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District Court 3 February 2023

R v Steele (No 2)

[2023] NSWDC 99

Assault & violenceTheft & propertyDomestic & family violence
CRIME JUDGMENT SENTENCING RELEVANT FACTORS ON SENTENCE SENTENCE AFTER TRIAL DOMESTIC VIOLENCE OFFENDING VICTIM IMPACT

Citation: R v Steele (No 2) [2023] NSWDC 99
Court: District Court of New South Wales
Date: 3 February 2023
Judge: Haesler SC DCJ

Background

The offender and the complainant married in 2019 after meeting in 2016. They have one child together. In August 2019, the offender committed serious offences against the complainant, including assault, intimidation, choking, and using a carriage service to menace her. He received a two-year aggregate sentence and was released on parole in December 2020, with an Apprehended Violence Order (AVO) in place.

In April 2021, the no-contact conditions of the AVO were varied to permit contact, and the parties began spending time together. On weekends, the offender would sometimes stay overnight at the complainant's home, which she also allowed so he could have contact with their son.

In late July 2021, across three separate incidents, the offender committed further serious offences against the complainant. These formed the basis of three counts on indictment: two charges of stalking and intimidating with intent to cause fear of physical or mental harm under the Crimes (Domestic and Personal Violence) Act 2007, and one charge of aggravated break and enter while committing a serious indictable offence under the Crimes Act 1900. A judge-alone trial was conducted at Bega District Court in November 2022, with convictions recorded on 2 December 2022: R v Steele [2022] NSWDC 603. This decision addresses sentence for those convictions and related summary matters.

  • What sentences were appropriate for three serious domestic violence offences committed against the complainant, including an aggravated home invasion?
  • How should the court address the risk of double-counting where AVO contraventions are both a standalone sentencing matter and a potential aggravating factor on the principal offences?
  • How should an aggregate sentence be structured, and whether special circumstances existed to justify a variation from the standard non-parole period ratio?
  • How should the court deal with related summary offences, including AVO contraventions and a COVID-era Public Health Act offence?

Decision

Haesler SC DCJ sentenced the offender across all matters by way of an aggregate sentence. His Honour took care to avoid double-counting, noting that because independent sentences were being imposed for the AVO contraventions, the breach of those orders could not also be treated as an aggravating factor when assessing the principal offences. This approach is consistent with the general practice confirmed in Suksa-Ngacharoen v R [2018] NSWCCA 142.

On the principal counts, his Honour characterised the offending as serious domestic violence committed against a complainant who had already been victimised by this offender and who was entitled to the court's protection. The aggravated break and enter (Count 3) was the most serious matter: the offender drove from Sydney to the complainant's home in the early hours of the morning, forced a rear door after receiving no response, and entered to find the complainant cowering in her bed while she was on the phone to Triple Zero. That offence carries a standard non-parole period under the Crimes Act 1900.

The court identified special circumstances justifying a non-parole period shorter than the statutory default ratio, resulting in an extended parole period to allow for supervision and support upon release. His Honour observed that the court bears an obligation to vindicate the dignity of domestic violence victims, express the community's disapproval of such conduct, and deter similar offending, both against this complainant and in general.

The COVID-related Public Health Act offence was dealt with by way of conviction only, with no further penalty, under s 10A of the Crimes (Sentencing Procedure) Act 1999. The related summary AVO contravention and stalking matters were found proved, consistent with the trial findings, and sentenced as part of the overall aggregate.

Orders Made

Summary matters:
- Sequence 006 (COVID Public Health Act offence): convicted, no further penalty imposed pursuant to s 10A Crimes (Sentencing Procedure) Act 1999
- Sequence 2 (stalk/intimidate) and Sequence 3 (contravene AVO): proved, convicted
- Sequences 5, 9 and 12 (contravene AVO, domestic): convicted, consistent with trial outcome

Indicated individual sentences:
- Count 1 / Sequence 4 (stalk/intimidate, domestic): 9 months
- Count 2 / Sequence 11 (stalk/intimidate, domestic): 12 months
- Count 3 / Sequence 13 (aggravated break and enter, commit serious indictable offence): 2 years 9 months, non-parole period 1 year 9 months
- Sequence 2 (stalk/intimidate): 4 months
- Sequence 3 (contravene AVO): 2 months
- Sequence 5 (contravene AVO): 6 months
- Sequences 9 and 12 (contravene AVO): 6 months each

Aggregate sentence:
- Total term: 3 years 9 months
- Non-parole period: 2 years 5 months (reflecting special circumstances), commencing 3 September 2021
- Eligible for parole: 2 February 2024
- Balance of term: 1 year 4 months
- Total sentence expiry: 2 June 2025

Key Takeaways

  • Where a sentencing court imposes standalone sentences for AVO contraventions, it must take care not to also treat those same breaches as aggravating factors on the principal offences, to avoid double-counting in breach of established sentencing principle.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can justify a longer parole period relative to the non-parole period, particularly where an offender's history and circumstances suggest meaningful supervision upon release is warranted.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction without imposing any additional penalty, a course the District Court applied here to a minor COVID Public Health Act offence.
  • Domestic violence offending committed in contravention of an AVO, by an offender with a prior history of similar offending against the same complainant, attracts significant sentencing weight directed at denunciation, protection of the victim, and general deterrence.
  • Summary matters brought before the District Court on s 166 certificates can be resolved at sentencing, including by findings of guilt based on facts already established at a judge-alone trial, even where not-guilty pleas are formally entered.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 112(2) (aggravated break and enter)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (stalking and intimidation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, standard non-parole period provisions
- Criminal Procedure Act 1986 (NSW), s 166 (back-up and related offences)
- Public Health Act 2010 (NSW)

Cases:
- R v Steele [2022] NSWDC 603 (judgment at trial)
- Suksa-Ngacharoen v R [2018] NSWCCA 142
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Munda v Western Australia (2013) 243 CLR 600; [2013] HCA 38
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- *Cah