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District Court 21 March 2024

R v Duarte

[2024] NSWDC 145

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: R v Duarte [2024] NSWDC 145
Court: District Court of New South Wales
Date: 21 March 2024
Judge(s): Haesler SC DCJ

Background

The offender and the complainant were neighbours who had a child together. They maintained separate households, though the offender had regular access to the complainant's home. Their relationship was described by both parties as a "simple relationship between two neighbours."

In January 2023, following an argument the night before about the complainant's social media activity, the offender entered the complainant's home through a rear door while she was asleep. He continued the argument, tipped water over the complainant and their child who were lying in bed, and threw the contents of an alcohol can at the wall and bed. The court also found that there was a deliberate clash of heads, constituting an assault.

At the time of the incident, an Apprehended Domestic Violence Order (ADVO) was in place. While on remand following his arrest, the offender sent two letters to the complainant, breaching the ADVO's no-contact conditions. The letters were described as apologetic and conciliatory, containing no threats, but were unsolicited and in clear breach of the order.

  • Whether the offence of entering a dwelling-house with intent to commit a serious indictable offence (intimidation), in the circumstance of aggravation that the offender knew someone was inside, was established
  • How to assess the objective seriousness of the entry offence, particularly where the offender had regular and common access to the home
  • How to treat jury acquittals on related counts when sentencing for the offences on which a conviction was recorded
  • Whether a full-time custodial sentence was appropriate, or whether an Intensive Correction Order could be considered
  • How the offender's extensive criminal history, including multiple prior domestic violence offences, bore on the appropriate sentence
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default ratio

Decision

The jury convicted the offender on one count of entering the complainant's dwelling intending to intimidate her, knowing someone was inside (Crimes Act 1900, s 111(1)(2)), and acquitted him on four other counts. Following the jury verdicts, the offender pleaded guilty to two counts of breaching the ADVO by sending letters while on remand. His Honour also convicted the offender of common assault as a backup offence to a charge of assault occasioning actual bodily harm, on which the jury had acquitted.

His Honour was careful to give the offender the full benefit of his acquittals throughout the sentencing process, including by treating the injury from the head clash as causing only transient pain, consistent with the jury's verdict. Notwithstanding this approach, his Honour stated plainly that he did not share the jury's apparent assessment of the evidence, accepting the complainant as a witness of truth and rejecting the offender's version of events as inconsistent and illogical.

On objective seriousness, the entry offence was placed towards the lower end of the range for such matters, primarily because the offender had regular and common access to the home. His Honour was clear that this finding did not diminish the offender's intent in entering. The ADVO breaches, while not threatening in content, were treated as serious given the existence of specific court orders and the offender's overall conduct.

The offender's criminal history was a significant sentencing consideration. He had prior domestic violence matters from 2005, 2007, 2012, 2014, 2018, and 2023, with custodial sentences imposed on several occasions. His Honour found that the offending was not an uncharacteristic aberration and warranted a more severe penalty to reflect retribution, deterrence, and community protection, consistent with the principles in Veen v The Queen (No 2). A Sentence Assessment Report indicated the offender had no insight into the harm caused. His Honour declined to consider an Intensive Correction Order, finding that full-time custody was necessary for community protection.

Orders Made

  • Aggregate sentence of 2 years and 2 months' imprisonment, comprising:
  • 2 years for the indictable offence (entering dwelling with intent, in aggravated circumstances)
  • 2 months for common assault
  • 1 month for each ADVO breach (two counts)
  • Non-parole period of 1 year and 3 months, reflecting a finding of special circumstances
  • Sentence dated from 24 August 2023
  • Release to supervised parole on 23 November 2024
  • Parole period of 11 months, expiring 23 October 2025

Key Takeaways

  • A sentencing judge may form a different view of witness credibility from the jury without that giving rise to error, but must take particular care to give the offender the full benefit of jury acquittals when assessing objective seriousness and the nature of harm caused.
  • Where an offender has regular and lawful access to a victim's home, this may place an entry-with-intent offence towards the lower end of seriousness for that category, even where the intent itself is unambiguous and serious.
  • Under the principles in Veen v The Queen (No 2), a substantial criminal history of domestic violence offending, spanning nearly two decades and resulting in prior custodial sentences, can warrant a more severe penalty to reflect retribution, deterrence, and community protection, provided the sentence remains proportionate to the gravity of the current offences.
  • The District Court confirmed that ADVO breaches by way of unsolicited contact, even where the communications are apologetic and non-threatening, remain serious and may warrant custodial sentences depending on the overall circumstances of the offending.
  • Community safety is the paramount consideration when assessing whether an Intensive Correction Order is appropriate; a lack of insight into the harm caused to victims can weigh decisively against a non-custodial alternative.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 111(1)(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 9(3)(g)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(5)

Cases
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Dunn [2004] NSWCCA 346
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704