Citation: R v SS [2022] NSWDC 399
Court: District Court of New South Wales
Date: 1 September 2022
Judge(s): Wilson SC DCJ
Background
The offender, a 53-year-old man with no prior criminal history, was sentenced for serious offending against his wife on 6 December 2018. The couple had a turbulent marriage and the victim had moved out of the family home in November 2018, approximately three weeks before the offending occurred.
On the day in question, the victim returned to the family home to collect their young daughter and some belongings. The offender followed her upstairs and carried out a sustained attack that included punching the victim repeatedly, choking her until she lost consciousness, and then sexually assaulting her. Part of the violence occurred in the presence of their daughter, who was approximately two years and four months old.
The sentence proceedings were protracted. The offender's original legal representatives were replaced, and fresh expert psychiatric evidence was obtained in early 2022. That evidence bore on whether the offender's psychiatric condition caused or contributed to his offending, an issue that significantly shaped the sentencing exercise.
Legal Issues
- How to apply the standard non-parole periods for aggravated sexual assault (10 years) and sexual intercourse without consent (7 years), and whether departure from those benchmarks was justified
- Whether the offender's psychiatric condition reduced his moral culpability for the offending
- How to treat the two additional Form 1 offences (assault occasioning actual bodily harm and intentional choking without consent) in the sentencing calculus
- What degree of concurrency or accumulation was appropriate across the two principal charges, given the offences arose from a single incident
- Whether special circumstances existed to justify altering the statutory ratio between the non-parole period and the balance of term
Decision
Wilson SC DCJ placed the two principal offences in a domestic violence context and noted they called for strong denunciation and deterrence. The Form 1 offences, while not attracting separate penalties, were taken into account through the instinctive synthesis approach described in Markarian v The Queen, increasing the weight given to deterrence and retribution for Count 3, to which they attached.
The Judge declined to apply the standard non-parole periods. Applying them would, in his Honour's view, produce a sentence that was unduly harsh, particularly given the offender's reduced moral culpability arising from his psychiatric condition. The finding of special circumstances and the strength of the offender's subjective case further supported departure. The standard non-parole periods were nonetheless used as guideposts throughout the exercise.
On the question of concurrency, the court rejected the submission that all offending should be treated as one continuous incident warranting fully concurrent sentences. Applying the principle in Pearce v The Queen, the court determined the overall criminality of both offences and then considered the appropriate degree of concurrency or accumulation. Given the temporal proximity of the offending, a high degree of concurrency was warranted, but a small degree of accumulation was applied to reflect the two separate acts and the harm suffered by the victim.
The total sentence was 8 years imprisonment, with a non-parole period of 4 years.
Orders Made
- Convicted on all charges on the indictment
- Sentenced to 8 years imprisonment, with a non-parole period of 4 years expiring 6 December 2022 and a balance of term of 4 years expiring 6 December 2026
- Final Apprehended Domestic Violence Order made to commence upon release on parole for a period of 5 years, protecting the victim and her children, with conditions prohibiting the offender from approaching the protected persons (other than through a lawyer), accessing their residence, workplace, or the children's school, and prohibiting attempts to locate them
- Offences recorded on the offender's criminal history as domestic violence offences pursuant to section 12(2) of the Crimes (Domestic and Personal Violence) Act 2007
Key Takeaways
- Psychiatric conditions that causally contribute to offending can reduce an offender's moral culpability and justify departure from standard non-parole periods, provided the evidence is properly established and tested.
- Under the instinctive synthesis approach affirmed in Markarian, Form 1 offences do not attract separate penalties but are folded into the assessment of the appropriate penalty for the principal charge to which they attach, with particular weight given to deterrence and retribution.
- Standard non-parole periods function as legislative guideposts reflecting the seriousness of an offence at the midpoint of objective gravity; they do not operate as a mathematical formula, and a sentencing court must record its reasons when departing from them under section 54B(3) of the Crimes (Sentencing Procedure) Act 1999.
- Where multiple offences arise from a single incident, Pearce v The Queen requires the court to assess overall criminality first, then determine the appropriate level of concurrency or accumulation rather than simply ordering fully concurrent sentences.
- A strong subjective case, including the absence of any prior criminal history and the existence of special circumstances, can justify a significant reduction from the standard non-parole period even in cases involving very serious domestic violence offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 37(1A), 59(1), 61I, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12(2), 39
Cases
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Pearce v The Queen [1998] HCA 57
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 197
- Luque v R [2017] NSWCCA 226
- Moiler v R [2021] NSWCCA 73