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District Court 18 July 2024

R v Holman (No 2)

[2024] NSWDC 325

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences

Citation: R v Holman (No 2) [2024] NSWDC 325
Court: District Court of New South Wales
Date: 18 July 2024
Judge: Sutherland SC DCJ

Background

Following a seven-day judge-alone trial in Taree District Court, Jeremy Holman was convicted on five of six counts arising from threatening and violent conduct towards his former partner during late 2021 and January 2022. The offences included using an offensive weapon with intent to commit an indictable offence, common assault, and three counts of intimidation, all in a domestic violence context. The matter proceeded to a separate sentencing hearing after the verdict judgment was delivered in March 2024 (R v Holman (No 1) [2024] NSWDC 267).

The most serious incident involved the offender standing beside the victim as she slept and pointing a rifle at her head while pulling the trigger. Other offences occurred in a forest where the offender drove in an intimidatory manner, chased the victim on foot, and physically returned her to the vehicle. A further intimidation count arose from the offender repeatedly driving through a car park near the Taree Rowing Club while the victim hid from him.

The offender had a significant criminal history and came from a severely deprived background. He did not give evidence at trial or at the sentencing hearing, but the court received a psychological report, an affidavit from the offender himself confirming matters disclosed to the psychologist, and affidavits from family members and a childhood friend.

  • What was the appropriate objective seriousness of each offence, having regard to comparable cases?
  • What weight should be given to the offender's deprived upbringing under the principles in Bugmy v The Queen (2013) 249 CLR 571?
  • How should the competing considerations of general and specific deterrence be balanced in a domestic violence sentencing?
  • Were special circumstances established, justifying a departure from the standard non-parole period ratio?
  • How should the principle of totality be applied, given the offender was already serving a sentence for unrelated offences?

Decision

Objective seriousness: Sutherland SC DCJ assessed the weapon offence and the coinciding intimidation count (Counts 1 and 2) as the most serious of the group. The pointing of a rifle at the sleeping victim was assessed as towards the lower end of the mid-range for the weapon offence, while the intimidation connected with it fell below the mid-range. The forest offences and the car park intimidation were each placed at the lower end of objective seriousness for their respective categories.

Subjective circumstances and Bugmy considerations: The court accepted that the offender's background, marked by parental drug dependency, poverty, and exposure to criminal conduct from a young age, was relevant to the assessment of his moral culpability. Under the Bugmy principles, such severe deprivation can reduce an offender's culpability to some degree, and the court acknowledged this. However, the court also emphasised that the importance of general deterrence in domestic violence matters cannot be understated, drawing on Munda v Western Australia (2013) 249 CLR 600. The offender's criminal history reinforced the need for specific deterrence as well.

Special circumstances: The court found special circumstances, citing the increasing risk of institutionalisation given the offender's extensive criminal history, and the need for a substantial period of supervision upon release. This justified reducing the proportion of the sentence to be served in custody below the statutory default, resulting in a longer parole period than would otherwise apply.

Totality: The offender had been serving a sentence for unrelated offences (arising from a police pursuit and driving a stolen vehicle in March 2022), and that sentence's non-parole period had expired in March 2023, with the balance of parole running until July 2023. Applying the totality principle, the court allowed approximately 50% of that parole balance to be served concurrently with the present aggregate sentence.

Orders Made

  • Aggregate sentence of 4 years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Indicative sentences: Count 1 (offensive weapon), 3 years; Count 2 (intimidation), 2 years; Count 3 (intimidation), 12 months; Count 4 (common assault), 12 months; Count 6 (intimidation), 12 months.
  • Special circumstances found; non-parole period set at 2 years and 6 months.
  • Aggregate sentence and non-parole period backdated to commence 7 January 2023.
  • Eligible for release to parole on 6 July 2025.
  • Additional term (parole period) to expire 6 January 2027.

Key Takeaways

  • The District Court confirmed that Bugmy principles apply in domestic violence sentencing: a severely deprived background can reduce moral culpability to some degree, but this consideration does not displace the strong countervailing weight given to general deterrence in such cases.
  • Under the principles drawn from Munda, general deterrence retains particular importance in domestic violence offending, even where the offender's background calls for some mitigation.
  • Pointing a firearm at a victim, whether or not the weapon is loaded, was treated as inherently serious conduct likely to invoke a high degree of fear, with objective seriousness assessed on the specific circumstances rather than by category alone.
  • Special circumstances were found on the basis of the risk of institutionalisation and the need for extended post-release supervision, reflecting the court's assessment that a longer parole period served the interests of rehabilitation and community protection.
  • Where an offender is already serving a sentence, the totality principle requires the court to consider the overall burden of cumulative sentences, and partial concurrency with a residual parole period may be appropriate to avoid a crushing result.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Firearms Act 1996 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kennedy v R [2022] NSWCCA 215
- Patsan v R [2018] NSWCCA 129
- Quarta v R [2023] NSWCCA 173
- Shavali v R [2022] NSWCCA 178
- Yaman v R [2020] NSWCCA 239
- Zerafa v R [2023] NSWCCA 109
- R v Bartolic-Arnaez [2022] NSWDC 280
- R v Tisserand [2021] NSWDC 543
- R v Wilson (No 3) [2021] NSWDC 174
- R v Holman (No 1) [2024] NSWDC 267