Citation: Barber v DPP (No 2) [2021] NSWDC 8
Court: District Court of New South Wales
Date: 3 February 2021
Judge(s): Abadee DCJ
Background
The appellant had been convicted in the Burwood Local Court of common assault under s 61 of the Crimes Act 1900 (NSW) against his then partner at their shared home in Campsie on 24 February 2019. The Magistrate sentenced him to a nine-month community corrections order subject to standard conditions. His earlier appeal against conviction was dismissed by the District Court on the same day as this judgment.
The assault arose after the victim threw keys and a make-up bag at the appellant, who was engrossed in a computer game, in an attempt to get him to fetch sunscreen from the car. The appellant responded by grabbing the victim (who was approximately a metre away and not moving toward him), forcing her to the ground, and choking her neck for at least five seconds.
The appellant then sought to appeal the severity of his sentence, arguing the District Court should substitute a conditional release order under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legal Issues
- Whether the Magistrate's nine-month community corrections order was manifestly excessive, warranting substitution with a conditional release order
- The relevance and weight of provocation as a mitigating factor in sentencing for domestic violence assault
- Whether the appellant's subjective apprehension of further harm from the victim reduced his culpability
- The appropriate weight to give general deterrence, protection of the community, and denunciation in domestic violence sentencing
Decision
Abadee DCJ assessed the objective gravity of the offending as approaching, but just below, the mid-range of seriousness for this type of offence. The five-second choking, carried out while the victim was held from behind, was described as very serious and a source of terror for the victim, even though no enduring physical harm was established. The domestic setting was treated as an aggravating circumstance.
On provocation, the court accepted it was a relevant mitigating factor under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given the victim's history of difficulty controlling her emotions. However, the provocation was characterised as only relatively slight: the victim was attempting to attract the appellant's attention after being ignored, and there was no suggestion that the more serious historical incidents had directly motivated his response on this occasion.
The court accepted that the appellant may have subjectively apprehended a further threat to himself or his property, even if that apprehension was not objectively reasonable. This finding modestly reduced his culpability and the weight of personal deterrence, but the court also noted the Magistrate's observation that if past conduct by the victim was genuinely feared, it was unclear why the appellant had not taken steps to protect himself or remove himself from the situation.
The court declined to find remorse or contrition, noting that evidence of subsequent apologies was not properly led through counsel at the Bar table rather than through sworn evidence. General deterrence was identified as the paramount sentencing consideration, with the protection of the community also significant. The court applied the High Court's statement in Munda v Western Australia regarding the state's obligation to vindicate victims of domestic violence and held that the offending was not trivial enough to warrant a conditional release order.
Orders Made
- The appeal against the severity of the Magistrate's sentence is dismissed.
Key Takeaways
- Provocation can mitigate culpability, reduce the weight of personal deterrence, and engage the principle of mercy in sentencing, but its mitigating effect is limited when the provocation was relatively slight compared with the severity of the response.
- A subjective apprehension of further harm from a complainant, even if not objectively reasonable in the circumstances, may reduce an offender's culpability to a modest degree, though the court may also question why protective steps were not taken instead.
- In dismissing the severity appeal, the District Court confirmed that general deterrence is the paramount sentencing consideration for choking assaults occurring in a domestic violence context, with community protection also carrying significant weight.
- Remorse and contrition will not readily be established through counsel's submissions from the Bar table where the appellant does not give sworn evidence, particularly where the conviction was contested and the complainant's credibility was challenged at trial.
- Under Munda v Western Australia (2013) 249 CLR 600, the criminal law plays a specific role in domestic violence cases: vindicating victims' dignity, expressing community disapproval, and affording protection against repetition, factors that inform the weight given to denunciation and deterrence at sentencing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61 (common assault), s 91
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 9 (conditional release orders), 21A (aggravating and mitigating factors)
Cases:
- Munda v Western Australia (2013) 249 CLR 600