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District Court 20 December 2024

R v Dates

[2024] NSWDC 628

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME SENTENCE COMMON ASSAULT INTIMIDATION RECKLESS WOUNDING CONTRAVENE AVO

Citation: R v Dates [2024] NSWDC 628
Court: District Court of New South Wales
Date: 20 December 2024
Judge: Bourke SC DCJ

Background

The offender, a man aged 41 at the time of the offences, had been in a domestic relationship with the primary victim, a 19-year-old woman who was four weeks pregnant with his child. An Apprehended Domestic Violence Order (ADVO) had been in place since 26 September 2023, naming the victim as the person in need of protection.

On 13 December 2023, at a Maitland hotel, the offender entered the room of another resident and demanded the victim comply with his instructions. When the other resident intervened to protect the victim, the offender punched and pushed her off the bed. He then grabbed the victim, pushed her face into a metal bed frame, and repeatedly struck her head and shoulders with a 20-centimetre piece of metal TV antenna while making threats to kill her. The victim, who was bleeding, fled the building. Bystanders witnessed the offender dragging her by the hair and called police.

The offender pleaded guilty to four offences: common assault (against the intervening bystander), intimidation, reckless wounding (against the primary victim), and contravening the ADVO. Sentencing proceeded in the District Court.

  • What aggregate sentence was appropriate across the four guilty pleas, having regard to the principle of totality and the need to avoid double-counting?
  • How should the objective seriousness of each offence be assessed, particularly the reckless wounding charge which carries a standard non-parole period?
  • What weight should be given to general and specific deterrence in the context of domestic violence offending?
  • Whether special circumstances existed to justify adjusting the statutory ratio between non-parole period and head sentence.

Decision

His Honour assessed the objective seriousness of each offence individually before arriving at an aggregate sentence. The intimidation offence was placed at the low end of objective seriousness, reflecting that it involved controlling words and conduct rather than physical violence. The assault on the bystander was assessed below the mid-range, noting it arose from her attempt to shield the primary victim. The reckless wounding offence, which attracted a standard non-parole period of three years, was assessed as being in the mid-range, reflecting the use of a metal implement and threats to kill, but moderated by factors including the nature of the wounds and the circumstances of the offending.

His Honour applied the sentencing principles affirmed in Cherry v R and R v Hamid, emphasising that domestic violence offending demands significant weight on general and specific deterrence, denunciation, and community protection. The court noted that the contravening ADVO offence overlapped substantially with the underlying intimidation and wounding conduct, and this was taken into account in the aggregate sentence.

A 25% discount was applied across all offences reflecting the utilitarian value of the early guilty pleas. Special circumstances were found on two bases: the need for a meaningful period of supervised parole to facilitate treatment, and the risk of institutionalisation given the offender's recent history of custody. This justified a modest adjustment to the standard non-parole period to head sentence ratio.

Orders Made

  • Aggregate head sentence of three years and six months imprisonment, commencing 13 December 2023 and expiring 12 June 2027.
  • Non-parole period of two years and six months, expiring 12 June 2026.
  • Indicative sentences recorded as: intimidation (1 month); common assault (2 months); reckless wounding (2 years 10 months, with a 2-year non-parole period); contravene ADVO (1 year 2 months).
  • Recommendation that the offender be referred for assessment for admission to the Intensive Drug and Alcohol Treatment Program operated by Corrective Services.

Key Takeaways

  • The District Court confirmed that domestic violence offences must be treated with the utmost seriousness, with substantial weight placed on general deterrence, specific deterrence, denunciation, and community protection, consistent with Cherry v R and R v Hamid.
  • Where an ADVO contravention offence substantially overlaps with the underlying conduct forming other charges, sentencing courts should account for that overlap to avoid double-counting in an aggregate sentence.
  • A standard non-parole period, while not determinative, operates as an important guidepost in assessing whether an individual sentence for reckless wounding falls above or below the mid-range of objective seriousness.
  • Special circumstances justifying an adjusted non-parole period ratio were established by the combination of the offender's need for post-release treatment and the risk of institutionalisation from significant recent periods in custody.
  • Early guilty pleas attracted a 25% utilitarian discount, applied uniformly across all four charges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(4), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166

Cases
- Bugmy v The Queen [2013] 249 CLR 571
- Cherry v R [2017] NSWCCA 150
- Hoskins v R [2021] NSWCCA 169
- R v Hamid [2006] 164 A Crim R 179