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District Court 1 May 2024

R v Paulson

[2024] NSWDC 332

Domestic & family violencePublic order & justice offences

Citation: R v Paulson [2024] NSWDC 332
Court: District Court of New South Wales
Date: 1 May 2024
Judge(s): Sutherland SC DCJ

Background

The offender, a man in his early forties, appeared for sentencing following guilty pleas to a series of domestic violence and related offences against his former partner, with whom he had been in an on-and-off relationship for approximately 13 years. The couple had two sons together. At the time of the offending, an Apprehended Domestic Violence Order (ADVO) was already in place for the protection of the victim, including a condition prohibiting the offender from approaching within 50 metres of her home.

On 31 October 2021, the offender entered the victim's residence in breach of the ADVO, detained her in a laundry for approximately ten minutes by physical force, and then intimidated her using kitchen knives held to his own throat, combined with explicit threats toward her. Both children, aged 10 and 12, were present in the home. The offender left before police arrived and was not arrested until February 2022, after which he was refused bail.

While in custody awaiting trial, the offender made 82 phone calls to the victim over a five-month period, disguising her number on his approved call list under a cousin's name to evade detection. In five of those calls, he made statements intending to persuade her not to attend court or to withhold evidence. Despite this, the offender ultimately pleaded guilty on the first day of his trial to the October 2021 offences, and later entered early pleas to the witness interference and further ADVO contravention charges.

  • What aggregate sentence was appropriate for the five offences, including: detaining a person for advantage (s 86(1)(b), Crimes Act 1900); intimidation in a domestic context (s 13(1), Crimes (Domestic and Personal Violence) Act 2007); two contraventions of an ADVO (s 14(1), same Act); and doing an act to influence a witness to procure an acquittal (s 323(a), Crimes Act 1900)?
  • Where does the objective seriousness of the detention offence sit relative to the range of comparable offences under s 86?
  • What weight should be given to the offender's Indigenous background, his deprived upbringing, his history of offending against the same victim, and any evidence of remorse or rehabilitation?
  • What guilty plea discounts applied, and from what date should the aggregate sentence commence given time already spent in custody?

Decision

The District Court found that the objective seriousness of the detention offence fell below the mid-range for offences under s 86(1)(b), despite acknowledging that the surrounding circumstances were objectively very serious. Consistent with the High Court's guidance in R v Kilic, the assessment required comparison with other similar offending, not merely a characterisation of the facts in isolation. The intimidation charge was treated as a continuation of the same course of conduct, committed in the victim's home, in the presence of her children, while the offender was on parole.

The offender's prior criminal history was significant: this was his fifth breach of ADVOs protecting the same victim over approximately five years. His prior convictions were treated as a substantial aggravating factor. The court considered the offender's Indigenous background and deprived upbringing under the principles in Bugmy v The Queen and R v Fernando, which recognise that such circumstances may reduce the weight given to general deterrence and explain (without excusing) offending conduct. However, those factors were found to be outweighed by the ongoing risk the offender posed to the victim and the community.

Some evidence of remorse and rehabilitative effort in custody was acknowledged. The witness interference offending, however, substantially undermined the mitigation otherwise available. The offender had systematically and covertly contacted the victim dozens of times, deliberately concealing the conduct, and made specific efforts to dissuade her from attending court. The court noted that the public justice offence under s 323 carries a maximum penalty of 14 years, and that general deterrence plays a significant role in sentencing for such offences.

A 5% guilty plea discount applied to the first three chronological offences (reflecting the late pleas on the day of trial), while a 25% discount applied to the two later charges where guilty pleas were entered at the first available opportunity. The court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 26 November 2022 to reflect time already served on remand.

Orders Made

No orders were made in this decision.

The following indicative and aggregate sentences were set out in the judgment:

  • Count 3, detention for advantage (s 86(1)(b)): indicative sentence of 14 months (after 5% discount)
  • Count 1, intimidation (s 13(1)): indicative sentence of 9 months (after 5% discount)
  • Sequence 4, contravene ADVO (first): indicative sentence of 14 months (after 5% discount)
  • Sequence 3, act intending to influence a witness (s 323(a)): indicative sentence of 2 years and 3 months (after 25% discount)
  • ADVO contravention by telephone calls from custody (s 166 related offence): indicative sentence of 6 months (after 25% discount)
  • Aggregate head sentence: 3 years and 6 months
  • Non-parole period: 2 years and 3 months
  • Sentence commences 26 November 2022; eligible for release on parole 25 February 2025; additional term expires 25 May 2026

Key Takeaways

  • Placing an offence under s 86(1)(b) of the Crimes Act 1900 below the mid-range of objective seriousness does not mean the surrounding conduct was not serious; it reflects a comparative exercise against the full spectrum of similar offences, as required by R v Kilic.
  • The District Court confirmed that committing a detention offence in a domestic context does not reduce its gravity relative to offences against strangers, citing R v Hamid.
  • Bugmy principles regarding the relevance of an offender's Indigenous background and childhood deprivation remained applicable, but the court found those factors were outweighed by the repetitive nature of the offending and the continuing risk to the victim.
  • Systematic witness interference from custody, including disguising the victim's contact details and making 82 covert calls to dissuade her from testifying, was treated as seriously aggravating and significantly reduced the mitigating weight of any claimed remorse or rehabilitation.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, aggregate sentencing permitted the court to account for all five related offences in a single head sentence and non-parole period, with the commencement date adjusted to reflect the period already spent on remand.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(1)(b), 323(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 166
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 387
- R v Kilic [2016] HCA 48; 259 CLR 256
- R v Fernando (1992) 76 A Crim R 58
- R v Hamid [2006] NSWCCA 302
- R v Newell [2004] NSWCCA 183
- Black v R [2008] NSWCCA 337
- Callaghan v R [2006] NSWCCA 58
- Evans v R [2017] NSWCCA 281
- R v Burton [2008] NSWCCA 128
- R v Millwood [2012] NSWCCA 2
- R v Speechley [2012] NSWCCA 130
- R v Newman, R v Simpson [2004] NSWCCA 102
- R v Glen (Unreported, 19 December 1994)
- R v Beaver [2019] NSWDC 215
- R v Rush [2022] NSWDC