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District Court 22 November 2024

R v Wall

[2024] NSWDC 642

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

Citation: R v Wall [2024] NSWDC 642
Court: District Court of New South Wales
Date: 22 November 2024
Judge: Scotting DCJ

Background

The offender, a man in a domestic relationship with the victim, was sentenced following a violent incident in January 2023 at their shared Bankstown residence. Over several hours, he punched the victim repeatedly, threatened her with a knife, made threats to kill her, and physically prevented her from leaving the premises. The victim escaped through the back door, topless and bleeding, and sought help from neighbours before an off-duty police officer called emergency services. She was admitted to hospital overnight with nasal and orbital fractures.

A subsequent police search of the residence uncovered an imitation firearm on a wardrobe shelf, giving rise to a separate Form 1 matter for possession of a prohibited firearm. The offender also faced a severity appeal from the Local Court, where he had been sentenced on related charges: acting with intent to influence a witness (essentially contacting the victim to retract her evidence) and two contraventions of an Apprehended Domestic Violence Order (ADVO).

The District Court dealt with the new sentence matter, the Form 1 firearm offence, and the severity appeal from the Local Court, ultimately imposing a single aggregate sentence across all matters.

  • What was the appropriate sentence for detaining a person with intent to obtain a psychological advantage, causing actual bodily harm, contrary to s 86(2)(b) of the Crimes Act 1900 (maximum: 20 years imprisonment)?
  • How should the Form 1 offence of possessing a prohibited firearm under s 7(1) of the Firearms Act 1996 affect the sentence?
  • Was the Local Court's aggregate sentence of 20 months (non-parole period 13 months) for the witness intimidation and ADVO breach offences excessive or otherwise attended by error, warranting intervention on the severity appeal?
  • Did special circumstances exist justifying a departure from the standard non-parole period ratio?

Decision

Scotting DCJ entered convictions on all matters and imposed an aggregate sentence across the principal offence, the Form 1 matter, and the severity appeal offences. The principal offence, detaining the victim with intent to obtain a psychological advantage while causing her actual bodily harm, was treated as a serious matter. The offender had punched the victim multiple times, threatened her with a knife, made death threats, and physically blocked her escape over several hours. The victim sustained facial fractures and required overnight hospitalisation.

The court took the Form 1 firearm offence into account in the standard way, noting the imitation firearm was found during a routine property clearance after the offender's arrest. When assessing the severity appeal matters, the court found the Local Court's sentence appropriate in its structure but allowed the appeal so as to consolidate all matters into one aggregate sentence. The court noted that the witness intimidation was unsophisticated and bore the hallmarks of the offender's mental health condition, and that the two ADVO contraventions involved unwanted phone contact designed to pressure the victim to retract her evidence.

The court made a finding of special circumstances, accepting that the offender's severe mental health condition and drug issues warranted a longer period of parole supervision than the standard ratio would otherwise provide. For the severity appeal offences, had they been dealt with separately, the court indicated it would have imposed an aggregate sentence of 12 months. The indicative sentence for the principal offence, after the 25 per cent guilty plea discount, was 3 years, and for the severity appeal offences the sentences ranged from 2 to 9 months.

Orders Made

  • The offender was convicted of all offences.
  • The severity appeal was allowed; the Local Court's sentence was set aside.
  • An aggregate sentence of 3 years and 6 months imprisonment was imposed, with a non-parole period of 1 year and 9 months.
  • The sentence was backdated to 8 April 2023.
  • The non-parole period expires 7 January 2025; the head sentence expires 7 October 2026.
  • The offender was eligible for release on parole from 7 January 2025.

Key Takeaways

  • The District Court treated the detention offence as a serious matter in the domestic violence context, particularly given the sustained nature of the violence, the threats made with a weapon, and the victim's physical inability to leave.
  • A finding of special circumstances is available where the offender's severe mental illness and substance use issues create a rehabilitation need that justifies a longer parole period, even in serious violent offending.
  • Where sentence proceedings involve both a fresh sentencing matter and a severity appeal arising from the same course of conduct against the same victim, the District Court may consolidate all matters into a single aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • The Form 1 procedure, under which the court takes a related offence into account without formally convicting and sentencing for it, appropriately increased the overall sentence for the principal offence, consistent with the guideline in Attorney General's Application No 1 of 2022.
  • In sentencing an offender with a severe mental health condition, general and specific deterrence and retribution may be given reduced weight, with corresponding emphasis on rehabilitation and the need for supervised support post-release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)(b) (detain with intent to obtain psychological advantage, cause ABH), s 323(a) (act with intent to influence witness)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) and s 14(9) (contravene/attempt to breach ADVO)
- Firearms Act 1996 (NSW), s 7(1) (possess prohibited firearm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D(2)(a), 53A
- Crimes (Appeal and Review) Act 2001 (NSW), ss 17, 20(2)

Cases
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 (Form 1 guideline judgment)
- R v Olbrich (1999) 199 CLR 270 (standard of proof for findings of fact at sentence)
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Hili v The Queen (2010) 242 CLR 520
- Muldrock v R (2011) 244 CLR 120