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District Court 9 February 2024

R v Brown

[2024] NSWDC 29

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCING DOMESTIC VIOLENCE OFFENCES

Citation: R v Brown [2024] NSWDC 29
Court: District Court of New South Wales
Date: 9 February 2024
Judge: Abadee DCJ

Background

The offender was in a domestic relationship with the victim, with whom he had a seven-month-old child. Over a period from November to December 2022, he committed a serious course of domestic violence offending, including two physical assaults on the victim at the family home in Woongarrah, intimidation involving a hunting knife, and possession of a gel-blaster pistol while subject to a Firearms Prohibition Order that had been in place since 2015.

After his arrest in the early hours of 12 November 2022, the offender was remanded in custody. From that point, he used the telephone access available at the correctional centre to contact the victim repeatedly, in contravention of a provisional Apprehended Domestic Violence Order (ADVO) served on the day of his arrest. He also, while in custody, attempted to influence the victim to provide information that would assist in securing his acquittal.

The offender entered guilty pleas in the Local Court and maintained those pleas at the sentencing hearing. He also asked the Court to take into account two further offences of intimidation and one offence of possession of an unauthorised firearm on a Form 1 (meaning they were considered in fixing the sentence without separate convictions being recorded for them).

  • What aggregate sentence was appropriate across the six principal offences, given their seriousness and the course of domestic violence conduct?
  • How should the firearms offence (acquiring a pistol while subject to a Firearms Prohibition Order) be characterised and weighted, noting the gel-blaster was examined by ballistics experts and found to meet the statutory definition of a pistol?
  • Whether the offence of attempting to influence a witness (s 324, Crimes Act 1900) constituted domestic abuse or controlling behaviour for the purpose of the domestic violence offence recording provisions.
  • Whether the majority of offences should be recorded on the offender's criminal record as domestic violence offences under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • What period should apply to the final ADVO upon release, and whether a variation to facilitate contact with the offender's children was appropriate.

Decision

Abadee DCJ imposed an aggregate sentence of 11 years and 6 months, with a non-parole period of 7 years. The sentence commenced on 12 November 2022, the date of the offender's arrest and the beginning of his uninterrupted time in custody.

The Court found the offending was serious across all counts. The first assault on 4 November 2022 involved choking, threatening the victim with a hunting knife while pinning her down, and repeatedly striking her, resulting in a black eye, bruising to her chin, ribs, and neck, and a lump on her head. The second incident one week later involved further knife threats while the victim sat locked in a car with their infant child. The victim phoned emergency services in whispered tones, telling the operator she could not walk and was having difficulty breathing.

The witness interference offence, committed from custody, was treated as particularly serious. The Court found it constituted, at a minimum, controlling or coercive behaviour against the victim and therefore qualified as domestic abuse under the expanded statutory definition. Accordingly, all principal offences except the firearms acquisition charge were directed to be recorded as domestic violence offences on the offender's criminal record.

On the ADVO question, the Court found the nature and extent of the offending justified imposing the order for a period of 5 years after the expiry of the term of imprisonment, rather than the shorter standard period. A variation was agreed between the parties to permit the offender some contact with his children, and this was reflected in the orders made.

Orders Made

  • The offender was convicted of offences at sequences 532/1, 532/6, 532/8, 532/9, 872/29, and the s 166 certificate offence.
  • An aggregate sentence of 11 years and 6 months was imposed, commencing 12 November 2022 and expiring 11 May 2034.
  • A non-parole period of 7 years was fixed, expiring 11 November 2029, after which the offender is eligible for release on parole.
  • Offences at sequences 532/1, 532/8, 532/9, 872/29, and the s 166 certificate offence were directed to be recorded on the offender's criminal record as domestic violence offences under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • The extant ADVO was continued for a period of 5 years after the expiry of the term of imprisonment, pursuant to s 39(2C) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), with contact permitted as agreed between the parties.

Key Takeaways

  • The District Court confirmed that witness interference committed from custody, directed at a domestic violence victim, can constitute controlling or coercive behaviour amounting to domestic abuse within the expanded definition in the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • A gel-blaster device that is reasonably capable of being raised and fired by one hand and does not exceed 65 cm in length can meet the statutory definition of a pistol under the Firearms Act 1996 (NSW), engaging the prohibition on acquisition by a person subject to a Firearms Prohibition Order.
  • Under s 39(2C) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a court may impose an ADVO for a period longer than the standard term where the nature and extent of the offending provides good reason to do so.
  • Domestic violence offences that form part of a sustained course of conduct, including post-arrest interference from custody, will be weighed cumulatively in sentencing, supporting a substantial aggregate term.
  • The firearms acquisition offence (s 74(1), Firearms Act 1996) was not recorded as a domestic violence offence, reflecting the Court's view that it did not fall within the expanded statutory definition, even though all other principal offences did.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 324
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 6A, 11, 12(2), 13(1), 14(1), 39
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Firearms Act 1996 (NSW), ss 3(1), 3(2), 7(1), 74(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v Burton [2008] NSWCCA 128
- R v Ferguson [2021] NSWDC 226
- Shaw v R [2008] NSWCCA 58
- The Queen v Kilic (2008) 259 CLR 256