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District Court 15 December 2023

R v MURPHY

[2023] NSWDC 562

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME ASSAULT OCCASIONING ACTUAL BODILY HARM INTIMIDATION COMMON ASSAULT ON FORM 1 SUBJECTIVE FEATURES UNENVIABLE CRIMINAL HISTORY

Citation: R v Murphy [2023] NSWDC 562
Court: District Court of New South Wales
Date: 15 December 2023
Judge: Lerve DCJ

Background

The offender appeared for sentence on a series of domestic violence offences arising from events on and around 13 September 2022 in Ashmont, a suburb of Wagga Wagga. A final apprehended violence order (AVO) had been in place since December 2021, naming the complainant as the person in need of protection. Despite that order, the offender contacted the complainant by phone, threatened her and her family, and arranged for her to travel from Lightning Ridge to be with him.

In the early hours of 13 September 2022, the offender subjected the complainant to a prolonged and serious assault in a bedroom. He punched her repeatedly to the head, chest and face, dragged her by her hair, knocked her unconscious, and threatened to kill her. Later that day, he held manicure scissors to her chest and threatened to kill her so that no one else could have her.

The charges on the amended indictment were assault occasioning actual bodily harm and intimidation. A common assault charge was withdrawn from the indictment by consent and placed on a Form 1 document attaching to the principal assault charge. Two charges of contravening the AVO were also before the court, dealt with by way of certificate.

  • What objective seriousness should be attributed to the assault and intimidation offences, having regard to the nature of the conduct and the injuries inflicted?
  • What weight should be given to the offender's subjective circumstances, including a significant history of deprivation and disadvantage under the principles in Bugmy v The Queen?
  • How should prior offending history, breach of conditional liberty, and drug abuse history affect the sentence?
  • Was an Intensive Correction Order (ICO) an appropriate alternative to full-time custody?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Lerve DCJ assessed the objective seriousness of the assault occasioning actual bodily harm as high. The court noted that while the charge is generally a result offence (with severity informed by the nature of the injury), the manner of infliction, the context, and the surrounding circumstances are also relevant considerations, drawing on McCullough v R. The sustained nature of the attack, the use of a ring as a weapon, the threats made, and the fact the offending occurred in a domestic violence context all elevated the seriousness of the conduct.

The court considered the offender's subjective circumstances, including what it described as an "unenviable" history of deprivation and disadvantage. The Bugmy principles were engaged, recognising that the offender's background of profound social and personal disadvantage remained relevant to moral culpability at the time of sentencing, even where an offender has a prior criminal history. A significant history of drug abuse was also taken into account.

Notwithstanding those subjective features, the court gave substantial weight to general deterrence, particularly in the context of repeat domestic violence offending. The offender was on conditional liberty at the time of the offending, which the court treated as an aggravating factor. The guilty pleas attracted a 10% discount on the indictable charges and a full 25% discount on the ADVO contraventions, the latter entered at the first available opportunity.

The court declined to impose an Intensive Correction Order. It found that the purposes of punishment under s 3A of the Crimes (Sentencing Procedure) Act, and in particular the need for general deterrence in repeat domestic violence matters, militated against a community-based sentence. The court also noted the statutory presumption of imprisonment applying to ADVO contraventions where the offence involved an act of violence. Special circumstances were found, resulting in a non-parole period of approximately 62.5% of the total sentence, adjusted downward due to partial accumulation.

Orders Made

  • Aggregate sentence of 3 years and 8 months imprisonment.
  • Non-parole period of 2 years and 3 months, commencing 27 January 2023 and expiring 26 April 2025.
  • Balance of term (17 months) on parole commencing 27 April 2025 and expiring 26 September 2026.
  • The court recommended the offender's release at the expiration of the non-parole period.
  • The court strongly recommended that any release to parole be supervised by the Department of Community Corrections.
  • Special circumstances found; non-parole period represents approximately 62.5% of the total sentence.
  • Total effective sentence (including any pre-existing custody) runs from 27 September 2022 to 26 September 2026, a period of 4 years.

Key Takeaways

  • The District Court confirmed that the objective seriousness of assault occasioning actual bodily harm is not determined solely by the resulting injury: the manner of infliction, the offender's motivation, and the surrounding circumstances all bear on the assessment.
  • Under the Bugmy principles, an offender's history of severe deprivation and disadvantage remains a relevant mitigating consideration at sentencing, even in cases involving a substantial prior criminal record. It does not diminish with repeat offending.
  • General deterrence carries significant weight in sentencing for repeat domestic violence offenders and may outweigh other sentencing considerations when determining the appropriate form of sentence.
  • An ICO was ruled out on the basis that community safety and general deterrence, particularly in the context of persistent domestic violence, precluded a non-custodial order, regardless of whether the sentence would otherwise have fallen within the three-year threshold.
  • A statutory presumption of imprisonment applies under s 14(4) of the Crimes (Domestic and Personal Violence) Act 2007 where an ADVO contravention constitutes an act of violence, unless the court otherwise orders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm), s 61 (common assault)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation), s 14(4) (presumption of imprisonment for ADVO contravention involving violence)
- Criminal Procedure Act 1986 (NSW), s 166 (certificate procedure)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of punishment), s 66(3) (ICO considerations)

Cases
- Bugmy v The Queen [2013] HCA 37
- The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- McCullough v R [2009] NSWCCA 94
- R v Mitchell & Gallagher (2007) 177 A Crim R 94
- Cherry v R [2017] NSWCCA 150
- DPP (Cth) v De la Rosa (2010) NSWLR 1
- Moiler v R [2021] NSWCCA 73
- R v Biles (No. 2) [2017] NSWSC 525
- R v Eckermann [2013] NSWCCA 188
- R v Hamid [2006] NSWCCA 302
- R v Hassenein Naderi [2022] NSWDC 534
- R v Lloyd [2022] NSWSC 960
- Vragovic v R [2007] NSWCCA 46