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District Court 21 September 2022

R v Eslick

[2022] NSWDC 422

Domestic & family violencePublic order & justice offences
CRIMINAL LAW SEVERITY APPEAL FROM LOCAL COURT DOMESTIC VIOLENCE OFFENCES

Citation: R v Eslick [2022] NSWDC 422
Court: District Court of New South Wales
Date: 21 September 2022
Judge: Abadee DCJ

Background

The appellant, a 22-year-old man, was sentenced in the Wyong Local Court on 4 July 2022 to an aggregate term of 12 months' imprisonment with a non-parole period of 8 months. The sentence arose from three separate contraventions of an Apprehended Domestic Violence Order (ADVO) protecting his former partner, with whom he shared a two-year-old son.

The three contraventions occurred on 17 June, 23 June, and 26 June 2022. Each involved sending a large volume of abusive and threatening text messages, calls, and social media messages to the victim. The later contraventions also involved threats to take the couple's child, causing the victim to withdraw the child from childcare and, ultimately, to move out of her home.

For the first two offences, the appellant had originally received Community Corrections Orders (CCOs) on 24 June 2022. He breached those orders almost immediately, and they were revoked on 4 July 2022, at which point indicative custodial sentences were imposed. The appellant appealed to the District Court, contending the aggregate sentence was too severe.

  • Whether the aggregate sentence of 12 months' imprisonment imposed by the Local Court was manifestly excessive
  • Whether the threshold for full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed
  • Whether an Intensive Correction Order (ICO) was available given the domestic violence nature of the offences and the requirements of ss 4A and 4B of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether special circumstances justified a reduction in the non-parole period
  • Whether the commencement date of the sentence required adjustment to account for time already spent in custody

Decision

Abadee DCJ agreed with the indicative sentences imposed by the Local Court Magistrate and confirmed the aggregate sentence. His Honour found that the pattern of offending represented an escalation in menacing conduct toward the victim, with each offence more serious than the last. The appellant's legal representative acknowledged the offending fell between the mid and high range for this type of offence.

On the question of totality, the Court noted that while the conduct across the three offences was broadly similar (importing some concurrency), each contravention occurred on a distinct occasion. This required a degree of accumulation in the sentence, so as not to convey that an offender can derive a benefit from committing multiple offences.

The Court addressed the availability of an ICO. Because the offences fell within the definition of "domestic violence offences" under s 11(1)(c) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Court was required under ss 4A and 4B of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be satisfied that the victim would be adequately protected before ordering an ICO. Given the nature of the offending and the materials before the Court, including the appellant's repeated non-compliance with both the ADVO and the CCOs, Abadee DCJ was not so satisfied. A full-time custodial sentence was confirmed as appropriate.

Special circumstances were found to apply, given this was the appellant's first period in custody, justifying the reduction in the non-parole period that the Magistrate had also applied. The only variation made on appeal was to backdate the commencement of the sentence to 7 August 2022 to account for the 47 days the appellant had spent in pre-sentence custody.

Orders Made

  • The commencement date of the sentence was varied and backdated to 7 August 2022
  • The aggregate sentence of 12 months' imprisonment, expiring 6 August 2023, was confirmed
  • The non-parole period of 8 months, expiring 6 April 2023, was confirmed, after which the appellant became eligible for release on parole
  • The severity appeal was otherwise dismissed

Key Takeaways

  • Under ss 4A and 4B of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court sentencing for domestic violence offences must be satisfied the victim will be adequately protected before imposing an ICO; the District Court found that standard was not met where an offender had repeatedly defied both an ADVO and existing CCOs.
  • In applying the totality principle, the Court distinguished between offences that are similar in nature (favouring concurrency) and offences that occur on multiple distinct occasions (favouring accumulation), and balanced both considerations in arriving at the aggregate sentence.
  • Threats to take a child, while not necessarily meeting the technical requirements of an aggravating factor under s 21A(2)(b), (c), or (ca) of the Crimes (Sentencing Procedure) Act 1999 (NSW), may nonetheless be relevant to the objective gravity of the offending where they instil fear and apprehension in the victim.
  • A first-time period in custody can constitute special circumstances warranting a reduction in the non-parole period relative to the head sentence.
  • Pre-sentence custody must be accounted for in the commencement date of the sentence, even where all other aspects of the sentence are confirmed on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 11, 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 4B, 5, 21A

Cases cited: No cases were cited in the judgment.