Citation: R v McDonald [2022] NSWDC 620
Court: District Court of New South Wales
Date: 12 September 2022
Judge: Tupman DCJ
Background
The offender, a 43-year-old Indigenous Australian man, stood for sentence following a judge-alone trial on an indictment containing multiple counts. Tupman DCJ acquitted him on three counts and entered a verdict of guilty on one count of common assault under s 61 of the Crimes Act 1900 (NSW).
The assault occurred on the night of 31 July into 1 August at the complainant's home. The offender and complainant share a child but had never lived together in a domestic relationship. The offender attended the premises late at night, apparently under the influence of drugs, and briefly placed his hands near the complainant's neck while she was in her bedroom holding their infant child. The contact lasted approximately 30 seconds and left a small, faint red mark observed by attending police.
The matter was before the District Court only because the offender had been committed for trial on more serious offences. Without those charges, the matter would ordinarily have been dealt with in the Local Court.
Legal Issues
- Whether the s 5 threshold for a term of imprisonment was crossed given the objective seriousness of the assault
- What the appropriate sentence length was, accounting for time already spent in custody
- Whether the offence qualified as a domestic violence offence, triggering mandatory orders under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Whether a final Apprehended Domestic Violence Order (ADVO) was required under s 39(1A) of that Act and, if so, for what period
Decision
Tupman DCJ assessed the assault as objectively serious, placing it in the top half of offences chargeable under s 61. The circumstances were aggravating: the offender touched the complainant's neck while speaking aggressively, the assault occurred in her own bedroom while she held their infant, and it carried the hallmarks of a domestic violence offence. The offender was also on parole at the time of the offending. Although the contact was brief and caused only minor physical injury, her Honour found that the s 5 threshold for full-time imprisonment was crossed.
The appropriate term was assessed at 12 months imprisonment. The offender had spent 18 months in custody referable to these proceedings, meaning he had served approximately six months more than the sentence imposed. Her Honour acknowledged this outcome but observed it was a consequence of the time taken for the matter to come on for hearing, including delays caused by changes in the offender's legal representation. The sentence was backdated to 11 March 2021 and had already expired by the time it was imposed, so no non-parole period was set.
Her Honour declined any leniency by reason of the offender's subjective circumstances on account of his extensive criminal history, which included prior assault convictions and domestic violence offences, and his guarded prospects of rehabilitation. He went to trial and was not entitled to a discount. Some positive features were noted: the offender had reportedly taken on a mentorship role with other Indigenous inmates, maintained family support, and is the father of seven children, six of whom he sees regularly. However, these factors were insufficient to depart from a custodial term.
Turning to the ADVO question, Tupman DCJ was satisfied the offence was a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Section 39 mandated the making of a final ADVO. Given that the imprisonment term had already expired by the date of sentence, and given the complainant's expressed ongoing fear for her safety, her Honour ordered the ADVO to run for two years from the date of sentence.
Orders Made
- Conviction entered on count 4 (common assault, contrary to s 61 of the Crimes Act 1900 (NSW))
- Sentence of 12 months imprisonment, commencing 11 March 2021 and expiring 10 March 2022
- No non-parole period set, as the sentence had already expired
- Offender released forthwith
- Final ADVO made pursuant to s 39(1A) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), in the same terms as the provisional ADVO (paragraphs 1, 2 and 9), protecting the complainant, for a period of two years from the date of sentence
Key Takeaways
- The District Court confirmed that where an offender has spent more time on remand than the sentence ultimately imposed, the court is obliged to impose the correct sentence and backdate it accordingly; it has no power to remedy the resulting over-custody.
- A brief physical assault involving contact with the complainant's neck, occurring in her own home while she held an infant, placed the offending at the top of the range for common assault under s 61 and satisfied the threshold for full-time imprisonment.
- Although the parties shared a child but had never lived together as a domestic couple, Tupman DCJ treated the offence as akin to a domestic violence offence, which informed objective seriousness and triggered the mandatory ADVO provisions under s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
- Under s 39(1A), where a sentence of full-time imprisonment has been imposed for a domestic violence offence, the court must make a final ADVO for a period encompassing the term of imprisonment plus at least two additional years, unless good reason exists for a different period.
- A lengthy criminal record featuring prior assaults, domestic violence convictions, AVO breaches, and a parole breach at the time of offending significantly limited the weight available to subjective mitigating factors, including positive in-custody conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 16, 39(1A), 51C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for imprisonment)
Cases cited: No cases were cited in the judgment.