring 22 January 2021.
- Indicative sentence for count 1: 16 months imprisonment.
- Indicative sentence for count 2 (incorporating the Form 1 common assault): 2 years imprisonment.
- Contravention of the AVO: 12-month Community Corrections Order.
- The offences were recorded as domestic violence offences on the offender's criminal record.
Key Takeaways
- Methamphetamine use that contributes to domestic violence offending is not a mitigating factor in sentencing, even where the parties agreed it played a role in the conduct.
- Under the principles confirmed in McLaughlin v R, an offender who repeatedly visits violence upon a domestic partner in breach of an AVO should expect a term of imprisonment, and not a minimal one.
- The District Court applied Munda v Western Australia to affirm that sentencing for domestic violence must give due recognition to the victim's human dignity and to the community's legitimate interest in denunciation and punishment.
- Special circumstances can be established where an offender has significant rehabilitation needs and faces their first custodial term in many years, justifying a longer parole period relative to the non-parole period.
- Time spent in a residential rehabilitation program as part of pre-sentence arrangements may attract partial credit toward the sentence, with the court here applying a 50 percent credit for that period.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases
- Cherry v R [2017] NSWCCA 150
- McLaughlin v R [2013] NSWCCA 152
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38