Citation: R v Ireton (a pseudonym) [2024] NSWDC 129
Court: District Court of New South Wales
Date: 29 April 2024
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym Mr Ireton, was a married man who had come to Australia from Sri Lanka with his wife and two sons. In early 2022, the marriage deteriorated seriously after he developed a jealous and unfounded suspicion of his wife's infidelity, fuelled in part by her use of social media. Those difficulties led to a provisional apprehended domestic violence order (ADVO) being made on 8 February 2022, prohibiting him from, among other things, assaulting, threatening, or intimidating his wife, and from being in her company within 12 hours of consuming alcohol.
On the night of 23 to 24 February 2022, the offender drank heavily and spent one to two hours making repeated, unambiguous statements to a friend that he intended to kill his wife that night. Despite his friend's efforts to stop him, he drove to the family home, smashed a window to gain entry, and subjected his wife to a prolonged and severe physical attack. He stomped on and kicked her head, slammed her face onto tiled flooring, and then, while she was unconscious, cut off her long hair with a kitchen knife. He also ransacked the house and intimidated his teenage son into helping him locate his wife's phone.
The offender was tried by jury. He was acquitted of attempted murder but found guilty of causing grievous bodily harm with intent to cause grievous bodily harm, and of intimidating his son with the intent of causing the child to fear physical harm to his mother. He also pleaded guilty, by way of a certificate matter, to contravening a prohibition in the ADVO.
Legal Issues
- What sentence was appropriate for the principal offence of causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 (NSW), carrying a maximum of 25 years imprisonment and a standard non-parole period of seven years?
- What weight should be given to mitigating factors, including the offender's background, post-traumatic stress disorder (PTSD), and his experience as a refugee, in light of principles from Bugmy v R?
- Whether a discount applied for guilty pleas or other utilitarian considerations, and if so at what rate?
- Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the head sentence?
- What aggregate sentence, including appropriate accumulation across the three offences, was warranted?
Decision
The District Court found that the offending was extremely serious. The attack on Mrs Ireton was protracted, vicious, and premeditated to a significant degree, preceded by lengthy declarations of intent made to a friend. The court accepted that the offender's stated intention to kill had receded by the time of the assault itself, consistent with the jury's verdict, but found that his actual intent at the point of assault was to cause grievous bodily harm and to humiliate his wife by cutting off her hair while she was unconscious.
Colefax SC DCJ considered the offender's personal circumstances, including his Sri Lankan background, his experience of civil war and displacement, and a diagnosis of PTSD. Applying Bugmy v R, the court acknowledged that background deprivation and trauma can diminish moral culpability, but found on the facts that these factors warranted only limited mitigation given the nature and circumstances of the offending. The court was not satisfied that the offender's PTSD made imprisonment significantly more onerous for him, nor that it materially contributed to the offending.
A 10 per cent discount was applied to each indicative sentence, reflecting utilitarian considerations, including the guilty plea on the certificate matter and other relevant factors. The court declined to find special circumstances that would justify extending the parole period beyond the statutory ratio. The offender was not a young offender, his rehabilitation prospects were described as guarded, and the court was not persuaded that a longer parole period would advance rehabilitation.
The court imposed an aggregate sentence with partial accumulation between the three offences, reflecting the principle that, while the offences arose from the same incident, they were distinct in character and involved distinct victims, namely Mrs Ireton and her son Daniel.
Orders Made
- Aggregate term of imprisonment of 13 years and 6 months, commencing 25 February 2022.
- Non-parole period of 10 years, expiring 24 February 2032.
- Balance of term of 3 years and 6 months, expiring 24 August 2035.
- No additional apprehended violence order made, as the court was satisfied the existing order made by Parramatta Local Court on 28 November 2023 was sufficient given the length of the custodial sentence.
Key Takeaways
- The District Court applied Bugmy v R principles to acknowledge the relevance of the offender's refugee background and PTSD diagnosis, but found those factors warranted only modest mitigation where the offending was deliberate, sustained, and accompanied by expressed premeditation.
- A conviction for causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 (NSW) carries a 25-year maximum and a seven-year standard non-parole period; the court imposed an indicative head sentence of 10 years and 9 months (after discount) on that count alone, with a non-parole period of 8 years.
- Where multiple offences arise from a single incident but involve distinct victims or distinct criminal conduct, partial rather than full concurrency in sentencing may be appropriate.
- Special circumstances were not established merely because the offender was serving his first period of custody; the court assessed whether a longer parole period would genuinely assist rehabilitation, and found it would not in this case.
- Under s 39(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a court may decline to make a further final apprehended violence order where the length of the custodial sentence imposed renders such an order unnecessary.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1), 39(2)
Cases:
- Bugmy v R (2013) 249 CLR 571
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Edigarov [2001] NSWCCA 436
- Yaman v R [2020] NSWCCA 239