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District Court 13 April 2023

R v MURRAY

[2023] NSWDC 87

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences
SENTENCE DOMESTIC VIOLENCE NEED FOR GENERAL DETERRENCE SEXUAL ASSAULT AS DOMESTIC VIOLENCE MULTIPLICITY OF OFFENDING

Citation: R v Murray [2023] NSWDC 87
Court: District Court of New South Wales
Date: 13 April 2023
Judge(s): Lerve DCJ

Background

The offender entered guilty pleas at Wagga Wagga Local Court in July 2022 to a series of charges arising from multiple episodes of domestic violence against a former intimate partner. The offending spanned from October 2021 to early 2022 and occurred in Wagga Wagga. An interim apprehended domestic violence order (ADVO) was in place for much of this period.

The most serious offending occurred on 22 October 2021, when the offender sexually assaulted the victim in her home while she repeatedly told him to stop. Subsequent episodes included aggravated entry into the victim's dwelling, stalking and intimidation, common assault, and the use of a carriage service to harass or menace. The offender also sent 16 letters from custody to the victim, breaching the ADVO.

The sentence hearing proceeded in the Wagga Wagga District Court on 24 February 2023. Additional charges were dealt with by way of certificates under section 166 of the Criminal Procedure Act 1986, meaning they were taken into account on sentence without separate penalty, subject to the jurisdictional limits that apply to Local Court matters.

  • The appropriate sentence for a pattern of domestic violence offending, including rape, aggravated break and enter, stalking, common assault, and AVO contraventions
  • The weight to be given to general deterrence in the context of domestic violence, including sexual assault as a form of domestic violence
  • The applicable discount for early guilty pleas, including the distinction between the state and Commonwealth frameworks
  • Whether special circumstances existed justifying a non-parole period of less than the standard one-third of the total sentence
  • How the aggregate sentence should interact with a pre-existing sentence already being served

Decision

Lerve DCJ sentenced the offender across multiple charges, treating the sexual intercourse without consent on 22 October 2021 as the most serious offence. The facts revealed a prolonged and violent assault in which the victim clearly and repeatedly refused consent, and the offender physically restrained her throughout. The judge noted the gratuitous nature of the offending and its occurrence within an intimate relationship, identifying strong general deterrence as a key sentencing consideration. The court drew on High Court authority, including Munda v Western Australia, for the proposition that domestic violence demands a firm sentencing response.

The offender received a 25% utilitarian discount on guilty pleas for both the state and Commonwealth offences, though the legal basis for the Commonwealth discount was framed as facilitating the course of justice rather than under the state sentencing framework. The court found special circumstances justifying a non-parole period below the standard ratio, citing the need for supervised parole following a substantial period of custody, partial accumulation of sentences, and the offender's rehabilitative prospects. Reports from Dr White were ordered to accompany the warrant to the Department of Corrective Services.

For the Commonwealth carriage service offence, the court imposed a fixed term of 12 months running concurrently with other matters, noting it was not included in the aggregate sentence. The aggregate sentence for all remaining offending was 5 years and 6 months, with a non-parole period of 3 years and 8 months. Taking into account a pre-existing sentence of 12 months imposed in July 2022, the total effective sentence ran from 31 December 2021 to 3 October 2027, with the total period in actual custody representing approximately 67% of the total effective sentence.

Orders Made

  • Commonwealth carriage service offence (s 474.17(1)): fixed term of 12 months imprisonment, commencing 4 April 2022 and expiring 3 April 2023
  • All other offending: aggregate sentence of 5 years and 6 months imprisonment
  • Non-parole period of 3 years and 8 months, commencing 4 April 2022 and expiring 3 December 2025
  • Balance of term (parole) of 1 year and 10 months, commencing 4 December 2025 and expiring 3 October 2027
  • Release to parole recommended at expiration of non-parole period
  • Reports of Dr White to be forwarded to the Department of Corrective Services with the relevant warrant
  • Various charges taken into account by way of section 166 certificates, including contraventions of the ADVO, stalk/intimidate, intentionally choke without consent, and common assault

Key Takeaways

  • The District Court affirmed that sexual assault within a domestic relationship attracts strong general deterrence considerations, consistent with High Court authority in Munda v Western Australia and Bugmy v The Queen.
  • A 25% utilitarian discount applied to guilty pleas for both state offences and the Commonwealth carriage service charge, though the Commonwealth discount was assessed under the distinct framework of facilitating the course of justice.
  • Special circumstances justifying a below-standard non-parole period can be found where an aggregate sentence is partially accumulated on a pre-existing sentence, and where supervised parole is needed to support rehabilitation following a lengthy custodial term.
  • Under section 166 of the Criminal Procedure Act 1986, charges committed to the District Court on certificate remain subject to the sentencing jurisdictional limits of the Local Court, as confirmed in Park v The Queen [2021] HCA 37.
  • Repeated contraventions of an ADVO, including contact made from custody, featured as aggravating conduct across multiple episodes and were reflected in the overall sentencing structure.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61I, 111(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code 1995 (Cth), s 474.17(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen [2013] HCA 37
- Cherry v R [2017] NSWCCA 150
- Hiron v R [2007] NSWCCA 336
- Munda v Western Australia [2013] HCA 38
- Park v The Queen [2021] HCA 37
- R v BA [2014] NSWCCA 148
- R v Biles (No 2) [2017] NSWSC 525
- R v Eckermann [2013] NSWCCA 188
- R v Gavel [2014] NSWCCA 56
- R v Hamid [2006] NSWCCA 302
- R v Lloyd [2022] NSWSC 906
- R v Tuala [2015] NSWCCA 8