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District Court 18 February 2021

TABER v R

[2021] NSWDC 60

Assault & violenceDomestic & family violence
CRIME ASSAULT OCCASIONING ACTUAL BODILY HARM DOMESTIC VIOLENCE APPEAL SEVERITY NO CRIMINAL HISTORY REMORSE

Citation: Taber v R [2021] NSWDC 60
Court: District Court of New South Wales
Date: 18 February 2021
Judge: Lerve DCJ

Background

The appellant pleaded guilty in Wagga Wagga Local Court to six charges of assault occasioning actual bodily harm, all domestic violence offences against his long-term partner. The six incidents occurred between 4 May and 15 June 2020, during a period when the couple, who had been together for approximately 15 years and had two young children, were both working from home due to the COVID-19 pandemic.

The assaults escalated in severity across the six-week period. They included punches to the face causing a black eye and a laceration, kicks to the body causing significant bruising, and, on the final occasion, the appellant striking the victim multiple times in the face and arm, grabbing her by the throat, and locking her in the garage on two separate occasions the same night and early the following morning. The victim photographed her injuries and ultimately sought treatment at Wagga Wagga Base Hospital.

The Local Court imposed an aggregate sentence of 20 months with a non-parole period of 10 months. The appellant appealed to the District Court on the ground that the sentence was excessive in its severity.

  • Whether the aggregate sentence of 20 months imposed in the Local Court was manifestly excessive given the appellant's lack of criminal history and expressions of remorse.
  • Whether the 15% utilitarian discount applied for the guilty pleas was appropriate, given the pleas were entered on the day of hearing after prior not-guilty pleas.
  • Whether the sentence should be served as full-time custody or by way of an Intensive Correction Order (ICO), having regard to the mandatory community safety assessment under s 66 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the Local Court's jurisdictional limit of two years was a relevant sentencing consideration.

Decision

Lerve DCJ dismissed the appeal and confirmed the Local Court's sentence in all respects. His Honour noted the repeated, escalating nature of the offending and accepted that general deterrence was a significant sentencing consideration in cases of domestic violence. Despite the appellant's lack of prior criminal history and genuine remorse, those factors did not displace the need for a term of full-time custody.

On the question of the plea discount, his Honour acknowledged that 15% was on the generous side, given that guilty pleas were not entered until the day of hearing after the matter had been fixed for a contested hearing. However, his Honour deferred to the sentencing Magistrate's superior knowledge of the workload and practical circumstances of the Wagga Wagga Local Court that day, and applied the same 15% discount.

Regarding the Local Court's jurisdictional limit, his Honour confirmed the established principle that the two-year limit is a ceiling on the Local Court's jurisdiction, not a maximum penalty reserved for worst-case offending. Sentencing courts must assess the appropriate sentence by reference to the prescribed statutory maximum, and the jurisdictional limit becomes relevant only if that assessment produces a figure exceeding it.

On the ICO question, his Honour applied the mandatory community safety framework under s 66 of the Crimes (Sentencing Procedure) Act 1999. While his Honour found the appellant was unlikely to reoffend and had good prospects of rehabilitation, his Honour was unable to find that an ICO would be more likely than full-time custody to address the risk of reoffending. Given the nature and repetition of the offending and the need for general deterrence, full-time custody was required. His Honour noted this was the first sentence appeal on which he had reserved judgment in nearly 10 years on the District Court bench, reflecting the careful consideration the case warranted.

Orders Made

  • The appeal is dismissed.
  • The orders of the Local Court are confirmed in all respects.
  • Aggregate sentence of 1 year and 8 months, with a non-parole period of 10 months.
  • Non-parole period to run from 25 January 2021, expiring 24 November 2021.
  • Balance of term on parole of 10 months to commence 25 November 2021, expiring 24 September 2022.
  • The appellant to be released to supervised statutory parole at the expiration of the non-parole period.

Key Takeaways

  • In dismissing the severity appeal, the District Court reinforced that general deterrence carries significant weight in domestic violence sentencing, even where an offender has no prior criminal history and demonstrates genuine remorse.
  • The two-year jurisdictional limit of the Local Court is not a maximum penalty to be reserved for the worst category of case. Sentencing courts must assess the appropriate sentence by reference to the statutory maximum for the offence, and the jurisdictional limit only becomes operative if that assessment exceeds it.
  • A guilty plea entered on the day of a contested hearing may still attract a utilitarian discount, but the size of that discount will depend on the specific circumstances, including the court's workload and the practical benefit to the prosecution. Here, 15% was characterised as generous rather than standard.
  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is a mandatory paramount consideration when a sentencing court determines whether to impose an ICO rather than full-time custody. The provision does not override general sentencing principles but sits alongside them.
  • Where an offender cannot demonstrate that an ICO would be more effective than full-time custody in addressing reoffending risk, and where the offending requires a general deterrence response, a court may impose full-time custody even where prospects of rehabilitation are assessed as good.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66

Cases
- Casella v R [2019] NSWCCA 201
- Cherry v R [2017] NSWCCA 150
- Cross v R [2019] NSWCCA 280
- Doan v R (2000) 50 NSWLR 115
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DPP v Darcy-Shillingsworth [2017] NSWCCA 224
- Eckermann [2013] NSWCCA 188
- Efthiamadis v The Queen (No 2) [2016] NSWCCA 9
- Fangaloka v The Queen [2020] HCASL 12
- Greaves v R [2020] NSWCCA 140
- Hamid [2006] NSWCCA 302
- Hiron [2007] NSWCCA 336
- Hopley v R [2008] NSWCCA 105
- Karout v R [2019] NSWCCA 253
- Karout v The Queen [2020] HCASL 56
- McCullough v R [2009] NSWCCA 94
- Munda v Western Australia [2013] HCA 38
- Parker v DPP (1992) 28 NSWLR 282
- R v Biles (No 2) [2017] NSWSC 525
- R v Boney [2008] NSWCCA 313