Citation: R v Saunders [2021] NSWDC 530
Court: District Court of New South Wales
Date: 12 May 2021
Judge(s): Bright DCJ
Background
The offender, a 52-year-old man, appeared for sentencing on four offences arising from conduct directed at his former partner and her new partner. The former relationship had ended in early 2017 after approximately 13 years together. The offending occurred across two separate episodes in 2017.
The most serious incident took place on 4 May 2017. The offender deceived his former partner into attending a property by telling her he would be elsewhere, then ambushed her and choked her into unconsciousness on two occasions. He also struck her in the face causing bruising, and made threats against her and her new partner. In a separate episode, the offender attended the new partner's workplace, pointed to a sledgehammer in his vehicle, and stated he had come to "knock him out." A further telephone threat followed in November 2017.
The offender pleaded guilty on the first day of the scheduled trial, which resulted in a discount of only 5% on the sentence. Two additional offences were taken into account on a Form 1 (a procedure under which offences not charged on the indictment are acknowledged and factored into the head sentence).
Legal Issues
- What was the appropriate assessment of the objective seriousness of the choking offence, including whether the offending was planned?
- How should general and specific deterrence be weighted in the context of domestic violence offending?
- What mitigating factors applied, including remorse, health, and the offender's subjective circumstances?
- Whether an Intensive Correction Order was appropriate, or whether full-time imprisonment was required.
- Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the parole period.
Decision
Bright DCJ assessed the choking offence (Count 1) as serious. The Court found that rendering the victim unconscious represented a higher level of objective seriousness within the range of the offence, compared to merely rendering a person incapable of resistance. The Court was not satisfied beyond reasonable doubt that the offending was premeditated, accepting the offender's evidence that he had been preparing to leave when the encounter occurred. However, the Court found that his recklessness was of a very high order and that the isolated location made it far less likely the victim could raise the alarm.
On the question of domestic violence sentencing principles, the Court applied the High Court's remarks in R v Kilic (2016) and earlier authority from R v Edigarov (2001). The Court emphasised that sentencing for domestic violence must account for the enduring emotional harm suffered by victims and reflect changed societal attitudes toward such conduct. General and specific deterrence, denunciation, and community protection were identified as important considerations in this context.
The Court declined to impose an Intensive Correction Order. Although the Court accepted that such an order might more effectively reduce the risk of reoffending, it concluded that only full-time custody could adequately address the purposes of punishment, denunciation, and general deterrence, having regard to the harm caused to the victim.
Special circumstances were established because the offender would be entering custody for the first time. This justified a variation to the standard ratio between the non-parole period and the balance of the term, resulting in a shorter minimum period before parole eligibility than the statutory default would otherwise require.
Orders Made
- Count 1 (intentional choking, rendering unconscious) and Count 4 (assault occasioning actual bodily harm): convicted; aggregate sentence of 3 years imprisonment commencing 11 May 2021 and expiring 10 May 2024.
- Non-parole period of 1 year and 6 months, commencing 11 May 2021 and expiring 10 November 2022, with release to parole directed on 10 November 2022.
- Counts 3 and 5 (intimidation): convicted; community correction order of 12 months in respect of each offence, commencing 12 May 2021 and expiring 11 May 2022, on conditions of good behaviour and attendance before the Court if required.
- Sentence backdated by one day to account for one day already served in custody.
Key Takeaways
- The District Court confirmed that choking an individual into full unconsciousness represents a more serious form of the offence under s 37(1) of the Crimes Act 1900 (NSW) than merely rendering a person incapable of resistance, and warrants treatment as a higher-level example of the offence for sentencing purposes.
- A guilty plea entered on the first day of trial attracted only a 5% discount, reflecting the limited utilitarian value of such a late plea.
- Under established domestic violence sentencing principles, courts must account for the enduring emotional harm suffered by victims and the change in societal attitudes to this category of offending, as affirmed by the High Court in R v Kilic (2016) 259 CLR 256.
- An Intensive Correction Order may be declined even where it is likely to reduce reoffending risk, if the nature of the offending requires full-time custody to satisfy the sentencing purposes of punishment, denunciation, and general deterrence.
- First-time entry into custody can constitute special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying a departure from the standard non-parole period ratio.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 37(1), 59(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2B), 66(1)-(3)
Cases
- R v Kilic (2016) 259 CLR 256 (High Court)
- R v Edigarov (2001) 125 A Crim R 551
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- Lee v R [2019] NSWCCA 15
- R v Edwards (1996) 90 A Crim R 510