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District Court 18 June 2021

R v Salom

[2021] NSWDC 386

Assault & violenceDomestic & family violence

Citation: R v Salom [2021] NSWDC 386
Court: District Court of New South Wales
Date: 18 June 2021
Judge: Buscombe DCJ

Background

The offender, a man then aged 52, pleaded guilty to two counts of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW). Both offences were committed against the same victim, a woman with whom he had an on-again, off-again relationship between December 2014 and February 2019. The parties did not live together but regularly stayed at each other's homes in Sydney's Sutherland Shire.

The first offence occurred on 24 September 2015, when the offender stamped on the victim's ankle during an argument, causing a fracture that required surgery and approximately three months off work. The second offence occurred on Anzac Day 2017, when the offender pushed the victim onto a footpath outside a hotel, causing her to strike her head and land heavily on both wrists. She sustained bilateral distal radius fractures requiring surgery to both hands and was again unable to work for three to four months.

The offender also asked the court to take into account two further assault offences on Form 1 (a procedural mechanism that allows additional charges to be considered in sentencing without a separate conviction). Both Form 1 offences involved assaults on the same victim, including an incident in which the offender grabbed her by the throat.

  • What was the appropriate objective seriousness of the two principal offences?
  • What weight should be given to the offender's subjective circumstances, including any mental health considerations?
  • Whether an Intensive Correction Order (ICO) was appropriate given the aggregate sentence length and community safety considerations
  • Whether a home detention condition should be imposed as part of the ICO

Decision

Buscombe DCJ assessed both principal offences as correctly characterised as domestic violence offences. Her Honour found both to be considerably below the mid-range of objective seriousness, though not at the bottom of the range, given the relatively limited physical actions involved. The 2015 ankle-stamping offence was assessed as more serious than the 2017 push, despite the latter causing more extensive injuries, because of the deliberate downward force applied in the first incident.

On the subjective case, the court noted the offender's limited criminal history, with a decades-old drink-driving conviction being largely irrelevant. The judgment also addressed mental health as a mitigating factor, consistent with the catchwords indicating mental illness was a sentencing consideration, alongside the guilty plea and other personal circumstances.

Her Honour indicated sentences of two years and five months for the first charge and one year and seven months for the second, with an indicative one-year non-parole period on the latter, before arriving at an aggregate sentence of two years and ten months. Because the aggregate term fell below three years, the court considered and ultimately imposed an Intensive Correction Order. The Sentencing Assessment Report confirmed the offender's suitability for a home detention condition as part of the ICO, and the court was satisfied that community safety would not be compromised by this approach.

Orders Made

  • The offender was convicted of all offences to which he pleaded guilty.
  • An aggregate sentence of two years and ten months imprisonment was imposed, commencing 18 June 2021 and expiring 17 April 2024.
  • The sentence is to be served by way of an Intensive Correction Order, with the following conditions:
  • Standard condition: the offender must not commit a criminal offence.
  • Standard condition: the offender is to be supervised by Community Corrections.
  • Additional condition: 250 hours of community service.
  • Additional condition: home detention for a period of one year and nine months.
  • Additional condition: abstention from prohibited drugs and alcohol for a period of one year and nine months.

Key Takeaways

  • Both principal offences were classified as domestic violence offences and assessed as considerably below the mid-range of objective seriousness, reflecting the limited physical actions of the offender even where serious injuries resulted.
  • Objective seriousness was not determined solely by the severity of the injuries suffered. The court found the 2015 offence more serious than the 2017 offence despite the latter causing more extensive physical harm, because of the nature of the deliberate force applied.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence of less than three years opens the possibility of an ICO, provided community safety is not compromised and a Sentencing Assessment Report supports suitability.
  • A home detention condition was attached to the ICO on the basis of a favourable Sentencing Assessment Report, illustrating the court's use of that report as a prerequisite for that specific condition.
  • Form 1 offences involving the same victim were treated as aggravating the sentence to varying degrees: the broken wrist incident had some impact, while the neck-grabbing incident had only a limited impact on the respective principal offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4B, 21A, 66

Cases:
- Lawson v R [2018] NSWCCA 215
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Moiler v The Queen [2021] NSWCCA 73
- Muldrock v R (2011) 244 CLR 120