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District Court 25 January 2023

R v Fam

[2023] NSWDC 119

Assault & violenceDomestic & family violence
CRIME SENTENCE ASSAULT ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: R v Fam [2023] NSWDC 119
Court: District Court of New South Wales
Date: 25 January 2023
Judge: Bourke SC DCJ

Background

The offender and the victim entered an intimate relationship in late 2019, following an earlier friendship. Their relationship was intermittent and involved incidents of violence by both parties, ultimately resulting in mutual apprehended domestic violence orders (ADVOs) being made against each of them.

Despite the ADVOs, the pair continued contact into 2021. In April 2021, the victim travelled from Brisbane to Sydney and met with the offender on two separate occasions, the nights of 10 to 11 April and 13 to 14 April 2021. On each occasion, a violent altercation occurred.

The offender stood trial on an eight-count indictment that included charges of assault, assault occasioning actual bodily harm (AOABH), and sexual assault. The jury returned guilty verdicts on two counts only: one count of assault (count 2, arising from the first incident) and one count of AOABH (count 6, arising from the second incident). Two uncontested breaches of the ADVOs, corresponding to the same two incidents, were dealt with separately on a section 166 certificate.

  • What facts could properly be found for sentencing purposes, consistently with the jury's verdicts on the assault counts and the not-guilty verdicts on more serious related counts?
  • What was the appropriate sentence for the offences, having regard to the purposes of sentencing including deterrence, punishment, and community safety?
  • Whether an Intensive Correction Order (ICO), as an alternative to full-time custody, would adequately address those sentencing purposes.

Decision

Fact-finding consistent with jury verdicts

His Honour found that, on the first incident (10 to 11 April 2021), the offender punched the victim at least once to the face with a closed fist. Because the jury acquitted on the AOABH count for that incident, the court could not be satisfied beyond reasonable doubt that the blow caused actual bodily harm such as bruising or a cut. The court drew support for the assault finding from electronic messages the victim sent to friends shortly after the incident. Similarly, the court treated the jury's acquittal on the choking count as precluding any finding that choking occurred, and set aside all other not-guilty matters.

Sentencing considerations

The court weighed a number of factors against the offender. These included that the offences occurred in a domestic context, involved a breach of ADVOs, and that domestic violence of this kind is prevalent and causes serious harm to victims and to the community. Some mitigating considerations were also present, including the offender's background and the circumstances of the relationship.

Rejection of the ICO submission

Defence counsel argued that an ICO would better serve sentencing purposes, pointing to the offender's time already served in custody and the absence of further ADVO breaches. The court rejected this submission. Referring to Basten JA's observations in Fangaloka v R [2019] NSWCCA 173, the court held that the degree of leniency inherent in an ICO would produce an inadequate penalty in the circumstances, having regard in particular to general and specific deterrence, appropriate punishment, retribution, and community safety.

Special circumstances

The court found special circumstances justifying an adjustment to the ratio between the head sentence and the non-parole period. The basis was that this was the offender's first period of full-time custody and that he would require adequate supervision and monitoring upon release.

Orders Made

  • Head sentence of imprisonment backdated to commence 7 May 2022, expiring 6 December 2024.
  • Non-parole period expiring 6 December 2023.
  • 263 days of pre-sentence custody taken into account via the backdated commencement date.

Key Takeaways

  • The District Court confirmed that, in sentencing after a jury trial, findings of fact must be consistent with the verdicts returned: matters in aggravation require proof beyond reasonable doubt, while mitigating matters are assessed on the balance of probabilities.
  • Where a jury acquits on a more serious count but convicts on an alternative, the sentencing court is confined to findings consistent with that lesser verdict and cannot rely on the elements of the charge on which the accused was acquitted.
  • An ICO will not be appropriate in every case where an offender has already served time on remand. The District Court applied Fangaloka v R to hold that the leniency inherent in an ICO can be inconsistent with adequate punishment, particularly for prevalent domestic violence offending.
  • Breach of an ADVO at the time of the assault is a relevant aggravating feature in sentencing, reflecting the additional harm caused by undermining a court order designed to protect the victim.
  • Special circumstances permitting adjustment of the non-parole period ratio can be established where an offender is serving their first term of full-time custody and post-release supervision is considered necessary.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Fangaloka v R [2019] NSWCCA 173
- R v Crombie [1999] NSWCCA 297
- R v Hamid [2006] NSWCCA 302