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District Court 28 January 2021

R v Corak-Phan

[2021] NSWDC 3

Assault & violenceDomestic & family violencePublic order & justice offences
DOMESTIC VIOLENCE OFFENCES AGGREGATE SENTENCE

Citation: R v Corak-Phan [2021] NSWDC 3
Court: NSW District Court
Date: 28 January 2021
Judge(s): Mahony SC DCJ

Background

The offender pleaded guilty to two counts of common assault and one related offence of breaching an Apprehended Domestic Violence Order (ADVO). The first assault and the ADVO breach arose from a single incident in December 2019, when the offender punched his former partner multiple times to the head and upper body in a car park, while already subject to an ADVO prohibiting him from approaching her. The second assault occurred in April 2020 and involved the offender pulling his sister from a couch by her ankles at their father's home, causing her to fall.

Both offences were committed while the offender was on conditional liberty, having been released on parole in February 2019 following an earlier aggregate sentence of 8 years and 7 months. The first offence was committed approximately 10 months after parole release; the second approximately 14 months after release.

The offender presented a significant background of childhood neglect, physical and sexual abuse, and exposure to domestic violence and criminal behaviour. A forensic psychologist assessed him as meeting criteria for Substance Induced Psychotic Disorder (amphetamines) and Post-Traumatic Stress Disorder (PTSD), and noted limited insight into his offending alongside a long history of serious poly-drug abuse.

  • What weight should be given to the offender's background of deprivation and abuse, including PTSD and substance-induced psychosis, in mitigation of sentence?
  • What aggregate sentence was appropriate for the first common assault and the ADVO breach, having regard to the offender's criminal history, conditional liberty at the time of offending, and rehabilitation prospects?
  • What sentence was appropriate for the second common assault on the offender's sister?
  • Whether the nature of the offender's rehabilitation needs warranted a departure from the standard statutory ratio between the non-parole period and the balance of the term.

Decision

Mahony SC DCJ sentenced the offender by way of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 for the first common assault and the ADVO breach. The court took into account the offender's extensive criminal history, the fact that both offences were committed while on parole, and the serious nature of the domestic violence conduct. At the same time, the court accepted that the offender's deprived and abusive upbringing, consistent with the principles in Bugmy v R, remained relevant to the assessment of moral culpability even given his prior record.

The forensic psychologist's findings regarding PTSD and substance-induced psychosis were also taken into account. The court noted the offender's methamphetamine use had substantially contributed to his offending, but that he had ceased use while in custody and was no longer experiencing paranoia or hallucinations. Rehabilitation prospects, while guarded, were not dismissed entirely.

The court found that the offender's significant need for drug and alcohol rehabilitation and anger management, as well as the desirability of securing treatment, justified departing from the standard statutory ratio between the non-parole period and the head sentence. The non-parole period was accordingly shortened relative to what the standard ratio would otherwise require, with the court recommending referral to a residential rehabilitation program upon release.

For the assault on the offender's sister, the court considered imprisonment unnecessary and instead imposed a Community Correction Order, with conditions requiring participation in rehabilitation or treatment and supervision by a Community Corrections Officer.

Orders Made

  • Convicted of common assault on his former partner (s 61, Crimes Act 1900), ADVO breach (s 14(1), Crimes (Domestic and Personal Violence) Act 2007), and common assault on his sister (s 61, Crimes Act 1900).
  • Aggregate sentence (for the first common assault and ADVO breach): non-parole period of 10 months, commencing 19 October 2020 and expiring 18 August 2021; balance of term of 10 months, from 19 August 2021 to 18 June 2022.
  • For the assault on the offender's sister: Community Correction Order for 18 months from 28 January 2021, with standard conditions (no further offending; attend court if required) plus additional conditions requiring participation in rehabilitation or treatment and supervision by a Community Corrections Officer.
  • Recommendation that the offender be referred to a residential rehabilitation program upon release on parole.

Key Takeaways

  • The District Court applied Buggy v R to confirm that an offender's background of childhood deprivation, abuse, and trauma remains relevant to moral culpability at sentencing, even where the offender has an extensive prior criminal record.
  • Committing offences while on parole is a significant aggravating factor; the court treated the offender's conditional liberty at the time of both assaults as weighing heavily in the sentencing exercise.
  • Where an offender's rehabilitation needs are pronounced, a sentencing court may depart from the standard statutory ratio between the non-parole period and the balance of term under the Crimes (Sentencing Procedure) Act 1999, providing a longer parole period to facilitate treatment.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was applied to the first common assault and the related ADVO breach, with a separate and less severe disposition used for the second assault on the offender's sister.
  • Substance-induced psychotic disorder and PTSD, as assessed by a forensic psychologist, were accepted as relevant to the sentencing analysis, although they did not displace the weight given to the seriousness of domestic violence offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (breach of ADVO)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8(1), 53A, 89(2)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- R v Price [2016] NSWCCA 50