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District Court 29 January 2021

R v Woods

[2021] NSWDC 264

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME COMMON ASSAULT ( DV) RELEVANT FACTORS ON SENTENCE DOMESTIC VIOLENCE OFFENCES TWO COMPLAINANTS HIS SEQUENTIAL PARTNERS

Citation: R v Woods [2021] NSWDC 264
Court: District Court of New South Wales
Date: 29 January 2021
Judge: Haesler SC DCJ

Background

The offender, born in 1992, faced sentencing in the District Court for a series of domestic violence and related offences committed against two successive partners. The offences spanned physical assault, intimidation, threats made via telecommunications services, and an act intended to pervert the course of justice. All charges arose from conduct within intimate relationships.

The offender had entered guilty pleas in the Local Court to all matters. The charges included both New South Wales state offences and Commonwealth offences under the Criminal Code Act 1995 (Cth). The court also heard a sentence appeal brought by the offender against sentences previously imposed by Wollongong Local Court on 17 September 2020 for break and enter and larceny offences.

The offender had been in continuous custody since 22 February 2019. His background included childhood deprivation, exposure to normalised violence from the age of 15, and a lengthy history of contact with the juvenile justice and adult criminal systems. The court received victim impact material from both complainants.

  • Whether the sentence appeal against the Local Court sentences for break and enter and larceny should succeed
  • How to structure aggregate and individual sentences for multiple state offences against two complainants, taking into account early guilty pleas, background circumstances, and accumulation
  • How to apply the discount for early guilty pleas to both state offences (under s 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and Commonwealth offences (under s 16A(2)(g) of the Crimes Act 1914 (Cth)), consistently with the Court of Criminal Appeal's guidance in Xiao v R
  • Whether special circumstances existed to adjust the ratio of non-parole period to total sentence
  • How to balance the offender's personal circumstances, including institutionalisation and childhood deprivation, against the seriousness of the offending and the harm caused to victims

Decision

Haesler SC DCJ dismissed the sentence appeal. The sentences imposed by the Wollongong Local Court were found to be entirely appropriate given the offender's antecedents and the nature of the break and enter offending against local businesses. The fixed terms, reflecting a necessary minimum period in custody, were confirmed without interference.

On sentencing for the indictable matters, the court applied a 25% reduction to the state offences to reflect the early guilty pleas, and gave equivalent effect to the pleas for Commonwealth offences in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth) and the principles in Xiao v R. The court was careful to ensure that the benefit of those pleas was not eroded through the accumulation process.

The court acknowledged the offender's difficult background, including childhood exposure to violence and the institutionalising effect of juvenile detention and adult gaol. These were treated as relevant mitigating factors in structuring the sentence. However, the court was clear that the absence of remorse and the continuation of victim-blaming were also noted, even if not surprising given the offender's circumstances.

A finding of special circumstances was made, primarily because of the degree of accumulation across multiple sentences. This adjustment was designed to maximise the period of supervision on parole, recognising that community-based programs and oversight were more likely to assist rehabilitation than additional time in custody alone.

Orders Made

Sentence appeal: Dismissed. All orders of the magistrate confirmed.

Commonwealth matters (fixed terms, commencing from August 2020):
- Use carriage service to threaten serious harm (Seq 9): 10 months, commencing 22 August 2020, expiring 21 June 2021
- Use carriage service to menace/harass/offend (Seq 11): 12 months, commencing 22 September 2020, expiring 21 September 2021
- Use carriage service to menace/harass/offend (Seq 14): 9 months, commencing 22 October 2020, expiring 21 July 2021
- Use carriage service to threaten serious harm (Seq 12): 13 months, commencing 22 November 2020, expiring 21 December 2021

NSW matters (aggregate sentence commencing 22 February 2021):
- Assault occasioning actual bodily harm (DV) (Seq 7): 1 year 8 months
- Common assault (DV) (Seq 18): 9 months
- Stalk/intimidate intend fear physical harm, domestic (Seq 10): 11 months
- Common assault (DV) (Seq 14): 14 months
- Do act intending to pervert the course of justice (Seq 16): 9 months
- Stalk/intimidate intend fear physical harm, domestic (Seq 4): 9 months
- Stalk/intimidate intend fear physical harm, domestic (Seq 18): 7 months
- Stalk/intimidate intend fear physical harm, domestic (Seq 13): 7 months

Aggregate NSW sentence: 3 years and 6 months, with a non-parole period of 1 year and 9 months from 22 February 2021. Eligible for parole consideration on 21 November 2022. Total sentence expiring 21 August 2024.

Key Takeaways

  • When sentencing for a mix of state and Commonwealth offences, the District Court applied distinct statutory regimes for guilty plea discounts: a mandatory 25% reduction under s 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for state matters, and consideration under s 16A(2)(g) of the Crimes Act 1914 (Cth) for Commonwealth matters, consistent with Xiao v R.
  • Care to preserve the value of early guilty pleas through the accumulation process is a recognised sentencing obligation; the court expressly structured the sentences to avoid eroding that benefit.
  • A history of childhood deprivation and institutionalisation is a relevant mitigating consideration in sentencing, even where it does not reduce the objective seriousness of the offending or indicate any genuine remorse.
  • Special circumstances justifying an adjusted non-parole period can be established on the basis of accumulation alone, where a longer supervisory tail on parole is considered to serve rehabilitation.
  • In dismissing the sentence appeal, the District Court reaffirmed that fixed terms imposed at Local Court level for dishonesty offences, with only modest accumulation, may be entirely appropriate where antecedents and the nature of the offending support them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61, 319
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25
- Crimes Act 1914 (Cth), ss 16A(2)(g), 21B(a)
- Criminal Code Act 1995 (Cth), s 474.15(2)

Cases:
- Xiao v R [2018] NSWCCA; (2018) 96 NSWLR 1