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District Court 19 August 2021

R v Mulquin

[2021] NSWDC 662

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME COMMON ASSAULT ( DV) RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA MULTIPLE DOMESTIC VIOLENCE OFFENCES ON PAROLE

Citation: R v Mulquin [2021] NSWDC 662
Court: District Court of New South Wales
Date: 19 August 2021
Judge: Haesler SC DCJ

Background

The offender had previously been imprisoned in November 2019 for assaults and contraventions of Apprehended Violence Orders (AVOs) involving the same complainant. He was released on parole on 8 September 2020, having completed rehabilitative courses in custody.

Within one day of his release, the offender resumed drinking and, over the following weeks, committed a sustained campaign of violence and intimidation against the complainant. The offending occurred while he was subject to an AVO designed specifically to protect her.

The offender was arrested on 16 November 2020 and ultimately pleaded guilty on 15 June 2021 to seven offences, having initially denied all physical and verbal violence when the matter was before the Local Court.

  • What aggregate sentence was appropriate for multiple domestic violence offences, including common assault, intentionally choking a person without consent, stalking and intimidating, contravening an AVO, and destroying property?
  • How should the court treat offending committed while on parole and in breach of an AVO?
  • What weight should be given to a late guilty plea?
  • Whether special circumstances justified a reduced non-parole period relative to the total sentence, given the need for supervision and rehabilitation on release.

Decision

Haesler SC DCJ characterised the offending as serious and persistent, spanning several days in September 2020. The conduct included pushing the complainant into a wall, punching and headbutting her, pinning her down until she vomited, placing a metal vacuum cleaner pole across her throat with sufficient force to cause choking, preventing her from leaving the premises, and threatening to kill her. The complainant suffered physical injuries and told police she genuinely feared for her life.

His Honour emphasised, drawing on the High Court's decision in The Queen v Kilic [2016] HCA 48, that domestic violence offences are not minor matters. Community and judicial attitudes have shifted to recognise the inherent danger of relationship violence, the abuse of trust it involves, and the coercive power and control it represents. The complainant was personally targeted throughout, and, as noted by reference to R v Burton [2008] NSWCCA 128, a complainant in such circumstances may never feel truly safe.

The commission of offences while on parole and in breach of an AVO were treated as significant aggravating factors, though the court was careful to avoid double-counting those matters. The late guilty plea, entered after further courses in custody, attracted a 10% utilitarian discount rather than the larger discount available for an early plea. The court found special circumstances warranted a longer-than-standard parole period, given the partial accumulation of the sentence on the balance of a prior parole period and the offender's need for residential rehabilitation and supervised reintegration.

His Honour noted that while the offender had written a letter expressing good intentions, actions, not letters, would determine whether he could successfully reintegrate. The minimum non-parole term was described as the very minimum that properly reflected the objective seriousness of the offending and vindicated the complainant's dignity.

Orders Made

  • Count 1 (sequence 1): 11 months
  • Count 2 (sequence 6): 1 year 4 months
  • Count 3 (sequence 13): 2 years
  • Count 4 (sequence 12): 1 year 9 months
  • Sequence 2: 8 months
  • Sequence 4: 3 months
  • Sequence 5: 5 months
  • Sequence 9: 11 months
  • Sequence 11: 1 year 1 month
  • Aggregate sentence: 3 years 6 months, commencing 16 February 2021
  • Non-parole period: 2 years (eligible for parole consideration from 15 February 2023)
  • Parole period: 1 year 6 months, expiring 15 August 2024
  • Sequences 7, 8 and 10 withdrawn and dismissed

Key Takeaways

  • Domestic violence offences carry significant objective seriousness and are never to be treated as minor offences. Courts are required to reflect community condemnation and to vindicate the dignity of complainants in the sentences imposed, consistent with The Queen v Kilic (2016) 259 CLR 256.

  • Offending while on parole and in breach of an AVO are recognised aggravating factors that increase the sentences to be imposed, though sentencing courts must take care not to double-count those matters across multiple charges.

  • A late guilty plea, entered only after further time in custody and completion of additional courses, attracted a reduced utilitarian discount of 10%, rather than the larger discount available where a plea is entered at an early stage.

  • Where an aggregate sentence is imposed and partially accumulated on a balance of parole, a finding of special circumstances may be justified to extend the parole period and facilitate supervised rehabilitation on release.

  • Coercive control, personal targeting of a complainant, persistent derogatory conduct, and threats to kill all form part of the objective seriousness that a court must expressly address when formulating sentences for domestic violence offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37(1)(a), 61, 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256
- Munda v Western Australia [2013] HCA 38
- R v Burton [2008] NSWCCA 128
- Perrin v R [2021] NSWDC 408