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District Court 14 April 2022

R v Miller (a pseudonym)

[2022] NSWDC 696

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME COMMON ASSAULT ( DV) RELEVANT FACTORS ON SENTENCE EARLY PLEA COMPLEX SENTENCING EXERCISE FORM 1 MATERS COMMITTED AS A JUVENILE

Citation: R v Miller (a pseudonym) [2022] NSWDC 696
Court: District Court of New South Wales
Date: 14 April 2022
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym David Miller, was an Aboriginal Australian man born in 1997. He committed a series of domestic violence offences against two complainants (referred to as Jill and Sarah) over a period from 2014 to 2019. The offending against Jill began when Miller was 16 and she was 14; they had a child together. The offending against Sarah occurred in 2018 and 2019, during a separate relationship.

The offences were serious and repeated. They included an aggravated break and enter with intent (knowing a person was present), multiple assaults occasioning actual bodily harm, stalking and intimidation, common assault, and intentional choking without consent. Across both groups, 11 matters proceeded for sentence, with a further 13 offences placed on Forms 1 (a procedure allowing additional offences to be taken into account when imposing sentence, without separate punishment). Several offences were committed while Miller was still a juvenile under 18.

Sentencing was complicated by a number of factors: the considerable delay between offending and sentence, Miller's intervening periods of imprisonment for unrelated matters, the need to assess juvenile offending, and the requirement to balance the gravity of the conduct against significant personal and background circumstances, including profound deprivation, exposure to family violence from childhood, and substance abuse.

  • What aggregate sentence appropriately reflected the objective seriousness of 11 offences of domestic violence across two victims, while accounting for totality?
  • How should the court treat Form 1 offences, some of which were committed when the offender was a juvenile?
  • What weight should be given to the offender's early guilty pleas, and how should the 25% utilitarian discount be preserved across an aggregate sentence?
  • How should the court balance the principles of denunciation, community protection, and vindication of the victims' dignity against the mitigating factors arising from the offender's background under the principles in Fernando and Bugmy?
  • What non-parole period was appropriate given the special circumstances arising from the complexity of the case, the offender's background, and the need for structured rehabilitation before release to parole?

Decision

Haesler SC DCJ described the sentencing exercise as "complex" given the number of offences, the two victims, the juvenile background, intervening sentences, and the significant personal circumstances of the offender. The court acknowledged the tension between the need to protect women and vindicate their dignity, the denunciatory function of serious domestic violence sentences, and the countervailing mitigating considerations arising from the offender's deprived upbringing, exposure to intergenerational violence, minimal schooling, drug use, and youth.

Applying Bugmy v The Queen (2013) 249 CLR 571, the court accepted that the impact of profound deprivation does not diminish with repeated offending. The court also applied the principles in Fernando (1992) 76 A Crim R 58, which recognise the particular circumstances of Aboriginal offenders. However, the court was clear that these principles do not override the need for deterrence and community protection, particularly in the context of sustained and serious violence against domestic partners. The court noted that the pattern of violence appeared directly connected to what Miller had witnessed and experienced as a child, describing the case as an illustration of "intergenerational violence that blights some communities."

Each indicative sentence was reduced by 25% to reflect the utilitarian value of the early guilty pleas, in accordance with the guideline in R v Thompson; R v Houlton (2000) 49 NSWLR 383. Because an aggregate sentence was imposed with accumulation both within and between the two groups of offences, the court was careful not to erode the plea discount through the accumulation process. The court found special circumstances justifying a longer than usual parole period, to allow for comprehensive rehabilitation programming before any release. It expressly noted that release to parole would be subject to a full assessment by the State Parole Authority, including a consideration of community safety.

Orders Made

Group 1 (offences against Jill): indicative sentences
- Sequence 9 (aggravated break and enter with intent, s 113(2) Crimes Act 1900): 2 years 7 months
- Sequence 12 (assault occasioning actual bodily harm, s 59): 1 year 6 months
- Sequence 20 (stalking/intimidation, s 13(1) Crimes (Domestic and Personal Violence) Act 2007): 2 years 3 months
- Sequence 17 (assault occasioning actual bodily harm, s 59): 1 year 10 months
- Sequence 19 (stalking/intimidation, s 13(1)): 1 year 1 month

Group 2 (offences against Sarah): indicative sentences
- Sequence 1 (assault occasioning actual bodily harm, s 59): 1 year 6 months
- Sequence 3 (intimidation, s 13(1)): 9 months
- Sequence 4 (assault occasioning actual bodily harm, s 59): 1 year 1 month
- Sequence 7 (assault occasioning actual bodily harm, s 59): 1 year 6 months
- Sequence 9 (common assault, s 61): 9 months
- Sequence 14 (intentional choking without consent, s 37(1A)): 2 years

Aggregate sentence: 7 years imprisonment
Non-parole period: 4 years, commencing 4 August 2020 (parole eligibility from 3 August 2024)
Parole period: 3 years, from 4 August 2024 to 3 August 2027
Note: Release to parole subject to full assessment by the State Parole Authority under s 136 of the Crimes (Administration of Sentences) Act 1999.

Postscript: While revising the judgment, the court received notice that Miller had died in custody.

Key Takeaways

  • The District Court confirmed that profound deprivation and intergenerational trauma, as recognised in Bugmy, remain relevant mitigating factors even where an offender has prior convictions for violence. Their weight does not diminish simply because the offending has been repeated.

  • Where an aggregate sentence involves accumulation of multiple terms across separate groups of offences and separate victims, the court must actively guard against the plea discount being eroded in the aggregation process.

  • Form 1 offences committed while an offender was a juvenile require careful treatment. The court must account for the offender's age at the time of those offences when assessing the weight to be given to them on sentence.

  • Applying Fernando does not produce a result inconsistent with denunciation and community protection. The court was explicit that the serious and sustained nature of domestic violence against two women demanded sentences that vindicated the victims' dignity and protected the community, notwithstanding the offender's personal circumstances.

  • A finding of special circumstances justified a non-parole period shorter than the statutory default ratio and a parole period of three years. The court expressed the view that, without a comprehensive plan addressing the offender's pattern of violence before release, the risk of the entire sentence being served in custody was real.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1A), 59, 61, 113(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 136

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Thompson; R v Houlton [2000]