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District Court 10 February 2023

R v Livesey (a pseudonym)

[2023] NSWDC 4

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

Citation: R v Livesey (a pseudonym) [2023] NSWDC 4
Court: District Court of New South Wales
Date: 10 February 2023
Judge: Colefax SC DCJ

Background

The offender, referred to as "Livesey" (a pseudonym), was in an extra-marital affair with a woman referred to as "Ms Ngo." Her young son, "Victor" (also a pseudonym), was almost five years old at the relevant time and had come to call the offender a word meaning "dad." Between April and August 2020, the offender subjected Victor to a series of violent assaults at Ms Ngo's home in Cabramatta.

A housemate, Ms Nguyen, witnessed and heard multiple incidents over several weeks, including one occasion in April 2020 and another in July 2020, before the most serious assault occurred between 18 and 21 August 2020. The August assault resulted in severe and documented injuries to Victor, forming the basis of the most serious charge.

The offender was arrested on 28 August 2020. He was charged alongside Ms Ngo, but proceedings against her were ultimately no-billed. The offender initially pleaded not guilty to all charges, but entered late guilty pleas to two principal counts on 15 August 2022, approximately two weeks before a listed trial date.

  • What sentence was appropriate for assault occasioning actual bodily harm (Count 4, s 59(1) Crimes Act 1900) and causing grievous bodily harm with intent (Count 5, s 33(1)(b) Crimes Act 1900)?
  • What discount, if any, applied to reflect the late guilty plea?
  • Whether a contested fact alleged by the Crown in relation to Count 4 had been established beyond reasonable doubt.
  • Whether special circumstances existed to vary the standard ratio between the head sentence and the non-parole period.
  • What aggregate sentence, applying principles of totality, was appropriate across both counts?

Decision

The court set out the agreed facts in detail. The April 2020 incident (Count 2, on the Form 1) involved the offender striking Victor with what appeared to be a broom handle over approximately one hour, with photographs confirming redness and bruising across multiple parts of Victor's body. A further assault in late July 2020 (Count 3, also on the Form 1) was observed by Victor's paternal grandmother, who noticed bruising on his thigh. Both Form 1 matters were taken into account in sentencing for Count 5 and were found to warrant a meaningful increase to that sentence.

The most serious offending, Count 5, involved an assault between 18 and 21 August 2020 that caused Victor grievous bodily harm. Count 4, also involving an assault on Victor, was the subject of a contested fact: the court found the Crown had not established beyond reasonable doubt the specific fact it relied upon, and sentenced on the narrower basis.

Colefax SC DCJ found the offender was not genuinely remorseful, notwithstanding his pleas of guilty. The court noted the offender's young age (he was approximately 20 at the time of the offending), absence of prior criminal history, and the fact that this was his first period of imprisonment. Those factors, however, were outweighed by the gravity of the offending, the vulnerability of a child victim, and the sustained nature of the abuse. General deterrence, specific deterrence, and community protection were all engaged.

A late guilty plea discount of 10 per cent was applied to each indicative sentence. The court declined to find special circumstances to alter the standard head sentence to non-parole period ratio, concluding the non-parole period would be sufficient for rehabilitation purposes. Applying principles of totality, an aggregate sentence of 10 years' imprisonment was imposed, with a non-parole period of 7 years and 6 months.

Orders Made

  • Aggregate term of imprisonment of 10 years, backdated to 28 August 2020.
  • Non-parole period of 7 years and 6 months, commencing 28 August 2020 and expiring 27 February 2028.
  • Balance of sentence of 2 years and 6 months, commencing 28 February 2028 and expiring 27 August 2030.
  • No finding of special circumstances.
  • Counts 2 and 3 taken into account on a Form 1 referrable to Count 5.

Key Takeaways

  • A late guilty plea entered approximately two weeks before a listed trial attracted a discount of only 10 per cent, reflecting the limited utilitarian value of the plea at that stage of proceedings.
  • Under s 33(1)(b) of the Crimes Act 1900, causing grievous bodily harm with intent carries a maximum of 25 years and a standard non-parole period of 7 years; the District Court's aggregate sentence of 10 years with a 7.5-year non-parole period reflected the sustained nature of the offending and the extreme vulnerability of the child victim.
  • Where an offender denies genuine remorse despite entering guilty pleas, a sentencing court may decline to treat remorse as a mitigating factor, particularly where the pleas were entered late and the evidence of contrition is unconvincing.
  • The presence of Form 1 matters arising from a pattern of repeated violence against the same child victim produced a meaningful upward adjustment to the principal sentence, even where those matters were themselves charges of assault occasioning actual bodily harm.
  • Declining to find special circumstances, the court held that the standard non-parole period ratio was adequate for rehabilitation, notwithstanding the offender's youth and that this was his first period of custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm, maximum 5 years)
- Crimes Act 1900 (NSW), s 33(1)(b) (cause grievous bodily harm with intent, maximum 25 years, standard non-parole period 7 years)

Cases: No cases were cited in the provided text of the judgment.