Citation: R (Cth) v Ratucadre [2024] NSWDC 649
Court: District Court of New South Wales
Date: 20 September 2024
Judge: Colefax SC DCJ
Background
The offender was in an intermittent intimate relationship with the victim from 2016 to 2021, a relationship that involved ongoing domestic violence. An apprehended domestic violence order (ADVO) was served on the offender in April 2021, prohibiting him from approaching or contacting the victim except through a lawyer. That order remained in force until April 2023.
On 14 and 15 January 2023, while intoxicated, the offender made repeated phone calls to the victim in breach of the ADVO. Those calls included explicit threats to kill her, particularly threats to slit her throat. He pressured her to meet him at a McDonald's outlet at Minchinbury in the early hours of 15 January 2023.
When the victim attended the premises, the offender followed her inside carrying a knife approximately 20cm long. He punched her multiple times, dragged her by her hair several metres towards the front door, causing her head to strike the glass door and sustaining a 3cm scalp laceration. He then stole her mobile phone, house key, and car key before fleeing in her vehicle while disqualified from driving.
Legal Issues
- Whether the offender should be sentenced on four offences spanning both Commonwealth and NSW legislation, as well as two Form 1 matters
- How the objective seriousness of each offence should be assessed, including the degree of premeditation involved in the wounding offence
- What weight should be given to subjective factors, including the offender's background, history, and prospects of rehabilitation
- How the totality principle and the requirements of the Crimes Act 1914 (Cth) s 16A(2AAA) should govern the construction of an appropriate sentence
Decision
His Honour sentenced the offender across four offences, with two additional matters taken into account on a Form 1. The principal offence for sentencing purposes was the wounding with intent to cause grievous bodily harm, which carries a maximum penalty of 25 years and a standard non-parole period of 7 years.
The court found that the attack was not spontaneous. The combination of the knife being carried to the venue, the repeated threats to slit the victim's throat made both by phone and in person, and the sustained physical assault inside the McDonald's premises collectively satisfied the court beyond reasonable doubt that there was a level of premeditation. The marked physical disparity between the offender (approximately 190cm and 120kg) and the comparatively slight victim was also noted.
Consistent with Bugmy v The Queen (2013) 249 CLR 571, the court considered the offender's background, including any evidence of social disadvantage, as part of its assessment of his moral culpability. The approach to accumulation and concurrency of sentences was informed by R v De La Rosa [2010] NSWCCA 194 and the requirements of Commonwealth sentencing law under s 16A(2AAA) of the Crimes Act 1914 (Cth), which imposes particular obligations when sentencing for Commonwealth offences (here, the carriage service threat to kill charge).
The stalk/intimidate charge (sequence 2), which had been included on a s 166 certificate, was withdrawn by the Crown and dismissed by the court at the conclusion of proceedings.
Orders Made
The full sentencing orders are not reproduced in the text provided, but the following procedural orders were made at the conclusion of the hearing:
- A final apprehended domestic violence order was made in accordance with the draft order (MFI 3)
- The stalk/intimidate charge (sequence 2, H92985354/2) was dismissed following Crown withdrawal
- Access to the offender's ERISP, police body camera footage, and CCTV of an earlier robbery was refused
- The registry was directed to provide a copy of Tab 5 of Exhibit A (the agreed statement of facts) to Ms Genders in substitution for the police fact sheet
- The victim consented to release of the CCTV disc (Exhibit C), and the court directed that the disc be made available for uplift and copying
[Note: The specific terms of the imprisonment sentence and non-parole period are not reproduced in the provided text.]
Key Takeaways
- Where uncharged acts are placed before a sentencing court as context, they may nonetheless inform the court's assessment of an offender's state of mind, and here the District Court used them to support a finding of premeditation in the wounding offence.
- The presence of a weapon carried to the scene of an offence, combined with pre-incident verbal threats, can displace any characterisation of an attack as spontaneous or opportunistic, even where the precise sequence of events unfolds over several hours.
- Under Bugmy v The Queen, the offender's personal background and any social disadvantage remain relevant to the assessment of moral culpability at sentencing, and the District Court was required to engage with those matters.
- Sentencing for Commonwealth offences (such as using a carriage service to threaten to kill under s 474.15(1) of the Criminal Code (Cth)) engages the mandatory considerations in s 16A(2AAA) of the Crimes Act 1914 (Cth), which operate alongside state sentencing principles.
- The District Court's jurisdiction extended to the ADVO breach and the driving-while-disqualified offences only because the offender consented to those matters being dealt with in that court, as they would ordinarily have been finalised in the Local Court.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 474.15(1) (use of carriage service to threaten to kill)
- Crimes Act 1900 (NSW), ss 33(1)(a) and 40 (wound with intent to cause grievous bodily harm)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 14(1) and 12(2) (contravene ADVO)
- Road Transport Act 2013 (NSW), s 54(1)(a) (drive during disqualification period)
- Crimes Act 1914 (Cth), s 16A(2AAA) (Commonwealth sentencing considerations)
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v De La Rosa [2010] NSWCCA 194