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District Court 1 May 2026

R v FOX

[2026] NSWDC 104

Assault & violenceDomestic & family violence

Citation: [2026] NSWDC 104
Court: District Court of New South Wales
Date: 1 May 2026
Judge(s): Lerve DCJ

Background

The offender was sentenced for eight domestic violence offences against his former intimate partner, with whom he had been in a relationship for approximately five years ending in March 2022. The couple had one child together and lived at various addresses in the Wagga Wagga area during the relationship.

Three charges were the product of a judge-alone trial resulting in guilty verdicts (two counts of assault occasioning actual bodily harm and one count of common assault). One count of intimidation was the subject of a guilty plea on the first day of trial. Four further matters (common assault, destroy/damage property, intimidation, and an additional common assault) attached to a s 166 Certificate under the Criminal Procedure Act 1986, with additional offences on Form 1 documents taken into account. The matters were before the District Court because the indictment had also included sexual assault charges, of which the offender was acquitted at trial.

The offending involved acts of physical violence including hitting, dragging, and grabbing the victim, as well as property damage and intimidation. The offender was diagnosed with autism, and a forensic psychologist opined that there was a causal connection between the autism and the offending behaviour.

  • What discount for the utilitarian value of guilty pleas should apply to the count pleaded to on the first day of trial (Count 4) and to the matters on the s 166 Certificate?
  • Whether the Local Court's jurisdictional limit or the statutory maximum penalty governs the sentencing exercise for the s 166 Certificate matters.
  • How the offender's autism, found to be causally connected to the offending, should factor into the assessment of objective seriousness.
  • Whether the domestic violence character of the offending, or the fact that it formed a course of conduct, elevated the objective seriousness of each individual offence.
  • How the principles from the Guideline Judgment on Form 1 matters applied to the additional offences taken into account on sentence.
  • The proper assessment of objective seriousness for each offence, applying the principle that offences of violence are primarily "result offences."

Decision

Lerve DCJ rejected the Crown's initial written submission that no plea discounts were available. The Court allowed a 5% discount for the utilitarian value of the guilty plea to Count 4 (entered on the first day of trial) and a 15% discount for the matters on the s 166 Certificate. The Court noted these were not early pleas but that some meaningful discount was warranted, settling on a figure between the Crown's lower suggestion and the defence submission of 20%.

On the jurisdictional limit, the Court applied Park v The Queen [2021] HCA 37 and Greaves v R [2020] NSWCCA 140 to confirm that the Local Court's two-year jurisdictional limit for s 166 Certificate matters is not a substitute for the statutory maximum penalty when assessing the appropriate sentence. The jurisdictional limit only becomes relevant if the assessed sentence exceeds it.

The Court accepted, relying on Tepania v R (2018), that the offender's autism and its causal connection to the offending were relevant to the assessment of objective seriousness. The Crown's submission that the Court should place little weight on the autism appears to have been given limited acceptance.

Lerve DCJ rejected the Crown's contention that the domestic violence character of the offences made them more objectively serious, holding instead that this factor was relevant to general deterrence. The Court also declined to treat the course of conduct as elevating the objective seriousness of each individual offence, noting that the offender equally did not benefit from having the offences treated as isolated. The seriousness of the violence offences was assessed primarily by reference to the injuries sustained or harm done to the victim, consistent with the principle that such offences are "result offences."

Orders Made

  • The full sentencing orders were not included in the truncated text available. The judgment sets out the Court's reasoning on discount rates and objective seriousness, with final sentences to follow for each count and sequence.
  • A 5% discount for the utilitarian value of the guilty plea was applied to Count 4.
  • A 15% discount for the utilitarian value of the guilty pleas was applied to the s 166 Certificate matters.
  • The Form 1 matters were to be taken into account in accordance with the Guideline Judgment principles, with the Court indicating they "must have some impact on the ultimate sentence imposed."

Key Takeaways

  • A jurisdictional limit, such as the Local Court's two-year cap for s 166 Certificate matters, is not treated as the maximum penalty for sentencing purposes. Consistent with the High Court's reasoning in Park v The Queen, the statutory maximum penalty governs the sentencing assessment, and the jurisdictional limit becomes relevant only if the resulting sentence would exceed it.
  • The District Court held that the domestic violence character of offending is relevant to general deterrence but does not, of itself, elevate the objective seriousness of the individual offences.
  • Where multiple domestic violence offences form a course of conduct, that pattern does not automatically render each individual offence more objectively serious, a position the Court distinguished from the approach under Commonwealth sentencing legislation (s 16A(2)(c) of the Crimes Act 1914 (Cth)).
  • An offender's autism, where a forensic psychologist identifies a causal connection to the offending, is a factor properly considered in assessing objective seriousness, applying the principles in Tepania v R.
  • In allowing a 15% discount for guilty pleas to the s 166 Certificate matters, Lerve DCJ recognised that pleas entered after trial verdicts on other counts, following post-verdict negotiation, still warrant a meaningful (though not maximum) utilitarian discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61, 195(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1914 (Cth), s 16A(2)(c)

Cases:
- Park v The Queen [2021] HCA 37
- Greaves v R [2020] NSWCCA 140
- Tepania v R (2018) 271 A Crim R 233; [2018] NSWCCA 247
- Doan v R (2000) 50 NSWLR 115
- R v Mitchell & Gallagher (2007) 117 A Crim R 94
- McCullough v R (2009) 194 A Crim R 439
- Stanley v DPP (NSW) [2023] HCA 3; (2023) 278 CLR 1
- Taylor v R [2026] NSWCCA 32
- Aslan v R [2014] NSWCCA 114
- Carr v R [2024] NSWCCA 103
- R v Cherry [2017] NSWCCA 150
- R v Stephens [2024] NSWCCA 170
- Hamid v R [2006] NSWCCA 302
- Locke v R (2010) 207 A Crim R 34
- Ngati v R [2014] NSWCCA 125
- R v Tuala [2015] NSWCCA 8