Citation: R v Evatt (a pseudonym) [2024] NSWDC 113
Court: District Court of New South Wales
Date: 12 April 2024
Judge(s): Priestley SC DCJ
Background
The offender and victim were former spouses who had separated in 2020 after a relationship that began in high school. At the time of the offences, both were 32 years old. Their two young children (aged 8 and 4) were asleep in the victim's home when the offending occurred. The victim had deliberately kept her new address secret from the offender following separation, and an apprehended domestic violence order (ADVO) was in place prohibiting him from locating or approaching her.
In the days before the offending, the offender used their children to discover the victim's address. In the early hours of 25 October 2021, after an evening of drinking, he entered her home without permission and confronted her in her bedroom, grabbing her by the throat. Over the course of that night, he committed multiple sexual assaults against her under circumstances of fear and threats of serious violence.
The offender was charged with two counts of sexual intercourse without consent (s 61I of the Crimes Act 1900 (NSW)), one count of entering a building with intent to commit an indictable offence (s 114(1)(d)), and contravening an ADVO. A further count of sexual intercourse without consent was included on a Form 1 to be taken into account on sentence.
Legal Issues
- What aggregate sentence was appropriate across the three indictment counts and the summary ADVO offence, given the standard non-parole period of 7 years for each s 61I offence?
- How should the Form 1 procedure operate in sentencing for the principal offence (count 3)?
- To what extent should the sentences run concurrently or cumulatively, applying the totality and concurrency principles?
- Whether special circumstances warranted a departure from the standard ratio between non-parole period and total sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
Decision
Priestley SC DCJ sentenced the offender following entry of guilty pleas (the judgment does not specify the timing of those pleas, though remand time was credited). The offending was characterised as a serious, premeditated course of conduct carried out against a former intimate partner who had deliberately taken steps to protect herself.
His Honour applied the standard non-parole period of 7 years as a legislative guidepost for each s 61I offence, consistent with the High Court's guidance in Muldrock v The Queen (2011) 244 CLR 120 that the guidepost applies regardless of where the offending sits in the range of seriousness. For count 3, the Form 1 offence permitted greater weight to be given to personal deterrence and community retribution than would otherwise apply to the principal offence alone.
On the question of concurrency, Priestley SC DCJ applied the principle in Cahyadi v R [2007] NSWCCA 1 that where offences form part of a single criminal episode, sentences will more likely be substantially concurrent. The s 114 offence and the summary ADVO offence were to run substantially concurrently with the s 61I sentences. However, the two counts of sexual intercourse without consent were treated as warranting a lesser degree of concurrency, because each represented a discrete act of rape and the Form 1 matter added further criminality that required recognition in the overall sentence.
His Honour declined to find special circumstances beyond the limited margin already reflected in the aggregate sentence structure. The non-parole period was considered the minimum period of custody necessary to satisfy the principle of proportionality. The aggregate sentence was 12 years imprisonment with a non-parole period of 8 and a half years, backdated to the date of arrest on 8 November 2021.
Orders Made
- The offender was convicted on all three counts on the indictment and the summary offence on the s 166 certificate.
- Aggregate sentence of 12 years imprisonment imposed, with a non-parole period of 8 and a half years commencing 8 November 2021 and expiring 7 May 2030; balance of term of 3 and a half years expiring 7 November 2033.
- A final ADVO was made for the protection of the victim for a period of 2 years after the term of imprisonment ends, with the parties directed to provide an agreed form of order by 4pm on 12 April 2024; the matter was listed on 17 April 2024 if no agreement was reached.
Key Takeaways
- The District Court applied Muldrock to confirm that the 7-year standard non-parole period for s 61I offences operates as a legislative guidepost across the full range of offending seriousness, not only for offences assessed as falling in the middle of that range.
- Under the Form 1 procedure, the sentencing focus remains on the principal offence, but the existence of the Form 1 matter permits greater weight to be given to personal deterrence and community retribution than would otherwise apply to the principal offence in isolation.
- The Cahyadi concurrency principle was applied with nuance: offences arising from a single episode attracted substantial concurrency, but multiple discrete sexual assaults within that episode warranted a reduced degree of concurrency to reflect the separate criminality of each act.
- No special circumstances were established beyond the minimum margin reflected in the aggregate structure, as the non-parole period was considered proportionate to the objective seriousness of the offending.
- A final ADVO extending 2 years beyond the sentence was ordered, illustrating that protective orders can extend well beyond the custodial term even in cases where a lengthy sentence is imposed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 114(1)(d)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Family Law Act 1975 (Cth)
Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Cahyadi v R [2007] NSWCCA 1
- Millwood v R [2012] NSWCCA 2
- Hall v The Queen [2021] NSWCCA 220
- R v Holder [1983] 3 NSWLR 245
- Mill v The Queen [1988] HCA 70
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146