Citation: R v Duff (a pseudonym) [2021] NSWDC 146
Court: District Court of New South Wales
Date: 30 April 2021
Judge: Colefax SC DCJ
Background
The offender (identified by the pseudonym "Duff") was sentenced following guilty pleas entered on 8 October 2020 to seven principal offences arising from a prolonged campaign of domestic violence against an intimate partner. The offending began shortly after the victim moved into the offender's Liverpool unit in April 2018, when both parties were 21 years old.
The relationship rapidly became one of severe coercive control. The offender confined the victim to the unit, stripped her of employment, monitored her social media accounts, and subjected her to escalating physical and sexual violence. He referred to her as his "slave," made explicit sexual demands under threat of punishment, and used weapons including a knife, a dog lead, bolt-cutters, and a cigarette lighter to injure her.
The principal offences included two counts of assault occasioning actual bodily harm, two counts of intentionally choking with recklessness, one count of sexual intercourse without consent, one count of reckless wounding, and one count of attempted sexual intercourse without consent. Six further matters were taken into account on Form 1 schedules.
Legal Issues
- What was the appropriate indicative sentence for each of the seven principal offences, having regard to objective seriousness, aggravating factors, and the guilty plea discount?
- What discount applied to reflect the offender's guilty pleas?
- How should the totality principle operate to produce a just aggregate sentence across the seven offences?
- What non-parole period was appropriate given the standard non-parole periods prescribed for two of the principal offences?
Decision
His Honour assessed each offence individually before applying totality. For the first assault occasioning actual bodily harm (Count 1), the offending was found to be well above the mid-range of objective seriousness. The choking offences and the sexual violence counts attracted indicative sentences reflecting their serious and degrading nature, with the rape count (Count 4) drawing an indicative sentence of 8 years 6 months after discount.
The offender received a 10 per cent discount on each indicative sentence to reflect the utilitarian value of his guilty pleas. His Honour noted the pleas were entered on an amended indictment and assessed the discount accordingly. No greater discount was applied.
Several offences were further aggravated because they occurred in the victim's home. His Honour was explicit that the word "additionally" was used throughout the remarks to signal that this aggravating factor had not been double-counted in the objective seriousness assessment.
Applying the totality principle, His Honour imposed an aggregate term of 14 years imprisonment rather than simply cumulating each indicative sentence. A non-parole period of 9 years and 9 months was fixed, commencing from 4 April 2019 (the date the offender was taken into custody).
Orders Made
- Aggregate term of imprisonment of 14 years imposed for the seven principal offences.
- Non-parole period of 9 years 9 months, commencing 4 April 2019 and expiring 3 January 2029.
- Balance of term of 4 years 3 months, commencing 4 January 2029 and expiring 3 April 2033.
- Exhibits 4 and 5 directed to go with the warrant.
Key Takeaways
- The District Court applied a 10 per cent guilty plea discount across all counts, reflecting the utilitarian value of pleas entered on an amended indictment rather than at the earliest opportunity.
- Where offences are committed in the victim's home, that factor operates as an aggravating circumstance separate from and in addition to the objective seriousness assessment; the sentencing judge here took care to explain that the factor was not counted twice.
- Form 1 matters attached to individual principal counts resulted in slight upward adjustments to the sentences for those counts, consistent with standard practice for schedule offences.
- The totality principle operated to produce an aggregate sentence lower than the sum of individual indicative terms, reflecting the need for a sentence that is just and appropriate as a whole.
- Sustained coercive control, including confinement, repeated physical violence, and sexual violence against an intimate partner, produced indicative sentences at the higher end of the applicable ranges, with the rape count alone drawing an indicative term of 8 years 6 months after discount.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes Act 1900 (NSW), s 37(1) (intentionally choking a person with recklessness)
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
Cases cited: No cases were cited in the portion of the judgment provided.