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District Court 20 September 2024

R v Kassouh

[2024] NSWDC 441

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences

Citation: R v Kassouh [2024] NSWDC 441
Court: District Court of New South Wales
Date: 20 September 2024
Judge: Haesler SC DCJ

Background

The offender and the complainant had known each other for many years before forming a relationship in 2021. They maintained separate homes on the NSW South Coast. In November 2021, the offender was sentenced for earlier domestic violence offences against the same complainant, with Community Corrections orders and an Apprehended Domestic Violence Order (ADVO) imposed.

Despite those orders remaining in force, the offending the subject of this sentencing proceeded in January 2022. Over two days, the offender punched the complainant in the face, choked her, forced her to withdraw cash at an ATM, struck her with a walking cane causing bruising, drove recklessly with her and her children in the vehicle, forced entry into her home, and then pursued her friend's car in an intimidatory manner before police attended.

A jury at Bega District Court returned guilty verdicts on six counts on 1 March 2024. The offender was acquitted on three counts. Two back-up charges and four ADVO breach offences were also before the court for determination by the judge.

  • Whether the offender was guilty of common assault (back-up charge, Sequence 1) on the trial evidence alone
  • Whether the offender was guilty of robbery (back-up charge, Sequence 14) consistent with the jury's verdict on the primary count
  • Whether four ADVO breach offences were established on the evidence consistent with the jury's verdicts
  • What aggregate sentence was appropriate, having regard to objective seriousness, subjective circumstances, the presence of children, prior ADVO breaches, and the purposes of sentencing including deterrence and denunciation

Decision

Back-up charges and ADVO breaches

On the common assault back-up charge (Sequence 1), Haesler SC DCJ accepted the complainant's evidence and found the charge proved beyond reasonable doubt: the offender punched her to the lip. On the robbery back-up charge (Sequence 14), the judge was not satisfied beyond reasonable doubt on the robbery element, noting that the same doubt which led to the jury's acquittal on the primary count appeared to extend to that element. The offender was found not guilty of Sequence 14. On the four ADVO breach offences, the judge found each proved beyond reasonable doubt, concluding that guilty findings were the only outcome consistent with the jury's verdicts.

Objective seriousness

The judge assessed the principal offences as serious examples of their type. The choking offence placed the complainant at extreme risk and left visible marks, even though she did not lose consciousness. The detention at the ATM involved threats, physical control, and the complainant being dragged by her hair. The break and enter was aggravated by knowledge that the complainant was inside. The use of the motor vehicle as an offensive instrument was found to create real danger for the complainant, her children, and other road users. All offending occurred in breach of an existing ADVO, which the court treated as a significant aggravating factor while taking care not to double-count across the separate breach charges.

Subjective circumstances and sentencing purposes

The court acknowledged a number of subjective factors, including the offender's acquired brain injury, adjustment disorder, drug addiction, and harsh childhood discipline. These were weighed against the objective seriousness of the conduct. Haesler SC DCJ emphasised the purposes of specific and general deterrence, denunciation, and community protection. The judge cited the High Court's decision in Munda v Western Australia for the proposition that women must not be deprived of the protection which punishment is assumed to provide in the context of domestic violence. The offending in the presence of children was identified as a further aggravating feature, given the documented risk of trauma to children who witness domestic violence.

Special circumstances

A finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 was made, producing a longer-than-usual parole period to support the offender's rehabilitation.

Orders Made

  • Not guilty: Sequence 14 (robbery back-up charge)
  • Sequence 12 back-up offence withdrawn and dismissed
  • Guilty findings entered: Sequence 1 (common assault); Sequences 4, 7, 11, and 21 (ADVO contraventions)
  • Individual sentences imposed:
  • Intentional choking: 1 year imprisonment
  • Detaining without consent: 1 year 6 months imprisonment
  • Assault occasioning actual bodily harm: 9 months imprisonment
  • Intimidation with intent: 1 year 9 months imprisonment
  • Break, enter and commit serious indictable offence: 2 years 6 months imprisonment (non-parole period 1 year 10 months)
  • Using offensive instrument: 1 year 6 months imprisonment
  • Each of Sequences 4, 7, 11, and 21 (ADVO contraventions): 3 months imprisonment each
  • Sequence 1 (common assault): 2 months imprisonment
  • Aggregate sentence: 4 years 6 months imprisonment, commencing 25 August 2023
  • Non-parole period: 2 years 8 months (eligible for parole 24 April 2026)
  • Parole period: 1 year 10 months (sentence expires 24 February 2028)

Key Takeaways

  • A jury acquittal on a primary count does not automatically produce a not-guilty finding on a back-up charge, but where the same element of doubt appears to underlie both the primary acquittal and the back-up charge, the offender is entitled to the benefit of that doubt.

  • Where a judge determines back-up charges and ADVO breach offences under ss 166 to 168 of the Criminal Procedure Act 1986, findings must be consistent with the jury's verdicts and can only be made on the trial evidence unless leave is granted to call further evidence.

  • Sentencing courts in domestic violence matters must give particular weight to specific deterrence, general deterrence, and denunciation, especially where offending occurs in breach of an existing ADVO: the court relied on Browning v R [2015] NSWCCA 147 and Cherry v R [2017] NSWCCA 150.

  • Offending in the presence of children is an aggravating factor, given the documented risk that witnessed trauma may affect children's future development.

  • Subjective factors including acquired brain injury, mental health disorders, drug addiction, and a harsh upbringing may be acknowledged in sentencing, but do not displace the weighty sentencing objectives that apply to serious and persistent domestic violence offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1), 37(1A), 59, 61, 86(1)(b), 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)
- Criminal Procedure Act 1986 (NSW), ss 166, 167, 168
- Evidence Act 1995 (NSW)

Cases
- Browning v R [2015] NSWCCA 147
- Cahyadi v R [2007] NSWCCA 1
- Cherry v R [2017] NSWCCA 150
- Christov v R [2009] NSWCCA 168
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Eaton v R [2023] NSWCCA 125
- Engert v R (1995) 84 A Crim R 67
- Hamid v R [2006] NSWCCA 302
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR