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District Court 9 May 2025

R v Forester

[2025] NSWDC 536

Assault & violence

Citation: R v Forester [2025] NSWDC 536
Court: District Court of New South Wales
Date: 9 May 2025
Judge: Haesler SC DCJ

Background

In August 2023, a group of young people took it upon themselves to confront another young woman over a perceived grievance. The group effectively transported the victim from North Wollongong Station to a unit in central Wollongong, where she was subjected to a prolonged and degrading assault lasting approximately half an hour. The offending included the use of zip ties, being forced to eat cat faeces, having her hair cut off, and being struck with a vacuum cleaner pole.

The offender in this case, Ms Forester, lived in the unit block above where the assault took place. She chose to go downstairs after becoming aware of what was happening. She retrieved zip ties from her own unit when instructed to do so by another offender, and she kicked the victim in the face while the victim was seated on the ground. She was present during much of the assault before voluntarily leaving the unit.

The victim's impact statement described lasting psychological harm: ongoing fear, difficulty sleeping, constant hypervigilance, and distress at the loss of her hair, which she described as central to her sense of femininity and identity. The offender was charged under s 59(2) of the Crimes Act 1900 (NSW) with assault occasioning actual bodily harm in company, the maximum penalty for which is seven years imprisonment.

  • What was the appropriate objective seriousness of the offending, taking into account the offender's particular moral culpability?
  • How should the offender's trauma history and diagnosed mental health conditions (PTSD and Borderline Personality Disorder) bear on the sentence?
  • How should the impact of imprisonment on the offender's young children, and the risk of intergenerational trauma, be weighed?
  • What was the appropriate sentence given the need for parity with co-offenders sentenced for more serious charges, the De Simoni principle (which prevents a court from punishing for an uncharged, more serious offence), and the 25% discount for the guilty plea?
  • Was an Intensive Correction Order (ICO) an appropriate sentencing disposition, given that the sentence fell under two years?

Decision

His Honour accepted that the assault was a serious example of its type. Although the victim's physical injuries were relatively limited (bruising and swelling around the eye, no lacerations from the zip ties), Haesler SC DCJ emphasised that the true gravity of the offending lay in the sustained psychological humiliation inflicted on the victim. The offender was on Community Corrections Orders at the time, and her criminal record included prior violence, both of which were treated as aggravating factors.

On objective seriousness, the Court reduced its assessment to reflect the offender's reduced moral culpability, consistent with the Court of Criminal Appeal's approach in Kelley v R [2021] NSWCCA 173. The Court found a strong nexus between the offender's history of "trauma saturation" and the role she played: the psychological evidence suggested she entered a defensive psychological state when confronted with violence being inflicted on others. Her diagnosed PTSD and Borderline Personality Disorder were consistent with that history and supported the reduced culpability finding.

The Court applied the De Simoni principle carefully, noting that the co-offenders sentenced in R v Pagett; R v Williamson [2024] NSWDC 623 had been convicted of more serious offences (including detention offences). The offender here was not charged with any detention-related conduct, and the Court was careful not to punish her for conduct beyond the charge. After applying the 25% discount for the guilty plea entered in the Local Court, the Court accepted that a sentence of under two years was appropriate.

Haesler SC DCJ also placed significant weight on the offender's progress toward rehabilitation, her role as the primary carer of a newborn son (with a developing relationship with an older daughter), and the real risk that imprisonment would sever family bonds, result in loss of housing, and place her children in the care system. The Court noted the risk of perpetuating intergenerational trauma, given that the offender herself had entered the criminal justice system through childhood involvement with the child protection system. Taking a forward-looking approach consistent with the High Court's reasoning in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, the Court concluded that community protection was best served by an Intensive Correction Order rather than full-time imprisonment.

Orders Made

  • The offender was convicted of assault occasioning actual bodily harm in company (s 59(2), Crimes Act 1900 (NSW)).
  • A sentence of 1 year and 6 months, to be served by Intensive Correction in the Community, commencing 9 May 2025.
  • Standard conditions imposed: no further offences; submission to supervision by Community Corrections; report to the Gosford office within 7 days; comply with all reasonable directions.
  • Additional conditions imposed:
  • Engage as directed in any therapeutic program.
  • Engage as directed in any psychiatric or psychological treatment program.
  • Engage as directed in any alcohol and other drugs program.
  • Community service was considered but not imposed, given the offender's engagement with Barnardos' mentoring program.

Key Takeaways

  • A convicted offender's trauma history and diagnosed mental health conditions can reduce the assessment of objective seriousness, not merely provide mitigation at the subjective stage, where there is a sufficient nexus between that history and the offending conduct: Kelley v R [2021] NSWCCA 173.
  • The De Simoni principle requires sentencing courts to avoid punishing an offender for a more serious uncharged offence, even where co-offenders were convicted of such offences and their sentences are a relevant parity reference point.
  • Courts must take into account the impact of imprisonment on an offender's children, particularly where the offender is the sole or primary carer of young children. The District Court treated the risk of intergenerational trauma as a weighty factor informing the sentencing disposition.
  • Where a sentence falls under two years and full-time custody is not required for community protection, an Intensive Correction Order may be the appropriate vehicle, consistent with the High Court's forward-looking approach in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3.
  • An offender's demonstrable rehabilitation between the date of offending and the sentencing hearing, including engagement with support services and changed circumstances, remains a relevant and potentially decisive subjective consideration, even where the offending was serious.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(2)

Cases
- Engert v The Queen (1995) 84 A Crim R 67
- Kelley v R [2021] NSWCCA 173
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- R v Pagett; R v Williamson [2024] NSWDC 623
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3