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Local Court 26 October 2023

R v Mulholland

[2023] NSWLC 10

Assault & violenceDomestic & family violence
SENTENCING DOMESTIC VIOLENCE OFFENCES MAGNITUDE OF FORM 1 MATTERS [2013] NSWCCA 115 SENTENCING S 37 CRIMES ACT INTENTIONALLY CHOKE WITHOUT CONSENT

Citation: R v Mulholland [2023] NSWLC 10
Court: Local Court of NSW
Date: 26 October 2023
Judge(s): Donnelly LCM

Background

The defendant pleaded guilty to 10 domestic violence offences and admitted a further 8 offences placed on a Form 1 document. All 18 offences were committed against his partner across 11 discrete incidents spanning 18 months, from June 2021 to December 2022. The offending included choking, assault, intimidation, and contraventions of an apprehended violence order.

The most serious offence was intentionally choking a person without consent under s 37(1A) of the Crimes Act 1900 (NSW). On 19 June 2021, the defendant reached into a shower and repeatedly squeezed the victim's throat with increasing force, slamming her head against a tiled wall. The victim lost consciousness. Her injuries left her unable to speak for two weeks and it took a month for her voice to return.

Several of the later offences were committed while the defendant was on bail, and at the time of sentencing he was in custody on an unrelated drug supply matter before the District Court.

  • How should a sentencing court assess the objective seriousness of an intentional choking offence under s 37(1A), and is it required to categorise the offence as falling within a low, mid, or high range?
  • Whether and to what extent the magnitude of a Form 1 document limits the additional punishment available for the principal offence.
  • How the Local Court must approach its jurisdictional limit when the sentence it determines for the principal offence exceeds that limit.
  • How the principle of totality applies when imposing an aggregate sentence across multiple domestic violence offences.

Decision

Objective seriousness of the choking offence: Donnelly LCM assessed the choking offence as serious, noting it was committed over a long duration, involved a high degree of violence, and caused significant physical harm. The Court observed that s 37(1A) was enacted in 2018 specifically to deter controlling behaviours in family and domestic violence contexts. Consistent with authority, the Court held there was no requirement to categorise the offence as falling within a low, mid, or high range of seriousness.

Form 1 magnitude: The Court applied the principle from Abbas v R (2013) that the magnitude of offences on a Form 1 is relevant. Where, as here, eight further offences appear on the Form 1 alongside the principal offence, the scope for additional punishment on the principal offence is limited. The Form 1 offences included three intimidation charges and four contraventions of an apprehended violence order, alongside a common assault.

Jurisdictional limit: Following the High Court's decision in Park v The Queen (2021) 273 CLR 303, the Court determined the appropriate sentence by reference to the five-year statutory maximum for the principal offence, not the Local Court's two-year jurisdictional ceiling. Only once the appropriate sentence was determined did the jurisdictional limit become relevant, requiring the sentence to be reduced to that ceiling. An indicative sentence of two years imprisonment was imposed for the principal offence.

Aggregate sentence and totality: The Court assessed the total criminality across all nine offences attracting full-time imprisonment and arrived at an aggregate sentence of three years and six months, applying the totality principle without reference to concurrency or cumulation. The Court found special circumstances and varied the statutory non-parole period ratio, citing the defendant's rehabilitation needs as evidenced by a sentencing assessment report and a psychologist's report.

Orders Made

  • Aggregate sentence of 3 years 6 months imprisonment, commencing 14 August 2023 and expiring 13 February 2027.
  • Non-parole period of 2 years 2 months, commencing 14 August 2023 and expiring 13 October 2025.
  • Special circumstances found; statutory non-parole ratio varied under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999.
  • Sentence backdated to 14 August 2023.

Key Takeaways

  • A sentencing court in the Local Court must determine the appropriate sentence by reference to the full statutory maximum penalty, not the Local Court's jurisdictional limit. The limit only becomes operative if the determined sentence exceeds it, as confirmed in Park v The Queen (2021) 273 CLR 303.
  • Where a Form 1 document contains a large number of additional offences, the magnitude of that Form 1 restricts the scope for further punishment on the principal offence, consistent with Abbas v R (2013).
  • Under established Court of Criminal Appeal authority, sentencing for domestic violence offences requires substantial weight to be given to general deterrence and denunciation, and recognition of harm to the victim, reflecting longstanding obligations to vindicate victim dignity articulated in Munda v Western Australia (2013).
  • No requirement exists for a sentencing court to classify an intentional choking offence as falling within a specific low, mid, or high range of seriousness when assessing objective gravity.
  • An aggregate sentence is determined by assessing the totality of criminality across all offences, without constructing it by reference to concurrency or accumulation of individual terms.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 37(1A) (intentional choking without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A and s 44(2B)
- Crimes (Sentencing Procedure) Regulation 2017 (NSW)

Cases
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Cherry v R [2017] NSWCCA 150
- Kaderavek v R [2018] NSWCCA 92
- Bell v R [2019] NSWCCA 251
- DS v R; DM v R [2022] NSWCCA 156
- FL v R [2020] NSWCCA 114
- Hiron v R [2007] NSWCCA 336
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518