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District Court 29 November 2024

R v AM

[2024] NSWDC 546

Sexual offencesAssault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
SENTENCE SEXUAL OFFENDING AGAINST PARTNER DOMESTIC VIOLENCE MULTIPLE OFFENCES BUGMY ISSUES

Citation: R v AM [2024] NSWDC 546
Court: District Court of New South Wales
Date: 29 November 2024
Judge: Lerve DCJ

Background

The offender, a 39-year-old man, pleaded guilty to seven counts on an indictment arising from a pattern of domestic violence offending against his wife (SM) and a single assault against his father-in-law (BH). The offending occurred between January 2022 and September 2023, predominantly at locations in regional New South Wales including Tumbarumba, Coolamon, and Rosewood.

The physical assaults were largely motivated by jealousy, with the offender repeatedly accusing his wife of inappropriate behaviour with other men. The most serious offending occurred on 3 September 2023 and included two counts of sexual intercourse without consent, one aggravated by the intentional infliction of actual bodily harm, and an unlicensed firearm possession offence. The offender also separately pleaded guilty at the sentence hearing to six counts of contravening an apprehended domestic violence order (ADVO), each arising from telephone calls he made to the victim while on remand.

The offender and his wife had been in a relationship since 2011 and had children together. The agreed facts described a sustained course of controlling and violent conduct within the domestic relationship.

  • How should objective seriousness be assessed across a range of offences including common assault, assault occasioning actual bodily harm, sexual assault, aggravated sexual assault, and firearms possession?
  • What weight should be given to the offender's mental health history and disadvantaged background under the principles in Bugmy v The Queen [2013] HCA 37, including any causal connection between those matters and the offending?
  • How should the guilty pleas be discounted, given they were entered in the Local Court?
  • Was an aggregate sentence appropriate, and how should partial accumulation of concurrent and consecutive terms be structured?
  • Did special circumstances exist justifying a departure from the standard ratio between the non-parole period and the balance of term?

Decision

Lerve DCJ assessed each offence individually for objective seriousness. The common assault counts were placed within the mid-range, given the unprovoked nature of the attacks and the manner in which they were carried out (including pushing the victim's head onto concrete and applying a headlock to the father-in-law). The assault occasioning actual bodily harm was treated as well below mid-range, noting that injuries were limited to a split lip caused by an open-handed strike. The aggravated sexual intercourse without consent count (count 6) was the most serious offence and attracted a sentence with a non-parole period of three years before discount.

The court applied Bugmy principles in considering the offender's significant mental health history and background of disadvantage. However, His Honour found that while those matters were relevant to the sentencing exercise, they did not substantially reduce the offender's moral culpability for the sexual offending. The court examined whether a causal connection existed between the offender's mental health issues and each offence, treating that connection as stronger in some instances than others.

The offender received the full 25 percent discount on each count for the utilitarian value of early guilty pleas entered in the Local Court. A further numerical discount applied to the firearms offence. Six ADVO contravention charges were taken into account on a section 166 certificate, with each attracting a fixed term of four months (starting point six months) after discount.

His Honour found special circumstances justifying a reduction in the non-parole period below the standard statutory proportion, resulting in a non-parole period of two-thirds of the total aggregate sentence rather than the usual three-quarters. The reasons for that finding were explained in the body of the remarks. An aggregate sentence was considered appropriate given the episode-based nature of much of the 3 September 2023 offending, with the structure of individual sentences set out to explain the reasoning underpinning the aggregate.

Orders Made

  • The offender was convicted on each count on the indictment to which he pleaded guilty.
  • An aggregate sentence of 6 years and 3 months was imposed, with a non-parole period of 4 years and 2 months and a balance of term of 2 years and 1 month.
  • The non-parole period commenced on 3 September 2023 and will expire on 2 November 2027.
  • The balance of term will commence on 3 November 2027 and expire on 2 December 2029.
  • The offender is eligible for release to parole at the expiration of the non-parole period, and the court recommended that release.
  • Special circumstances were found; the non-parole period represents two-thirds of the total sentence.

Key Takeaways

  • The District Court confirmed that for result offences such as assault occasioning actual bodily harm, both the severity of the injury and the nature of the assault itself are relevant to objective seriousness, consistent with Mitchell & Gallagher v R and McCullough v R.
  • Bugmy principles require a sentencing court to consider the causal connection between an offender's mental health and background disadvantage and the specific offending, with the weight afforded to those matters assessed offence by offence rather than globally.
  • Guilty pleas entered in the Local Court, even where the matter ultimately proceeds on indictment in the District Court, attract the full 25 percent utilitarian discount.
  • An aggregate sentence is appropriate where multiple offences form part of an ongoing episode, but the sentencing court must still articulate the individual sentences that underpin the aggregate to make the reasoning transparent.
  • A finding of special circumstances permitted the non-parole period to be set at two-thirds rather than three-quarters of the total aggregate term, reflecting the particular rehabilitation and supervision needs identified in the remarks.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61, 61I, 61J
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37, s 166
- Firearms Act 1996 (NSW), s 7A(1)

Cases
- Bugmy v The Queen [2013] HCA 37
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- McCullough v R [2009] NSWCCA 94
- Mitchell & Gallagher v R [2007] NSWCCA 296
- R v Hamid [2006] NSWCCA 302
- R v Lloyd [2022] NSWSC 906
- R v Tuala [2015] NSWCCA 8