R v Stenzel [2022] NSWDC 756

Citation: [2022] NSWDC 756
Court: District Court of New South Wales
Date: 21 April 2022
Judge: Haesler SC DCJ

Background

The offender, an Aboriginal man, appeared for sentencing on five matters arising from events on 23 October 2020. At that time, he was subject to an Apprehended Domestic Violence Order (ADVO) prohibiting him from assaulting, intimidating, or approaching his former partner. Despite this, he encountered her at a house in Koonawarra following a family funeral.

The offender punched his former partner in the head, partially dislodging one of her teeth. He then prevented another man from driving her home, ordered her into a car (their young daughter was already strapped in the back seat), and drove for approximately 30 minutes. During that journey, he repeatedly punched and backhanded her to the face and head, verbally abused her, and ignored the screaming of their infant daughter. He ultimately pushed her from the moving vehicle. She suffered facial injuries, a partially dislodged tooth, cuts to her lips, grazes, and left shoulder pain.

The offender had spent more than half his adult life in custody. He had a significant history of violence toward the complainant, prior convictions for threatening to kill her, and a background marked by profound childhood deprivation, exposure to violence, parental drug use, and acute drug withdrawal at birth. He pleaded guilty in the Local Court, entitling him to a 25% reduction in each indicative sentence.

Legal Issues

Whether the detention (for the aggravated detain with intent to intimidate charge) commenced when the complainant was ordered into the car, or only later during the journey
How to apply the standard of proof to disputed facts at sentencing, consistent with Olbrich v The Queen (1999)
How to weigh an extensive criminal history and the ineffectiveness of prior incarceration against the need for community protection and denunciation
How the offender's Aboriginal background, profound childhood deprivation, and mental health considerations affected his moral culpability, consistent with Bugmy v The Queen (2013) and the Fernando principles
Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence
How to construct an aggregate sentence across multiple counts that avoided a crushing outcome while reflecting the gravity of the offending

Decision

The factual dispute on detention. The defence argued the detention was spontaneous and commenced only part-way through the journey. The court applied the Olbrich standard: disputed matters in mitigation must be established on the balance of probabilities, while aggravating facts must be proved beyond reasonable doubt. His Honour found that, on the agreed facts, the complainant had no real choice from the moment she was ordered into the car. She had just been assaulted, her daughter was already strapped in, and the offender had blocked the other driver from taking her home. The detention was found to have commenced at that point.

Moral culpability and the Aboriginal background. Consistent with Bugmy and the Fernando principles, the court gave significant weight to the offender's background of profound childhood deprivation, exposure to violence and drug use from birth, and the resultant emotional dysregulation and anger. His Honour acknowledged these matters did not excuse the offending, but bore directly on the assessment of moral culpability. The presence of the couple's infant daughter during the sustained assault was treated as a significant aggravating feature.

The limits of incarceration. His Honour made explicit and candid observations about the counterproductive effects of custody in this case. The offender had been in gaol for more than half his adult life, had been seriously assaulted in custody on multiple occasions, and had never had meaningful access to drug rehabilitation or psychological treatment. The court found that incarceration had not protected the community, had not rehabilitated the offender, and had normalised violence rather than deterred it. These observations informed the court's approach to structuring a sentence that, while necessarily involving further custody, sought to preserve the offender's prospects of engagement with rehabilitation programs, including through connection to his Aboriginal community.

Special circumstances and the aggregate sentence. The court found special circumstances, which under the Crimes (Sentencing Procedure) Act 1999 (NSW) permits a sentencing court to set a non-parole period that is a smaller proportion of the head sentence than the statutory default. This reflected the need for an extended period on parole to support supervision and rehabilitation. The aggregate sentence was constructed to avoid a crushing outcome while still requiring meaningful time in custody.

Orders Made

Sequence 1 (Aggravated Detain with Intent to Intimidate, s 86(2)(b) Crimes Act 1900): Indicative sentence of 3 years and 9 months (Form 1 offence taken into account)
Sequence 3 (Contravene ADVO, s 14(1) Crimes (Domestic and Personal Violence) Act 2007): Indicative sentence of 9 months
Sequences 5 and 7 (Drive While Disqualified, s 54(1)(a) Road Transport Act 2013): Indicative sentence of 3 months each, plus automatic licence disqualification of 12 months
Sequence 6 (Police Pursuit, s 51B(1) Crimes Act 1900): Sentence of 4 months
Aggregate sentence: 4 years and 3 months
Non-parole period: 2 years and 9 months
Balance of term (parole period): 1 year and 6 months
Sentence commencement: 28 October 2020
Parole eligibility date: 27 July 2023
Total sentence expiry: 27 January 2025
Licence disqualifications suspended by operation of law during custody; upon release the offender would be subject to a period of driving disqualification, and any driving during parole would constitute a breach
Copies of Dr Furst's report and the psychosocial report directed to accompany the warrant

Key Takeaways

Under Olbrich v The Queen, disputed mitigating facts at sentence must be proved on the balance of probabilities, while disputed aggravating facts must be established beyond reasonable doubt; a sentencing court is not obliged to accept a contention in mitigation unless satisfied of it.
The District Court held that the complainant's lack of any real choice, having just been assaulted and with her infant daughter already strapped in the car, was sufficient to establish the commencement of detention for the purposes of s 86 of the Crimes Act 1900 from the moment she was ordered into the vehicle.
Consistent with Bugmy v The Queen (2013) and the Fernando principles, a background of profound childhood deprivation and exposure to violence bears on the assessment of moral culpability even where it does not excuse serious offending; this consideration remains relevant regardless of the offender's prior criminal history.
Incarceration that has not resulted in rehabilitation access or reduced reoffending is a legitimate consideration in the sentencing exercise, particularly where the court is balancing deterrence against the risk of a crushing sentence.
A finding of special circumstances allows the court to extend the supervision period on parole beyond the statutory default, and the District Court treated the offender's acute need for rehabilitative support and community engagement as justifying such a finding in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 86(2)(b), 51B(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 37
- Criminal Procedure Act 1986 (NSW), s 166(1)
- Evidence Act 1995 (NSW)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- Veen v The Queen (No 2) (1988) 164 CLR 465
- *Fernando