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District Court 3 August 2022

Abdelmalak v R

[2022] NSWDC 569

Assault & violenceDrugsTraffic & drivingDomestic & family violencePublic order & justice offences
CRIME APPEAL SEVERITY OF SENTENCE COURSE OF OFFENDING CONDUCT.

Citation: Abdelmalak v R [2022] NSWDC 569
Court: District Court of New South Wales
Date: 3 August 2022
Judge: Neilson DCJ

Background

The appellant, a young man aged 23 at the time of the relevant offending, appealed against the severity of an aggregate sentence imposed by Magistrate Stewart in the Local Court at Sutherland on 2 May 2022. He had been sentenced on five charges arising from a course of conduct spanning July 2021 to March 2022.

The charges covered two instances of driving under the influence of drugs, a common assault on a former domestic partner, stalking or intimidating that same partner with intent to cause fear of harm, and contravening an Apprehended Domestic Violence Order (ADVO). The drug driving offences were particularly serious: on each occasion, the appellant had lost or nearly lost consciousness at the wheel while under the influence of cocaine and GHB, causing crashes on public roads.

The Magistrate imposed indicative sentences totalling 36 months across the five charges, arriving at an aggregate head sentence of 15 months with a non-parole period of eight months. The appellant contended that sentence was excessive.

  • Whether the indicative sentences fixed by the Magistrate for each of the five charges were appropriate in light of the circumstances of each offence
  • Whether the resulting aggregate head sentence and non-parole period were excessive
  • Whether special circumstances warranted a departure from the standard ratio between the non-parole period and the balance of the sentence

Decision

Neilson DCJ reviewed each indicative sentence in turn. On the first drug driving offence, his Honour considered the Magistrate's nine-month indicative sentence too high and reduced it to six months, noting that as the first of the drug driving events, it warranted a lesser penalty than the second. For the second drug driving offence, also assessed at nine months, his Honour maintained that figure, observing that this was a subsequent offence committed within a relatively short period and that it involved property damage.

The indicative sentence of eight months for the common assault on the former domestic partner was upheld without alteration. His Honour described the appellant's conduct in that offence as "appalling" and agreed with the Magistrate's assessment.

The most significant reduction came in the final two offences. The Magistrate had assigned a combined indicative total of ten months for the stalking or intimidation offence and the ADVO contravention arising from the 27 March 2022 incident, in which the appellant attended the former partner's home, abused her, kicked and damaged her flyscreen door, and made a threat that caused her considerable distress. Neilson DCJ found that ten months in combination was excessive given that the far more serious common assault had attracted only eight months. Each of the two offences was reduced to an indicative three months.

The revised indicative total stood at 29 months, representing approximately a 20% reduction from the Magistrate's 36 months. Applying the same proportional relationship between the indicative totals and the head sentence, the head sentence was reduced to 12 months. The non-parole period was similarly adjusted to seven months. His Honour also found special circumstances, justifying the ratio between the non-parole period and the balance of the sentence.

Orders Made

  • Aggregate sentence of 12 months imposed in substitution for the Magistrate's sentence
  • Non-parole period of seven months, commencing 27 March 2022 and expiring 26 October 2022
  • Balance of sentence of five months, commencing 27 October 2022 and expiring 26 March 2023
  • Indicative sentences: first drug driving offence, six months; second drug driving offence, nine months; common assault, eight months; stalking or intimidation, three months; ADVO contravention, three months
  • Special circumstances found; appellant eligible for parole consideration at expiry of non-parole period

Key Takeaways

  • The District Court confirmed that where a course of offending involves multiple charges of varying seriousness, indicative sentences must be calibrated relative to one another so that less grave offences do not attract penalties disproportionate to the most serious conduct.
  • A subsequent drug driving offence committed within a short period and involving property damage warranted a higher indicative sentence than the first equivalent offence, even where both were assessed under the same maximum penalty.
  • Reducing the total of indicative sentences by approximately 20% justified a corresponding proportional reduction to both the aggregate head sentence and the non-parole period, with the same ratio applied consistently across those components.
  • The District Court upheld the eight-month indicative sentence for a common assault in a domestic setting, treating the nature and circumstances of that offence as sufficiently serious to warrant no reduction.
  • Finding of special circumstances was available on the facts, permitting a non-parole period that represented less than the standard proportion of the total sentence.

Legislation and Cases Referenced

Legislation
- No specific legislation cited in the judgment text (the offences relate to drug driving, common assault, stalking or intimidation, and ADVO contravention under applicable NSW criminal and traffic law)

Cases
- No cases cited in the judgment text