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District Court 24 May 2022

R v Baker

[2022] NSWDC 462

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME AGGRAVATED ENTER DWELLING WITH INTENT KNOWING PEOPLE THERE RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA BREACH OF AVO

Citation: R v Baker [2022] NSWDC 462
Court: District Court of New South Wales
Date: 24 May 2022
Judge: Haesler SC DCJ

Background

The offender had a prior relationship with the complainant, a woman aged approximately 65 years with serious health conditions including paraplegia and osteoporosis, leaving her primarily bed-bound. He had previously been sentenced in 2018 for detaining her and causing her actual bodily harm, and had been released on parole in March 2019. An Apprehended Domestic Violence Order (AVO) was in place at the time of the offences.

In mid-January 2021, the offender attended the complainant's unit and pulled her from her bed to the floor while verbally abusing her. That assault became the subject of a Form 1 (a related offence taken into account at sentencing but not formally sentenced). The primary offences occurred on 9 May 2021, when the offender entered the complainant's bedroom through an open window at approximately 3 am, wearing motorcycle leathers, gloves and a helmet. He punched her, used a small knife to inflict multiple cuts to her body, and poured a liquid into the wounds that caused a burning sensation. He threatened to return to "finish her off," struck her again to the head, and left an axe in her cupboard.

The offender pleaded guilty in the Local Court to all charges and was committed to the District Court for sentence. He also had schizophrenia, and his mental health care team administered his depot medication just days before his arrest.

  • What sentences were appropriate across four offences, having regard to objective seriousness, the offender's mental illness, the victim's vulnerability, and the breach of an AVO?
  • How should the 25% reduction for early guilty pleas interact with the accumulation of sentences?
  • To what extent did the offender's mental illness reduce his moral culpability, and how did it bear on the competing sentencing purposes of deterrence, denunciation, and community protection?
  • Whether special circumstances existed to adjust the ratio between the non-parole period and the balance of the sentence, in light of the offender's need for ongoing mental health treatment.

Decision

Haesler SC DCJ assessed each offence as objectively serious. Aggravating features included the time of the attack (3 am), the location (the complainant's bedroom, where she had a right to feel safe), her extreme vulnerability, the deliberate and gratuitous nature of the cruelty, the use of a weapon and an unknown irritant substance, the threatening statement made during the offence, and the prior and ongoing breach of an AVO. His Honour found that the offender appeared to lack any insight into his offending and that it was uncertain whether any period of custody would deter him, particularly given his apparent continued obsession with the complainant.

The complainant's victim impact statement was considered in detail. It recorded lasting physical disfigurement, anxiety, depression, nightmares, fear of future harm, and a sense that the offender had permanently taken something from her. His Honour treated this as a relevant and significant consideration.

On the question of mental illness, His Honour applied the principle from Engert v R that mental illness can reduce moral culpability and diminish the offender's utility as a vehicle for general deterrence, while simultaneously requiring the court to give weight to community protection. His Honour noted the competing directions in which those considerations pointed. A finding of special circumstances was made to extend the parole period, giving the State Parole Authority maximum flexibility and facilitating the offender's ongoing mental health treatment. His Honour expressed the view that treatment in a mental health facility would best serve the offender's rehabilitation and the community's safety, noting that the offender was already in the jail hospital.

Each indicated sentence was reduced by 25% to reflect the utilitarian value of the early guilty pleas. His Honour took care to ensure that the accumulation of individual sentences did not erode that discount.

Orders Made

  • Convicted on all matters.
  • Aggravated enter dwelling with intent (s 111(2) Crimes Act 1900), taking into account the Form 1: 4 years and 6 months.
  • Assault occasioning actual bodily harm (s 59(1) Crimes Act 1900): 2 years and 3 months.
  • Intimidation (s 13(1) Crimes (Domestic and Personal Violence) Act 2007): 1 year and 1 month.
  • Contravening a prohibition/restriction in an AVO (s 14(1), on a s 166 certificate): 4 months.
  • Aggregate sentence: 6 years, with a non-parole period of 3 years and 6 months.
  • Sentence commences 18 May 2021; eligible for parole consideration from 17 November 2024; sentence expires 17 May 2027.
  • Back-up common assault charge withdrawn and dismissed.

Key Takeaways

  • Gratuitous cruelty, exploitation of a victim's extreme vulnerability, and a deliberate breach of an AVO are significant aggravating factors that elevate the objective seriousness of domestic violence offences.
  • Under the principle established in Engert v R, a mentally ill offender's reduced moral culpability can diminish both the need for denunciation and the weight given to general deterrence, but the court must still account for community protection, and those considerations may pull in opposing directions.
  • A finding of special circumstances is available to lengthen the parole period where an offender requires extended and structured mental health supervision following release, giving the State Parole Authority greater flexibility.
  • The District Court confirmed that a 25% reduction for early guilty pleas must be maintained throughout the process of accumulating sentences, so that the accumulation does not effectively cancel out the discount.
  • AVO contraventions are treated as particularly serious by the courts because AVOs exist to protect individuals; where an offender disregards such an order, punishment is exacted upon them accordingly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 86(2)(b), 111(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 48(a)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- DPP v De La Rosa [2010] NSWCCA 194
- Engert v R (1995) 84 A Crim R 67
- Mapp v R [2010] NSWCCA 269
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Patterson v R [2021] NSWCCA 273
- R v Ponfield [1999] NSWCCA 435
- Tepania v R [2018] NSWCCA 247