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District Court 13 December 2023

R v Weir

[2023] NSWDC 671

Assault & violenceDomestic & family violence

Citation: R v Weir [2023] NSWDC 671
Court: District Court of New South Wales
Date: 13 December 2023
Judge: Haesler SC DCJ

Background

The offender, a man born in 1987, pleaded guilty to two charges of detaining a person with intent to obtain an advantage and causing actual bodily harm, contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). Each offence carries a maximum penalty of 20 years imprisonment. A separate charge of assault occasioning actual bodily harm was also before the Court, along with a breach of an Apprehended Domestic Violence Order (ADVO) and a Form 1 intimidation matter.

The offences arose from two distinct incidents involving the offender's partner. The first occurred on 1 November 2021 and involved a prolonged assault at the offender's unit, during which the complainant was beaten with a phone cable, a rock, and a curtain rod, and her head was forced under water mixed with bleach. The second occurred on 16 March 2022, during which she was again beaten severely, a machete was held and rubbed against her neck, candlewax was poured on a wound above her eye, and she lost consciousness. Police attending to execute an unrelated warrant found her in a severely injured state. The complainant suffered extensive injuries across both incidents, including broken teeth, rib injuries, a cauliflower ear, and facial bruising, and was bedridden for days following the first assault.

The offender had a lengthy criminal history and had spent much of his adult life in custody. Psychiatric evidence established a diagnosis of Schizoaffective Disorder, a chronic psychotic illness characterised by delusional beliefs, hallucinations, disordered thought, and mood disturbances. The offender also had longstanding Substance Use Disorders involving methamphetamine and cannabis. The ADVO breach was committed from prison, after the order was made in response to these very offences.

  • What aggregate sentence was appropriate across multiple serious offences of domestic violence, including two counts of detain for advantage with actual bodily harm?
  • How should the offender's Schizoaffective Disorder and Substance Use Disorders affect the assessment of moral culpability and the weight given to general deterrence?
  • How should the Court balance the offender's significant subjective disadvantages, including mental illness, drug dependence, and a disrupted background, against the grave objective seriousness of the offences?
  • What weight should be given to the early guilty plea across all counts?
  • How should the principle against a "crushing sentence" interact with the need to reflect the harm caused and vindicate the complainant's dignity?

Decision

His Honour accepted that the objective seriousness of the offences demanded a substantial period of imprisonment. The two detention offences involved prolonged, calculated, and escalating violence against a domestic partner, including restraint, near-drowning, and threats to kill. The Court found that the "advantage" sought by the offender was psychological control over the complainant. The ADVO breach, committed while the offender was in custody, was treated seriously, though the sentence for it was modest given the overall aggregate.

The Court applied the principles from R v Verdins (adapted and applied in NSW) to reduce the weight given to general deterrence in light of the offender's Schizoaffective Disorder. His Honour found that the mental illness, while not excusing the conduct, diminished moral culpability to a meaningful degree. The Court also took account of the offender's background of deprivation, drug dependence, and repeated custody, in accordance with Bugmy v The Queen, giving "full measure" to those circumstances.

A 25% discount was applied across all sentences for the utilitarian value of the early guilty plea, consistent with Mill v The Queen. His Honour was careful to ensure that the process of accumulation did not erode that discount. A finding of special circumstances was made, adjusting the ratio between the non-parole period and the balance of term.

The Court expressly acknowledged the tension between the offender's significant personal disadvantages and the need to impose a sentence that reflected the gravity of the harm inflicted and vindicated the complainant's human dignity, drawing on Munda v State of Western Australia. His Honour concluded that both considerations had to be synthesised into the final sentence.

Orders Made

  • First detain for advantage offence (incorporating the Form 1 intimidation matter): 4 years and 6 months imprisonment
  • Second detain for advantage offence: 4 years and 6 months imprisonment
  • Breach of ADVO (166 certificate matter): 3 months imprisonment
  • Aggregate sentence: 5 years and 7 months
  • Non-parole period: 3 years and 6 months
  • Balance of term: 2 years and 1 month
  • Sentence to commence: 17 August 2022
  • Eligible for parole consideration: 16 February 2026
  • Balance of term commences: 17 February 2026; total sentence expires 16 March 2028
  • Parties granted leave to restore the matter regarding whether an ADVO was required to be made

Key Takeaways

  • The District Court confirmed that serious domestic violence offences involving coercive control, prolonged detention, and significant physical harm will attract substantial custodial sentences, even where the offender has significant mental health and personal disadvantages.
  • A diagnosis of Schizoaffective Disorder is capable of reducing moral culpability and diminishing the weight given to general deterrence at sentencing, though it does not excuse the conduct or remove the need for appropriate punishment.
  • Under the Bugmy principle, a history of mental illness, drug dependence, and repeated periods of custody are relevant subjective considerations that courts must weigh, but they do not override the objective seriousness of violent offending or the need to vindicate the dignity of victims.
  • Breaching an ADVO from custody is treated as a serious matter, reflecting that protective orders must be given meaningful effect regardless of where the offender is located.
  • An early guilty plea attracted a 25% utilitarian discount across all offences, with the Court taking active steps to ensure that discount was not eroded through the accumulation of sentences.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), s 86(2)(b) (detain for advantage)
  • Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 (stalking or intimidation)
  • Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Crimes (Administration of Sentences) Act 1999 (NSW)
  • Criminal Procedure Act 1986 (NSW)
  • Children (Criminal Proceedings) Act 1987 (NSW)
  • Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases

  • Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
  • Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
  • R v Verdins [2007] VSCA 102; 16 VR 269
  • Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
  • Veen v R (No 2) [1988] HCA 14; 164 CLR 465
  • 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
  • R v Burton [2008] NSWCCA 128
  • R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
  • Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
  • Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
  • Dungay v R [2020] NSWCCA 209
  • Engert v The Queen (1995) 84 A Crim R 67
  • R v Tsiaras [1996] 1 VR 398
  • R v Windle [2012]