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District Court 11 November 2021

R v Eager

[2021] NSWDC 848

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: R v Eager [2021] NSWDC 848
Court: District Court of New South Wales
Date: 11 November 2021
Judge: Judge Haesler SC

Background

The offender pleaded guilty to two offences arising from events on 20 March 2021 in Wollongong. He travelled by taxi to his then-partner's workplace, heavily affected by drugs, and threatened her through a locked door before smashing the glass with a large cement block. He then followed her, punched and kicked her repeatedly to the head and body, and pulled out clumps of her hair.

The offender then forced his partner into the taxi with him, continuing to make threats including statements that he had dug holes and that they would "kill each other." The complainant remained frightened by those threats up until his arrest two days later, at which point she told police she feared he would kill her. The offender had no memory of the events, which he attributed to having taken a large quantity of Xanax, but he had subsequently viewed the CCTV recordings on multiple occasions. Notably, the complainant had since died.

The offences were committed while the offender was subject to both a Community Correction Order and a Community Corrections Release Order for drug-related matters. The offender had a lengthy criminal record, though prior offences of a similar nature were limited.

  • What was the appropriate aggregate sentence for the two principal offences, having regard to objective seriousness, the offender's subjective circumstances, and his plea of guilty?
  • To what extent did drug-induced intoxication and resulting memory loss mitigate the sentence?
  • What weight should be given to the offender's remorse, his completion of a residential rehabilitation program, and his background?
  • Whether special circumstances existed justifying an extended parole period beyond the statutory ratio.
  • How should the admitted breaches of the Community Correction Order and Community Corrections Release Order be dealt with?

Decision

Judge Haesler SC assessed the two offences as objectively serious. The principal offence of aggravated break, enter and commit a serious indictable offence (the serious indictable offence being assault occasioning actual bodily harm, with the aggravating circumstance that the offender knew people were present) carries a maximum of 20 years imprisonment and a standard non-parole period of five years. The intimidation offence carries a maximum of five years. The court applied the instinctive synthesis approach, as required by Muldrock v The Queen, rather than any staged sentencing methodology.

On drug intoxication, the court found that Xanax use might explain the offender's irrational behaviour but did not mitigate the seriousness of the offending. The drug-affected state in which the offender confronted his partner in fact heightened the danger she faced, because no one could know what he was capable of. The offender's claimed memory loss similarly did not reduce the gravity of what the recordings clearly depicted.

The court accepted that the offender's remorse was genuine, particularly in light of the complainant's subsequent death. His diligent completion of a residential rehabilitation program while in custody was treated as a mitigating factor. The court also considered his background, including the principles from R v Fernando and Bugmy v The Queen regarding the relevance of social disadvantage and addiction, while noting that drug use did not of itself reduce the seriousness of the violence.

A finding of special circumstances was made, extending the parole period beyond the standard one-third ratio. The court noted frankly that imprisonment is an ineffective deterrent to domestic violence, that custodial sentences can produce criminogenic effects, and that a coordinated legal and social response on parole was the more appropriate mechanism for addressing the underlying causes of the offending.

Orders Made

  • Conviction entered on both charges.
  • Aggravated break, enter and commit a serious indictable offence (s 112(2) Crimes Act 1900): indicative sentence of 3 years and 9 months, with a 2-year non-parole period, reduced by 25% for the guilty plea.
  • Intimidation with intent to cause fear (s 13(1) Crimes (Domestic and Personal Violence) Act 2007): indicative sentence of 1 year and 6 months, reduced by 25% for the guilty plea.
  • Aggregate sentence: 4 years imprisonment, commencing 22 March 2021, with a non-parole period of 2 years and 4 months expiring 21 July 2023, and a parole period of 1 year and 8 months. Sentence to expire 21 March 2025.
  • Breaches of the Community Correction Order and Community Corrections Release Order: no action taken on the breaches (already factored in as aggravation); Local Court orders confirmed.

Key Takeaways

  • Drug-induced intoxication at the time of a domestic violence offence does not operate as mitigation where it heightened the danger posed to the victim; at most, it may explain irrational behaviour without reducing the objective seriousness of what occurred.
  • A claimed inability to remember offending conduct, attributed to drug effects, does not diminish criminal responsibility where the events are clearly established by other evidence such as CCTV recordings.
  • The District Court confirmed that breaches of conditional liberty (here, a Community Correction Order and a Community Corrections Release Order) aggravate the principal sentences, but the court should not double-count by also imposing separate custodial terms for those breaches where the underlying breach matters would not otherwise have crossed the custodial threshold.
  • Special circumstances may be found where extending the parole period is appropriate to support rehabilitative supervision on release, particularly where the offending was linked to long-standing drug addiction.
  • Under the instinctive synthesis approach required by Muldrock, sentencing courts must assess objective seriousness alongside all relevant subjective factors as a whole, rather than treating the standard non-parole period as a mathematical starting point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and commit serious indictable offence)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation), s 9(3)(g)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA
- Muldrock v The Queen (2011) 244 CLR 120
- Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Burton [2008] NSWCCA 128
- R v Dunn (2004) 144 A Crim R 180
- R v Fernando (1992) 76 A Crim R 58
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346