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District Court 8 February 2023

R v Tilley

[2023] NSWDC 496

Assault & violenceTheft & propertyDomestic & family violence

Citation: R v Tilley [2023] NSWDC 496
Court: District Court of New South Wales
Date: 8 February 2023
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to a series of domestic violence offences arising from an incident on 22 May 2022. He entered the home of his former partner (the mother of his two young children, aged one and three) without invitation, struck her twice in the face with her mobile phone, stole the phone and a CCTV hard drive, and caused one of the children to wake and become distressed. The victim was understandably fearful of contacting police given the history of the relationship.

The offending occurred while the offender was on parole for prior offending against the same victim, and in direct breach of an Apprehended Domestic Violence Order (ADVO). The offender eventually handed himself in to police on 2 June 2022 and was later arrested for unrelated matters on 13 June 2022, remaining in custody from that point.

The matter came before the District Court for sentencing. Haesler SC DCJ imposed an aggregate sentence, taking into account the objective seriousness of each offence, the offender's significant criminal history, relevant mitigating factors (including a deprived and traumatic childhood), and the need to maintain the utilitarian benefit of the early guilty pleas.

  • What aggregate sentence was appropriate across four offences, including the principal offence of aggravated entry into a dwelling with intent to commit a serious indictable offence (intimidation)?
  • How should the court treat the Form 1 intimidation offence so as to avoid double-counting when it overlapped substantially with the facts of the principal offence?
  • How should the court balance the multiple aggravating factors (breach of parole, breach of ADVO, offending in the victim's home, presence of a child, prior record) against relevant mitigating factors (early guilty plea, childhood deprivation, exposure to domestic violence, sexual assault in juvenile detention, youth and immaturity)?
  • Were special circumstances established, justifying a departure from the standard non-parole period ratio?
  • How should accumulation on an existing sentence (from the unrelated June 2022 matters) be managed consistently with the totality principle?

Decision

Haesler SC DCJ found that each offence was objectively serious, individually and cumulatively. The entry into the victim's home to intimidate her, the use of her own phone as an improvised weapon, the theft of property that symbolised coercive control, and the breach of an ADVO all demanded sentences of meaningful length. The judge acknowledged that more serious examples of the principal offence category exist, but concluded that the facts here could not be characterised as sitting at the low end.

The judge applied a 25% reduction across all sentences to reflect the utilitarian value of the early guilty pleas, while taking care that the accumulation process did not erode that benefit. The Form 1 intimidation offence was taken into account on sentence for the principal offence, but the judge declined to substantially increase that sentence solely because of the Form 1, given that the intended consequences of intimidation had effectively been achieved through the principal offending itself, making separation of the facts artificial and risking double-counting.

On subjective matters, the judge accepted that the offender's background, including childhood deprivation, exposure to domestic violence, and sexual assault suffered while in juvenile detention, reduced his moral culpability to a degree, consistent with principles from Bugmy v The Queen. However, those mitigating factors were weighed against a deteriorating pattern of reoffending: each period of release had been progressively shorter, and the offender had not engaged with his parole officer. The judge also noted the concern that further imprisonment risked entrenching the very violent responses that rehabilitation sought to address, which informed the finding of special circumstances and the extended parole period.

Special circumstances were found, justifying a non-parole period shorter than the statutory default ratio. The sentence was structured to commence six months into an existing period of custody, resulting in an effective total period of 3 years and 3 months. The ADVO was also extended for two years from the date of sentencing.

Orders Made

  • Aggregate sentence: 2 years and 9 months imprisonment, commencing 2 December 2022
  • Individual indicative sentences (after 25% plea discount):
  • Aggravated enter dwelling with intent (s 111(2) Crimes Act 1900): 2 years and 3 months (taking into account the Form 1 intimidation offence)
  • Larceny: 4 months
  • Common assault: 9 months
  • Contravene ADVO: 4 months
  • Non-parole period: 1 year and 8 months, commencing 2 December 2022; eligible for parole on 1 August 2024
  • Balance of term: 1 year and 1 month, commencing 2 August 2024; sentence to expire 1 September 2025
  • ADVO extended for 2 years; the order covers the complainant and the children, prohibiting the offender from coming within 200 metres of any place where they are located or work; contact with children to be conducted only through a lawyer, court-approved counsellor, or via mediation, conciliation, or court order

Key Takeaways

  • The District Court confirmed that breaching an ADVO and reoffending against the same victim while on parole are significant aggravating factors, but they must not be double-counted where the breach is already embedded in the circumstances of aggravation of the principal charge.

  • A Form 1 offence whose facts are closely intertwined with the principal offence warrants careful treatment: where the intended consequence was achieved through the principal offending, substantially increasing the principal sentence solely for the Form 1 matter risks impermissible double-counting.

  • Childhood trauma and deprivation, including exposure to domestic violence and sexual assault in custody, remain relevant to the assessment of moral culpability under Bugmy, even where an offender has an established pattern of reoffending.

  • Special circumstances can be established where the structural demands of accumulating sentences on existing custody, combined with concern that prolonged imprisonment may deepen rather than reduce a young offender's propensity for violence, justify extending the supervisory parole period beyond the statutory default.

  • A deteriorating pattern of offending (progressively shorter periods at liberty between sentences) bears on the assessment of whether conduct represents an uncharacteristic aberration, and may require a more severe penalty even for a relatively young offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 111(2), 117, 166
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- BP v R [2010] NSWCCA 159
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1
- Cherry v R [2017] NSWCCA 150
- Clarke-Jeffries v R [2019] NSWCCA 56
- Howard v R [2019] NSWCCA 109
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 37
- Postiglione v R [1997] HCA 26; (1996) 189 CLR 295
- R v Dunn (2004) 144 A Crim R 180
- R v Gordon (1994) 71 A Crim R 459
- R v Millwood [2012] NSWCCA 2
- Suksa-Ngacharoen v R [2018] NSWCCA 142
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14