All Cases

Commonwealth

High Court of Australia

  • Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 (11 October 2017) – High Court of Australia
    Crown appeal against sentence’ – ‘Current sentencing practice’ – ‘Instinctive synthesis’ – ‘Manifestly inadequate’ – ‘Sentencing’ – ‘Worst category of case

    Charges: Incest x 2; Sexual penetration of a child under 16 x 1; Indecent assault x 1.

    Appeal type: Crown appeal against sentence.

    Facts: The charge subject of the appeal was one count of incest. The appellant pleaded guilty, and was sentenced to 3 years and 6 months’ imprisonment. The total head sentence was 5 years’ and 6 months’ imprisonment with a non-parole period of 3 years ([12], [23]).

    Section 5(2)(b) of the Sentencing Act 1991 (Vic) provided that the court must have regard to current sentencing practices when sentencing an offender. The Court of Appeal stated that ‘but for the constraints of current sentencing practice’, it would have imposed a longer sentence ([33]).

    Issues: Whether the sentence for the charge of incest was manifestly inadequate. In resolving this question, the High Court clarified the relevance of ‘current sentencing practices’ to sentencing.

    Decision and Reasoning: The appeal was allowed, and the matter was remitted to the Victorian Court of Appeal for determination of the appeal against sentence ([77]). The High Court (Kiefel CJ, Bell and Keane JJ, Gageler and Gordon JJ agreeing) held that the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it ([2]).

    Kiefel CJ, Bell and Hayne JJ stated: ‘the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor’ ([9]).

    Further, their Honours stated at [50]:

    section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle.

  • Hughes v The Queen [2017] HCA 20 (14 June 2017) – High Court of Australia
    Meaning of "significant probative value"’ – ‘Tendency evidence

    Charges: Sexual offences against underage girls x 11.

    Appeal type: Appeal against conviction.

    Facts: The defendant was Robert Hughes, the star of the TV show Hey Dad! The 11 complainants were friends of his daughters or workers on the set. The prosecution sought to adduce the evidence of each of the 11 complainants to support each of the other counts. The prosecution sought to prove tendencies of ‘having a sexual interest in female children under 16 years of age’ and ‘using his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them’ ([3]). The tendency evidence was admitted, and the appellant was convicted ([8]).

    Issues: Whether tendency evidence is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. This issue had been the subject of diverging lines of authority between the Victorian and New South Wales Court of Appeal.

    Decision and Reasoning: The High Court (4:3) dismissed the appeal.

    The majority (Kiefel CJ, Bell, Keane and Edelman JJ) held that the evidence was admissible. The majority identified that there is likely to be a high degree of probative value when (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged ([41]).

    The majority endorsed the test for “significant probative value” posed in Ford, that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged ([40]). The majority at [40] added the following qualification:

    it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

    Gageler, Nettle and Gordon JJ dissented.

    Gageler J advocated for a more conservative approach: his Honour argued that admitting all the evidence risks the jury placing too much emphasis on the series of allegations, and not assessing each charge individually ([109]).

    Nettle J emphasised that the fact that an accused has committed one sexual offence against a child is not, without more, sufficiently probative of the accused committing another sexual offence against a child ([158]). Something more is required, for example a similarity in the relationship between the alleged victims, a connection between the details and circumstances of each offence, or a system of offending ([158]). Nettle J also reiterated the dangers in admitting tendency evidence ([174]).

    Gordon J agreed with Gageler and Nettle JJ and set out her Honour’s own set of principles at [216].

  • The Queen v Kilic [2016] HCA 48 (7 December 2016) – High Court of Australia
    Appeal against sentence’ – ‘Appeal allowed’ – ‘Dousing with petrol and setting alight’ – ‘Drug misuse’ – ‘Intentionally causing serious injury’ – ‘Methylamphetamine’ – ‘Pregnancy’ – ‘Sentencing’ – ‘Worst category of offence

    Charges: Intentionally causing serious injury x 1; Using a prohibited weapon x 1; Dealing with suspected proceeds of crime x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The defendant and victim were in a relationship; the victim was 12 weeks’ pregnant with the defendant’s child ([5]). The defendant pleaded guilty to dousing the victim with petrol and setting her alight ([10]). The victim’s injuries were ‘horrendous’ ([11]), and she terminated her pregnancy ([13]). The sentencing judge said that he found it hard to recall a more serious example of the charge in his 38 years of working in criminal law ([14]). The sentencing judge imposed a head sentence of 15 years with a non-parole period of 11 years ([1]). The Court of Appeal allowed the defendant’s appeal against sentence on the basis that there was ‘such a disparity between the sentence imposed and current sentencing practice’ ([1]).

    Issues: Whether the Court of Appeal erred in holding that the sentence was manifestly excessive.

    Decision and Reasoning: The High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) overturned the Court of Appeal’s decision and reinstated the original sentence. The High Court discussed two aspects of the Court of Appeal’s decision: first, the Court of Appeal employing the term ‘worst category’ of offending; and second, the Court of Appeal’s interpretation of ‘current sentencing practice’.

    First, the High Court held that it is an error to describe offences as being within ‘the worst category of cases’ if the offence does not warrant the maximum penalty ([19]), as the term is likely to cause confusion ([17]-[20]).

    Second, the High Court remarked that ‘current sentencing practice’ is likely to change over time, ‘current sentencing practices for offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’ [21]. The High Court found that the cases were too few to establish a pattern, one case was 12 years old, and most did not occur in a domestic violence context ([25]-[31]). The High Court said that ‘violence perpetrated in the course of a domestic relationship against the offender's female partner … involve the abuse of a relationship of trust’, and such violence ‘must steadfastly be deterred’ ([28]). This was a distinguishing factor from cases with comparable serious injuries ([28]).

  • Munda v Western Australia [2013] HCA 38 (2 October 2013) – High Court of Australia
    Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Antecedents and personal circumstances’ – ‘Denunciation’ – ‘Deterrence’ – ‘Manslaughter’ – ‘Sentencing’ – ‘Social disadvantage’ – ‘Traditional Aboriginal and Torres Strait Islander punishment

    Charge/s: Manslaughter

    Appeal Type: Appeal against sentence.

    Facts: The appellant, an Aboriginal man, pleaded guilty to the manslaughter of his de facto spouse. He was sentenced to five years and three months’ imprisonment with a non-parole period of three years and three months’. The DPP appealed to the Court of Appeal on the basis that the sentence was manifestly inadequate. The Court of Appeal upheld the appeal and resentenced the appellant to seven years and nine months’ imprisonment with the same parole eligibility conditions. The appellant and the deceased had been in a relationship for approximately 16 years. On the day the deceased was killed, the appellant and the deceased spent the afternoon at a local tavern and both became intoxicated. After returning home, an argument ensued and the appellant assaulted the deceased in a prolonged and brutal way. He threw the deceased about the room, rammed her head into walls and repeatedly punched her on the face and head. There was a history of significant domestic violence in the relationship, including a conviction for grievous bodily harm for which the appellant was sentenced to 12 months’ imprisonment (conditionally suspended) as well as a conviction for common assault. The appellant was subject to a lifetime violence restraining order in favour of the deceased which prohibited him from having any contact with her. However, this order had been ignored by both parties and the relationship had continued.

    Issue/s: Some of the issues concerned –

    1. Whether the Court of Appeal incorrectly applied the principles which govern manifest inadequacy of a sentence.
    2. Whether the Court of Appeal erred by failing to pay sufficient regard to the appellant’s antecedents and personal circumstances, in particular the systemic deprivation and disadvantage (including endemic alcohol abuse which is prevalent in Aboriginal and Torres Strait Islander communities) that the appellant faced.

    Decision and Reasoning: The appeal was dismissed by majority (Bell J dissenting).

    1. The joint majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) found no error in the Court’s approach to the issue of manifest inadequacy. In the Court of Appeal, McLure P made express reference to the gross over-representation of Aboriginal people in the criminal justice system (particularly in relation to manslaughter) which is directly related to alcohol and drug abuse. Her Honour also made reference to various ‘weighting errors’ in the sentencing at first instance. The Court held that there was no error in this approach. See in particular at [37], where the joint majority noted ‘her Honour was proceeding to make the point that, even in the context of the circumstances of social disadvantage in which domestic violence commonly occurs, the seriousness of the offence is such as to make a compelling claim on the sentencing discretion. And that is so notwithstanding that the number of Aboriginal offenders (and victims) is "grossly disproportionate".

      See also McLure P’s statement quoted at [41] – "In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously". The joint majority approved these remarks at [42] – ‘The passage of time has not lessened the force of that statement. While the appellant's offence may not have been in the very worst category of offences of manslaughter, it is not easy to think of worse examples. Given that the maximum available sentence was 20 years imprisonment, and given the prolonged and brutal beating administered by the appellant upon his de facto spouse, a conclusion that the sentence imposed at first instance was manifestly inadequate cannot be said to have been wrong.’

    2. The appellant did not submit that ‘Aboriginality per se warrants leniency’ (see at [47]). Rather, the appellant contended that social and economic issues commonly associated with Aboriginal communities affected the appellant and that these should have been treated as mitigating factors. He also contended that he was likely to receive traditional Aboriginal and Torres Strait Islander punishment when released from prison and that he was ‘willing, and indeed anxious’ (see at [49]) to subject himself to this payback. He submitted that this should have received greater significance as a mitigating factor.

      In dismissing these arguments, the Court noted that while mitigating factors such as social disadvantage need to be afforded appropriate weight in sentencing, this cannot result in the imposition of a penalty which is disproportionate to the gravity of the offending. In particular, the Court noted at [53] – ‘To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity’ and ‘Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.’

      The Court also addressed the argument that general deterrence has less significance in relation to crimes which are not premeditated in the context of social disadvantage. In dismissing this assertion, the Court noted that the criminal law is not limited to the ‘utilitarian value of general deterrence’ and stated that the obligation of the State is ‘to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’ (see at [54]). Furthermore, the gravity of the offending in this case was extremely high - see at [55] –

      ‘A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.’

      In relation to the appellant’s alcohol addiction, McLure P held that this factor would increase the weight to be given to personal deterrence and community protection. The joint majority of the High Court agreed and noted that the fact the appellant was affected by an environment of alcohol abuse should be taken into account in assessing personal moral culpability, but this has to be balanced with the seriousness of the offending. See further at [57] where the majority of the High Court said– ‘It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.’

      In relation to the relevance of traditional Aboriginal and Torres Strait Islander punishment, the High Court’s disposition was that the appellant’s willingness to submit to this punishment was not a relevant consideration in sentencing. However, the first instance judge did take it into account, which was not challenged in the Court of Appeal. While the joint majority of the High Court did not offer a conclusive opinion, they noted that the courts cannot condone the commission of an offence or ‘the pursuit of vendettas’ and held that the appellant did not suffer injustice because the prospect of traditional punishment was given only limited weight (see at [61]-[63]).

      Bell J dissented. Her Honour held that it was open to the primary judge to reach the sentence that he did, based on comparable authorities. Bell J was also critical of the practice of giving too much weight to the maximum penalty, given the wide variety of circumstances in which manslaughter convictions can arise. Her Honour stated that a sentence well short of half the maximum penalty does not of itself give rise to legal error.

  • Roach v The Queen [2011] HCA 12 (4 May 2011) – High Court of Australia (appeal from Queensland Court of Appeal)
    Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Probative value’ – ‘Propensity evidence’ – ‘Relationship evidence

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against conviction.

    Facts: Mr Roach was convicted of assault occasioning bodily harm of his female partner. At trial, Howell DCJ admitted evidence of previous (uncharged) assaults that Mr Roach committed on the complainant during their relationship. The relevant Queensland provision—s 132B of the Evidence Act 1977—applies to proceedings for assault occasioning bodily harm and provides that ‘[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding’. However, s 130 of the Evidence Act 1977 gives the judge power to exclude otherwise admissible evidence if it is deemed unfair to the accused to admit.

    Issue/s: Whether the trial judge should have applied the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and whether ‘viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence’. Only if there is no reasonable view, can the evidence be admissible because its probative value outweighs its prejudicial effect on the accused.

    The appellant argued that in considering whether to admit evidence under s 132B, the trial judge ought not to admit that evidence if there was a reasonable view of that evidence consistent with innocence (‘the rule in Pfennig’). The appellant argued that the rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused ("propensity evidence"), and applies at common law to propensity evidence as a measure of the probative force of that evidence. (see Roach v The Queen [2010] HCATrans288 (5 November 2010)).

    Decision and Reasoning: The appeal was dismissed. French CJ, Hayne, Crennan and Kiefel JJ of the High Court held firstly that s 132B has a ‘potentially wide operation’. Section 132B contemplates evidence of other acts of domestic violence throughout the relationship being admitted. The section could also be used to admit similar fact evidence to prove the accused’s propensity to commit similar crimes. The Court found it could also be used to admit other types of evidence including evidence of a person’s state of mind, evidence of the circumstances of the crime or to provide context to the history the relationship. It could also be used as evidence in a provocation or self-defence case, or where the offender is a victim of domestic violence. (See at [30]-[31]). The Court then held that the Pfennig test has no application to the common law residual discretion enshrined in s 130. As such, the test of admissibility under s 132B is whether the evidence is relevant, which is subject to the exercise of the discretion preserved in s 130.

    The purpose of admitting the evidence here was not to show a propensity of the accused (re the rule in Pfennig); rather, the evidence:

    ‘was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ at [42].

    The High Court noted the permissible ambit of ‘relationship evidence’, and the need for clear directions for juries about the use of such evidence and the purpose for which it is tendered:

    [45] In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant's account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant's conduct in relation to the alleged offence intelligible and not out of the blue.

    [47] The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.

    [48] The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant's evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led "for a very specific purpose" and that they must be "very, very careful in relation to the limited use that [they] may make of such evidence." He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but "to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006."
  • Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) – High Court of Australia
    Adjournments’ – ‘Amendment’ – ‘Appeal’ – ‘Case management’ – ‘Pleadings’ – ‘Practice and procedure

    Hearing: Appeal against decision to allow amendments to statement of claim.

    Facts: ANU applied for an adjournment at trial to make substantial amendments to its statement of claim against Aon. The adjournment was granted and the primary judge allowed the application to amend the statement of claim. Aon appealed against the decision.

    Decision and Reasoning: This case did not concern family violence but contained a number of relevant statements regarding adjournments. French CJ referred to the decision in Sali v SPC Ltd, which concerned the refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, the High Court held there ‘that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’’ (see [26]). Brennan, Deane and McHugh JJ went on to say:

    ‘What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources’.

    Toohey and Gaudron JJ dissented in the result but acknowledged that:

    ‘The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard’.

    In the present case, French CJ stated at [27]:

    ‘The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn’.
  • Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998) – High Court of Australia
    Battered woman syndrome’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Expert testimony - psychologist’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Self-defence

    Charge/s: Murder

    Appeal Type: Appeal against conviction.

    Facts: The appellant and her son were jointly tried in the Supreme Court of Victoria for the murder of her husband Mr Osland (the appellant’s son’s step-father). The jury convicted the appellant but was unable to reach a verdict with respect to her son. Her son was later retried and acquitted. The prosecution case was that the appellant and her son planned to murder her husband. The appellant mixed sedatives with her husband’s dinner in sufficient quantity to induce sleep within an hour. The appellant’s son later completed the plan by hitting Mr Osland on the head with an iron pipe while he was asleep. He and the appellant then buried Mr Osland in a grave they had earlier prepared. At trial, the appellant and her son relied on self-defence and provocation raised against ‘an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years’ which had allegedly been ‘escalating in the days prior to his death’ (at [4]). The prosecution accepted that Mr Osland had been violent in the past but maintained that this behaviour had ceased well before he was murdered. The appellant raised expert evidence of the ‘battered woman syndrome’ (BWS) in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was ‘consistent with it being a battering relationship’ (at [50]).

    The psychologist outlined the general characteristics of battered women as follows (at [51]):

    1. they are ashamed, fear telling others of their predicament and keep it secret.
    2. they tend to relive their experiences and, if frightened or intimidated, their thinking may be cloudy and unfocussed.
    3. they have an increased arousal and become acutely aware of any signal of danger from their partner.
    4. they may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.
    5. in severe cases, they may live with the belief that one day they will be killed by the other person.

    Issue/s: Some of the issues concerned –

    1. Provocation - Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of provocation’ (see at [155]).
    2. Self-defence – Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of self-defence’ (see at [155]).

    Decision and Reasoning: The appeal was dismissed by majority (Gaudron and Gummow JJ dissenting). However, all members of the Court were unanimous in holding that the trial judge’s directions with respect to ‘battered woman syndrome’ (BWS) were appropriate.

    Gaudron and Gummow JJ:

    Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment ... without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"” (at [53])

    “…there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.” (at [55])

    “So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.” (at [56])

    “…there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case. In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.” (at [60])

    Callinan J (while agreeing that the directions with respect to BWS were appropriate) held that to adopt a new and separate defence of BWS ‘goes too far for the laws of this country’ (see at [239]). His Honour also noted that these issues could be matters for expert evidence as well as matters of common sense for a jury to decide with the assistance from the trial judge.

    McHugh J did not make any comments on BWS.

    Kirby J:

    His Honour discussed the relevance of the BWS defence in abusive relationships. His Honour was of the opinion that the term should not be restricted to women because there may be situations where men are the victims such as similarly abusive same-sex relationships, and ‘unlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims’ (at [159]).

    His Honour was broadly supportive of BWS evidence but did note some controversies around it and was somewhat critical of it: “…it appears to be an “advocacy driven construct” designed to “medicalise” the evidence in a particular case in order to avoid the difficulties which might arise in the context of a criminal trial from a conclusion that the accused's motivations are complex and individual: arising from personal pathology and social conditions rather than a universal or typical pattern of conduct sustained by scientific data’ (at [161]).

    Further, he was critical of the term itself and stated it should not be used. He was also aware that the syndrome was ‘based largely on the experiences of Caucasian women of a particular social background’ (whose) ‘”passive” responses may be different from those of women with different economic or ethnic backgrounds’ (at [161]).

    Ultimately however, his Honour was supportive – ‘Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships’ (at [167]).
  • M v M (1988) 166 CLR 69; [1988] HCA 68 (8 December 1988) – High Court of Australia
    Allegations of sexual abuse’ – ‘Custody order’ – ‘Risk’ – ‘Test to be applied’ – ‘Unacceptable risk

    Proceedings: Appeal against custody order.

    Facts: The trial judge made an order giving the wife guardianship and custody of the child. The wife alleged that the father had sexually abused the child and that the child’s welfare would be put at risk in allowing the father custody. The trial judge was not satisfied that the father had abused the child. However, His Honour considered that there was a possibility that the child had been sexually abused by the father. Accordingly, in the interests of the child, His Honour held that he should eliminate the risk of such abuse by denying access to the father. The father appealed this decision.

    Issue/s: What is the correct approach in dealing with sexual abuse allegations and unacceptable risk?

    Reasoning/Decision: The appeal was dismissed. The approach to be taken in these matters is not one of competing rights of the parents or ever purely a finding for or against either based on the evidence in support of the allegations. The approach is to determine on all of the evidence what is in the best interests of the child.

    The Court concluded and held at [25]:

    ‘Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm", "an element of risk" or "an appreciable risk", "a real possibility", a "real risk", and an "unacceptable risk“. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse’.

    With regards to the consideration of risk, it is in “achiev[ing] a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. A finding of sexual abuse need not be made to make a finding of unacceptable risk.

  • Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 (17 June 1970) – High Court of Australia
    Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Relationship evidence’ – ‘Relevance’ – ‘Statements made by deceased's wife charging accused with desire to kill her

    Charges: Murder.

    Appeal Type: Application for special leave to appeal against conviction.

    Facts: The facts of this case were summarised concisely by Martin CJ (with whom Pullin JA and Hall J agreed) in O’Driscoll v The State of Western Australia [2011] WASCA 175 (10 August 2011) [DT1] at [26] as follows -

    ‘[T]he appellant was convicted of the murder of his wife by shooting her in the back of the head. A critical issue at trial was whether she was deliberately shot or whether the gun had discharged by accident. The Crown led evidence that the deceased said to the accused, in the presence of other witnesses, 'I know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. These statements were admitted by the trial judge, subject to a direction that the jury should not treat them as evidence of the state of mind of the accused.

    Issue/s:

    1. Whether the statements made by the appellant’s wife were admissible.
    2. If they were admissible, whether they should have been excluded by the trial judge because their probative value was outweighed by the potential prejudice to the accused.

    Decision and Reasoning: The Court unanimously dismissed both grounds of appeal and held that the evidence was admissible.

    1. Barwick CJ noted at [3] that, ‘The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone.’ Evidence of the ‘nature of the current relationship between the applicant and his wife’ was relevant to the appellant’s guilt. Evidence of a ‘close affectionate relationship’ could be used by the jury to conclude that the appellant was not guilty. Evidence of hostility in the relationship could be used by the jury to conclude that the appellant’s argument that the shooting was accidental lacked credibility. His Honour did concede that if the deceased’s statements ‘had not been part of the evidence of a quarrel of a significant kind’ ([8]), they would have been inadmissible. However, in this case the statements were part of a ‘quarrel’ between the parties and were indicative, ‘of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached’ (see at [8]). More generally, his Honour concluded that ‘evidence of the relations of the accused with others’ is admissible not only in cases where it establishes motive, though this may be the most common way in which it is used. This type of evidence could also be admissible if it explains an ‘occurrence’ or assists in the choice between two explanations of an ‘occurrence’ because such evidence satisfies the test of relevance (see at [7]).

      Menzies J (with whom McTiernan J and Walsh J agreed) reached the same conclusion – ‘To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife’(see at [4]).
    2. Barwick CJ held that while the deceased’s statements were damaging to the appellant, they were not prejudicial, and showed, ‘the depths to which the relationship of the parties, as husband and wife, had sunk’ (see at [9]).
  • Briginshaw v Briginshaw (1938) 60 CLR 336; HCA 34 (30 June 1938) – High Court of Australia
    Civil cases’ – ‘Evidence’ – ‘Standard of proof

    Proceedings: Petition for divorce on the ground of adultery.

    Facts: The applicant sought a dissolution of his marriage to his wife on the ground of her adultery.

    Issue/s: What is the standard of proof required in civil matters?

    Decision and Reasoning: In explaining the civil standard of proof, Dixon J stated that ‘when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…It cannot be found as a mere mechanical comparison of probabilities’. His Honour went on to explain that the standard is one of ‘reasonable satisfaction’:

    ‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency’.

Family Court of Australia Full Court

  • Saska & Radavich [2016] FamCAFC 179 (1 September 2016) – Full Court of the Family Court of Australia
    Definition of family violence in section 4ab’ – ‘Key statutory provisions in the family law act’ – ‘Meaning of ‘family violence’’ – ‘Mother a family member by operation of section 4(1ab)’ – ‘Parenting orders’ – ‘Presumption of equal shared parental responsibility’ – ‘Section 61da’ – ‘Whether mother a member of the family of the father within the meaning of section 4ab

    Proceedings: Appeal - parenting orders.

    Facts: The trial judge made final parenting orders which included an order that the mother have sole parental responsibility for the child of the mother and the father. In making these orders, the trial judge found that the father’s behaviour towards the mother amounted to ‘family violence’ within the meaning of s 4AB of the Family Law Act. As a result of this family violence, the presumption of equal shared parental responsibility for the child in s 61DA of the Act did not apply: s 61DA(1). Further, even if the presumption had applied, the trial judge held that it would still not have been in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(4). The father appealed against these orders.

    Issue/s: Some of the grounds of appeal included –

    • The trial judge erred in finding that the father’s behaviour towards the mother constituted family violence within the meaning of s 4AB(1) because the mother was not ‘a member of the [father’s] family’ as defined in s 4(1AB). Accordingly, the trial judge erred in finding that the presumption of equal shared parental responsibility was rebutted because the father had not engaged in family violence: s 61DA(2)(b).
    • The trial judge erred in finding in the alternative that the presumption was rebutted because equal shared parental responsibility was not in the best interests of the child: s 61DA(4).

    Reasoning/Decision: The appeal was dismissed. The Full Court held that the father’s appeal was always doomed to fail because it rested on a misconceived interpretation of s 4(1AB) of the Act. Relevant to the proceedings, the combined effect of s 4(1AB)(e) and s 4(1AC) was that the child was a member of the father’s and a member of the mother’s family. It was never in issue in the proceedings that the mother resided with the child at the material times, the child being a member of the father’s family. Thus, by operation of subparagraph (h) of s 4(1AB), the mother was a member of the father’s family. Further, within the meaning of subparagraph (i) of s 4(1AB) each of the mother and the father, respectively and alternatively, ‘is or has been a member of the family of a child of [the other]’. Accordingly, the father had engaged in family violence against ‘a member of his family’ (see [17]-[24]).

    The father’s contention that the trial judge erred in rebutting the presumption of equal shared parental responsibility because the father had committed family violence was therefore dismissed. As demonstrated above, the contention that there was no family violence in this case because the mother was not a member of the father’s family was based on an erroneous reading of the Act.

    Additionally, while the trial judge was correct to apply s 61DA(2) and conclude that the presumption did not apply, it was also well within her discretion to conclude that even if the presumption had applied, it would have been rebutted in the child’s best interests: s 61DA(4).

    The father also argued that the mother wasn’t fearful, and so the finding of family violence was erroneous. For this argument to be effective, the words of s 4AB(1) would need to be read conjunctively, not disjunctively, as the section is worded. The family member being ‘fearful’ is one possible manifestation of family violence, but is not necessary to make a finding of family violence.

  • Salah & Salah [2016] FLC 93-713; [2016] FamCAFC 100 (17 June 2016) – Full Court of the Family Court of Australia
    Ignoring allegations of family violence’ – ‘Interim parenting orders’ – ‘Treatment of issues of family violence

    Appeal type: Appeal against interim parenting orders.

    Facts: At the contested interim hearing, the mother made allegations of significant family violence perpetrated by the father in the presence of the children. In light of this and one of the children’s epilepsy and developmental delay, she sought an order directing the father’s care of the children to be supervised by another adult. The father disputed the allegations of family violence. In making interim parenting orders, the trial judge said (see [23]-[27]):

    ‘The evidence lead [sic] as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.

    […]

    Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.

    As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out’.

    Issue/s:

    1. The trial judge made several errors of principle in considering the issues of family violence namely, His Honour erred in his consideration of the family violence issues, failed to have regard to s 61DA(3) of the Act and failed to follow the legislative pathway in his determination of the interim issues.
    2. The trial judge failed to take into account relevant facts.
    3. The trial judge failed to give adequate reasons for his determination.

    Reasoning/Decision: The appeal was allowed. The Court noted at [36] that, ‘[i]t is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial’.They continued at [39]-[40]:

    ‘In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

    …Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

    The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH)’.

    The Court held that while the trial judge was correct in stating that, at that point, he could not make findings on the disputed allegations, he erred by ignoring the allegations of family violence and finding that the presumption of equal shared responsibility applied. His Honour further erred in his treatment of the allegations of family violence by suggesting with that comment ‘given no other evidence’ that the mother’s allegations required corroboration or objective support and erred in incorrectly referring to the civil standard of proof (see [41]-[45]). Grounds two and three were also successful for similar reasons (see [60],[65]).
  • Holsworth & Holsworth [2016] FamCAFC 98 (9 June 2016) – Full Court of the Family Court of Australia
    Children’ – ‘Interim orders’ – ‘Physical violence and harm’ – ‘Where the trial judge could not make findings on allegations of family violence until the evidence was properly tested at trial

    Proceedings: Appeal of interim procedural orders in relation to parenting proceedings

    Facts: The parties reached agreement in November 2010 that the children live with the mother and spend time with the father. Almost a year later the mother was “psychiatrically unwell” and the children began to live with the father and spend time with the mother. After many years of litigation, including the appointment of an ICL, one child had returned to live with the mother and was to spend time with the father. The matter was listed for trial and an updated family report was ordered.

    One ground of appeal was that “[t]he trial judge failed to give sufficient weight to the mother’s evidence of family violence and did not accept the mother’s evidence of it because she had not produced “third party evidence”.

    Issues: In the context of apprehended bias, was the trial judge correct in not determining issues of family violence at an interim hearing?

    Reasoning/Decision: The Full Court found that the mother’s assertions regarding the trial judge’s consideration of the evidence of family violence were “unsupported by the transcript”. In addition, her Honour was correct in not making findings “until such time as the evidence had been tested” – something which would happen at the final hearing of the matter. Despite the grounds purportedly being a challenge to the trial judge’s “failure to recuse herself”, it was apparent to the Full Court that they were really a complaint that the trial judge did not accept the mother’s evidence, including that of family violence, at the interim stage of proceedings.

    The appeal was dismissed.

  • Baghti & Baghti and Ors [2015] FamCAFC 71 (5 May 2015) – Full Court of the Family Court of Australia
    Evidence’ – ‘Expert testimony’ – ‘Family reports’ – ‘Findings of fact in relation to allegations of family violence’ – ‘Following harassing, monitoring’ – ‘Physical violence and harm’ – ‘Weight on the expert evidence

    Proceedings: Appeal against parenting and property orders

    Facts: There is one child of the marriage. The parties married in 2002 and separated in late 2008/ early 2009, continuing to live under the same roof until November 2009. The mother claimed that up until November 2004 she was the primary carer for the child and the father worked. In November 2004 the mother went back to work and the father became the primary care-giver for the child. The child had health issues which would require visits to the hospital. The father consulted medical practitioners about the child’s weight and would weigh the child after time in the mother’s care. Around “September 2009 the husband arranged for ongoing surveillance of the wife”. In October the mother became aware of the surveillance and asserted stress and digestive issues as a result. This also affected the child. A consultant psychiatrist provided a Family Report to the Court on 9 January 2011. This report included discussion of risk associated with physical violence during the marriage in addition to the conflict and hostility between the parties in association with the child’s medical issues. It also included risk to the child in regards to the father’s obsession with “health and welfare”.

    Issues: Whether the judge erred in attributing significant weight to the family report.

    Whether the judge should have made a finding in relation to family violence.

    Reasoning/Decision: Despite the father having opportunity to cross-examine the report writer at trial, and opportunity to raise his concerns about the report with the writer, and opportunity for the father to submit to the judge that the report be given little weight, no such cross-examination was forthcoming at trial, and no like submission was made to the trial judge. It was determined that not only was the judge entitled to rely on the expert report as he did, the father was not entitled to make his complaint about its handling to the appeal court.

    In the “background facts” of the judgment the trial judge discussed allegations of family violence made by the mother but made no finding that the violence, as alleged, had occurred. The trial judge was not in error by not making findings – “A court need only determine those facts that are necessary for the determination of the issues between the parties”.

  • Slater & Light [2013] FamCAFC 4 (5 February 2013) – Full Court of the Family Court of Australia
    Children’ – ‘Emotional and psychological abuse’ – ‘Notice of risk’ – ‘Parenting orders and impact on children

    Case type: Appeal against final parenting orders.

    Facts: The parties had three children together and separated in 2006. In March 2010, Magistrate Coates made interim parenting orders. The father unsuccessfully appealed against those interim orders (see Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011)).

    Subsequently, final orders were made providing that the mother have sole parental responsibility for the children, that the children live with the mother and spend supervised time for two hours per fortnight with the father. The order for supervised time was for an indefinite duration (see Slater & Light [2011] FMCAfam 1021 (22 September 2011 ) ([1]).

    Magistrate Coates’ orders turned on a finding that the father posed an unacceptable risk of emotional harm to the children ([2]). The emotional harm was said to take the form of imposing on the children negative views of their mother, alienating the children from their mother and a chaotic regime for the children ([22]).

    Issues: Whether Magistrate Coates erred in:

    • finding that there was an unacceptable risk of harm to the children; and
    • ordering supervised time of an indefinite duration ([2], [29]).

    Decision and Reasoning: The appeal was partially allowed. The Court held that the Magistrate did not err in finding that the father posed an unacceptable risk of harm to the children ([69]). This conclusion was open on the psychiatric reports

    However, the Court found that the Magistrate erred in ordering an indefinite supervision order, when this was not requested by either the mother or the Independent Children’s Lawyer ([69]-[70]).

    The issue of the time and the circumstances in which the father should spend time with the children be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Coates (see Order 3).

  • McGregor v McGregor (2012) FLC 93-507; [2012] FamCAFC 69 (28 May 2012) – Full Court of the Family Court of Australia
    Contact proceedings’ – ‘Emotional and psychological abuse’ – ‘Failure to properly admit academic opinions as evidence’ – ‘Information sharing’ – ‘Opinion evidence’ – ‘Parenting orders and impact on children’ – ‘Parties unaware of use of material’ – ‘Reliance upon academic literature as basis for orders

    Appeal type: Appeal against parenting orders and property orders.

    Facts: Prior to the trial, the three children of the relationship lived with the father. In parenting and property proceedings, the Federal Magistrate concluded that the father had been physically and verbally aggressive to the mother and that the father had alienated the children from the mother. The Federal Magistrate accordingly made orders for the children to live with their mother. In reaching this conclusion, the Federal Magistrate referred extensively to external literature. The father appealed against this decision.

    Issue/s: One of the grounds of appeal was that the magistrate failed to accord the husband natural justice/procedural fairness because the husband was not given the opportunity to cross-examine, respond to or introduce contrary evidence in relation to a number of academic opinions relied upon by the magistrate in reaching his decision.

    Reasoning/Decision: The appeal was upheld and the matter remitted for hearing. The Full Court held that the Federal Magistrate placed considerable reliance on the academic literature on the topic of alienation of children. None of it was introduced into evidence as opinion evidence, and accordingly no consideration was made by the Federal Magistrate as to whether to exclude the evidence and, if not, to consider what weight to give it. Accordingly, none of this evidence was able to be tested by the father nor was it the subject of submissions or contrary evidence. There was therefore a failure to afford the father natural justice and procedural fairness (see [118]-[121]).

  • Baranski & Baranski (2012) 259 FLR 122; [2012] FamCAFC 18 (10 February 2012) – Full Court of the Family Court of Australia
    Children’ – ‘Procedural fairness’ – ‘Property settlement’ – ‘Where the court was not persuaded that the learned federal magistrate erred in his approach to the wife's claim for a 'kennon type adjustment'’ – ‘Where undisturbed findings of fact made by the learned federal magistrate amply supported the conclusion he reached in relation to this issue’ – ‘Whether the learned federal magistrate impermissibly relied upon extrinsic material and failed to accord the parties procedural fairness

    Appeal type: Appeal against parenting and property orders.

    Facts: The parties had twins. Serious incidents of family violence occurred during their relationship and after separation. At the hearing of the trial, the father was in prison having been convicted of aggravated assault on the mother. Mother granted sole parental responsibility and the children to live with her. The father was to have supervised time (these orders were interim). Property – 25% adjustment re Kennon.

    Issues: In making findings regarding family violence and its effect on the mother and children, did his Honour impermissibly take account of extraneous material? Did his Honour err in making a “Kennon type adjustment”?

    Decision/Reasoning: The Court held that despite including reference to the mother’s conduct in the courtroom when faced with the father and the discussion about a report, the passages of which were included and relied upon in Re: L (Contact: Domestic Violence) [2000] 2 FLR 334, a decision of the England and Wales Court of Appeal (Civil Division). They were on the public record and so “materially different from matters appearing in reports” which have not yet undergone judicial consideration. While this alone does not guarantee that procedural fairness is achieved in circumstances where the parties were not on notice about the report and did not have opportunity to cross-examine accordingly, the Full Court held that “anything said in Re: L was not necessary to establish the relevance of the findings” made by the Federal Magistrate.

    Regarding the property settlement and the “Kennon type adjustment”, the Full Court found that while it represented the “top of the range” it did not “exceed the bounds of a reasonable exercise of discretion”. Regarding the violence that was perpetrated post-separation, the Full Court held it was correctly included by the Federal Magistrate and was a relevant consideration in determining whether the mother’s contributions as a whole were more arduous.

  • Slater & Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 (11 January 2011) – Full Court of the Family Court of Australia
    Children’ – ‘Notice of risk’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Psychiatric report’ – ‘Risk

    Appeal type: Appeal against interim parenting orders.

    Facts: The parties had three children together and separated in 2006. In March 2010, the Federal Magistrates Court made interim parenting orders. The effect of these orders was to allocate parental responsibility for the children solely to the mother, require the children to live with the mother and require the children to spend weekly supervised time with the father at a contact centre. The orders were made pending the preparation of a psychiatric report on the risk the father presented to the children. These orders radically altered previous arrangements, as the Federal Magistrate was concerned about the need to protect the children from physical or psychological harm that would arise from them being exposed or subjected to abuse, neglect or family violence. The father appealed against these orders.

    Issue/s:

    • Whether the Federal Magistrate erred in finding that it was in the best interests of the children (a) for the father’s time to be supervised and (b) to significantly reduce the time they spent with the father.
    • Whether the Federal Magistrate had erred by allocating parental responsibility solely to the respondent.

    Decision/Reasoning: The appeal was dismissed. In dismissing the first ground of appeal, the Court held, amongst other findings, that if evidence of abuse or family violence is adduced at trial, the Court is obliged to deal with it. The Court must always critically assess the evidence placed before it in determining the issue (see [46]). It was also noted that a finding of family violence may be made in the absence of a Form 4 Notice.

    The Court held that it was clearly open on the evidence for the Federal Magistrate to find that family violence had been perpetrated by the appellant.

    In relation to the second ground of appeal, the appellant contended that the Federal Magistrate relied upon erroneous finding of family violence to then improperly find that the presumption of equal shared responsibility did not apply. The Court dismissed this argument by again noting that the finding of family violence was open to the Federal Magistrate (see [64]-[69]).

    Note: final orders were subsequently made, but the finding of family violence was not affected (see Slater & Light [2013] FamCAFC 4 (5 February 2013)).

  • Vasser & Taylor-Black [2010] FamCAFC 36 (11 March 2010) – Full Court of the Family Court of Australia
    Parenting orders’ – ‘Re F: litigants in person guidelines’ – ‘Self-represented litigants

    Proceedings: Appeal against parenting orders.

    Facts: This was an appeal by the mother from parenting orders that challenged part of the process followed and some of the rulings made during the conduct of the trial. On the final day of the hearing, the self-represented mother sought to tender a 52 page document in response to the report of an expert witness.

    Issue/s: One of the grounds of appeal was that trial judge failed to provide the mother with procedural fairness in not ascertaining the reason behind the preparation of this document and in not advising her that she may wish to seek legal advice before tendering the particular document, contrary to the litigants in person guidelines: Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).

    Reasoning/Decision: The appeal was dismissed as the mother here was not the victim of unfairness. Although this appeal did not relate to family violence, the Court relevantly observed that the Litigant in Person Guidelines were no more than guidelines.

    See Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001).

  • Amador & Amador (2009) 43 Fam LR 268; [2009] 43 FamCAFC 196 (3 November 2009) – Full Court of the Family Court of Australia
    Determining allegations in relation to family violence’ – ‘Evidence’ – ‘Parenting orders and impact on children’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Requirement of corroboration

    Proceedings: Appeal against parenting and relocation orders.

    Facts: The parties met online and were married in Belgrade. Their child, who had autism, was born in Belgrade. The mother and the son came to live in Australia with the father when the child was 20 months old. The parties subsequently separated, with the mother alleging that the father had perpetrated domestic violence and sexual assault against her. The father denied these allegations. In 2008, a Federal Magistrate made orders granting the mother sole parental responsibility for the child. The mother was also permitted to relocate to Serbia with the child and the father’s contact time with the child was reduced from weekly to possible annual contact. The father appealed against these orders.

    Issue/s: One of the grounds of appeal was that the Federal Magistrate erred in accepting the mother’s uncorroborated evidence that domestic violence and sexual assault was perpetrated by the father on the mother.

    Reasoning/Decision: This ground of appeal was dismissed but the appeal was allowed on other grounds. In dismissing this ground of appeal, the Court held that a positive finding may be made on the evidence of the victim without corroborating evidence. See [79].

    The Court expressed concern at the manner in which the Federal Magistrate had expressed a finding of insufficient evidence re family violence. They were concerned that the Federal Magistrate had felt in some way constrained by law in being able to make a positive determination in relation to allegations of violence even if the evidence had satisfied her on the requisite standard that the violence occurred as alleged. See [95]-[96].

  • Oakley & Cooper [2009] FamCAFC 133 (30 July 2009) – Full Court of the Family Court of Australia
    Children’ – ‘Full court referred to, and discussed, the best practice principles for use in parenting disputes when family violence or abuse is alleged’ – ‘Physical violence and harm’ – ‘Whether the federal magistrate erred by giving insufficient weight to issues of family violence

    Proceedings: Appeal against parenting orders

    Facts: The parties were together for approximately 7 years, separating in March 2006 – there were 2 children of the relationship. The mother had 6 children from previous relationships. The Federal Magistrate described their relationship as “extremely volatile”, ending in an incident of domestic violence. The Federal Magistrate made findings inter alia: that the parties were unable to effectively communicate with each other due to them being “aggressive, provocative … show[ing] a lack of maturity and complete absence of child focus”; that the mother used physical discipline on the children; and that on at least one occasion the mother’s behaviour at changeover was “appalling and did severely distress the children”. The family report included the opinion that the children “have positive attachments to both parents, but experience some trauma associated with the continuing conflict in their parents’ relationship”. Despite the conflict between them, the parties agreed to an order for equal shared parental responsibility. As such, the Federal Magistrate was obliged to consider equal time, or significant and substantial time with each parent. Orders were made that the children live with the mother 9 nights a fortnight and with the father for 5. The father appealed these orders.

    Issues: Did the Federal Magistrate give appropriate consideration to the evidence and findings of family violence when making the parenting orders that he did?

    Reasoning/Decision: The appeal was dismissed. The Full Court referred to the 2009 publication “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged”, specifically Section F of the 2009 principles which sets out considerations where children are ordered to spend time with a parent where positive findings of family violence have been made against that parent.

    The Full Court found that while they agreed with the argument of the mother’s counsel, that the discussion of weight in relation to family violence had been “clipped” they found that there was no appealable error established. The Federal Magistrate had evidence of both parties and their associates hitting the children, and that both parties were verbally and physically abusive of one another in the presence of the children. Despite acknowledging that the mother’s behaviour was, at times, worse than the father's, when taken in the context of the best interests of the children, the conclusion was that it was in their best interests to remain predominantly in the care of their mother.

  • M & L (2007) FLC 93-320; (2007) 37 Fam LR 317; [2007] FamCA 396 (4 May 2007) – Full Court of the Family Court of Australia
    Aboriginal and Torres Strait Islander people’ – ‘Parenting orders’ – ‘Physical violence and harm’ – ‘Relevance of cultural evidence

    Proceedings: Appeal against parenting orders.

    Facts: Both parents were Aboriginal and Torres Strait Islander, and lived in the NT, one close to Darwin, one quite remote. There was family violence where the father would physically and verbally abuse the mother. On one occasion the paternal grandfather punched the father for hitting the mother. The mother had been the primary care giver of the children. At trial evidence was led about the communities in which each parent lived. The trial judge found that the children would have a greater connection to their father’s culture by living with him.

    Issues: Whether the trial judge had adequately considered the evidence of family violence and its potential effects on the children.

    Reasoning/Decision: The Full Court held that there was inadequate consideration of the risk to the children given the father’s history of violence and alcohol consumption. The lack of consideration of the evidence that the children had been primarily cared for by the mother, and that there was no evidence that her care was lacking was overlooked, was also an error. A finding was made by the trial judge that the mother’s parenting was reliant on others in the community, referring to it as “collectivist”. He based his finding on an anthropological report quoted in another judgment. There was no anthropological evidence that the mother’s community engaged in such “collective” parenting, and that the mother was not, herself, the children’s primary care-giver. The trial judge’s finding that the best interests of the children would be met by them living with their father cannot be sustained when evidence of the mother’s adequate care, the fact she was the primary care giver and the father’s violence towards the mother, is balanced against the finding of the cultural benefits to the children of living in the father’s community.

  • Napier & Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395; [2006] FamCA 1316 (5 December 2006) – Full Court of the Family Court of Australia
    Contact’ – ‘Risk’ – ‘Unacceptable risk

    Proceedings: Appeal against residence and contact orders.

    Facts: The proceedings involved competing applications for residence and contact to the child of the parties. The mother made allegations that the father sexually abused the child. While no finding of abuse was made, the Trial Judge did make a finding of unacceptable risk. On appeal, the father challenged the orders made for contact, in particular, the requirement that the contact be supervised.

    Issue/s: The trial judge provided inadequate reasons supporting his finding of unacceptable risk of abuse.

    Reasoning/Decision: Although this case did not relate to family violence, the Court made observations relevant to the assessment of unacceptable risk. Bryant CJ and Kay J held at [84] that:

    ‘There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper’.

  • S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003) – Full Court of the Family Court of Australia
    Contributions must be affected by the violence’ – ‘Impact of violence on past contributions’ – ‘Kennon adjustment’ – ‘Property proceedings’ – ‘Reference to exceptional cases should not mean rare

    Appeal type: Appeal against property orders.

    Facts: The parties had two adult children and separated in 2000. The trial judge made a Kennon style adjustment in favour of the wife. His Honour held that the evidence clearly revealed that there had been some violent behaviour by the husband towards the wife. Although there was no explicit evidence from the wife as regards to the effect of the violence on her contributions, the trial judge accepted that the wife’s contributions must have been made significantly more arduous than they ought to have been because of the violence inflicted upon her by the husband..

    Issue/s: One of the grounds of appeal was whether the trial judge erred in adjusting the wife’s contributions to account for the domestic violence perpetrated by the husband?

    Reasoning/Decision: The appeal was allowed. Here, the evidence could not have properly led to a Kennon adjustment under section 79 (see [48]). In reaching this decision, the Court made a number of statements of principle, elaborating upon the decision in Kennon.

    It was held that evidence of violence alone is not enough, but that the “violent conduct by one party towards the other” must be demonstrated to have an effect on contributions.

    In addition, the Court also stated that the reference in Kennon to ‘exceptional’ cases should not be understood to mean rare. They adopted the trial judge’s comments that ‘the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. … It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernible impact’. (see [47]).

  • B & B [2003] FamCA 274 (8 April 2003) – Full Court of the Family Court of Australia
    Failure to provide adequate reasons to deal with the allegations relating to violent and abusive behaviour’ – ‘Family violence’ – ‘Kennon adjustment’ – ‘Kennon not an award for damages’ – ‘Parenting orders’ – ‘Property orders’ – ‘Relevance of family violence in cases concerning the welfare of children

    Proceedings: Appeal against parenting orders and division of property.

    Facts: The parties had two children together. At trial, the mother made extensive allegations of physical, verbal and emotional abuse against the father, much of which the father conceded (see [38]). The trial judge made an order that the children should predominately be in the care of their father. Additionally, the trial judge rejected the wife’s submission that the division of property ought to be adjusted to 60/40 from 70/30 division on the basis of the decision in Kennon.

    Issue/s: Some of the issues were –

    • Did the trial judge err in failing to provide adequate reasons to deal with the allegations relating to violent and abusive behaviour?
    • Did the trial judge err in attributing responsibility for the domestic violence that occurred during the marriage to the wife?
    • Did the trial judge err in his application of the Kennon principle.

    Reasoning/Decision:

    The Court held that the trial judge was ‘obliged to adjudicate the violence issue as raised by the wife and to make specific findings in respect of the course of conduct conducted by the husband in the course of the marriage so that he could properly assess relevant aspects of the behaviour of each of the parents in determining in whose care he should place the children’. However, from reading His Honour’s reasons for judgment, it was not clear that he considered and evaluated the relevant evidence and took all the relevant factors into account. The issues raised by the wife in the grounds of appeal could not be described as ‘pernickety or overly critical’ (AMS v AIF) when matters of such significant serious and prolonged violence were clearly raised and left virtually undiscussed in the judgment (see [32]-[53]).

    Secondly, the Full Court found that, the trial judge did not attribute responsibility for the domestic violence to the wife: while the trial judge found the wife to have engaged in passive/aggressive conduct, His Honour indicated in the clearest terms that he was not condoning the husband’s conduct in response to such behaviour(see [54]-[57]).

    Thirdly, the Full Court held that the application of the principles in Kennon is “not the equivalent of an award for damages”, but used to determine whether the husband’s conduct had the effect of making the wife’s contributions more arduous.

  • T & S (2001) FLC 93-086; [2001] FamCA 1147 (29 October 2001) – Full Court of the Family Court of Australia
    Administration of justice’ – ‘Effect of family violence’ – ‘Parenting orders’ – ‘Procedural fairness’ – ‘Re f: litigants in person guidelines’ – ‘Self-represented litigants

    Proceedings: Appeal against parenting orders.

    Facts: This was an appeal by the mother against orders made by the trial judge in relation to the residence, contact and other specific issues relating to the child of the parties’ relationship. The effect of the trial judge’s order was that the father was to have residence of the child and be responsible for the child’s day to day care, welfare and development; and that the mother was to have specified contact with the child. The mother was unrepresented for five days of the six day hearing. A claim by the mother of domestic violence at the hands of the father was raised but the trial judge did not accept the mother’s evidence. The trial judge instead made a number of adverse findings against the mother.

    Issue/s: A major ground of appeal advanced on the Mother's behalf was that she did not receive a fair trial and that a new trial should be ordered. The gravamen of the Mother's case was that because she was a victim of domestic violence who was unrepresented at trial, she was unable to effectively meet the case of the Father and present her own case. As a consequence, and because the Mother suffered from a personality disorder, the trial judge made negative findings against her, and in particular against her credibility.

    Reasoning/Decision: The appeal was allowed on the basis of further evidence tendered on appeal which contained detailed evidence of ongoing domestic violence by the husband, and reports from a psychologist and social worker providing evidence as to the effect of the domestic violence on the mother’s ability to conduct her case at trial. The Court held that if the evidence had been tendered before the trial judge, it would have produced a different result and the best interests of the child required a re-hearing.

  • B & K [2001] FamCA 880 (14 August 2001) – Full Court of the Family Court of Australia
    Parenting orders’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Sexual and reproductive abuse

    Proceedings: Appeal against residence orders and property settlement.

    Facts: The parties had two children. The trial judge made an order for shared residency of the children. The trial judge accepted evidence that the husband had anally raped the wife.

    Issue/s: Did the trial judge give sufficient weight to the family violence the husband had inflicted on the wife and the subsequent effect or impact on her of that violence in making residence orders?

    Reasoning/Decision: The appeal was dismissed. At [32] the Court noted the authorities referred to by counsel for the wife in support of the argument that the trial judge did not give sufficient weight to the effect of the domestic violence perpetrated by the husband against the wife: JG and BG (1994) FLC 92-515, Patsalou (1995) FLC 92-580, Blanch v Blanch & Crawford [1998] FamCA 1908; (1999) FLC 92-837, and Re Andrew [1996] FamCA 43; (1996) FLC 92-692.

    The Full Court determined that consideration of the family violence and its effect upon the wife was adequate and orders for fortnight-about care of the children was within the trial judge’s discretion.

  • Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 (4 June 2001) – Full Court of the Family Court of Australia
    Contact orders’ – ‘Guidelines for matters involving self-represented litigants’ – ‘Parenting orders and effect on children’ – ‘Self-represented litigants

    Appeal type: Appeal against parenting and contact orders.

    Facts: While not a case specifically dealing with family violence, there is a large proportion of self-represented litigants in family law proceedings and as such the guidelines set out in this case pertain.

    Issue/s: Did the trial judge contravene the guidelines in respect of the litigants in person set out by the Court in Johnson v Johnson (1997) FLC 92-764?

    Reasoning/Decision:

    The Full Court provided guidelines as follows (taking a number from Johnson v Johnson (1997) FLC 92-764):

    1. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
    2. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
    3. A judge should explain to the litigant in person any procedures relevant to the litigation;
    4. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
    5. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
    6. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
    7. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
    8. A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150);
    9. Where the interests of justice and the circumstances of the case require it, a judge may:

      • draw attention to the law applied by the Court in determining issues before it;
      • question witnesses;
      • identify applications or submissions which ought to be put to the Court;
      • suggest procedural steps that may be taken by a party;
      • clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

    The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.

  • In the Marriage of Blanch; Blanch v Blanch and Crawford (1999) FLC 92-837; (1998) 24 Fam LR 325; [1998] FamCA 1908 (27 November 1998) – Full Court of the Family Court of Australia
    Children’ – ‘Custody proceedings’ – ‘Erroneous findings of fact’ – ‘Incorrect attribution of fault to the victim’ – ‘Perpetrator responsibility’ – ‘Physical violence and harm’ – ‘Relevance of family violence’ – ‘Relevance of family violence in cases concerning the welfare of children

    Appeal type: Appeal against parenting orders.

    Facts: The parties were married but separated after seven years. There were two children of the marriage. The wife made allegations of domestic violence against the father; these were denied by the father. The trial judge found at [325] that both parties were responsible for violence in the relationship, and that the relevance of family violence in custody proceedings was to be indicative of a risk ‘to … children in later years that … could cause them harm’. The wife brought an appeal against orders made by the trial judge that the children of the relationship reside with their father.

    Issue/s:

    Whether the trial judge erred in his findings regarding domestic violence?

    Decision/Reasoning: The appeal was allowed.

    Counsel for the wife submitted that the trial judge addressed the questions of the husband’s domestic violence ‘in almost a passing manner’, despite the presence of overwhelming evidence from the wife that she was the victim of consistent and frequent violence and abuse. It was held that “in cases such as this, where a case of sustained and severe domestic violence by one party is advanced by the other, the court is obliged to give a clear indication whether it accepts or rejects that case and, in any event, to explain why it has reached that conclusion” (see [333]).

    In addition it was held that the trial judge’s conclusion that the responsibility for violence between the parties was fairly evenly shared was not available on the evidence.

    Other aspects of His Honour’s treatment of domestic violence were also in issue. First, His Honour’s perception of the relevance of violence to the overall welfare of the children was inadequate. The trial judge failed to consider the significant risk of such violence to the children’s emotional development such as “insecurity, fear, unhappiness, anxiety and hyper vigilance”: Patsalou and Patsalou [1994] FamCA 118 and JG and BG (1994) FLC 92-515 (see [334]). Second, Lindenmayer J also strongly disapproved of the trial judge’s finding that the husband’s violence towards the wife was a product of the marital relationship rather than of the husband’s personality.

  • Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal (1997) FLC 92-757; [1997] FamCA 27 (10 June 1997) – Full Court of the Family Court of Australia
    Contributions’ – ‘Property proceedings’ – ‘Relevance of domestic violence’ – ‘Section 79’ – ‘Significantly more arduous

    Proceedings: Property settlement.

    Facts: The parties cohabited for approximately five years before separating. The husband was very wealthy and the wife had far more modest means. The property pool was nearly $9 million. There were no children of the marriage. In 1994, the wife filed a property application under s 79 of the Family Law Act. The husband filed a cross application. The wife subsequently filed an amended application which included a claim under the cross-vesting legislation that the husband pay her damages for assault and battery. The husband denied the allegations of assault and restated his position regarding the property claim. The trial judge accepted that a number of assaults had occurred and awarded damages, but found that the husband's conduct had not affected the wife's contributions to allow an adjustment in relation to s 79(4).

    Issue/s: The wife did not challenge the trial judge’s finding that the husband's conduct had not affected her contributions. Consequently, the Full Court's comments on the relevance of domestic violence in claims under s79 of the Family Law Act were made in obiter.

    Decision/Reasoning: The appeal was dismissed but the Full Court took the opportunity to clarify the relevance of violence in s79 property adjustments. The Full Court said that earlier authorities on s 79 precluding evidence of domestic violence were no longer binding, acknowledging that the ‘pervasiveness and destructiveness of domestic violence’ was now better recognized by the Australian community and courts.

    The Full Court cautioned that s 79 of the Act is not a source of ‘social engineering’ or to be used as ‘a means of evening up’ the financial positions of the parties. They held:

    ‘Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion’.

    The Court also referred to this principle as including ‘exceptional cases’ and noted, ‘[i]t is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party’.

    (See also subsequent interpretation in S & S (Spagnardi & Spagnardi) [2003] FamCA 905 (8 September 2003), Baranski & Baranski & Anor [2010] FMCAfam 918 (1 September 2010) and Damiani & Damiani [2012] FamCA 535 (9 July 2012).)

  • Re Andrew (1996) FLC 92-692; [1996] FamCA 43 (23 May 1996) – Full Court of the Family Court of Australia
    Contact proceedings’ – ‘Family violence’ – ‘Fear of violence’ – ‘Supervised access order’ – ‘Unacceptable risk to child’ – ‘Weight to be given to impact of access on custodial parent

    Proceedings: Appeal against supervised access orders.

    Facts: The parties separated. Satisfactory access arrangements were in place for 3.5 years. However, the relationship between the parties deteriorated and the husband assaulted the wife. The wife held a genuine belief that the husband had tried to kill her and the child on this occasion and subsequently denied the husband access to the child. The husband filed an application for unsupervised access.

    The trial judge found that each parent alone could provide adequately for the needs of the child. However, the wife’s fears had become even more entrenched over time and these fears were a major impediment to access, because they were genuine even if they may not be founded in fact. Her capacity to provide care to the child would be impaired and cause detriment to the child if the husband was given unsupervised access. The trial judge made orders for supervised access.

    Issue/s: The trial judge gave too much weight to the mother’s attitude and not enough weight to the benefits to the child of unsupervised contact with the father.

    Reasoning/decision: The Full Court dismissed the appeal. After citing extensively from past authorities, it was concluded that the finding that the wife’s genuine fear of the husband would significantly affect her ability to provide adequately for the needs of the child as custodial parent despite the benefits to the child from contact with the father was open to the trial judge.

  • In the Matter Of: N Appellant/Wife and S Respondent/Husband and the Separate Representative [1995] FamCA 139 (20 December 1995); (1996) FLC 92-655; (1995) 19 Fam LR 837. – Full Court of the Family Court of Australia
    Assessment of unacceptable risk’ – ‘Unacceptable risk

    Proceedings: Appeal against custody orders.

    Facts: Not a family violence case, but it discusses principles in determining unacceptable risk in the context of sexual abuse allegations. In custody proceedings, the mother alleged that the father sexually abused their child and sought to have access by the husband to the child prevented. The trial judge was not satisfied on the civil standard of proof that the sexual abuse had occurred. However, he did not conclude that the abuse certainly did not happen. The mother was steadfast in her belief that the child had been abused by the father. The trial judge did not find the father unfit to have custody or access to the child by reason of sexual abuse or unacceptable risk of abuse, however, mitigated against the concerns and effect on the mother by making interim supervised contact orders.

    Issue/s: Whether the trial judge erred in finding that the father was not an unacceptable risk?

    Reasoning/Decision: The appeal was dismissed by majority. The Full Court held that the trial judge should not have made interim custody orders and failed to take into consideration the effect this would have not only on the child but also on the mother’s ability and capability to parent effectively. However, as the interim custody order was not challenged the Full Court did not set it aside. As regards to no finding of unacceptable risk, on the evidence, this was open to the trial judge.

  • Patsalou and Patsalou (1995) FLC 92-580; [1994] FamCA 118 (27 October 1994) – Full Court of the Family Court of Australia
    Child welfare’ – ‘Custody proceeding’ – ‘Evidence’ – ‘Impact of family violence on children’ – ‘Independent research by judge’ – ‘Relevance of family violence’ – ‘Social science research

    Appeal type: Appeal against custody orders.

    Facts: Allegations of family violence were made in custody proceedings. The trial judge accepted the wife’s evidence that prior to separation the husband had been hitting her on a regular basis, in front of the children on a number of occasions. Her Honour stated that the denigration of one parent by the other and the perpetuation of violence by that parent against the other is of importance when assessing where the interests of the children lie and what future arrangements might best advance their welfare. Her Honour also noted a number of articles on the effect upon children of inter-spousal violence including that such effects may be profound and long-lasting. The trial judge concluded that the children’s welfare would be best promoted by remaining in the custody of the wife.

    Issue/s: Some of the grounds of appeal were –

    • Whether the manner in which the trial judge dealt with the violence and denigration by the husband of the wife was inappropriate and contrary to law.
    • Whether the trial judge erred in referring to the body of research as the articles cited did not constitute evidence before her and the parties were not invited to make submissions with respect to them.

    Reasoning/Decision: The Full Court upheld the trial Judge's finding that allegations of domestic violence were relevant to custody proceedings and found that the reference by the trial judge to published social science literature about the impact of family violence on children was permissible as the published research was referred to as background information rather than evidence.

    Evidence of family violence was held to be relevant in custody matters, to the extent that it assisted the court to determine what is in the best interests of the children, as its impact could be ‘profound and long-lasting’. The Full Court approved the comments by the trial judge that denigration and assault cause ‘considerable unnecessary strain’ to the victim and ‘may erode the confidence, dignity and self-esteem of the children’s other parent’. Baker, Kay and Tolcon JJ agreed with the trial judge that such conduct modelled inappropriate behaviour for children and could ‘impinge upon the quality of parenting able to be offered to the children’ and ‘reflects poorly upon the assailant’s capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress’.

  • Between: R Appellant/Husband and C Respondent/Wife [1993] FamCA 62 (25 June 1993); Russell & Close (Unreported, Full Court of the Family Court of Australia, Fogarty, Baker & Lindenmayer JJ, 25 June 1993) – Full Court of the Family Court of Australia
    Allegations of sexual abuse’ – ‘Best interests of the child’ – ‘Interpreter’ – ‘Meaningful relationship’ – ‘Parenting proceedings’ – ‘Separate representative/independent children’s representative’ – ‘Unacceptable risk to child’ – ‘Weight to be given to impact of access on custodial parent

    Appeal type: Appeal against access orders.

    Facts: Post separation, an access arrangement for the two children of the relationship was established. The relationship between the parties deteriorated and the mother refused to allow the husband access to the children. One child was found to have been sexually abused, but it was not possible to identify the perpetrator. The mother believed that the father was the perpetrator, however the trial judge was not satisfied that the father had sexually abused the child. The trial judge made orders giving the father unsupervised daytime access to the children to reduce the risk of the mother from making unfounded allegations in the future. The father appealed against these orders. The mother did not challenge the orders, but cross-appealed in relation to findings of fact made by the trial judge.

    Issue/s:

    • Whether it was open to the trial judge to make orders giving the husband unsupervised daytime access, where the court was not satisfied that the father had sexually abused the child

    Decision/Reasoning: The appeal was allowed in part. Amendments were made to the trial judge’s orders, clarifying the father’s access period and altering the proposed changeover location. The mother’s appeal against factual findings made by the trial judge and the father’s appeal against daytime access were dismissed.

    The Full Court found that the relevant considerations when making access orders in cases involving sexual abuse of children were whether sexual abuse had occurred, whether the perpetrator could be identified, the potential risk of harm to the child from sexual abuse, the potential benefit to the child from parental access and the impact of the custodial parent’s beliefs on the welfare of the children. The Full Court said that the custodial parent’s beliefs regarding the child’s exposure to harm are relevant to the extent that they are likely to adversely affect that parent’s parenting ability and that a subjective test is used to assess the custodial parent’s beliefs.

    The Full Court was satisfied that it was open to the trial judge to draw inferences regarding the likely future conduct of the mother. As the trial judge had found the mother genuinely believed the child had been sexually abused, that it was highly likely the mother would make further allegations of sexual abuse against the father if unsupervised overnight access was granted and that this risk did not apply to unsupervised daytime access, it was at the trial judge’s discretion to give the husband unsupervised daytime access.

Family Court of Australia

  • Xuarez & Vitela (No 3) [2017] FamCA 1108 (22 December 2017) – Family Court of Australia
    Abuse of process’ – ‘Child-related proceedings’ – ‘Systems abuse’ – ‘Vexatious proceedings

    Case type: Application by both parties for a vexatious proceedings order.

    Facts: Mr Xuarez and Ms Vitela (both pseudonyms) had been involved in court proceedings in relation to parenting orders for over 10 years ([7]-[21]). The father had filed 19 separate Applications in a Case between 11 April 2012 and 16 November 2017 ([16]), which were all dismissed, and Notices of Appeal in relation to the dismissals ([17]). Both the mother and the father filed applications for a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth).

    Issues: Whether the Court should make the vexatious proceedings order against the mother or the father or both.

    Decision and Reasoning: The application made by the mother was granted, while the application by the father was dismissed. An order was made prohibiting Mr Xuarez from instituting proceedings against Ms Vitela or any of her legal representatives and dismissing all extant applications ([45]).

    Justice Carew at [29] cites Perram J in Official Trustee in Bankruptcy & Gargan (No 2) [2009] FCA 398 to set out 11 principles to consider when making an order in relation to vexatious litigants. Applying the principles to the father’s conduct, Carew J highlighted the facts that most of the applications were instituted without reasonable grounds, the father sought orders that the Court did not have jurisdiction to make, and the repetitive nature of the applications amounted to an abuse of process ([34]). It was noteworthy that in 2010, the father was declared a vexatious litigant in another court, in relation to proceedings where the father stalked the mother’s former legal representative ([37]). These facts justified the order being made against the father.

  • Janssen & Janssen [2016] FamCA 345 (1 February 2016) – Family Court of Australia
    Discretion to admit the audio recordings and transcripts into evidence’ – ‘Evidence’ – ‘Independent children’s lawyer’ – ‘Recordings made without consent’ – ‘Serious allegations of family violence’ – ‘Whether recordings were reasonably necessary to protect lawful interests

    Proceedings: Application relating to the admissibility of evidence and application as to whether the rules of evidence ought to apply in a Family Court hearing.

    Facts: On the first day of a four day hearing, counsel for the applicant (the mother) sought leave to tender voice recordings and transcripts that had been made without the knowledge of the father. Under s 7 of the Surveillance Devices Act 2007 (NSW), it is unlawful to record private conversations without the consent of the parties to that conversation unless the recording of the conversation falls within one of the exceptions in s 7(2) and (3).

    Issue/s:

    • Whether both the voice recordings and transcripts were admissible.
    • Whether there were ‘exceptional circumstances’ as per s 69ZT(3) requiring the proceedings to be determined according to the rules of evidence set out in the Evidence Act and not according to the procedures set out in s 69ZT(1) and (2) of the Family Law Act 1975 (Cth) (‘the FLA’).

    Reasoning/Decision: First, McClelland J held that both the voice recordings and the transcripts were admitted in evidence under s 7(3) of the Surveillance Devices Act 2007 (NSW) (the recordings were reasonably necessary to protect the applicant’s lawful interests) and, in the alternative, under s 138 of the Evidence Act (the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained improperly).

    McClelland J noted the ‘floodgates’ caution from senior counsel for the father i.e. that there was a danger of parties to a marital relationship experiencing difficulties surreptitiously recording their partner. However, in this regard, His Honour stated that his decision was very much one based on the facts of the case, including the allegations that the father had maintained a charming public face but had engaged in conduct within the family home that was alleged to have constituted family violence in terms of the provisions of s 4AB of the FLA. His Honour also had regard to the potential difficulty of obtaining evidence of family violence when it occurs behind closed doors without any witnesses present other than the perpetrator and victim. Further, His Honour noted that the recordings and transcript would be directly relevant to the issue of credibility as to whether family violence occurred in the proceedings (see [6]-[14]).

    Notwithstanding the findings above, senior counsel for the father submitted that the Court ought to exclude the voice recordings (permitting the inclusion of the typed transcript) because the danger of the evidence being unfairly prejudicial to the father outweighed its probative value (s 135 Evidence Act). This was because the mother had knowledge and control of the recording and the circumstances in which the conversation occurred and was recorded. McClellan J dismissed this argument and held the voice recordings were admissible. This could be a matter for cross-examination by the father: Huffman & Gorman (No. 2). Further, His Honour noted submissions from counsel for the applicant and counsel for the Independent Children’s Lawyer that an important aspect of the evidence contained in the tapes was not simply what was said but how it was said. This was relevant to whether the father’s behaviour could be modelled or mimicked by the children and whether the parenting abilities of the primary carer had been compromised as a result of the content and tone of the communication (s 69ZN of the FLA) (see [15]-[23]).

    Second, McClelland J held that the rules of evidence were to be applied in respect to the issues of the events on 10 September 2013 (these events were the subject of criminal proceedings) and to the issue as to whether the father made threats to the children or to the mother in respect to the children (s 69ZT(3)). For the remainder of the issues, the rules of evidence would not apply (s 69ZT(1) and (2)) and His Honour would therefore have the discretion to consider the probative value of such evidence. His Honour stated, ‘evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in appropriate context and given appropriate weight, depending upon who was expressing the opinion and on what basis, and the establishment of the necessary background facts’ (see [24]-[34]).

  • Sawyer & Sawyer [2015] FamCA 982 (10 November 2015) – Family Court of Australia
    Application to discharge the icl’ – ‘Independent children's lawyer’ – ‘Legal practitioners’ – ‘Negligence or bias

    Proceedings: Numerous applications including an application to discharge the ICL.

    Facts: The mother and the father separated in 2009.There were three children of their relationship. In 2012, a final parenting order was made with the consent of the parties and the Independent Children’s Lawyer (ICL). There was continued conflict between the parents. Numerous applications were considered by the court in this case in particular, an application brought by the father to discharge the ICL.

    Issues: Whether the ICL had been negligent and demonstrated bias towards the mother?

    Reasoning/Decision: The application was dismissed. Forest J referred to his previous discussion (in Dean & Susskind [2012] FamCA 897 at [19]-[28]) of the principles applicable to such an application:

    ‘…

    The role is to be discharged independently and professionally, but it is not inconsistent with that duty for an ICL to make submissions to the Court that particular findings of fact, supported by the evidence, be made or that particular evidence be preferred over other evidence, or that a particular course of action be taken by the Court. It is also beyond doubt that an ICL’s duty to advance what he or she independently considers is in the best interests of the children in the case, does not require the ICL to slavishly follow what the children might want or what either one or both of the parents consider is in the best interests of the children.[20]

    I consider it to be accepted principle that a court should be slow to remove or discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL. [21]

    It will, in my opinion, be a matter of considering the evidence presented on each application for the removal of an ICL to determine if it demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge. The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal. [26]

    Parents, particularly in high conflict parenting litigation, must understand that as part of his or her role, the ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case’. [27]

    The father submitted a number of facts as evidence of bias. First, the ICL sought the appointment of a new, female report writer (Ms C). The father argued that the ICL failed to give him an opportunity to argue against Ms C’s appointment and, by retaining Ms C, evidenced ‘significant gender bias’ by removing ‘the only male person within our entire court process’. The fact that the ICL disagreed with the father on the issue of appointing a new family report writer, as she was entitled to do, did not prove that the ICL failed to adequately consider the father’s argument. Further, the selection of a report writer alone, who happened to be female, did not demonstrate or prove gender bias (see [58]-[63]).

    Second, the father argued that the ICL demonstrated negligence or bias against him because she would not give him a copy of her instructions to the report writer. Forrest J noted that there is nothing in the Federal Circuit Court Rules or the Family Court Rules that obliges an ICL to provide copies of her instructions to an expert retained by her to each of the parents. Further, the father did not actually request the ICL to provide him with a copy of her instructions; he instead asked whether he would receive a copy of the instructions to which the ICL replied ‘you don’t see the letter of instruction’. In these circumstances, the ICL had not demonstrated negligence or bias that warranted her disqualification (see [65]-[70]).

    Third, on the day of the interviews for the report, the father argued that the ICL demonstrated bias in directing the waiting arrangements in her office for the parents and children. Forrest J held that, at the interim stage, where the evidence invited a number of possible findings that could not be made without cross-examination of deponents, he was not in a position to say that the ICL had acted in a way that warranted her immediate discharge (see [71]-[78]).

    Finally, the father asserted that the ICL was incompetent as well as negligent and biased against him. Forrest J was not persuaded by the father’s evidence and held that (see [79]-[81]):

    ‘It is most certainly not the case that where a parent might be able to point to a mistake made by an ICL that the Court will necessarily accede to an application by that parent to discharge that ICL. The authorities I have discussed clearly disclose that significantly more than that is required’.

  • Theophane & Hunt [2014] FamCA 1038 (24 November 2014) – Family Court of Australia
    Family reports’ – ‘Impact of loss of relationship with parent’ – ‘Independent children’s lawyer’ – ‘No contact orders’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Rape’ – ‘Self-represented litigants’ – ‘Sexual and reproductive abuse’ – ‘Statutory framework’ – ‘Systems abuse’ – ‘Vexatious proceedings

    Proceedings: Application for final parenting orders.

    Facts: The parties had one child together. During the relationship, the mother alleged that the father often forced her to have non-consensual sex with him. The parties separated and the mother obtained a DVO against the father. The mother initiated proceedings seeking parenting orders and over the next four years a number of parenting orders were made and amended. However, after an incident at handover, the wife formed the belief the husband would abduct or remove the child from her care, and she attacked the father whilst in a dissociative state. She was convicted of unlawful wounding and sentenced to 18 months imprisonment, and immediately released on probation.

    The applicant father sought orders for sole parent responsibility for the child, who would live with him and spend supervised weekend and school holiday time with the mother. He argued that the mother presented an unacceptable risk of sexual, physical and emotional harm to the child (the mother suffered sexual abuse as a child). At the time of these proceedings, the father was committed to stand trial on six charges of rape of the mother and one charge of grievous bodily harm against the mother.

    The mother sought orders, supported by the Independent Children’s Lawyer, that she have sole parental responsibility for the child, who would live with her and spend no time, nor have any contact or communication with the father. She later amended her orders and sought to include provision for a card or letter for her birthday and for Christmas. The mother sought no contact as she believed any continued interaction between her and the father in relation to the child, was likely to adversely affect her capacity to parent the child.

    Issue/s: What parenting order was in the best interests of the child?

    Reasoning/Decision: Orders were made providing for the mother to have sole parental responsibility for the child and sole custody of the child, and for the father’s access and communication with the child to be limited to postal correspondence twice a year until the child turned eighteen. His Honour also made a vexatious litigant order against the father, restraining him from bringing further proceedings without leave of the court.

    In relation to making a no contact order, his Honour stated that it is a serious matter that a child neither spend time with nor communicate with a parent. Accordingly, such orders ought to be restricted to cases where the outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Three scenarios were considered in which ‘no contact’ orders had been made in the past. First, these orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child. Second, ‘no contact’ orders have been made where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed (on the basis of protecting the child from the consequences of that parent’s belief): Re Andrew. Finally, this approach was taken one step further in Sedgley & Sedgley where the Court held that while the welfare of the child may require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child. However, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation (see [55]-[58]).

    The best interest considerations in s 60CC let the court to determine the child live with her mother. His Honour accepted that by time the child turned 12 she would likely come into conflict with the father and was at real risk of harm from his coercive, controlling, dominating and self-serving personality traits (see [177]-[178]). Further, the father was to have no contact with the child except for a card/letter at Christmas and on the child’s birthday. It was found that the father deliberately calculated his interaction with the mother with a view to destabilising her mental health conditions, and even the smallest opportunity for debate or conflict with the mother would be seized upon by the father. If the mother was required to continue to interact with the father in any form of co-parenting, there was a substantial risk that she will either attempt to kill herself, attempt to kill the father, or both.

    It was ultimately decided that the prospect and magnitude of the risk of harm to the child if her mother was required to maintain contact with the father far outweighed any benefit the child would obtain by a continuation of any time or communication with her father. It was held that the best interests of the child lay with making a no contact order.

    In relation to family violence, his Honour was satisfied that on occasion the father had engaged in non-consensual sexual intercourse with the mother. However, it was both unnecessary and undesirable to make a finding regarding the father’s conduct in relation to the criminal offence of rape (see [168]-[169]). However, the father’s controlling and domineering behaviour was considered and had bearing on the court’s decision for no contact (see [170]-[171]).

    Note: this case was confirmed on appeal, see Theophane & Hunt and Anor [2016] FamCAFC 87.

  • Cannon & Acres [2014] FamCA 104 (6 March 2014) – Family Court of Australia
    Family violence’ – ‘Parenting orders’ – ‘Systems abuse’ – ‘Vexatious litigant’ – ‘Views of the child

    Proceedings: Parenting orders and vexatious proceedings order.

    Facts: Over many years, the mother and the 12 year old child experienced harassment, physical violence and stalking behaviour by the father. The father had little or no insight into the impact of his behaviour on the child. This was the third final parenting hearing. The current proceedings were brought about by the father in circumstances where the application was doomed to fail. Seeing the profound impact of these fresh proceedings on her mother, the child resolved that she no longer wanted to see or communicate with her father. Benjamin J was satisfied that the views were her own.

    Issue/s:

    • What parenting orders were in the best interests of the child?
    • Whether in the circumstances of this proceeding a vexatious proceedings order should be made and if so the nature and extent of that order.

    Reasoning/Decision: In making parenting orders, Benjamin J noted that the presumption of equal shared parental responsibility in s 61DA of the Act did not apply because there were reasonable grounds to believe here that the father had perpetrated family violence. This family violence included the father’s entrenched pattern of behaviour (referred to by a psychologist), the father’s stalking behaviour, the verbal abuse, harassment and the assaults by him on the child. Further, shared parental responsibility could not effectively operate given the views of the child, the approach adopted by the father and the impact upon the mother. Accordingly, Benjamin J made an order that the mother have sole parental responsibility for the child (see [379]-[384]). Benjamin J also made an order that the child spend no time with the father and have no communication with the father (see [387]-[404]).

    Benjamin J made a vexatious proceedings order prohibiting the father from instituting further proceedings without leave. This order was made under s 102QB(2) of the Family Law Act 1975 (Cth). At [420], His Honour noted that the fundamental differences between the old section (s118) and s 102QB were: (1) the test was no longer a court having frivolous or vexatious proceedings before it but rather whether or not there was a history of a person having frequently instituted or conducted vexatious proceedings; and (2) Vexatious proceedings were now defined by statute in s 102Q(1).

    To make an order under s 102QB(2), Benjamin J noted at [438] that a two part threshold test needs to be met, namely:

    • That there have been vexatious proceedings instituted or conducted in Australian courts or tribunals; and
    • That the person, in this case the father, has frequently instituted or conducted such proceedings.

    Applying this test, Benjamin J proceeded in three parts. First, His Honour determined a number of proceedings initiated by the father constituted vexatious proceedings on the facts (see [441]-[481]). Second, His Honour held that the proceedings amounted to the father ‘frequently’ instituting and conducting vexatious proceedings. In making this determination, Benjamin J noted that the test of ‘frequently’ was used as opposed ‘habitually and persistently’. The term ‘frequently’ is a relative term and is to be considered in the context of the facts of an individual case and, in this case, in the context of the litigation between these parties. This test was said to be satisfied on the facts (see [482]-[494]).

    Finally, with the threshold being met, Benjamin J considered whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. His Honour noted that a vexatious proceedings order must be considered in the context where there is a need to balance the serious step of restricting a person from commencing proceedings against the need to protect the mother and the child from the constant impact of litigation. In the circumstances, a vexatious proceeding was made (see [495]-[540]).

  • Modlin & Anstead and Anor [2013] FamCA 955 (6 December 2013) – Family Court of Australia
    Family reports’ – ‘No contact orders’ – ‘Parental capacity’ – ‘Parenting orders and impact on children’ – ‘People with mental illness’ – ‘Protection of the parent’ – ‘Protection orders’ – ‘Self-represented litigants’ – ‘Single expert report

    Proceedings: Application for parenting orders.

    Facts: The mother and the father, who both had compromised mental health: the mother diagnosed as Bipolar and the father also being previously diagnosed as Bipolar, had two children together. Both children had intellectual and developmental disabilities. The parties separated and reconciled several times before final separation, with the mother obtaining Apprehended Domestic Violence Orders (ADVO) on a number of occasions. The father breached one of these orders in February 2010 by breaking into the mother’s home and assaulting the mother. He was charged and spent time in a psychiatric facility. The mother formed a relationship with another man (‘the stepfather’). In 2011, one of the children went temporarily missing in a National Park under the care of the father, the father deliberately sent photographs of his penis to the mother, and one of the children told the mother that the father swore at her. Contact ceased between the father and the children and the mother received victim’s compensation in relation to domestic violence by the father. Proceedings were commenced in relation to the parenting of the children.

    Issue/s: It was agreed that the mother and the stepfather would have parental responsibility for the children. However, some of the remaining issues were –

    • Whether the father should have shared parental responsibility or no responsibility for the children;
    • Whether or to what extent the father should spend time or communicate with the children.

    Reasoning/Decision: Orders were made giving the mother and stepfather equal shared parental responsibility for the children, giving the father no parental responsibility, making provision for the children to live with the mother and stepfather and to have no contact with the father, restraining the father from approaching the children, their school and residence and the parents from discussing proceedings with or near the children.

    The Court found that the s 61DA presumption of equal shared parental responsibility did not apply as the father engaged in family violence. Further, in relation to the children’s best interests, including consideration of the evidence about family violence, the Court determined that in any case the presumption would be rebutted on the evidence. It was held that any further contact between the father and the mother would destabilise the mother and prevent her from being able to adequately care for the children (see [197]-[205]). Additionally, on this basis, it was ordered that the father spend no time with either child (see [206]-[210]).

    Loughnan J also made a number of orders restraining the father from communicating with the children or the mother or stepfather. These orders were necessary for the physical and mental protection of the mother, especially in light of the evidence of family violence. However, Loughnan J ordered that, if required, the father communicate with the step-father through a post office box and be notified if the family relocated from the region (see [217]-[232]).

  • Schieffer & Schieffer [2013] FamCA 168 (20 March 2013) – Family Court of Australia
    Best interests of the child’ – ‘Children’ – ‘Inconsistency of parenting orders with existing family violence order made by state court’ – ‘Independent children’s lawyer’ – ‘Intersection of legal systems’ – ‘Living arrangements’ – ‘Parenting orders and impact on children’ – ‘Presumption of equal shared parental responsibility’ – ‘Protection orders

    Proceedings: Application for parenting orders.

    Facts: The parties separated and made consensual arrangements for the care of their child. In June 2012, the father detained the child citing a belief that the child had been sexually abused by the mother’s partner. Subsequently the mother, having happened upon the child and the father’s partner, attempted to detain the child herself. This resulted in an Apprehended Violence Order (AVO) being made against the mother in favour of the father’s partner. It applied to the child and the father as well as they lived with Ms E.

    The mother refuted the allegation of sexual abuse but her relationship with her partner had ended and the mother acceded to an order precluding any future contact between the child and her former partner. The father then contended that the mother’s deteriorated emotional state constituted a further risk of harm to the child and militated against the child’s return to live with the mother.

    Issue/s: What orders regarding the residence of the child and shared parental responsibility were in the best interests of the child?

    Reasoning/Decision: The Court was persuaded to make an order for the parties to have equal shared parental responsibility for the child, consistent with their mutual wish, the Independent Children’s Lawyer’s suggestion and the Family Consultant’s recommendation (see [95]-[100]). His Honour ordered that it was in the child’s best interests to live predominately with the mother. Although both parents were equally capable of meeting the child’s intellectual needs, he considered that the mother was better able to meet the child’s physical and emotional needs (see [106]). The child was to spend substantial and significant time with the father (see [105], [109]-[116]).

    The parenting orders were inconsistent with the existing family violence order, as the AVO prohibited the mother from approaching and contacting the child or the father. Although the order made an exception for contact that occurred pursuant to the Act, it was only for the restricted purpose of ‘counselling, conciliation, or mediation’. It was noted that where the terms of the parenting and family violence order were inconsistent, the parenting order should take precedence to facilitate communication between the parents regarding the child and to ensure the child was exchanged for periods of contact (see [91]-[94]).

  • Damiani & Damiani [2012] FamCA 535 (9 July 2012) – Family Court of Australia
    Court to consider family violence (60cc)’ – ‘Family violence in property proceedings’ – ‘Kennon adjustment’ – ‘People with mental illness’ – ‘Property proceedings

    Proceedings: Application for property orders.

    Facts: The parties married and lived together for 19 months. They had one child. The husband contributed the bulk of the capital to the marriage and was on a far superior income. The wife had cared for the child since separation, nearly eight years prior. During the marriage, the husband perpetrated family violence against the wife on five occasions, over a period of 15 months. This caused the wife to suffer from post-traumatic stress disorder. The wife claimed the family violence made her contributions in the role of homemaker and parent significantly more arduous. The husband had financially supported the wife and the child during the period since separation.

    Issue/s: Whether the court should make a Kennon style adjustment in the property settlement proceeding?

    Reasoning/Decision: The Court referred to the Full Court in Kennon where the principles regarding family violence making contributions more arduous lie. The Full Court’s further refinement of the Kennon principles in Spagnardi & Spagnardi was also noted (see [138]-[144].

    The Court discussed the approach regarding family violence in property proceedings as broken down into three steps: (1) Make findings of fact about one party’s conduct; (2) (If applicable) make findings about the physical or psychological effect of the conduct on the other party; and (3) Make findings of fact about the effect of the conduct of one party upon contributions made by the other party. It was also noted that it could not be assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions. At trial, the wife had to establish to the judge’s satisfaction a connection between any proven family violence in the case and the contributions she made (see [145]).

    On the facts, Watts J first concluded that the wife’s contributions in the role of homemaker and parent during the period over which the violence took place were made significantly more arduous by the violence of the husband. Second, while His Honour also held that the wife’s role as parent post-separation was made significantly more arduous by the family violence during co-habitation, His Honour observed that it was more difficult to make such an assessment. The wife did experience apprehension and heightened emotion around dealing with the husband’s time with the child after the separation. However, the effect of violence on contributions was not constant over the previous eight years, with the wife’s post-traumatic stress disorder having significantly dissipated (see [174]-[179]). Accordingly, it was appropriate to increase the wife’s assessed contributions by 25 per cent for the duration of the relationship and by 5 per cent post separation to take account of the effect of the husband’s conduct on the mother (see [179].

  • Kreet v Sampir [2011] FamCA 22 (18 January 2011); (2011) 252 FLR 234; (2011) 44 Fam LR 405 – Family Court of Australia
    Forced marriage’ – ‘Marriage occurring in a country other than australia’ – ‘Nullity application

    Proceedings: Nullity application.

    Facts: Ms Kreet (the wife), an Australian born woman, married Mr Sampir (the husband) on June 2009 in India. She travelled to India with her parents believing she was going to marry her Australian boyfriend, Mr U. Upon arrival, her parents confiscated her passport and was introduced to Mr Sampir. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped if she refused to marry Mr Sampir. Under duress, the wife married Mr Sampir and submitted his Australian visa application to the authorities. She returned to Australia, resumed her relationship with Mr U and withdraw her sponsorship of the respondent’s visa application. She obtained an indefinite Intervention Order against her father.

    Issue/s: Whether the marriage was void?

    Reasoning/Decision: Section 23B(1)(d) of the Marriage Act 1961 (Cth) states that a marriage is void if ‘the consent of either parties is not real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony’.

    While the legislation does not define duress in the context of a marriage, Cronin J found that ‘there was no reason to give it any other meaning than that which is normally known to the law. It must be oppression or coercion to such a degree that consent vanishes: In the Marriage of S (1980) FLC 90-820’ (see [39]).

    Cronin J was satisfied that ‘the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress’ (see [43]).

  • Harridge & Harridge [2010] FamCA 445 (4 June 2010) – Family Court of Australia
    Children’ – ‘Risk assessment’ – ‘Unacceptable risk

    Proceedings: Parenting orders.

    Facts: The father of the two children subject to the parenting proceedings was convicted of three offences involving child pornography.

    Issue/s: What parenting orders were in the best interests of the child?

    Reasoning/Decision: Although this case did not relate to family violence, it contains observations relevant to risk assessment. The Court held that an allegation of potential risk of harm ought not to divert the court from the central task of assessing the best interests of the children. At [53] Murphy J quoted from an article by psychiatrist and barrister, Mahendra, who stated that risk assessment in any situation involves, in essence, asking the following questions:

    • What harmful outcome is potentially present in this situation?
    • What is the probability of this outcome coming about?
    • What risks are probable in this situation in the short, medium and long term?
    • What are the factors that could increase or decrease the risk that is probable?
    • What measures are available whose deployment could mitigate the risks that are probable?
  • T and N (2003) FLC 93-172; [2003] FamCA 1129 (4 November 2003) – Family Court of Australia
    Anger management course’ – ‘Applications’ – ‘Applications and orders for child residence, contact and parenting orders (in fam law proc)’ – ‘Children’ – ‘Consent orders’ – ‘Contact proceedings’ – ‘Family violence’ – ‘Inadequate undertakings’ – ‘Independent children’s lawyer’ – ‘Judge refusal to accept consent orders for unsupervised contact’ – ‘Legal representation’ – ‘Parenting proceeding’ – ‘People affected by substance abuse’ – ‘People with children’ – ‘Safety and protection of victim and witnesses’ – ‘Women

    Proceedings: Orders sought by consent for supervised and unsupervised time with the father

    Facts: The parties had two children. There was a history of violent and abusive conduct by the father against the mother and one of the children (including that he bit the child as a baby). This resulted in a number of periods of separation and reconciliation, with a number of Apprehended Violence Orders being brought against and breached by the father (see [17]-[24], [27]-[28]). The father also regularly smoked cannabis (see [25]-[26]). In April 2001, the mother left the family residence without notice, taking the children with her. At the hearing, the parties attempted settlement. The parties and the Independent Children’s Lawyer proposed consent orders for children to progress from supervised to unsupervised to block periods of time with the father, who would give undertakings regarding his conduct, discipline of the children, substance use and participation in an anger management course.

    Issue/s: What orders were appropriate in the best interests of the children?

    Decision and Reasoning: Moore J declined to make the consent orders as proposed as the untested evidence raised concerns for the judge that the orders may not be in the children’s best interests. Instead, the judge made orders by consent for supervised contact only. The allegations against the father indicated him to be a violent and abusive person who represented a high risk of harm to the well-being of the mother and a high risk of harm to his children.

    While Her Honour acknowledged that the parents’ consent to arrangements about their children is a powerful, and in most cases a deciding, factor, consent does not displace the obligation of the Court to make orders that are in the best interests of children (see [39]). Moore J also expressed her concern that the Independent Children’s Lawyer would provide support for the proposed consent orders in the face of behaviour that had the potential to place the children in serious jeopardy and in light of orders that would give no protection whatsoever to the children (see [40]).

  • M & M [1998] FamCA 1742 (12 November 1998) – Family Court of Australia
    Children’ – ‘Contact’ – ‘Exposing children’ – ‘Family violence’ – ‘Impact of violence on children’ – ‘Inability to acknowledge inappropriateness of behaviour’ – ‘Relevance of family violence in cases concerning the welfare of children’ – ‘Supervised by court

    Proceedings: Contact orders.

    Facts: The parents had two children together (B and E) and the mother had another son from a previous relationship (D). The children had witnessed violence by the father against their mother, siblings and extended family. The father had several convictions for assault against the mother and one against D, and had been subject to AVOs. After separation, B and E lived with the father, with interim orders made for the mother to have contact with the children. At trial, the parties agreed that B and E should live with the mother but a number of issues were left to be determined. At hearing, a counsellor gave evidence that both children displayed concerning behaviours consistent with early onset and repetitive physical violence.

    Issue/s: One of the issues was what contact should the children have with the father?

    Reasoning/Decision: On the evidence, the Court held that it was in the children’s best interest that all but in the very short term they should have no contact with the father. Orders were made to reduce contact over the space of 12 months to minimise the distress that could be caused to the children by immediate complete separation (see [96]-[100]). The Court held that the father’s abusive behaviour presented a ‘multi-faceted danger for the children’ including danger of injury as well as “fear, insecurity & vigilance”. It was held there was a risk of the children learning behaviour from the father which would affect their future interactions e.g. the daughter accepting abuse as part of life and the son believing violence is acceptable. See [94]-[95].

  • In the Marriage of JG and BG (1994) 122 FLR 209; (1994) FLC 92-515; (1994) 18 Fam LR 255 (30 September 1994) – Family Court of Australia
    Child welfare’ – ‘Children’ – ‘Custody proceedings’ – ‘Impact of domestic violence on children’ – ‘Impact of family violence on children’ – ‘Parenting’ – ‘Parenting proceedings’ – ‘Parties represented by counsel’ – ‘People with children’ – ‘Relevance of family violence in cases concerning the welfare of children

    Facts: The case concerned the custody of two children aged four and two. The wife alleged that the husband had been physically and verbally violent towards her on a number of occasions.

    Issue/s: What is the relevance of family violence in custody, guardianship and access matters?

    Decision and Reasoning: The court accepted that the relevance of family violence will vary according to the nature of the proceedings.

    Chisholm J went on to consider the relevance of family violence in proceedings relating to children. His Honour considered at [257] that although it is ‘not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims’, family violence is by no means irrelevant. His Honour held that ‘[family violence] is to be taken into account if it is relevant to the determination of the child’s welfare, which is the paramount consideration’. The standard of proof is the civil standard on the balance of probabilities. However, the conduct of a parent is relevant in custody matters only to the extent that it relates to the welfare of the children.

    Where violence is directed at the children themselves, or occurs in the presence of the children, it is obviously and directly relevant to their welfare (see [260]). However, other forms of violence could also be relevant to the welfare of the children such as violence affecting the custodial parent, threats, etc. The Court must assess the nature and extent of the harm in light of the evidence and findings before them. See [261].

    The Court also stated that it may be possible for the court to decline to make findings in relation to family violence, where it could determine the case without reference to them.

  • In the marriage of Merryman and Merryman [1993] FamCA 142; (1994) FLC 92-497; (1993) 116 FLR 87 – Family Court of Australia
    Allegations of violence and abuse’ – ‘Interim custody application’ – ‘Issues of welfare of children and stability’ – ‘Physical violence and harm

    Proceedings: Interim custody application

    Facts: Parties married in 1978 and separated under one roof in March 1993. There are 2 children of the marriage aged 13 and 9 at the hearing. There was corroborated evidence of violence perpetrated by the father on the mother. The husband was convicted of assault upon the wife earlier in the same year of the hearing. He was “ordered not to assault, molest or interfere with” the mother. Regardless of these orders he continued to contact the mother and make threats to her and her family. The husband also verbally abused and belittled the mother in front of the children during the marriage. There were also multiple occasions of physical abuse throughout the marriage. Since separation the husband had given the 13 year old daughter Rohypnol and shared a bed with her. He was advised by the Department of Community Services not to do this. Also post separation, the father took out a life insurance policy for the mother. The mother moved from the matrimonial home to her mother’s house in June 1993. The children remained with the father.

    Issues: In light of the father’s history of domestic violence and threats, what interim arrangements should be made for the care of the children?

    Reasoning/Decision: Due to the violence of the father, the Court held that he was a risk to the children both physically and developmentally (he is an “inappropriate role model”). It was held that the children were to remain in the former matrimonial home to “preserve stability for the children and for their safety” and their mother was to have interim care of the children. The father was restrained from coming within 2 miles of the home due to “serious concerns as to the safety of the wife and the children”.

Federal Circuit Court of Australia

  • Boden & Boden [2018] FCCA 82 (25 January 2018) – Federal Circuit Court of Australia
    Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Parenting orders and impact on children’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Presumption of equal shared parental responsibility rebutted’ – ‘Unacceptable risk of harm

    Proceedings: Contested parenting application.

    Facts: The father was physically violent and verbally abusive to the mother and children ([79]). There were two Domestic Violence Orders in favour of the mother ([217]). The two eldest daughters suffered from depression and anxiety, cut themselves, and had self-esteem issues ([2]). The youngest son was diagnosed with autism, but the father refused to accept the diagnosis, and refused to make arrangements to reduce the son’s emotional distress ([162]).

    Issues: Parenting orders to be made.

    Decision and Reasoning: Judge Willis identified ‘grave concerns’ about the father’s ability to regulate his emotions and about his parenting skills to independently parent ([248]). The children had ‘suffered catastrophically’ from their parents’ separation and their exposure to the family violence ([2]). Due to the father’s admissions to family violence, the presumption of equal shared parental responsibility was rebutted ([238]).

    Judge Willis remarked at [247]:

    I have the impression that the mother has significant insight into her own behaviour and that of all of the children. She is acutely aware and has the skills to deal with Z and Y cutting themselves, of them suffering depression and anxiety and having self-esteem issues. Some of these issues will, no doubt, be directly related to their exposure to family violence. Day in day out, experts in this Court talk about the effect of family violence in children and their inability to sustain relationships, become depressed and blame themselves for breakdowns. All of these things have happened for Y and Z.

    Judge Willis ordered that the father undertake an anger management course, and that the mother undertake a Domestic Violence course in relation to the cycle of violence ([232]-[233]). The judge ordered that the son have limited contact with the father (see Orders).

  • Corby & Corby [2015] FCCA 1099 (16 April 2015) – Federal Circuit Court of Australia
    Admissibility’ – ‘Evidence’ – ‘Independent children’s lawyer’ – ‘Parenting orders and impact on children’ – ‘Recorded conversations’ – ‘Sexual and reproductive abuse’ – ‘Whether recordings were reasonably necessary to protect lawful interests

    Proceedings: Application for the admissibility of evidence.

    Facts: On the first day of the final parenting hearing in relation to the parties’ only child X, counsel for the mother sought the Court’s leave to tender four short audio recordings of conversations between the mother and father that took place prior to separation. The mother accepted that these recordings were made without the knowledge of the father, that they are ‘private conversations’ and were therefore prima facie made in contravention of s 7 of the Surveillance Devices Act 2007 (NSW). However, counsel for the mother submitted that the recordings were admissible because the recordings were ‘reasonably necessary’ to protect her lawful interests (s 7(3)) or, alternatively, the evidence ought to be admitted under s 138(1) of the Evidence Act 1995 (NSW) because the desirability of admitting the evidence outweighed the undesirability of doing so.

    Issue/s:

    • Whether the recordings were reasonably necessary to protect the mother’s lawful interests and consequently, admissible?
    • Whether the recordings ought to be admitted on the basis that the desirability of the evidence outweighed the undesirability of admitting the evidence?

    Reasoning/decision: Sexton J held that the mother’s conduct was lawful under s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) and therefore the recordings were admitted on this basis. In making this finding, Sexton J held that first, s 7(3)(b)(i) was satisfied in relation to the term ‘lawful interests’ as the mother had the right to protect her interest not to be intimidated or harassed, and not to be forced to respond to the father’s demands for sexual activity: DW v R (see [19]-[23]).

    Second, Sexton J was satisfied that the recordings were ‘reasonably necessary’ (‘reasonably appropriate’ as opposed to ‘essential’ and judged objectively at the time of the recordings) to protect those lawful interests: DW v R. Here, the mother made the recordings for the purpose of having evidence which she could use to convince others to believe her, or to corroborate her word, or to protect herself and the child from further behaviour. Sexton J stated that, ‘[w]hile the complainant in the present case is an adult, she was, if her evidence is accepted, caught up in an abusive relationship with a man who damaged her self-worth and left her miserable and exhausted. If this was so, as the Court found in R v Coutts, it may not have been a realistic option for her to report her predicament to police and obtain a warrant for conversations with her husband to be recorded’ (see [29]). The evidence also disclosed that the father may have had a very different public face to his private face. The mother was not trying to obtain a confession but to establish her credibility if there was ever a dispute about what actually happened (see [24]-[31]).

    Although the matter did not turn on the issue, Sexton J also considered whether the evidence should be admitted on the basis that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. Sexton J concluded that had it been necessary, she would have exercised the discretion to admit the evidence for a number of reasons including that the evidence was highly probative to making parenting orders in the best interests of the child, the allegations were extremely serious and it was necessary for the court to determine if the child was at risk in the father’s care, the impropriety of the mother in making the recordings was not of the “worst kind”, and it was “unlikely” the mother could have gained consent to make the recordings (see [32]-[36]).

Australian Capital Territory

Court of Appeal

  • R v Wyper [2017] ACTCA 59 (11 December 2017) – Australian Capital Territory Court of Appeal
    Appeal against conviction’ – ‘Complainant's credibility’ – ‘Crown appeal against sentence’ – ‘Intensive correction order’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charges: Engaging in sexual intercourse without consent and being reckless as to whether the person was consenting x 1.

    Appeal type: Defendant’s appeal against conviction and Crown appeal against sentence.

    Facts: The complainant and defendant were in a relationship ([11]). The defendant asked the complainant to leave the house; she did not want to leave. The complainant alleged that the defendant held her down and digitally penetrated her ([13]). The defendant denied that he digitally penetrated the complainant, and alleged that she damaged a number of his belongings ([14]). The defendant called the police about the property damage, and the complainant called the police about the sexual assault 2 hours later ([20]-[21]). A medical examination of the complainant revealed abrasions consistent with assault ([23]).

    The defendant was convicted at trial. He was sentenced to 2 years and 6 months’ imprisonment, served by way of intensive correction order (‘ICO’), and 100 hours’ community service ([2]).

    Issues: The defendant appealed against conviction on 3 grounds: (a) the verdict was unsafe and unsatisfactory; (b) the trial judge caused a miscarriage of justice by failing to fairly put the defence case to the jury; and (c) the trial judge caused a miscarriage of justice by failing to direct the jury that the complainant had a motive to lie.

    The Crown appealed on the ground that the sentence was manifestly inadequate.

    Decision and Reasoning: Both the defendant’s appeal against conviction and Crown appeal against sentenced were dismissed ([8]).

    Appeal against conviction

    On ground (a), the defendant argued that the verdict was unsafe and unsatisfactory having regard to the unreliability of the complainant’s evidence. The Court (Murrell CJ, Bromwich J and Robinson AJ) held that while it was ‘somewhat implausible’ that the complainant did not cause the property damage, it was open to the jury to convict the defendant ([53]).

    On grounds (b) and (c), the defendant argued that the judge should have directed the jury on the complainant’s possible motive to lie to avoid the consequences of her causing the property damage. However, the Court stated that the summing up was fair, given that the motive to lie was not a large issue in the trial ([66]-[68]).

    Crown appeal against sentence

    The Crown argued that by ordering an ICO, the trial judge failed to give adequate weight ‘to the principle that, for family violence offences, the sentencing purposes of general deterrence and denunciation are particularly important’ ([96]). The Court reiterated the importance of general and specific deterrence in sentencing family violence offenders ([97]), however, the Court emphasised the exceptional nature of the offending at [99]:

    This was not a typical offence of family violence. There was no evidence of a history of domestic violence, controlling behaviour or psychological abuse. There were none of the typical indicia of power imbalance. Rather, the offence occurred in the context of a relationship ending, without those features apparently being present.

    Imposing an ICO, while lenient, was justified by the defendant’s subjective circumstances, such as his lack of criminal history, and the fact that there was no history of domestic violence in the relationship ([129]-[130]).

  • O’Brien v R [2015] ACTCA 47 (15 May 2015) – Australian Capital Territory Court of Appeal
    Assault occasioning bodily harm’ – ‘Double jeopardy- sentencing’ – ‘Exposing a child’ – ‘Perverting the course of justice’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentence cumulation’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Trafficking in cocaine

    Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 years. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years an 11 months’ imprisonment with a non-parole period of 8 years and 4 months.

    Issue/s: Whether the aggregate sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.

  • Kien v R [2012] ACTCA 25 (24 May 2012) – Australian Capital Territory Court of Appeal
    Choking so as to render unconscious’ – ‘Exposing a child’ – ‘Intentionally inflicting actual bodily harm’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Risk factor- strangulation’ – ‘Sentencing

    Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.

    Appeal Type: Appeal against sentence.

    Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.

    Issue/s:

    1. Whether the sentencing judge erred in finding that the offences were unprovoked.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    1. The appellant submitted that the fact the offences were not unprovoked should have mitigated the severity of the sentence. This argument was rejected — the actions of the victim were all in response to the appellant coming to the matrimonial home where he was not welcome. He was asked to leave but did not do so. His response to his wife’s actions were so disproportionate that they could not have been seen as provocative.
    2. Counsel for the appellant submitted that two comparable cases showed the sentence was manifestly excessive. This argument was rejected, with the Court holding that the offences were serious and resulted in severe facial injuries committed in a context where the appellant was not welcome in the house. While they were heavy sentences, they were proportionate to the criminality involved.
  • Stevens v McCallum [2006] ACTCA 13 (30 June 2006) – Australian Capital Territory Court of Appeal
    Assault’ – ‘Contravention of a protection order’ – ‘Evidence issues’ – ‘Hearsay’ – ‘Hostile witness’ – ‘Incompetence of counsel’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Unco-operative witness

    Charge/s: Assault, contravention of a protection order.

    Appeal type: Appeal against conviction and appeal against sentence.

    Facts: The appellant was charged with assaulting his female partner (‘the complainant’) and contravening a protection order in her favour. He pleaded guilty to assault but not guilty to contravening a protection order. The offending came to light after a police officer (‘the informant’) attended the complainant’s premises. The informant observed that the complainant was very distressed and had bruises on her body. A conversation between the complainant and the informant was recorded. In this conversation, the complainant made some allegations that the appellant had hit her but she was largely unresponsive to questions and was affected to a considerable degree by alcohol (See [41]-[43]). At trial, the prosecution sought to prove the tape and transcript of this conversation only for its possible use in refreshing the complainant’s memory. However, counsel for the appellant, Mr Elmaraazey, tendered this document as evidence (‘exhibit 3’).

    The complainant was called to give evidence after the informant. When asked about whether there was an incident between her and the appellant, she stated ‘I can’t remember the exact details’ and proceeded to give an account of the evening that made no reference to any physical violence. She agreed that she had a conversation with the informant but could not recall its contents. The prosecution then proceeded to cross-examine the complainant about the various bruises that had been observed on her that evening. The complainant said she could not remember how the bruises happened. The prosecution applied to the magistrate for leave to cross-examine the complainant on the basis that the witness had made a prior inconsistent statement with reference to exhibit 3. Mr Elmaraazey did not object. The complainant’s response was to accept that exhibit 3 accurately reflected what she had told the informant but she could neither confirm nor deny that it represented what actually happened (See [26]-[40]). Accordingly, absent the tender of exhibit 3 as evidence, there would have been insufficient evidence to convict the appellant (See [47]).

    The magistrate found the appellant had assaulted the complainant and sentenced him to 12 months imprisonment for the assault and 3 months imprisonment for the breach of protection order. He was sentenced to an additional 6 months imprisonment for breach of an earlier imposed recognisance.

    Issue/s:

    1. The incompetence of counsel for the appellant, Mr Elmaraazey, led to a miscarriage of justice.
    2. The sentencing magistrate erred in assuming that the injuries sustained by the complainant were the result of a ‘violent and prolonged’ assault.

    Decision and reasoning: The appeal was allowed. First, in the absence of the tender of exhibit 3 by Mr Elmaraazey, it was, at the very least, unlikely that the statement would have been admitted as evidence that the appellant assaulted the complainant. It was open to the prosecutor to seek leave to give the statement to the complainant to refresh her memory, if s 32 of the Evidence Act were satisfied. However, the failure of this process to refresh the complainant’s memory meant the prosecutor could not tender the prior statement as evidence of the truth of its contents (See [145]-[180]). There was a resulting miscarriage of justice (See [181]-[191]).

    Second, the sentencing judge erred in assuming that all the injuries resulted from the charged assault. Even if the terms of exhibit 3 had been properly proved, they included an allegation of assault that had occurred the previous evening. The only unequivocal allegation of recent violence was that the appellant hit her in the face on their return from the shops. It was an error not to attempt to distinguish between the violence inflicted the previous night and those in the hours preceding the interview with the informant (See [196]-[207]).

Supreme Court

  • R v KN [2018] ACTSC 111 (26 February 2018) – Australian Capital Territory Supreme Court
    Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentence’ – ‘Strangulation

    Charges: Assault occasioning actual bodily harm x 1; Intentionally and unlawfully choking a person so as to render that person insensible or unconscious x 1.

    Case type: Sentence.

    Facts: The defendant headbutted his wife, causing her to become unconscious. He tightly wrapped a piece of rope around her neck, causing her to again become unconscious. She had lost control of her bodily functions and urinated ([1]). The incident occurred in 2013. The complainant was unwilling to provide a statement previously, because she wanted to continue in her relationship with the defendant ([4]).

    The defendant pleaded guilty to the charges ([5]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: The defendant was sentenced to 2 years and 9 months’ imprisonment, wholly suspended ([17]). Mitigating factors included the defendant’s: pleas of guilty; limited criminal history; childhood trauma; mental health issues; and engagement in psychological services ([11]). Burns J considered that the defendant had very good prospects for rehabilitation ([16]).

  • R v Kulczycki [2018] ACTSC 9 (30 January 2018) – Australian Capital Territory Supreme Court
    Blackmail’ – ‘Emotional and psychological abuse’ – ‘History of breaches of protection orders’ – ‘Revenge porn

    Charges: Blackmail x 1; Stalking x 1.

    Case type: Sentence.

    Facts: The defendant and complainant were in a relationship for 2 years. They sometimes filmed consensual sex ([6]-[7]). After the relationship broke down, the defendant sent the complainant emails and text messages threatening to release the video unless the complainant paid him $20,000 ([8]-[9]). The complainant obtained a protection order, and the defendant breached the order three times ([11]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Elkaim J remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’. While the defendant had promising prospects of rehabilitation and had taken steps to reduce his consumption of illicit drugs, Elkiam J considered that a period of imprisonment was necessary ([21-[22]). The defendant was sentenced to a head sentence of 9 months’ imprisonment, to be served concurrently with 6 months’ imprisonment for stalking [22].

    Justice Elkaim remarked on the seriousness of the blackmail in the context of a domestic relationship at [16]: ‘blackmail of the type involved in this case must be regarded as serious. This is not so much because of the amount of money demanded but because it involved a threat to breach the privacy of a relationship and to cause severe embarrassment to the complainant’.

  • Parkinson v Alexander [2017] ACTSC 201 (4 August 2017) – Australian Capital Territory Supreme Court
    Administration offence’ – ‘False accusation’ – ‘Interpretation of evidence’ – ‘Procedural fairness’ – ‘Tendency evidence

    Charges: Making a false accusation x 3; Public mischief x 6.

    Appeal type: Appeal against conviction.

    Facts: The defendant and ‘EK’ had been in a relationship. After the relationship had ended, the defendant made allegations to the police that EK had sexually assaulted her, had followed her in his car, and had broken into her house ([5]-[12]). The police made investigations, but eventually determined that the accusations were false ([14]).

    At trial, the prosecution relied upon the following evidence to show the defendant’s tendency to make false complaints: the fact that there were many allegations supported the inference that each one was false; a complaint of sexual assault made by the defendant against a neighbour when she was 17; and three other allegations made by the defendant against EK’s family ([26], [29]). The defendant was convicted of two counts of making a false accusation and three counts of public mischief (for wasting police officers’ time). She had not yet been sentenced.

    Issues: One issues was whether the Magistrate correctly applied tendency evidence.

    Decision and Reasoning: The appeal was partially upheld. Justice Refshauge found that the Magistrate applied the tendency evidence incorrectly for two reasons.

    • First, the sequence in which the Magistrate addressed the incidents was not logical. The Magistrate first found that the defendant made two false allegations in 2014. The Magistrate then used the evidence of the 2014 allegations to support reasoning that earlier accusations, in 2013, were also false ([52]).
    • Second, the Magistrate reformulated the tendency evidence to conclude that it showed a ‘vendetta against the family’ ([32], [45]). This was not how the prosecution framed the evidence in the notice of tendency evidence, and the defendant was not given an opportunity to respond to this argument ([45]). Therefore, the evidence was inadmissible ([68]).

    Note: this case was subsequently remitted to the Magistrates Court for retrial before a different Magistrate, see Parkinson v Alexander (No 2) [2017] ACTSC 290 (9 October 2017).

  • R v Rappel [2017] ACTSC 38 (24 February 2017) – Australian Capital Territory Supreme Court
    Contravention of a protection order’ – ‘Exposing children to domestic and family violence’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Women as a vulnerable group

    Charges: Murder x 1; Recklessly inflicting grievous bodily harm x 1; Assault occasioning actual bodily harm x 1; Contravene protection order.

    Case type: Sentence.

    Facts: The defendant and the deceased had formerly been in a domestic relationship and had a child together ([9]). The deceased had taken out a domestic violence order (DVO) against the defendant the day before the defendant killed her ([17]-[19]). When the defendant received the order, he bought an axe, drove to the deceased house and cut her neck with the axe, severing her spine. She was holding his newborn child at the time, and her two sons were in the same room ([33]-[36]). The axe severed her sister’s finger, which formed the basis of the grievous bodily harm charge. He then assaulted her brother, which formed the basis of the assault occasioning bodily harm charge ([37]-[39]).

    Issues: Sentence to be imposed. The defendant raised the mitigating factor of diminished responsibility.

    Decision and Reasoning: Burns J described the objective circumstances of the murder ‘within the worst category of cases of murder, and would warrant a term of life imprisonment’ [133].

    Burns J said at [131] ‘For many years now, the courts of this country have spoken of the need to protect members of the community, and particularly women, from domestic violence, and the need for courts to take seriously offences of domestic violence. If these statements are to have meaning, if the protection offered by the [Domestic Violence and Protection Orders Act 2008 (ACT)] is to have significance, it is incumbent on courts to recognise the heinousness of offences of violence committed in retribution for a member of the community invoking the protection provided by the Act.’

    His Honour took into account as mitigating factors the defendant’s plea of guilty, his experience of abuse as a child, and his long history of mental health issues ([103]). Other contributing factors included his use of anabolic steroids, methylamphetamines and a personality disorder, but his Honour did not place significant weight on these circumstances ([120]). His Honour also had regard to victim impact statements tendered by the deceased’s family ([124]-[128]). His Honour concluded (at [151]):

    ‘The present offence of murder was vicious and cowardly. Those who witnessed your violence will have to live with their memories for the rest of their lives. Your actions deprived three children of their mother, including your own infant daughter Ayla. You have effectively deprived Ayla of both of her parents. The effects of your actions will be felt for decades to come. There is a very substantial community interest in retribution, deterrence and punishment. This can only be achieved by a very substantial period of imprisonment.’

    His Honour imposed a sentence of 32 years and 2 months’ imprisonment.

  • R v Ennis [2016] ACTSC 72 (4 April 2016) – Australian Capital Territory Supreme Court
    Assault occasioning bodily harm’ – ‘Good behaviour order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation

    Hearing: Breach of good behaviour order.

    Facts: In 2012, Mr Ennis was involved in an altercation with his female partner of 27 years. He was convicted of assault occasioning actual bodily harm and was subject to a good behaviour order for 2 years with a condition to perform 100 hours of unpaid community service work. In 2014, Mr Ennis breached this order by failing to perform the community service work (‘the first breach’). The good behaviour order was extended by 12 months and Mr Ennis ordered to perform 108 hours of community service work (See R v Ennis [2014] ACTSC 369 (4 November 2014)).

    However, before the end of the good behaviour order in 2015, Mr Ennis breached the order again (‘the second breach’). Mr Ennis and his partner, who had been drinking alcohol, argued outside their house. Mr Ennis pulled her by her hair and dragged her inside. He let her go and slammed the door in her face (common assault). In March 2016, a magistrate sentenced Mr Ennis to 5 months imprisonment, suspended immediately, and made a good behaviour order for 18 months with various conditions. His Honour then referred the matter to Refshauge J for breach of the good behaviour order that had been extended upon Mr Ennis’ first instance of breach.

    Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.

    Decision and Reasoning: While Mr Ennis complied with nearly 2 years of the original good behaviour order without breach constituted by further offence and nearly 9 months of the additional period ordered by Refshauge J, Mr Ennis had failed at his attempts at rehabilitation. This offending was also facilitated by the consumption of alcohol. Further, the nature of offending was serious. Per Refshauge J, ‘It is, as his Honour Magistrate Morrison said, a family violence offence, and it is serious in that it was the commission of the offence against the same victim, although many years apart. It is a similar offence also, in that it is an assault and another family violence assault. Nevertheless, it is a much less serious version of the offence, although in this case, because of the earlier history, it attracted a sentence of imprisonment, although suspended’. It was relevant that Mr Ennis’ partner had moved away and it was unlikely that the relationship would resume in the near future (See [15]-[22]). Accordingly, the duration of the good behaviour order was extended to 2 years to run from the date of this decision.

  • R v BNS [2016] ACTSC 51 (24 March 2016) – Australian Capital Territory Supreme Court
    Accused has conviction for intimidating witness’ – ‘Evidence via audio visual link from remote location’ – ‘History of family violence by accused against witness’ – ‘Physical violence and harm’ – ‘Questioning witnesses’ – ‘Safety and protection of victim and witnesses

    Hearing: Application for evidence to be given by audio visual link from a location outside the courtroom.

    Facts: The accused, BNS, pleaded not guilty to 2 counts of incest and 5 counts of committing an act of indecency on TN. At the time of offence, BNS was in a relationship with SN, the mother of TN, and was the step father to TN. SN was called to give evidence at trial. She was expected to give evidence of complaint made by TN and relationship evidence (of her and the child’s relationship with BNS).

    Here, an application was made for SN to give evidence by audio visual link from a remote location. BNS was physically abusive to SN during the relationship. SN said she had ongoing anxiety and depression which would inhibit her ability to give her best evidence if she was required to give evidence in the courtroom. In light of the history of family violence, she felt intimidated in front of BNS. Finally, BNS also had a conviction for intimidating a witness.

    SN did not have the right to give evidence by audio visual link from a remote location under Part 4 of the Evidence (Miscellaneous Provisions) Act because she was not a child, complainant, or a similar fact witness. In the absence of statutory provision, it was noted that there is no power at common law for a court to allow evidence to be heard by video link: R v Hampson [2009] EWCA Crim 1569. However, s 32 of the Evidence (Miscellaneous Provisions) Act empowered the court to direct a person to give evidence by audio visual link from a remote location.

    Issue/s: Whether the application to give evidence outside the courtroom via audio visual link should be allowed under s 32 of the Evidence (Miscellaneous Provisions) Act.

    Decision and Reasoning: The application was allowed as the pre-conditions set out in s 32 were met. First, the necessary facilities were available (See [10]). Second, the evidence could be more conveniently given from a remote location by video link. SN’s aversion to the accused would make it more convenient for her to give evidence remotely. It was also more convenient for the court to have the evidence given free of the inhibitions troubling SN (See [12]-[13]). Finally, BNS did not object to SN giving evidence remotely and, accordingly, it could not be said that it would be unfair to the accused for SN to give evidence remotely. Although the general rule is that prosecution witnesses should give evidence in the presence of the accused, it was noted that there have been numerous past occasions where the giving of evidence by video link has not been unfair (See [14]-[22]). Further, there were no discretionary matters requiring the application to be refused (See [23]-[30]).

  • R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016) – Australian Capital Territory Supreme Court
    Aboriginal and torres strait islander people’ – ‘Breach of a good behaviour order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Young people

    Hearing: Breach of a good behaviour order.

    Facts: Mr Curtis assaulted his female partner by punching her a number of times, causing her bruising. He was charged with assault occasioning bodily harm. In October 2013, Refshauge J sentenced Mr Curtis to 12 months imprisonment, wholly suspended, and imposed a good behaviour order with a probation condition for 2 years (See R v Curtis [2013] ACTSC 291 (16 December 2013)). In April 2015, within the period of the good behaviour order, Mr Curtis was found in possession of a number of electronic and other items reasonably suspected of being stolen. In December 2015, he pleaded guilty in the Magistrates Court and was sentenced to a further good behaviour order for 18 months with a community service condition. The magistrate referred the breach of the earlier imposed good behaviour obligations to the Supreme Court.

    Issue/s: Whether further action is warranted in light of Mr Curtis’ breach of a good behaviour order.

    Decision and Reasoning: The offence subject of the breach was of a different character and less serious to the offence that Mr Curtis was originally sentenced for. This offending was not part of a life of serious criminal offending but a stupid criminal offence prompted by his perceived necessity. Mr Curtis had otherwise complied with the good behaviour order. His Honour was satisfied that this justified re-sentencing Mr Curtis rather than imposing the suspended sentence (See [45]-[49]).

    In re-sentencing Mr Curtis, Refshauge J noted the need for general deterrence because the original offence was of family violence. He further noted that ‘Vindication of the victim is always important in family violence offences and, again, the expression of the court's displeasure with the offending by the imposition of imprisonment will meet that objective’ (See [52]). His Honour further noted Mr Curtis’ youth, his employment, and the birth of his child into a stable relationship (absent any family violence) (See [50]-[55]). Mr Curtis was re-sentenced to 12 months imprisonment to commence from 15 August 2015 (to take into account pre-sentence custody), wholly suspended. His Honour further imposed a good behaviour order for 18 months with probation conditions and a community service condition.

    Note: the defendant subsequently breached his good behaviour order (although the breach was not related to further domestic and family violence) and was re-sentenced to 12 months’ imprisonment, wholly suspended (see R v Curtis (No 3) [2017] ACTSC 101 (27 April 2017).

  • R v Williams [2015] ACTSC 406 (18 December 2015) – Australian Capital Territory Supreme Court
    Anger management programs’ – ‘Assault occasioning bodily harm’ – ‘Brother’ – ‘Deterrence’ – ‘Drug and alcohol programs’ – ‘Family members’ – ‘Physical violence and harm

    Charge/s: Recklessly inflicting grievous bodily harm.

    Hearing: Sentencing hearing.

    Facts: After arguing with his brother, Mr Williams chased his brother down the street. He caught up with his brother and hit him with a guitar, rendering him unconscious. Mr Williams’ brother was found to have a depressed skull fracture and a haematoma on his brain. He underwent surgery and spent three weeks in hospital before being moved to a rehabilitation facility.

    Decision and Reasoning: This was a serious offence, especially because it involved family violence. The offence was not premeditated but was aggravated because it took place at a time when Mr Williams was already subject to a NSW good behaviour order made in connection with an earlier family violence offence (against Mr Williams’ former partner). Further, Mr Williams tried to minimise his actions. The injuries sustained by his brother were quite serious (See [11]-[22]). Penfold J also had regard to Mr Williams’ subjective circumstances including his extensive criminal history (See [23]-[26]). He noted that Mr Williams had attended some anger management and drug and alcohol programs but these had not had an effective rehabilitative impact (See [27]-[31]).

    In terms of general deterrence, His Honour noted, ‘This is an offence of a kind that requires general deterrence, and in some cases at least, general deterrence may be effective. I note defence counsel's comment that general deterrence in relation to the grievous bodily harm offence is particularly relevant in relation to “glassing” offences, but I consider that deterring violence within the family is at least as important as deterring alcohol-fuelled violence between strangers or acquaintances’ (See [33]). Personal deterrence was also relevant on the facts (See [34]). Penfold J sentenced Mr Williams to three years imprisonment with a non-parole period of 18 months.

  • R v Pikula [2015] ACTSC 380 (12 November 2015) – Australian Capital Territory Supreme Court
    Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning actual bodily harm’ – ‘Brother’ – ‘Causing grievous bodily harm’ – ‘Drug and alcohol programs’ – ‘Family members’ – ‘People affected by substance misuse’ – ‘Physical violence and harm

    Charge/s: Assault occasioning actual bodily harm, causing grievous bodily harm.

    Hearing: Sentencing hearing.

    Facts: After consuming a significant quantity of alcohol, Mr Pikula, a man with Aboriginal and Tongan ancestry, began arguing with his step-brother (Mr Mapa). Another step-brother, Mr King, tried to intervene but was stabbed with a knife in the back of his thigh by Mr Pikula (assault occasioning actual bodily harm). The following evening, Mr Pikula again became highly intoxicated and argued with Mr Mapa. He stabbed Mr Mapa twice in the back. The knife wounds punctured his lung (grievous bodily harm).

    Decision and Reasoning: Refshauge J sentenced Mr Pikula to 22 months imprisonment for assault occasioning actual bodily harm and 27 months imprisonment for causing grievous bodily harm (cumulative). His Honour also recommended that a condition of Mr Pikula’s parole would include a requirement that he undergo treatment and counselling for alcohol abuse. In imposing this sentence, Refshauge J noted the importance of both general deterrence and specific deterrence (in light of his violent criminal record). The offending was serious here and warranted denunciation. While it had some association with alcohol, which may provide some opportunity for rehabilitation, this could not be said to overwhelm the other purposes of sentencing. His Honour also had regard to Mr Pikula’s troubled childhood and his long history of alcohol abuse.

    At [1], ‘There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family’.

  • R v NQ [2015] ACTSC 308 (14 October 2015) – Australian Capital Territory Supreme Court
    Act of indecency without consent’ – ‘Assault with intent to engage in sexual intercourse’ – ‘Deterrence’ – ‘Drug and alcohol programs’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Act of indecency without consent, assault with intent to engage in sexual intercourse.

    Hearing: Sentencing hearing.

    Facts: The male offender and the female complainant were married. They had been in a relationship for 17 years and had 3 children. The offender and the complainant had been drinking alcohol together when the offender requested oral sex. The complainant declined and went to bed. Five minutes later the offender walked into the bedroom and demanded the complainant perform oral sex on him. She refused repeatedly and started crying. The offender said, ‘Do you think your crying is going to get you what you want? It’s your job to do it’. He then took all his clothes off and positioned himself on top of the complainant. She pushed the offender off but he continued to talk angrily. The offender then dragged the complainant across the bed and pushed her head close to his penis. He tried to slap her twice but was blocked by the complainant. She fell off the bed, hurting her head. The offender continued to demand oral sex. He pinned her down on the bed and yelled, ‘You need to suck me off, it’s not about love or intimacy’. The complainant, crying, pleaded for him to let her go and the offender replied ‘What can you do about it?’ The offender then became upset and the complainant called the police.

    Decision and Reasoning: These offences were objectively serious. The assault lasted almost an hour and included physical and mental abuse. Robinson AJ noted, ‘I take into account the fact that prior sexual relationship is relevant in assessing the seriousness of sexual assault. Here it is not a sexual assault by an unknown stranger which would give rise to extreme terror in the mind of the complainant’ (See [8]). His Honour also took into account a number of subjective circumstances. There had been some measure of reconciliation between the offender and the complainant. While these events were not an isolated incident of abuse and this mitigated the leniency that could otherwise have been shown in this case, the offender had taken opportunities to assist himself and took responsibility for his offending (See [9]-[14]).

    In sum, His Honour noted: ‘I have come to the view that only a sentence of imprisonment is appropriate to the level of offending in this case. There is a need to punish this offending and to send a clear message by way of general deterrence to others that participation in sexual behaviour is a matter of choice not subjugation. I have also determined to deal with the offending as if it were only one transaction and impose concurrent sentences’ at [15]. The offender was sentenced to one year and nine months on the charge of unlawful assault and seven months imprisonment for an act of indecency. These sentences were wholly suspended upon the offender entering a good behaviour order for three years.

  • R v Stanley [2015] ACTSC 322 (12 October 2015) – Australian Capital Territory Supreme Court
    Assault’ – ‘Damaging property’ – ‘Deterrence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Risk factor- strangulation’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Totality’ – ‘Victim impact statement

    Charges: Assault occasioning actual bodily harm (two counts), damaging property, engaging in sexual intercourse without consent (two counts)

    Proceeding: Sentencing

    Facts: The offender and the victim were in a relationship. After drinking three bottles of wine one night, the offender smashed a bottle and jar because ‘he was angry’. The victim decided to stay at her mother’s house and that it was best to take the offender’s car keys. When she went to get them, the offender grabbed her by her hair, threw her to the ground, stood over her, stomped on her face and chest and punched her a number of times. During the attack, the offender told the victim ‘This is what you get for lying to me’ and threatened to kill her. He then put his hands around her neck and tried to strangle her (count 1). When the victim tried to phone someone for help, the offender snapped her mobile in half (count 2). About 15 minutes after the initial attack had ended, the offender grabbed the victim by the back of her neck, smashed a mug over her head and hit her multiple times with the smashed mug. After the mug broke, he went to get another mug and again hit her, causing a large laceration to the victim’s head (count 3). After the victim had a shower, the offender told her ‘Now that I have done that to you, we are going to do everything my way from now on. It is not your way, it is going to be my way, okay.’ He then put his penis into the victim’s mouth despite her resisting and turning her head away (count 4) and forced her legs apart and had sexual intercourse with her (count 5).

    The next morning the offender asked the victim what had happened. When she told him and asked to be taken to the hospital, he refused until later that day. The offender later apologised to the victim and told her, ‘If you tell the police then we will not see each other again’.

    In relation to this conduct the offender was charged and pleaded guilty to two counts of assault occasioning actual bodily harm (counts 1 and 3), one count of damaging property (count 2) and two counts of engaging in sexual intercourse without consent (counts 4 and 5).

    Issue: What sentence the offender should receive.

    Decision and reasoning: Refshauge ACJ began his judgement by emphasising the seriousness of domestic violence and the considerations relevant to sentencing offenders: ‘Domestic violence is a scourge in the Australian community. It has become so problematic that significant efforts are being made at the Federal, State and Territory levels to address it. Clearly, the courts have a part to play in denouncing such conduct and making it clear that in a civilised society it is completely unacceptable. In sentencing offenders who commit domestic violence against their partners, the courts must use the objectives to be achieved in sentencing: general deterrence, specific deterrence, accountability of the offender and vindication of the victim, as well as denouncing the conduct. Nevertheless, at all times a sentence for any criminal offence must be appropriate to the circumstances of the offence and proportionate to the criminality of the offence and the culpability of the offender’ ([1]-[4]).

    The offender had a long history of alcohol abuse and alcohol related violence. He had previously been convicted of a violent assault on his previous partner, two offences of drink driving and driving while disqualified. While in custody, the offender completed the SMART Recovery Program and First Steps to Anger Management Program to address his alcohol abuse and violence. He also accepted that he had an alcohol problem and expressed remorse about the offending and its impact on the victim.

    References about the offender were provided by his employer (he was employed as a wards person in a hospital), his brother-in-law and his pastor. All three references described him as a respectful and caring person of good character. His brother-in-law and pastor also commented on the positive changes the offender made while in custody. He developed his faith in God, was obedient and respectful of authority, enjoyed the education and rehabilitation programs available and was very remorseful about his conduct in harming the victim. The victim also prepared a victim impact statement in which she expressed her continued serious emotional trauma and its impact on all areas of her life including friends, family, work and finances.

    The offending was very serious with the whole of the events constituting a ‘brutal, extended attack on a victim which not only left her with physical scars but with social and mental scars that will last for some considerable time’ ([70]). The facts the assaults occurred in the context of a domestic relationship and the victim suffered injuries were aggravating factors. The circumstances in which the property was damaged also made the offence more serious: ‘To deny a victim of a brutal assault the opportunity to gain assistance would have increased the terror she must have experienced and has aggravated the offence’ ([67]). The sexual assaults violated the victim’s integrity and were a serious intrusion into her personal life despite occurring in the context of a domestic relationship.

    In sentencing, Refshauge ACJ emphasised the need for special and general deterrence to denounce the offences committed by the offender. While the offender had taken positive steps in rehabilitation, this could not overbear the other purposes of sentencing. Rather, it was taken into account in setting the non-parole period. The seriousness of the offending meant that imprisonment was the only appropriate sentence. After considering the principle of totality and ensuring the offender was not punished twice, Refshauge ACJ sentenced him to a total sentence of six years’ imprisonment, backdated for the time already spent in custody. A non-parole period of three years and three months was also ordered. The total sentence comprised of:

    • Count 1: one year and eight months’ imprisonment;
    • Count 2: one year imprisonment, cumulative as to four months on the sentence for count 1;
    • Count 3: two years imprisonment, cumulative as to one year on the sentence for count 2;
    • Count 4: three years imprisonment, cumulative as to one year and three months on the sentence for count 3;
    • Count 5: three years and six months imprisonment, cumulative as to one year and nine months on the sentence for count 4.
  • Alchin v McInerney [2015] ACTSC 300 (25 September 2015) – Australian Capital Territory Supreme Court
    Breach of domestic violence order’ – ‘Deterrence’ – ‘Following harassing, monitoring’ – ‘Protection order’ – ‘Sentencing

    Charge/s: Breach of a domestic violence order.

    Appeal type: Appeal against sentence.

    Facts: The appellant had been in an ‘off and on relationship’ with the female victim for 10 years. A Domestic Violence Order was made in favour of the victim against the appellant. Subsequently, one evening between 9.13pm and 10.04pm, the appellant made 10 telephone calls to the victim. He left one message saying: ‘You wait cunt. Your house is smashed and that fucking cunt you’re rooting. I am going to kill that cunt’. The appellant pleaded guilty at the first reasonable opportunity to the breach and was sentenced to a period of imprisonment of 22 months with a non-parole period of 15 months.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. The offence was very serious but the objective circumstances did not warrant a term of imprisonment of 22 months. As per Robinson AJ: ‘Significantly, there was no face to face confrontation, no infringement of the prohibition to be on the property of or within 100 metres of Ms BC and no weapon was involved. Ms BC did not answer the telephone calls’. His Honour referred to R v Loulanting [2015] ACTSC 172 as being a factually similar case. His Honour acknowledged that compliance with any type of protection order is essential to protect members of the community from violence and anti-social behaviour. It is therefore open to the Court to impose a stern penalty to achieve this end. However, the punishment must still be proportionate to the offending and here this could not be said to be the case (See [25]-[26], [32]-[35]).

    The appellant was re-sentenced to 14 months imprisonment. Robinson AJ stated: ‘In my view substantial weight should be accorded, in the circumstances of this case, to deterring the offender and others from committing the same offence. His conduct was a defiance of the orders of the Court. This was by no means the first such defiance. There is value in our society upholding all orders of Courts. There could be said to be even more value in upholding protection orders in the context of the role that protection orders now play in our society in all jurisdictions’ at [54].

  • McClung v Vince [2015] ACTSC 255 (27 August 2015) – Australian Capital Territory Supreme Court
    Common assault’ – ‘Damage to property’ – ‘Damaging property’ – ‘Exposing children’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing

    Charge/s: Common assault, damage to property.

    Appeal type: Appeal against sentence.

    Facts: The appellant and his former female partner had four children together. They separated two months prior to the offending but the appellant had been staying at the family home for a week prior to the offences. On 6 November 2014 at about 11pm, the appellant banged on his former partner’s window demanding she wake up. She let him in and went back to bed (where her 5 year old daughter was sleeping). The appellant went to the bedroom and punched a hole in the door. He started yelling and abusing his former partner. Despite the cries of the 5 year old daughter to stop, the appellant restrained his former partner and started hitting her. He woke up the couple’s 3 year old son. The appellant then hit the bedroom door several more times and started yelling again. The couple’s 13 year old daughter called the police. The appellant was sentenced to 12 months imprisonment for common assault and 6 months imprisonment for damage to property, suspended after 8 months. The appellant had previously been convicted for offences of assault against his former partner in 2006 and 2012. These offences were also committed under the influence of alcohol.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. First, the sentencing magistrate did not fail to consider the possibility of part of the sentence being served by way of periodic detention. Second, although counsel submitted that the appellant had been compliant with bail conditions imposed in 2014 (namely, sobriety), the magistrate was entitled not to place any great weight on this consideration. This was particularly so given that the appellant had assaulted his former partner before under the influence of alcohol. Finally, counsel for the appellant submitted that previous assaults had been dealt with by a non-custodial sentence and to impose a sentence of full-time imprisonment for at least 8 months was an oversized incremental step. Robinson AJ stated: ‘The argument regarding the oversized incremental step is answered by the proposition that the courts dealing with the earlier assaults allowed leniency (perhaps too much) in a desire to rehabilitate the appellant. Further there is no sentencing principle that requires courts to impose sentences incrementally according to some upward scale’ (See [18]).

  • R v Guy [2015] ACTSC 237 (5 August 2015) – Australian Capital Territory Supreme Court
    Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Breach of good behaviour order’ – ‘Childhood disadvantage’ – ‘Damaging property’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Sentencing

    Charges: Damaging property, assault, assault occasioning actual bodily harm

    Proceeding: Resentencing

    Facts: The offender was charged and pleaded guilty to damaging property for breaking a window in his partner’s house. He was convicted and sentenced to one month’s imprisonment. This conviction breached a good behaviour order that was made after he was convicted for assaulting his partner. He was sentenced to six months’ imprisonment, wholly suspended upon complying with a good behaviour order for two years. The good behaviour order was cancelled as a result of the breach and the six months’ suspended sentence was imposed, but was ordered to be served concurrently with another term of imprisonment. The offender successfully appealed this sentence. A sentence of six months’ imprisonment wholly suspended on the condition of a 12-month good behaviour order was imposed on appeal. A good behaviour order for the offence of damaging property was also made.

    The offender was subsequently convicted of traffic offences, constituting a breach of both good behaviour orders. As a result, the good behaviour bond imposed for the offence of damaging property was extended for a further 12 months. He was also resentenced to six months’ imprisonment on the assault charge, suspended for a period of 12 months on the conditions of a further good behaviour order for 12 months and 80 hours of community service. This effectively increased the length of the good behaviour orders as well as requiring the offender to perform community service work.

    The offender again breached these good behaviour bonds when he was convicted of assault occasioning bodily harm. This conviction arose when the offender choked his partner and threw a chest of drawers that hit her in the head. In relation to this offence, he was sentenced to 18 months’ imprisonment, suspended after nine months with a good behaviour order for two years thereafter.

    Issue: How should the offender be resentenced for the final breach of the two good behaviour orders?

    Decision and reasoning:

    The offender suffered a difficult childhood in which he was sexually abused and had great difficulties in school as a result of having ADHD and dyslexia. After leaving school at 14, he was homeless for many years. He also had a long history of drug and alcohol abuse. The offender also suffered from various mental illnesses, including major depressive disorder, borderline personality disorder and antisocial personality traits, for which he was receiving treatment. He had a long criminal history with 122 offences on his criminal record. This reduced towards the time of offending in question and suggested his criminality was abating.

    The final breach of the good behaviour orders was serious when considering ‘the offence was a family violence offence committed on a complainant who had been the victim of earlier offences of a similar type committed by [the offender], for which the current Good Behaviour Orders owe their genesis’ ([37]). However, there was a need to take into account the offender’s mental health. Refshauge J considered that ‘the option for rehabilitation can be given greater prominence without minimising the need for some level of special and general deterrence’ ([38]).

    Refshauge J cancelled the good behaviour orders in accordance with s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The conviction of assault occasioning actual bodily harm was confirmed. The offender was convicted to six months’ imprisonment, wholly suspended for a period of two years. A good behaviour order was made for two years with the conditions that the offender would be supervised, must complete 180 hours of community service, and must participate in the Detention Exit Community Mental Health Outreach Program for three months. The conviction for damaging property was also confirmed and the offender was sentenced to one month’s imprisonment, taking into account the time already spent in custody.

    Refshauge J concluded by telling the offender, ‘If you are genuine in your efforts, the Court will support you in this, as I hope I have shown you, but if you are not, then you can expect further custodial sentences and a revolving door’ ([57]).

    For Refshauge J’s previous decision on appeal, see Guy v Anderson (No 2) [2013] ACTSC 245.

  • R v McLaughlin [2015] ACTSC 201 (16 July 2015) – Australian Capital Territory Supreme Court
    Animal abuse’ – ‘Assault’ – ‘Contravening a protection order’ – ‘Exposing children’ – ‘Moral culpability’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Victim impact statement

    Charges: Common assault, assault occasioning actual bodily harm, contravening a protection order, resisting a public official

    Proceeding: Sentencing

    Facts: When the offender returned home he tripped after his dogs walked in front of him. In front of his wife (the victim) and children, the offender became angry and started kicking the dogs. After the victim asked him to calm and stop hurting the animals, the offender punched her in the stomach (count 1). Approximately 10 minutes later when they were discussing the punch, the victim said ‘You grew up watching your dad hit your mum and now you think it’s okay to hit me too’. In response, the offender punched her again to the back of her head, causing her to fall to the ground. He then punched her twice more, kicked her in the head five times and stomped on her head. As a result, the victim suffered a large cut to her forehead requiring seven stitches and a bloody nose (count 2). Both children were present during this assault. When the offender was arrested by police he became aggressive, spat at one of the officers (count 3) and resisted the arrest (count 4). Approximately 3 months later a domestic violence order was made against the offender restraining him from engaging in conduct that constitutes domestic violence to the victim, including offensive, harassing or threatening conduct. The offender subsequently had an argument with the victim where he was abusive and threatening towards her (count 5). When someone attempted to intervene, the offender threatened to kick him. At the time this offence took place the offender was on bail for the previous 4 offences.

    In relation to this conduct, the offender was charged and pleaded guilty to two counts of common assault (counts 1 and 3), one count of assault occasioning actual bodily harm (count 2), one count of resisting a public official (count 4) and one count of contravening a protection order (count 5).

    Issue: What sentence should be imposed.

    Decision and reasoning:

    In assessing the objective seriousness of the offences, Burns J took into account that the offender was significantly larger than the victim, that the offences occurred in the context of a domestic relationship and that the children were present during the attack. Burns J considered the offender’s conduct to be ‘cowardly, shameful and rightly characterised as criminal’ ([7]). A victim impact statement was also prepared by the victim, explaining the trauma and anxiety the offences caused her and the children. Burns J noted that ‘As is so often the case in domestic violence offences, the long term burden of your violence will not only be felt by your wife, but also by your children’.

    The offender’s childhood was marred by exposure to domestic violence and he ‘was disappointed in [his] actions and how [he] exposed [his] children to that type of domestic violence, which [he] despised as a child’ ([22]). He had secure employment to return to after being released from custody. The offender had a history of drug and alcohol abuse and mental health issues including suffering from posttraumatic stress disorder. Due to these concerns, he was assessed as being at moderate risk of reoffending. However, Burns J noted that the offender had been attending numerous rehabilitation programs for his alcohol and drug abuse and was receiving treatment for his mental health issues. Expert psychologist reports noted that the offender’s behaviour was ‘strongly influenced by [his] background of mental health issues arising out of [his] traumatic childhood, particularly [his] ongoing complex post traumatic stress disorder’ and that he was unable to make calm or rational choices at the time of offending ([32]).

    The offender demonstrated a degree of remorse in his statements to psychologists and his guilty pleas. Therefore, the sentence was reduced by 25 per cent as a result of these early pleas. The offender’s mental illness was causally connected to his offending and to his abuse of alcohol. It also impaired his mental functioning at the time of the offences and reduced his moral culpability by impairing his ability to exercise appropriate judgement and make calm and rational choices. Full time imprisonment would have a deleterious effect on his mental health and prospects of rehabilitation. Burns J concluded that the need for general and specific deterrence should be moderate in light of the offender’s reduced culpability as a result of his mental illness.

    Burns J convicted and sentenced the offender to:

    • Count 2: Nine months’ imprisonment to be served by way of periodic detention;
    • Count 5: Three months’ imprisonment concurrent with the sentence for count 2, suspended after 13 days on the condition of complying with a good behaviour order for 18 months;
    • Count 1: Good behaviour order for a period of nine months;
    • Count 3: Fine of $600.00; and
    • Count 4: Good behaviour order for three months.
  • R v Ross [2015] ACTSC 22 (1 July 2015) – Australian Capital Territory Supreme Court
    Assault’ – ‘Bail’ – ‘Burglary’ – ‘Choking’ – ‘Exceptional circumstances’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation

    Charges: Assault occasioning actual bodily harm, burglary and choking a person so as to render them insensible or unconscious

    Proceeding: Bail

    Facts: While on bail for previous offending, the accused allegedly entered his ex-partner’s (the victim) home and attacked her, placing his hand around her neck and squeezing until she felt light headed. At the time these offences were committed, the accused was subject to a protection order in favour of the victim. The breach of this order was a serious offence for the purposes of the Bail Act 1992 (ACT) (the Act) and therefore the presumption against bail did not apply to the accused. In order for bail to be granted, the court must have been satisfied that there were special and exceptional circumstances favouring the grant of bail under s 9D(2) of the Act.

    Issue: Whether bail should be granted.

    Decision and reasoning: Bail was not granted. The charge of contravening a protection order was ultimately withdrawn because of procedural issues relating to service. However, s 9D of the Act still applies where a person is on bail for a serious offence of which offence that person is acquitted. Therefore, the fact that the charge was withdrawn did not amount to special and exceptional circumstances in favour of granting bail. The accused allegedly committed very serious offences of family violence. He had a history of offending, having previously been convicted of two offences of assault occasioning actual bodily harm, four offences of assault, two offences of contravention of a protection order, numerous traffic offences including drink-driving offences and fives offences of failing to appear in accordance with a bail undertaking. He had also shown an unwillingness to obey and disrespect of court orders. Given the accused’s history and the real risk that he would not attend trial and reoffend, bail should not have been granted even if there were special and exceptional circumstances in favour of granting bail.

  • R v Loulanting [2015] ACTSC 172 (23 June 2015) – Australian Capital Territory Supreme Court
    Breach of a protection order’ – ‘Drug and alcohol programs’ – ‘Following harassing, monitoring’ – ‘People affected by substance misuse’ – ‘Sentencing’ – ‘Threat to kill

    Charge/s: Threat to kill, breach of a protection order x 2.

    Hearing: Sentencing hearing.

    Facts: The offender was charged with and pleaded guilty to 2 counts of breaching a protection order (where the protected person was his former female partner) and making threats to kill. On 18 January 2015, the offender contacted the protected person, asking to see his son. She refused because he had been using ice and was acting aggressive and demanding. The offender then sent her a number of text messages that were indecent, offensive and aggressive. The protected person ignored these messages as he had sent similar messages in the past. However, the next day, the offender called again and left a voice mail and text messages threatening to kill her.

    Decision and Reasoning: The offender was sentenced to a total sentence of 4 years imprisonment, including 12 months imprisonment for the breaches of the protection order and 2 years and 6 months imprisonment for the threat to kill. This sentence was appropriate in light of a number of factors. The offences required punishment and denunciation, and considerations of general and specific deterrence were also significant. Refshauge J accepted that the offender genuinely sought rehabilitation but noted that agencies the offender had been referred to in the past had had no significant impact on his behaviour. His Honour took into account the plea of guilty, the offender’s mental health and accepted that the offender felt remorseful (See [44]-[48]).

    His Honour further took into account the seriousness of the offences, which were particularly concerning as they were committed in the context of family violence. First, the threat to kill was serious. The use of ice, earlier harassment and changed tone from the earlier conversation all showed the serious intent of the offender and the fear that this threat was likely to have had engendered in the victim. The fact that this offence was brought on by the use of ice was not a mitigating factor but Refshauge J took into the offender’s desire for rehabilitation and the, so far unsuccessful, attempts he had made at rehabilitation. The denial of access to his son also provided explanation for the offence but was not a mitigating factor in any way (See [37]-[40]). Second, the breaches of the protection order were also serious, albeit less serious than the threat to kill. The breaches were deliberate and intentional. While they were not the most serious versions of the offence, they were not made by personal approach, they were still serious as the contact was made over two days and was abusive and indecent (See [41]-[42]).

    Refshauge J stated:

    There is no doubt that the addiction to drugs creates significant problems for the community, as well as for the user and his or her family. When the drug is methylamphetamine, or ice, the violence that it also generates can create further problems, particularly if there are stressed family situations leading to family violence. When mental health issues are added to the situation, it creates great complexity in trying to deal with the multiple issues that arise (See [1]).

  • R v Peadon [2015] ACTSC 132 (14 May 2015) – Australian Capital Territory Supreme Court
    Aggravating factor’ – ‘Burglary’ – ‘Common assault’ – ‘Community views’ – ‘Drug and alcohol programs’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Recklessly inflicting grievous bodily harm’ – ‘Rehabilitation

    Charge/s: Recklessly inflicting grievous bodily harm, burglary x 2, common assault x 2.

    Hearing: Sentencing hearing.

    Facts: On two occasions on one evening, the offender attended the residence of his former partner. On the first occasion, the offender entered through a window and engaged in a physical confrontation with his former partner’s boyfriend. The offender then left the premises. He returned later in the evening and picked up a knife from the kitchen. The offender started a physical confrontation with his former partner’s boyfriend. To protect himself, the victim placed his hand on the blade of the knife and sustained a serious injury to his hand.

    Decision and Reasoning: On the burglary charges, the offender was sentenced to 12 months imprisonment and 16 months imprisonment, with the balance suspended and a good behaviour order imposed. On the charge of recklessly inflicting grievous bodily harm, the offender was sentenced to 15 months imprisonment, wholly suspended upon entering into a good behaviour order. In imposing this sentence, Burns J took into a number of considerations that warranted greater punishment. His Honour noted that, ‘these offences [were] family violence offences and as such must be treated very seriously by [the] Court. [The] community views with great abhorrence the infliction of violence by people in family relationships’. It was also significant that the offences occurred in the victim’s own home. In mitigation, Burns J took into account the offender’s plea of guilty, the steps taken by the offender to address his alcohol abuse (which was a significant factor in all his offending), his remorse and general prospects for rehabilitation.

  • LE v SX [2015] ACTSC 79 (11 May 2015) – Australian Capital Territory Supreme Court
    Application for a domestic violence order’ – ‘Domestic and family abuse in the context of family law proceedings’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Systems abuse

    Order sought: Application for a domestic violence order (DVO).

    Appeal type: Application for extension of time in which to bring an appeal from the decision of the Magistrates Court dismissing an application for a domestic violence order.

    Facts: On 25 February 2014, the applicant applied for a DVO against her former male partner. Both parties were represented. The transcript of the proceedings extended over some 86 pages. The applicant gave evidence in chief of a number of incidents involving the applicant and her daughter being followed and stared at by the respondent, being grabbed and punched by the respondent, and the respondent sending threatening messages. Of particular relevance to the appeal, the applicant gave evidence of an incident that occurred on 1 December 2010 at the time of the couple’s separation. The applicant thought the respondent was overseas but he appeared in her house and dragged her into the hallway, sat on top of her, and smashed her head onto the floor (‘the December 2010 incident’). The next day the applicant made an application for housing assistance to the Commissioner for Social Housing stating that she was homeless and escaping violence from her partner.

    On 27 May 2014, the magistrate found that the principal incidents of which the applicant gave evidence did not occur or did not constitute domestic violence. In particular, the magistrate was satisfied that the respondent was not in Australia on or about 1 December 2010 and he did not return until after the applicant had gone to the Commissioner for Social Housing. Although the applicant had been injured by someone at the time she went to the Commissioner for Social Housing, Her Honour was not satisfied on the balance of probabilities that the respondent caused that injury.

    The application for leave to appeal was not filed until 2 January 2015 (a period of 7 months delay). The applicant was prompted to lodge this appeal because of an adverse decision of a judge of the Federal Circuit Court on 18 December 2014. The decision of the Federal Circuit Court related to parental responsibility and living arrangements for the child of the applicant and the respondent. One of the reasons the applicant sought to overturn the decision of the Magistrates Court was that this decision had an impact on the findings and outcome in the Federal Circuit Court decision.

    Issue/s: Whether the grounds of appeal have any reasonable prospect of success and whether the extension of time within which to appeal should be granted.

    Decision and Reasoning: Mossop Ass J dismissed the application for an extension of time within which to appeal. His Honour accepted that, at least in relation to the December 2010 incident, there was a reasonably arguable ground of appeal based on documentary evidence presented to the Supreme Court on appeal. Essentially, this paperwork demonstrated that there was at least a possibility that the dates originally provided were incorrect and the respondent could have been in the country at the time of the incident (see [82]-[92]).

    However, there were other factors telling against the grant of an extension of time: the length of time since the decision; the limited prospects of ultimately obtaining an order even if domestic violence was ultimately established; the interests of SX in not having a long finalised decision reopened; and the availability of protection under the Act if circumstances warrant it. The way in which the Federal Circuit Court relied on the findings and decision reached in the Magistrates Court was a matter of significant concern to the applicant but the correctness of the Federal Circuit Court’s approach and conclusions was a matter to be resolved in that appellate hierarchy (See [112]-[113]).

    Note: this case was affirmed on appeal (see LE v SX [2017] ACTCA 34)

  • McElholum v Hughes [2015] ACTSC 78 (24 April 2015) – Australian Capital Territory Supreme Court
    Assault’ – ‘Family law proceedings’ – ‘Legal representation’ – ‘Physical violence and harm’ – ‘Safety and protection of victim and witnesses’ – ‘Systems abuse

    Charge/s: Assault.

    Appeal type: Appeal against conviction and sentence.

    Facts: The appellant and his former partner had commenced family law proceedings relating to parenting orders for their son. The appellant, a solicitor, was self-represented while his former partner (the complainant) was represented by a firm of solicitors and a barrister. While at the Federal Magistrates Court, the appellant knocked on the interview door where his former partner and her counsel (the solicitor, barrister and a law clerk) were conferring. He asked if they had considered his proposal. When he was told they would be another 10-15 minutes, the appellant replied ‘that’s not good enough’. The barrister attempted to close the door with her left wrist but the appellant forced it open and said, ‘who are you?’ in a raised voice. The barrister called security. 30 minutes later she complained of pain in her wrist. The appellant was charged with assault and pleaded not guilty. The magistrate found the charge proved and fined the appellant $100 and ordered the appellant to pay costs of $69, a criminal levy of $50 and a victim’s service levy of $10.

    Issue/s: The appellant appealed against his conviction and sentence. The notice of appeal was nearly 70 pages long and contained many convoluted and repetitive grounds of appeal. Two relevant grounds were:

    • The evidence of the witnesses called by the prosecution was tainted by interest or was perjured (appeal against conviction).
    • The magistrate erred in placing significance on the location of the assault namely, the court building (appeal against sentence).

    Decision and Reasoning: The appeal against conviction and the appeal against sentence were dismissed. First, one of the grounds in relation to the appeal against conviction was that the evidence given by the barrister, the solicitor, the law clerk and his former partner was tainted because they all had an ulterior motive i.e. to gain advantage in the family law proceedings. Refshauge J held that there was no evidence to support this allegation and stated, ‘the incident was reported to a security officer of the Commonwealth Law Courts promptly, the evidence of the various parties was not identical, usually a matter indicative of truth, because identical recollections of different witnesses, especially as to inessential facts, is often an indication of concoction and it is not explained what benefit [his former partner] would obtain from such a device’. Further, the allegation that the witnesses perjured themselves was unsustainable. The evidence given was corroborated by the CCTV footage and by the evidence of the other parties(See [301]-[323]).

    Second, in relation to the appeal against sentence, the magistrate did not err in placing significance on the fact that the assault took place in a court building. Refshauge J stated, ‘while [the appellant] certainly possessed the right to be within the bounds of the court precinct, this is not an unlimited right and does not give him the right to assault other people. A court precinct is a place where people should be able to expect the law to be observed at all times’. Further, His Honour quoted from Grimshaw and Mann [2013] ACTSC 189, ‘intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious’. However, this was not to state that assaults occurring in a private home are not serious (See [372]-[377]).

    Note: this case was affirmed on appeal (see McElholum v Hughes [2016] ACTCA 37 (29 September 2016)).

  • R v Seears [2015] ACTSC 109 (23 April 2015) – Australian Capital Territory Supreme Court
    Aggravated burglary’ – ‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Intentionally cause damage to property’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Aggravated burglary (armed and intent to cause harm).

    Hearing: Sentencing hearing.

    Facts: S left her male partner, the offender, to be in a relationship with another man (the victim). Thereafter, the offender sent many abusive and threatening text messages to S. On the morning of 26 May 2013, the intoxicated appellant drove to the victim’s house, where S was now living. He was carrying a 1.2 metre spirit level and a bag with an angle grinder, cable ties, electrical tape, a kitchen knife and a timber-handled holding knife. The offender used the spirit level to smash the window of the victim’s bedroom, where the victim and S were asleep. The victim asked the offender what he was there for to which the offender replied, ‘You know what I’m here for; I’m going to kill you’ and ‘You’re sleeping with my wife’. He continued to scream at the victim as the victim walked away. The offender then struck the victim with the spirit level on the left arm and left side of his head, causing significant lacerations. S tried to intervene as the offender punched the victim in the face, threatening to kill him. The police were called and the offender removed.

    Decision and Reasoning: The offender was sentenced to 3 years and 1 month imprisonment with a non-parole period of 18 months. In imposing this sentence, Murrell CJ took into account a number of considerations. First, the offender had a history of taking the law into his own hands. He was on bail for common assault at the time of the offences and had previously committed offences of common assault. Second, Her Honour took into the offender’s subjective circumstances namely, the offender’s intention to ‘settle down’ by continuing his employment in the building industry and removing himself from his involvement in the Rebels Motorcycle Gang. However, she noted that it was surprising that someone at age 63 had not ‘learnt his lesson from a series of prior similar incidents’. Third, the objective circumstances were of at least moderate seriousness (See [26]-[33]). Finally, Her Honour took into account general sentencing considerations (See [35]-[40]).

  • R v Saedam [2015] ACTSC 85 (1 April 2015) – Australian Capital Territory Supreme Court
    Assault’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Rape’ – ‘Risk of reoffending’ – ‘Sexual and reproductive abuse’ – ‘Theft’ – ‘Views of victims

    Charges: Engaging in sexual intercourse without consent (3 counts), assault, assault with the intent of engaging in sexual intercourse, theft

    Proceeding: Bail

    Facts: The applicant and his wife (the victim) lived together for some time after migrating to Perth from Syria. While living in Perth, the victim left the applicant and moved into a refuge as a result of domestic violence in the relationship. After the applicant and victim reconciled, they moved to Canberra where their relationship remained volatile. One day the applicant went into the bedroom and had sexual intercourse with the victim, despite her asking him not to, attempting to push him away and crying throughout. Later in the day, the applicant verbally abused the victim and threatened to withdraw his immigration sponsorship of the victim’s family to come to Australia. He then again had intercourse with the victim, who continued to cry but otherwise did not move. The next day, the applicant slapped the victim and dragged her by her hair, rolled her on her back and again had intercourse with her. The victim continued to struggle, hitting the applicant’s chest and pushing him away. The applicant was charged with three counts of engaging in sexual intercourse without consent, one count of assault, one count of assault with the intent of engaging in sexual intercourse and one count of theft. He pleaded not guilty to each charge.

    While in custody, the victim visited the applicant every two or three days. She subsequently made a statutory declaration that she was ‘a little tired and confused’ at the time of making her complaint to the police. She sought to change her statement that all sexual intercourse was consented to and that she had been drinking before the assault. The victim wrote a letter to the Court in respect of the bail application, in which she said she did not object to the applicant being granted bail. She also stated that she was not pressured into writing the letter, that the applicant was not harmful to the community, and that as a pregnant woman she did not want her child to grow up knowing their father was in gaol.

    Issue: Whether bail should be granted.

    Decision and reasoning: Bail was granted on conditions including that his family pay a surety of $5000, he surrender travel documents, he not contact the victim, and that he reside in Perth.

    The offences that the applicant was charged with were serious. However, Refshauge J determined he could not assess the strength of the Crown case given the absence of much evidence and the victim’s damaged reputation as evidence because of her apparent retraction of the complaint. The applicant also had a substantial cash surety available to him and proposed to live with his parents. He had no criminal record. His departure from Canberra to Perth immediately after the offences were alleged was an indication of his intention to flee. However, this risk could be mitigated by imposing conditions on bail such as the surrender of travel documents, that he report to police and be prohibited from being at a place of international departure. Refshauge J accepted that the applicant was likely to commit further violent offences against the victim if he had contact with her. However, this could also be mitigated by the applicant living in Perth and on the condition that he not contact the victim. The Crown’s submission that the applicant could intimidate and interfere with witnesses if bail was granted was rejected. The fact the applicant could withdraw his sponsorship of the victim’s family was unlikely to be affected by his bail status. Further, the victim had already retracted her initial complaint, with no evidence from the prosecution that this was a result of intimidation from the application.

  • R v Elphick (No 2) [2015] ACTSC 23 (1 April 2015) – Australian Capital Territory Supreme Court
    Breach of personal protection orders’ – ‘Children’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘People affected by substance misuse’ – ‘Protection order’ – ‘Stalking’ – ‘Threatening to commit arson’ – ‘Victim impact statements

    Charge/s: Threatening to commit arson, stalking, breach of a personal protection order x 2.

    Hearing: Sentencing hearing.

    Facts: The offences arose out of the breakdown of a relationship between the offender and his former female partner. The relationship ended acrimoniously, particularly in relation to the care and access arrangements relating to the care of the couple’s child. The offender’s former partner obtained Domestic Violence Order against the offender and her parents obtained Personal Violence Protection Orders. Subsequently, the offender and his former partner had an argument over the telephone over the care and access arrangements for their daughter. The offender went over to the house of his former partner’s parents and began shouting and swearing at his former partner. He produced a cigarette lighter and threatened to burn her parent’s car. Further, the offender pleaded guilty to a count of stalking on the basis of 25 phone calls made to his former partner. Most were for relatively short periods and were made at varying hours of the day. Finally, the offender breached the Personal Protection Orders by calling his former partner’s parents on multiple occasions.

    Decision and Reasoning: Refshauge J imposed a total sentence of 2 years and 4 months imprisonment, suspended for a period of two years. In imposing this sentence, Refshauge J took into account the purposes of sentencing and in particular, specific deterrence and vindication of the victims (in light of the Victim Impact Statements delivered in court — See [67]-[70]). He also took into account the offender’s plea of guilty and his subjective circumstances (including the offender’s drug problem).

    These offences were serious and warranted a term of imprisonment. The offence of arson was serious because the offender produced a cigarette lighter, there was a threat with intent to achieve an objective to which he may otherwise not have been entitled, and it was committed at the home of the victim. The stalking offence was also a serious offence particularly because it was committed with a circumstance of aggravation, namely in the presence of a Domestic Violence Order. Finally, the breaches of Personal Protection Orders were serious because they involved a disregard of a court order designed to protect the subjects of the orders.

  • R v Thompson [2015] ACTSC 69 (20 March 2015) – Australian Capital Territory Supreme Court
    Aggravated burglary’ – ‘Emotional and psychological abuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Unlawful confinement’ – ‘Young people

    Charge/s: Aggravated burglary, unlawful confinement, common assault, carry/use a firearm with disregard for own safety or safety of other persons.

    Hearing: Sentencing hearing.

    Facts: The 26 year old male offender and the 21 year old female complainant commenced a relationship after meeting on an online dating website. Five weeks after their first meeting, the complainant told the offender that she wanted to end the relationship but wished to remain friends. The complainant then went overseas for 2 months. Upon her return, the offender tried to re-commence their relationship but the complainant did not want to. At a meeting between the pair, the offender said the complainant was ‘cruel’, ‘yelled at him’ and ‘humiliated him’. A month later, the complainant was home alone in her apartment. The offender sprung out from behind a door, covered her mouth with a gloved hand and told her not to scream. In his other hand, he was holding a gun. There was a struggle in which the offender tackled the complainant onto the bed and held a gun against her chest. The complainant was confined to the apartment for 3 hours.

    Decision and Reasoning: Imprisonment was the only penalty appropriate in the circumstances. These were very serious offences — the complainant was in her own apartment which the offender broke into, he carried a gun, he wore medical gloves, held the gun against the complainant’s chest, and confined the complainant in terrifying circumstances for 3 hours. However, on the balance of probabilities, Robinson AJ found that the offender was suffering from a depressive mental illness on the day of the offence. The moral culpability of the offender was reduced, although not eliminated, by this depressive illness. There was a moderate risk of reoffending but His Honour concluded the offender had very good prospects for rehabilitation in light of the treatment of his mental illness and his new relationship. In the circumstances, it was desirable to give weight to the promotion of the rehabilitation of the offender. Accordingly, the offender, was sentenced to a total effective sentence of 2 years imprisonment, suspended from 9 December 2015.

    Note: the convictions in relation to this case were set aside and a retrial was ordered because the trial judge failed to provide a warning pursuant s 38E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (see Thompson v The Queen; The Queen v Thompson [2016] ACTCA 12 (6 May 2016).

  • Hutcheon v West [2015] ACTSC 55 (13 March 2015) – Australian Capital Territory Supreme Court
    Assault occasioning actual bodily harm’ – ‘Choking’ – ‘Common assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Manifestly inadequate’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentencing

    Charges: Choking a person so as to render them unconscious, assault occasioning actual bodily harm, common assault

    Appeal type: Crown appeal against sentence

    Facts: The respondent and victim were in a domestic relationship for three and a half years and lived together with the complaint’s son. One afternoon the respondent and victim got into a fight that resulted in the respondent striking the victim across her face and placing her in a chokehold. The respondent then placed his knee on the victim’s shoulder. After the victim asked him to stop, he asked ‘You want to die?’. The respondent then placed his hand around the victim’s throat and started squeezing before placing his other hand over her mouth and nose. As a result the victim briefly lost consciousness. Later the same day the respondent grabbed the victim by her hair and began shaking her. Attempting to free herself from the respondent’s grip, she ended up on the ground when the respondent kicked her face, and jumped and stomped on her arm and head. When the respondent realised the victim’s son witnessed the attack he told him ‘I didn’t do anything wrong. Mum’s flipping out’.

    In relation to this conduct the respondent was charged and made late guilty pleas to choking a person so as to render that person unconscious, for which he was sentenced to 15 months’ imprisonment; assault occasioning actual bodily harm, for which he was sentenced to 10 months’ imprisonment, with three months to be served cumulatively on the sentence imposed for the offence of choking; and common assault, for which he was sentenced to five months’ imprisonment concurrent with the sentence imposed on the charge of choking. A non-parole period of 12 months was ordered. While the offending occurred, the respondent was on parole for burglary, theft and unauthorised possession of a firearm. The respondent’s parole was subsequently revoked and he was liable to serve the remainder of his sentence. The sentence imposed for the offence of choking was ordered to commence at the expiration of the sentence the respondent was serving as a result of the cancellation of the parole order.

    The respondent had an extensive criminal history, having been convicted for approximately 80 criminal offences in the past 20 years. He also had a long history of substance abuse and mental health issues including being previously diagnosed with antisocial and paranoid personality traits. A pre-sentence report noted that the respondent made derogatory comments about the victim and demonstrated minimal victim empathy. The report also considered the respondent was at high risk of reoffending.

    Issue: Whether the sentence was manifestly inadequate.

    Decision and reasoning: The appeal was allowed on the sentences imposed for the offences of choking and assault occasioning bodily harm. These sentences were set aside and the respondent was resentenced to a term of three years and one month’s imprisonment for the offence of choking and 20 months’ imprisonment for the offence of assault occasioning actual bodily harm.

    The starting point of 18 months’ imprisonment adopted by the magistrate before a reduction for the guilty pleas was manifestly inadequate in relation to the choking offence when considering the maximum penalty of 10 years’ imprisonment, the objective circumstances of the offence and the subjective circumstances of the offender. Burns J held that an appropriate starting point was three years and nine months’ imprisonment with a reduction of eight months for the plea of guilty. Likewise, the starting point of 14 months’ imprisonment for the offence of assault occasioning actual bodily harm was also manifestly inadequate. An appropriate starting point when considering the seriousness of the offending was two years’ imprisonment, reduced to 20 months’ imprisonment to reflect the plea of guilty.

    In coming to this conclusion, Burns J considered that the seriousness of offences of violence within intimate relationships requires sentences that strongly denounce and deter such offending. Citing Wood CJ in R v Edigarov [2001] NSWCCA 436, ‘such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.

  • R v Eimerl [2015] ACTSC 72 (12 March 2015) – Australian Capital Territory Supreme Court
    Damaging property’ – ‘Drug and alcohol programs’ – ‘Emotional and psychological abuse’ – ‘Family members’ – ‘Forcible confinement’ – ‘Parent/s’ – ‘People affected by substance misuse’ – ‘Theft

    Charge/s: Forcible confinement, damaging property, theft.

    Hearing: Sentencing hearing.

    Facts: The offender, who was on parole at the time, confined his mother in her home for 2 hours. During the course of confinement, the offender verbally abused his mother, threatened violence and damage to property, and damaged a heater and a wooden cedar door. The offender’s anger was based on his belief that his parents were communicating with Corrective Services, putting in jeopardy his parole order. His parents were in fact communicating with Corrective Services because they were concerned he had resumed his methamphetamine use. The offender completed a substance misuse program before being paroled in 2013. His initial response to parole supervision was satisfactory — his urinalysis results were negative and he obtained employment. However, at the time of the confinement, he had resumed his methamphetamine use.

    Decision and Reasoning: A sentence of 2 years and 1 month imprisonment was imposed. Burns J took into account the circumstances of the offence (it was committed out of anger and a sense of betrayal, it caused a significant degree of fear but no injuries were inflicted). His Honour also noted the guilty plea, the youth of the offender and that rehabilitation was an important consideration (however, this had to be ‘considered guarded’ (see[16])). There was a need for both general and specific deterrence.

    His Honour further took into account that this was a family violence matter and stated, ‘that is relevant because the only reason that you were able to commit this offence was because of the relationship of trust that existed between you and the victim. If you had not been a family member who was loved and trusted by your victim you would not have had the opportunity to commit this offence. I also note that the offence occurred in the victim's own home, where she should have been entitled to feel safe’ (See [17]).

  • R v Brown [2015] ACTSC 65 (5 March 2015) – Australian Capital Territory Supreme Court
    Emotional abuse’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Perjury’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Where the offender is also a victim

    Charge/s: Perjury.

    Proceeding: Sentence.

    Facts: The defendant gave false evidence in a bail application involving an allegation of assault that had been made against her ex-partner. It was alleged that her ex-partner assaulted his mother. The defendant’s ex-partner also assaulted her prior to the alleged assault on his mother. A psychologist’s report indicated that the defendant was suffering from ‘a major depressive disorder of moderate severity’ (see at [4]) when she was in a relationship with her partner. The report described the relationship as physically and emotionally abusive which resulted in a gradual deterioration of the defendant’s mental health and reported low self-worth and feeling overwhelmed. Notwithstanding this, she felt that her partner was the only person who she could rely on. The defendant had no prior convictions. She was 18 years old when the offence occurred.

    Issue/s: The appropriate sentence to be imposed.

    Decision and Reasoning: The defendant was ordered to enter into a good behaviour order for 15 months with conditions that she accept the supervision of ACT Corrective Service and not to associate with her former partner. No conviction was recorded. Burns J noted that this offence, while serious, was at the lower end of the spectrum for offences of this nature. His Honour accepted that her mental illness affected her judgment and also noted the fact she was in a controlling relationship with her ex-partner. The defendant had good prospects of rehabilitation. The offence of perjury is serious and normally results in the recording of a conviction and imprisonment. However, in this case, the mitigating factors including her youth and mental illness meant that rehabilitation, rather than general deterrence were the primary sentencing considerations. His Honour warned the defendant that relationships like those with her ex-partner are characterised by a significant degree of manipulation and that the defendant ought to be aware of the likelihood of her ex-partner to attempt to recommence the relationship using protestations that he has changed and is going to behave in a different way. He urged the defendant to be mature enough to understand that such change is not going to happen.

  • R v East [2015] ACTSC 54 (16 February 2015) – Australian Capital Territory Supreme Court
    Common assault’ – ‘Criminal history’ – ‘Forcible confinement’ – ‘Offender’s traumatic childhood’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Forcible confinement, common assault.

    Hearing: Sentencing hearing.

    Facts: The offender was the complainant’s carer and partner. They had been in an ‘on again off again’ sexual relationship for 3 years and the offender had recently moved back into the complainant’s flat. On 14 October 2013, during an argument, the complainant told the offender to get his belongings and leave the flat. She then attempted to leave herself but the offender grabbed her arms and forced her back into the flat. The complainant made a number of unsuccessful attempts to escape and the offender took her mobile phone. The offender refused to leave. At one stage, he agreed to pack his belongings and asked the complainant for some money. When she refused, he forced her onto the couch. She tried to yell but the offender grabbed her throat, restricting her ability to breathe. After 5 hours, the offender gave the complainant her mobile and left the flat. These offences put the offender in breach of a good behaviour order imposed in respect of an earlier offence of a reckless threat to kill made against the same complainant. That offence involved the heavily intoxicated and distressed offender threatening his partner with a knife, a hammer and a piece of concrete.

    Decision and Reasoning: The offender was sentenced to 22 months imprisonment, with a non-parole period of 10 months. Penfold J took into account a number of factors in imposing this sentence. In determining the charged offences to be of mid-range seriousness, His Honour noted that in some cases being confined in one’s own home by a partner might be less frightening than being confined in a strange place by a stranger (depending on past experiences with the partner); during confinement, the offender was physically violent to the complainant; the offender was on conditional liberty at the time of the offence; the domestic relationship put the parties into a position of trust and, to an extent, the offender abused this trust (however, the offender’s role as a carer did not mean that the offence involved any extra abuse of a position of trust because the complainant was 14 years older and the offender had a very disturbed upbringing); the offences had a distressing and more than short-term effect on the complainant; and the offender accepted responsibility for his actions (See [13]-[14]).

    Penfold J also took into account the subjective circumstances of the offender. He did not seem to have any tendency towards criminal behaviour except in the context of this relationship. However, His Honour noted that ‘much of violent crime committed within domestic relationships is committed by men who otherwise live entirely within the law’. Further, the offender had a very disturbed upbringing. His mother suffered with severe mental illness and schizophrenia and would alternate between being a loving mother to being emotionally and physically abusive towards her children. He witnessed his mother kill herself when he was 8 when she set herself alight. The offender was then raised by his adoptive father, who would drink heavily to cope and belt the children (See [15]-[17]). The relationship between the offender and the complainant was ‘toxic’ and characterised by substance abuse and conflict (See [18]-[22]). Penfold J also took into account general and specific deterrence, the offender’s guilty plea and the offender’s acceptance of counselling.

  • R v BJ [2015] ACTSC 47 (4 February 2015) – Australian Capital Territory Supreme Court
    Breach of a good behaviour order’ – ‘Emotional and psychological abuse’ – ‘Perpetrator programs’ – ‘Young people

    Hearing: Breach of 12 month good behaviour order.

    Facts: In February 2014, BJ was sentenced for burglary, minor theft and common assault. These charges arose out of the breakdown of a relationship between BJ, then aged 17, and the female complainant. He was sentenced to a 12 month good behaviour order, including a condition that he undertake the Cognitive Self-Change Program. Nearly 5 months after BJ was sentenced, he began another serious of offences against another ex-partner. These offences involved: taking his ex-partner’s car keys, damaging her car and stealing the car; using a false Facebook identity to taunt her with pictures of the car hidden in a forest; attempting to get her (alone) to meet him in the forest; further damaging the car; and making a series of harassing phone calls to his ex-partner. He was sentenced to a term of imprisonment for these offences, 3 months served in full time custody and 6 months suspended subject to a 24 month good behaviour order. The matter was referred to Penfold J here to deal with the breach of the earlier imposed good behaviour order.

    Issue/s: Whether further action is warranted in light of BJ’s breach of a good behaviour order.

    Decision and Reasoning: Penfold J noted that he was incorrect in his 2014 sentencing remarks and BJ did in fact have a tendency to behave inappropriately in the context of failed intimate relationships. He noted that this behaviour needed to be addressed as early as possible. Penfold J imposed a new good behaviour order for 2 years subject to the following conditions: accept the supervision of ACT Corrective Services and obey all reasonable directions, under take counselling courses, programs or treatments, and undertake either one or both of a Men’s Cognitive Self-Change Program and a Family Violence Cognitive Self-Change Program.

  • R v Mazaydeh [2014] ACTSC 325 (13 November 2014) – Australian Capital Territory Supreme Court
    Animal abuse’ – ‘Assault occasioning actual bodily harm’ – ‘Common assault’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Perpetrator programs’ – ‘Physical violence and harm’ – ‘Threatening to cause damage to the complainant’s property’ – ‘Victim impact

    Charge/s: Assault occasioning actual bodily harm, common assault x 3, threatening to cause damage to the complainant’s property.

    Hearing: Sentencing hearing.

    Facts: The offender was a friend and former partner of the female complainant. The offender became jealous when the complainant received a phone call because he suspected it was from another man. The complainant asked the offender to leave her apartment. He refused. He pushed and attempted to choke the complainant and held a knife to the throat of her cat. The assaults were accompanied by verbal abuse and abusive text messaging. The offender also rifled through the victim’s belongings and demanded her phone. The incident lasted about 15 minutes.

    Decision and Reasoning: The offender was sentenced to a good behaviour order for 3 years and fined $1750. In terms of the objective seriousness of the offending, Murrell CJ noted that the conduct constituting the assault occasioning bodily harm was extremely serious. It was a very forceful and frightening assault that involved the offender taking hold of the victim’s throat. The actual bodily harm that resulted was at the lower end of the spectrum but the incident had a considerable psychological impact. The other offences were less serious. The incident, while not fleeting, was relatively short. It was not only frightening but designed to humiliate. It occurred within the victim’s home, in circumstances where she had asked him to leave.

    Further, this was an incident of domestic violence. Her Honour noted:

    ‘These offences occurred in the context of a previous relationship between the offender and the victim and involved violence within the victim's home, an apparent sense of entitlement on the part of the offender, and humiliation through verbal and text abuse of the victim.

    The sentencing purposes of punishment, general deterrence and denunciation are very important, as well as the recognition of harm to the victim personally and the community generally through offences of this nature. The victim provided a victim impact statement in which she referred to impacts upon her of the type that frequently result from offences of domestic violence, including feelings of anxiety, difficulty sleeping, difficulty concentrating at work and elsewhere, and an adverse effect on her ability to form relationships. Since the incident, the victim has moved house because she felt unsafe in the apartment where the offence occurred’ (See [15]-[16]).

    Her Honour also took into account the subjective circumstances of the offender including that the offender had been assessed as being at low risk of re-offending, he was employed, is a member of a close and supportive family and has no problems with drug dependence or mental health. However, Murrell CJ further noted that the offender lacked insight into the seriousness of his conduct and the impact on the victim. Although this was probably a one-off incident, Her Honour considered that it would be of assistance to the offender to undertake courses that may guide him towards greater insight and maturity in relation to interpersonal relationships.

  • R v Ennis [2014] ACTSC 369 (4 November 2014) – Australian Capital Territory Supreme Court
    Anger management programs’ – ‘Assault occasioning actual bodily harm’ – ‘Drug and alcohol programs’ – ‘Good behaviour order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation

    Hearing: Breach of community service condition to a good behaviour order.

    Facts: In 2012, Mr Ennis was convicted for assault occasioning actual bodily harm. Mr Ennis and his female partner, who had been together for 27 years, were both drunk and fought ‘over money’. During this argument, Mr Ennis caused his partner to suffer a fracture to the left forearm and a laceration to the outside of her lower leg. Mr Ennis had a long history of cannabis and alcohol abuse. He claimed that this alcohol abuse led to his criminality. The sentencing judge made a good behaviour order for 2 years, with a condition that Mr Ennis perform 100 hours of community service within 12 months. Mr Ennis breached this order by failing to complete the community service work conditions. He submitted that the breach was the result of his alcohol abuse.

    Issue/s: Whether further action is warranted in light of Mr Ennis’ breach of a good behaviour order.

    Decision and Reasoning: The order was amended by extending the good behaviour period to a further 12 months, extending the number of hours of community service work to 108 hours to be completed in 12 months, and requiring Mr Ennis to be subject supervision by the Director-General. In imposing this sentence, Refshauge J noted that while Mr Ennis’ breach was unsurprising in light of his alcohol abuse, this did not provide an excuse for his behaviour (See [16]). In favour of Mr Ennis, it was significant that he had not committed any offences in the two years since the order was made. His Honour noted, ‘This is a very important matter, for that is the fundamental objective of the criminal law, namely, as Brennan J described it in Channon v The Queen (1978) 33 FLR 433 at 437, the protection of society which is achieved by the prevention of crime and the eradication of recidivism’ (See [21]).

    Further, Mr Ennis had taken steps towards rehabilitation namely, enrolling in a number of programs including drug and alcohol counselling, a Men and Anger Program and an Employment Pathway Plan (See [23]-[27]). Mr Ennis’ partner was also addressing her alcohol abuse and they were both accessing counselling at relationships Australia (See [28]). However, Refshauge J remained sceptical in his assessment of this reform and nevertheless extended the good behaviour order (See [30]-[33]).

    His Honour noted: Despite the considerable contribution that illicit drug use makes to criminality in the community, alcohol remains a problem for those addicted to it. Alcohol abuse remains a very significant source of crime and leads the addict to unhealthy and anti-social behaviour and situations (See [1]).

    See also R v Ennis [2016] ACTSC 72 (4 April 2016).

  • Pasa v Bell [2014] ACTSC 303 (30 October 2014) – Australian Capital Territory Supreme Court
    Assault’ – ‘At the complainant’s home’ – ‘Exposing children’ – ‘General and personal deterrence’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Assault.

    Appeal type: Appeal against conviction and sentence.

    Facts: The appellant pleaded guilty to an offence that he assaulted his former fiance and de facto partner of 2 years (the complainant). The offence occurred about 1 month after the appellant and the complainant had separated in the presence of the complainant, a friend, and the appellant’s young son. The appellant and the complainant argued and the complainant asked him to leave. The garage door hit the appellant on the head as he left and he turned around the pushed the complainant. She fell backwards into the car. The appellant spoke in a threatening manner to the complainant. He pushed her again, kicked her car twice, and left.

    Issue/s: One of the grounds of appeal was that the primary judge erred in his assessment of what constituted an aggravating feature of the offence.

    Decision and Reasoning: The appeal against conviction and appeal against sentence was dismissed. In relation to the appeal against conviction, the appellant submitted that the mere fact the offence was committed at the home of the victim is not enough to aggravate the offence; there must be some level of intrusion. Murrell CJ noted that a sentencing court must consider all relevant objective and subjective matters. She stated,

    ‘When considering the sentencing purposes set out in s 7 of the Sentencing Act, including general and personal deterrence, a sentencing court is entitled to consider the fact that an offence involved domestic violence, and that the violence has occurred at the victim’s home. An offence involving domestic violence is one that involves abuse of a partner, former partner or other family member (using the term “family” in the broadest sense). Frequently, such offences occur in the home, where the inhibitions of an offender may be lowered, the impact on the victim may be heightened (as she or he is made to feel that a formerly safe place has been violated) and the occurrence of the offence is more readily concealed. Further, where a domestic violence offence occurs in the victim’s home, it is often associated with secondary abuse to other family members’ (See [16]; See also R v Bell [2005] ACTSC 123 [30]-[31]).

    Here, the primary judge did not approach the matter on the basis that the ‘mere fact’ that the incident took place at the complainant’s home was an aggravating feature. He considered the location of the offence in the context of other relevant circumstances namely that it occurred at a place where the complainant was entitled to feel safe, it occurred in the presence of the appellant’s son, and the appellant refused to leave.

  • Reid v Smith [2014] ACTSC 349 (21 October 2014) – Australian Capital Territory Supreme Court
    Assault’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Aboriginal and Torres Strait Islander peoples’ – ‘People affected by substance misuse’ – ‘Rehabilitation’ – ‘Sentencing

    Charges: Damaging property, breach of domestic violence order, assault

    Appeal type: Appeal against sentence

    Facts: The appellant, an Aboriginal man, and the victim were in a relationship and had a son together. The appellant and victim also both had a daughter each from previous relationships. He was charged and convicted of damaging property, assault and breaching a domestic violence order made to protect the victim. No further information about the offending or factual matrix was provided. Since his arrest and while on bail, the appellant attended Oolong House several times where he received rehabilitative treatment. The magistrate sentenced the appellant to 12 months’ imprisonment each for the assault and damaging property offences, to be served concurrently, and two years’ imprisonment for the breach of the domestic violence order. In sentencing, the magistrate stated ‘The current offences continue a pattern of behaviour that appears entrenched in the context of the relationship with the victim. Despite legal sanctions and protection orders, [the appellant] has yet to demonstrate the responsibility to abide by conditions to uphold the safety of vulnerable people in his life. Under the influence of substances his behaviour poses unacceptable risks for such people’ ([5]).

    The appellant had a somewhat difficult childhood with his parents divorcing after his father suffered a stroke and his mother abusing alcohol. He finished school at year 10 and had very limited and sporadic employment since then. He had a long history of alcohol and drug abuse and engaged in residential rehabilitation several times. The appellant also suffered depression, stress and anxiety and was housed in the AMC Crisis Support Unit since his remand due to his risk of suicide and/or self-harm. He had an extensive history of criminal offending, including convictions for common assault, assault occasioning actual bodily harm and contravening protection orders against the victim.

    Issues: Some grounds of appeal were:

    1. Whether the magistrate failed to take into account the time spent at a rehabilitation centre.
    2. Whether the magistrate failed to give adequate weight to the decision in Bugmy v The Queen [2013] HCA 37 (‘Bugmy’).

    Decision and reasoning: The appeal was dismissed.

    1. There is no requirement in sentencing to give credit and discount the sentence for time spent in residential rehabilitation between the commission of an offence and the sentencing for that offence. The magistrate therefore did not err in failing to explicitly take into account the appellant’s successful completion of the Oolong House rehabilitation program.
    2. In Bugmy, the High Court of Australia considered, ‘An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offence may mitigate that offender’s sentence… Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices but to recognise this is to say nothing about a particular Aboriginal offenderAn offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender ’. While Penfold ACJ acknowledged that the appellant had a ‘somewhat troubled background’, she did not consider that a failure to give adequate weight to a particular consideration was a sufficient ground to evoke the court’s appellant jurisdiction, relying on R v Ang [2014] ACTCA 17, [22]-[24].
  • Hossen v Hughes [2014] ACTSC 101 (21 May 2014) – Australian Capital Territory Supreme Court
    Aggravating and mitigating factors’ – ‘Assault’ – ‘Exposing children’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge: Assault

    Appeal type: Appeal against sentence

    Facts: The appellant, his wife (the complainant) and their children moved to Canberra in order for him to complete a PhD. After their daughter complained that she did not like the lunch the complainant was preparing, the complainant struck the daughter’s hip with a plastic doll to ‘chastise her for her behaviour’. The appellant became angry at the complainant’s actions and slapped her. When questioned by police, the appellant said ‘I do not think I did anything wrong. In my culture, I did not do anything wrong’. He pleaded guilty to assault at the earliest opportunity and expressed remorse in a letter to the court.

    At trial, the appellant was unrepresented but had a Bangladeshi interpreter. A conviction was recorded and the appellant was ordered to sign a good behaviour undertaking for two years. The magistrate noted that ‘cultural differences may be in play here, but I don’t accept them on the basis that you’ve been here for two years, you’ve acknowledged in your own statement to me today that you understand what you did was wrong’.

    Issues: Some grounds of appeal were:

    1. The magistrate erred in treating the presence of their daughter as an aggravating factor when the assault of the complainant would not have occurred but for her hitting their daughter;
    2. The magistrate erred in not giving sufficient reasons for refusing a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Act).

    Decision and reasoning: The appeal was dismissed and the sentence imposed by the magistrate was confirmed.

    1. In sentencing, the magistrate referred to Refshauge J’s comments in Elson v Ayton [2010] ACTSC 70 to conclude that the presence of their daughter was an aggravating factor and that ‘the courts have no tolerance, or very little tolerance, for people who engage in domestic violence, and certainly in the presence of children’. Counsel for the appellant submitted that the presence of their daughter should not have been an aggravating factor because the complainant’s action in hitting her provoked the appellant’s assault and that this provocation was a mitigating factor. However, Penfold J held that there was nothing in the nature of the assault that meant their daughter’s presence was an inherent part of the objective circumstances of the offence. Further, while the complainant’s conduct in hitting her daughter with a doll may reduce the culpability of the appellant’s assault, it is not properly described as a mitigating factor. Therefore, there was no error in the magistrate’s approach to the presence of their daughter.
    2. The magistrate was obliged to provide an explanation to the appellant for declining to make a non-conviction order. He was unrepresented, inexperienced in the procedures of Australian courts and English was not his first language. The magistrate performed this obligation in explaining that a non-conviction order could not be made due to the nature and circumstances of the offence. However, the magistrate did not allow the appellant to put forward evidence or a proper explanation when he attempted to explain the detriment to his future should a conviction be recorded. Therefore, the magistrate erred in dealing with the appellant’s application for a non-conviction order by failing to give proper consideration to the application, having regard to the particular difficulties faced by the appellant.

      Despite this error, the appeal was dismissed because re-sentencing was not appropriate. Having regard to the factors in s 17 of the Act, Penfold J held there were no grounds sufficient to make a non-conviction order. In particular, the appellant’s character, antecedents, age, health and mental condition; the seriousness of the offence; his extenuating circumstances; and the absence of any properly explained or substantiated claim that a conviction would have negative impacts on his future prospects, would not have excluded the making of a non-conviction order.
  • R v Rogers [2014] ACTSC 124 (1 April 2014) – Australian Capital Territory Supreme Court
    Assault occasioning actual bodily harm’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘History of abuse’ – ‘Late plea’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor-strangulation’ – ‘Systems abuse’ – ‘Unlawful confinement

    Charges: Unlawful confinement, assault occasioning actual bodily harm (two counts)

    Proceeding: Sentencing

    Facts: The offender and victim were in a domestic relationship. The victim had a son from a previous relationship. Six months after moving in together, the offender sat on the victim’s stomach, held both arms above her head and tied her wrists to the bed. The offender told the victim, “you’ve hurt my feelings. Now you have to pay. I’m going to take you for a drive to the forest and I’m going to kill you”. He then slapped her across the face several times and stuck a piece of clothing in her mouth. The victim was gagging and choking and believed that she would suffocate. The offender then hit the victim’s thigh with a car aerial and held a lit match to her face, threatening “have you ever played ‘light the match’ game?”. The next day the offender brought the victim flowers and apologised. Several days later the victim woke up to the offender slapping her face. Her son then walked into the room but returned to his bedroom after the offender screamed at him. The victim packed herself and her son into the car to escape after the offender had left. However, the offender returned and parked his car behind the victim’s car. He grabbed the victim’s shoulders, pushed her backwards causing her to hit to head and dragged her into the house. When inside, he grabbed her throat, kicked her, forced her face under a running tap, slapped her and threatened her.

    The offender was charged with unlawful confinement and two counts of assault occasioning actual bodily harm. He maintained a plea of not guilty for nearly two years until changing his plea to guilty on the date the trial was to begin.

    The offender had a long history of offending including convictions of nine common assaults, assault occasioning actual bodily harm, stalking and two breaches of domestic violence orders. He also had a history of dysfunctional relationships, with many of these convictions resulting from domestic violence. He abused prescription drugs and suffers from Attention Deficit Disorder, depression and bipolar. During one period of excessive drug use, the offender was diagnosed with amphetamine-induced paranoid psychosis. The offender engaged in the methadone program and drug and alcohol counselling to address his substance abuse. He reported that since the offending, he had ceased using drugs or drinking heavily and that he was no longer short-tempered and jumpy.

    Issue: What sentence should the offender receive?

    Decision and reasoning: Penfold J emphasised the need for general deterrence and denunciation for domestic violence offences. Having regard to the offender’s criminal history and his repeated failures to take advantage of rehabilitative opportunities, rehabilitation was not the highest priority in sentencing. His Honour accepted some concession was needed for the offender’s improved behaviour in the two years since the offending and his continued engagement with mental health services. However, no sentence other than imprisonment was appropriate when considering the gravity of the offending and the effect on the victim and her son.

    The offences were all serious examples of the relevant offences. The presence of the victim’s son during the second assault occasioning actual bodily harm aggravated the offence. All the offences were further aggravated by the breach of trust that is ‘inherent is most if not all domestic violence offences, especially those that occur in the privacy of a home shared by the victim and the perpetrator, a circumstance which of itself — that is the sharing of the home — seems to me to establish a mutual relationship of trust’ ([7]).

    Penfold J sentenced the offender to a total sentence of 38 months’ imprisonment, suspended after 24 months. This total sentence comprised of 25 months’ imprisonment for the offence of unlawful confinement, 18 months’ imprisonment for the first offence of assault occasioning bodily harm, and 20 months’ imprisonment for the second offence of assault occasioning bodily harm. The first assault occasioning bodily harm sentence was ordered to be accumulated so as to add three months to the unlawful confinement offence and the second assault occasioning bodily harm sentence was ordered to be accumulated so as to add 10 months to the total sentence.

  • Beniamini v Storman [2014] ACTSC 2 (22 January 2014) – Australian Capital Territory Supreme Court
    Assault’ – ‘Damaging property’ – ‘Exposing children’ – ‘Intentionally causing damage to property’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing

    Charge/s: Intentionally causing damage to property x 2, trespassing without reasonable excuse, assault, minor theft.

    Appeal type: Appeal against sentence.

    Facts: The appellant was in a relationship with a young woman, the complainant, and they had two children together. The relationship was characterised by ongoing conflict, caused largely by the appellant’s ongoing abuse of alcohol, and subsequently the relationship broke down. Later, the appellant went to the complainant’s house to see the children but she refused to let him in. The appellant damaged the front security door and shouted threats. He was arrested and granted bail for this offence. However, before the proceedings could be resolved, the appellant again went to the complainant’s property, and broke open the front door. The appellant began to strangle the complainant (assault). The complainant’s daughter rang the complainant’s mother who arrived and manage to calm the appellant down. The police arrived and the appellant ran off. On another subsequent occasion, the appellant was charged with minor theft for leaving a petrol station without paying.

    The appellant pleaded guilty and was sentenced in the Magistrates Court to: intentionally causing damage to property — fine of $1,500; intentionally causing damage to property — 3 months imprisonment to commence on 1 August 2013; trespassing without reasonable excuse — fine of $500; assault — 17 months imprisonment to commence on 1 September 2013; minor theft — fine of $250. A non-parole period of 12 months was set on the total period of 18 months imprisonment.

    Issue/s: One of the grounds of appeal was that the terms of imprisonment imposed, including the non-parole period, were manifestly excessive.

    Decision and Reasoning: The sentence for the assault was manifestly excessive, the appeal allowed and the appellant re-sentenced (see R v Beniamini; Beniamini v Storman [2014] ACTSC 40 (22 January 2014)). The offence of assault was serious: it was committed late at night in the complainant’s home; it was an offence in the context of family violence; and the offence was protracted. It was more serious by the fact that the appellant was on conditional liberty at the time, the offence was committed in the presence of children, and the appellant had prior convictions for personal violence (but not family violence).

    However, despite the seriousness of the assault, the sentence was manifestly excessive because the magistrate started her calculation of sentence on the basis that this was almost the worst category of the offence (See [119]). Since the time of offences, the appellant had made no further inappropriate contact with the complainant, had managed to resolve issues of access to the children, and had stopped drinking. This was also his first offence of violence in the family context. It was also relevant that the denial of access to his children at the time was arbitrary and not under any court order. He was remorseful and showed insight into his actions (See [94]-[104]).

  • R v Curtis [2013] ACTSC 291 (16 December 2013) – Australian Capital Territory Supreme Court
    Aboriginal and Torres Strait Islander people’ – ‘Assault occasioning bodily harm’ – ‘Drug and alcohol programs’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Young people

    Charge/s: Assault occasioning bodily harm.

    Hearing: Sentencing hearing.

    Facts: Mr Curtis, an 18 year old Aboriginal man, and the female victim were in a relationship. On 1 June 2013, Mr Curtis became agitated and aggressive towards the victim. He started punching her legs, arms, torso and stomach, causing bruising. When interviewed by police, he said that the victim had wanted him to teach her how to ‘stick up’ for herself and that they were just ‘mucking around’ but he stopped when he thought that what was happening did not ‘feel right’.

    Decision and Reasoning: Mr Curtis was sentenced to 12 months imprisonment, suspended for 2 years, and ordered to comply with good behaviour obligations (a probation condition making Mr Curtis subject to the supervision of the Director-General and required to obey all reasonable directions as to counselling or treatment for his mental health and his abuse of alcohol and other drugs). In imposing this sentence, Refshauge J took into account Mr Curtis’ plea of guilty. He also took into account the subjective circumstances of Mr Curtis including his troubled childhood, his relationship with his 20 month old child, his current committed relationship, his use of alcohol and illicit substances, and his history of mental health issues (See [6]-[19]).

    Refshauge J also took into account that the offence was serious especially because it was committed in the context of a relationship. His Honour quoted Higgins CJ in R v Bell [2005] ACTSC 123 at [30]: ‘I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded’ (See [28]-[32]).

    Refshauge J further accepted that the youth of Mr Curtis and his prospects for rehabilitation were very relevant to the sentencing exercise. Per His Honour, ‘for youthful offenders rehabilitation is usually more important than general deterrence, especially when retributive punishment may in fact lead to further offending. A youthful offender should not be sent to an adult prison if it can be avoided’ (See [20]). A lengthy good behaviour order was warranted in light of the need for rehabilitation. In this context, His Honour noted the influence of excessive alcohol on the offending which, although not mitigating the offending, was very relevant to rehabilitation (See 36].

    See also R v Curtis (No 2) [2016] ACTSC 34 (26 February 2016).

  • Roberts v Smorhun [2013] ACTSC 218 (1 November 2013) – Australian Capital Territory Supreme Court
    Appeal against sentence’ – ‘Breach of domestic violence order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order

    Charge/s: Contravention of a domestic violence order.

    Appeal type: Appeal against sentence.

    Facts: The female complainant and the male appellant had been in a relationship for 6-12 months and had lived together until mid-December 2012. After the complainant was granted an interim domestic violence order against the appellant, the appellant telephoned the complainant to meet him at a friend’s place so he could give her the keys back to her place. At this meeting, an argument developed and the appellant started chasing the complainant, yelling abuse. When he caught up to the complainant, he raised his arm as if to punch her, but instead he grabbed the complainant’s sunglasses, snapped them in half and threw them in her face. This caused the complainant injury. The appellant was sentenced to 32 months imprisonment for the charge of contravening a protection order.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld and the appellant re-sentenced to 23 months imprisonment. Refshauge J noted that there was no doubt that the offending was serious. The fact that the appellant had been convicted of 9 prior offences of the same character against another woman meant that he could be afforded little leniency. However, the sentence was nonetheless disproportionate to the offending conduct.

    Three features listed by the sentencing judge as aggravating the offence, were not in fact aggravating features. First, while domestic violence orders play a special place in the criminal law’s efforts to prevent domestic violence, His Honour erred in finding that a domestic violence was a feature of aggravation for the offence of contravening a domestic violence order. Second, His Honour also incorrectly found that the fact the offence occurred in public was a circumstance of aggravation in this particular case as there were no people present at the time of offence. His Honour also referred to Grimshaw v Mann [2013] ACTSC 189 at [49]-[51]. Finally, the sentencing judge inferred that the broken part of the complainant’s glasses was sharp and this aggravated the offending. However, this conclusion was not supported by the evidence (See [132]-[138]). Further, the sentencing judge did not take into adequately discount the sentence to account for the appellant’s plea of guilty (See [143]).

    Refshauge J quoted from R v BG (an unreported judgment from December 2010):

    Compliance with any sort of protection order is essential for the court in protecting members of the community from violence and other unwanted behaviour. Breaches of protection orders risk the success of the regime from achieving that purpose, especially if they encourage people to think that they can breach with impunity. A severe approach is necessary, consistent with fairness to the accused. Thus, the Court cannot punish beyond what is appropriate to the offence (See [4]).

  • Khan v Evans [2013] ACTSC 211 (4 October 2013) – Australian Capital Territory Supreme Court
    Aboriginal and Torres Strait Islander people’ – ‘Breach of domestic violence order’ – ‘People affected by substance misuse’ – ‘Temporary protection order

    Charge/s: Breaches of an interim protection order x 4, breach of a personal protection order, failure to comply with a bail undertaking to appear in court, common assault x 2.

    Appeal type: Appeal against sentence.

    Facts: The appellant, an Aboriginal man, had been in a relationship with the female complainant and they had 3 children together. The complainant was granted a personal protection order against the appellant. The appellant breached these orders on 5 occasions by being at the premises of the complainant. The common assault offences occurred when the appellant assaulted his father. The appellant pleaded guilty to 4 breaches of an interim protection order made on 23 July 2012 and breach then of the personal protection order subsequently made on 23 August 2012, a failure to comply with a bail undertaking to appear in court, and 2 offences of common assault. In the Magistrates Court, a total period of imprisonment of 16 months was imposed from 21 March 2013, with a non-parole period of 12 months.

    Issue/s: The grounds of appeal were –

    • The sentence was manifestly excessive.
    • The magistrate erred in failing to take into account a period of pre-sentence custody.
    • The good behaviour order for which the appellant was sentenced had been cancelled and could not have been breached by the offences.

    Decision and Reasoning: The appeal was upheld on grounds 2 and 3 but not ground 1. The magistrate failed to take into account a period by pre-sentence custody by starting the sentences on 21 March 2013 rather than 23 February 2013. Further, the good behaviour order for which the appellant had been sentenced had previously been cancelled (See [42]-[49]). However, the sentence could not be said to be manifestly excessive. Refshauge J stated,

    ‘While the offence against Mr Khan’s father could also be described as domestic violence, the fact is that the interim personal protection order and the personal protection orders are there to protect the complainant from what might be described as domestic violence in its widest sense. Therefore, such orders are an important component of the criminal justice system’s response to domestic violence. Breaches of personal protection orders are serious matters which the courts must treat seriously to ensure the integrity of the system which the protection orders are intended to put in to effect’ (See [52]).

  • Grimshaw v Mann [2013] ACTSC 189 (29 August 2013) – Australian Capital Territory Supreme Court
    Aboriginal and Torres Strait Islander people’ – ‘Anger management programs’ – ‘Applications and orders for child residence, contact and parenting orders’ – ‘Common assault’ – ‘Drug and alcohol programs’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Public/private space’ – ‘Victim impact statements

    Charge/s: Common assault.

    Appeal type: Appeal against sentence.

    Facts: The Aboriginal male appellant was involved in an altercation with his former female partner (the complainant) of 7 years. The relationship ended in 2010 due to the appellant’s use of drug and alcohol, and he had not seen the children since. In May 2012, the appellant moved to Canberra to be closer to his children and commenced proceedings in the Family Court for access rights. On 2 June 2012, outside a late night convenience store, the appellant started arguing with the complainant and struck her three times with a closed fist. She fell to the ground and hit her head. She was helped up by her two friends and threw a glass soft drink bottle at the appellant. She missed but smashed another glass bottle over his head. The appellant needed four stiches. The appellant voluntarily handed himself into the police two days later. The complainant had previously obtained two protection orders against the appellant. Both had expired at the time of offence.

    At the sentencing hearing, a lengthy Victim Impact Statement was tendered. However, it contained a good deal of irrelevant and inadmissible material. Refshauge J on appeal stated:

    ‘Allegations of further serious offending cannot come within the definition of “harm suffered by the victim [as a result of, or in the course of, the commission] of the offence”: s 47 of the Crimes (Sentencing) Act 2005 (ACT). While defence counsel may be wary of exercising their rights to cross-examine a victim on a Victim Impact Statement, discussions with prosecutors should result in an appropriate response from responsible prosecutors about inadmissible material and such statements. Without that proper approach, it is likely that such statements will lose their value and that the courts will have to intervene to ensure that the legislation is respected to ensure inadmissible, and often inflammatory, material is not included in such statements’ (See [41]).

    The appellant pleaded guilty to common assault and was sentenced to 10 months imprisonment, three months to be served by full-time custody, three months by periodic detention and the balance suspended and a two year good behaviour order made. The appellant sought assistance for his alcohol and drug issues, made contact with the Aboriginal Justice Centre, and enrolled in a men’s anger program.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed and the appellant re-sentenced to 10 months imprisonment to commence on 28 May 2013, suspended for two years from 27 August 2013. The sentence was manifestly excessive in all the circumstances. First, the sentencing magistrate did not take into account the appellant’s injuries caused by the complainant which occurred when the appellant was no longer a threat to the complainant. Second, the injuries sustained by the complainant, as apparent from photographic evidence, were not as serious as what was described in the Victim Impact Statement. Finally, the appellant’s criminal history, although containing prior convictions for violent offences, did not demonstrate a propensity to violence. He had not been charged with any domestic violence offences and he had not breached two personal protection orders (See [77]-[82]).

    His Honour further stated:

    ‘The prosecution referred to the aggravating factor that the assault “took place in a public place.” I have some difficulty with that factor as an aggravating one. It implies that an assault in private is less serious. I am not sure that this follows.

    Most family violence occurs in private yet is regarded as very serious. Indeed, privacy can emphasise the vulnerability and helplessness of the victim.

    However that may be, intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance by the learned Magistrate on the fact that the assault occurred in public as an aggravating factor was not an error’ (See [49]-[51]).

  • Cranfield v Watson [2013] ACTSC 160 (1 August 2013) – Australian Capital Territory Supreme Court
    Manifestly excessive’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Assault occasioning actual bodily harm (two counts)

    Appeal type: Appeal against sentence

    Facts: The appellant and complainant were in a relationship and resided together with their son. While arguing one day, the appellant grabbed the complainant’s arm and punched her in the face a number of times. In response, the complainant struck the appellant in the torso. The pair continued to exchange blows throughout the day with the appellant striking the complainant to the face and punching her thigh, and the complainant hitting the appellant in the torso and face and bitting his arm. A week later, the appellant became angry after having computer difficulties and started swearing at the complainant. When she told him to stop being pathetic and throwing tantrums, the appellant slapped the complainant and caused her eardrum to rupture.

    In relation to this conduct the appellant was charged and convicted of two counts of assault occasioning actual bodily harm. He was sentenced to 11 months’ imprisonment for the first offence and five months’ imprisonment, of which two months’ was to be served concurrently with the sentence imposed for the first offence, for the second offence. The total sentence was therefore 14 months’ imprisonment. Five months of that sentence was to be served in full custody, with the following five months to be served by way of periodic detention, and the remaining four months suspended upon the appellant entering into a good behaviour order for two years.

    The magistrate considered that it was an aggravating feature of the first offence that the assault was comprised of several violent, physical contacts that extended over a period of time. He also considered it was an aggravating feature of both offences that they included blows to the head and face of a female. Finally, his Honour considered the ruptured eardrum of the complainant was an aggravating factor of the second offence.

    Issue: Whether the sentence imposed was manifestly excessive.

    Decision and reasoning: The appeal was upheld and the appellant was re-sentenced.

    The magistrate erred in considering that the nature and duration of the violence in relation to the first offence was an aggravating feature. Rather, it was a circumstance that was relevant to the sentencing of the appellant. Further, the fact the complainant suffered a ruptured eardrum was not an aggravating feature of the second offence. It was merely an element of that offence — namely, that the assault resulted in actual bodily harm. The magistrate also failed to properly consider a psychiatrist report put before him. That report noted that the appellant’s domestic violence was likely related to his on-going mental health difficulties including suffering from post-traumatic stress disorder.

    Burns J considered the term of imprisonment with respect to the offences was excessive where there was evidence that the appellant’s conduct was either caused by or contributed to by mental health conditions. These conditions were capable of being treated. Further, the appellant did not have a significant history of violent offending, having only been convicted of two offences of common assault 11 years prior to the offending.

    In resentencing the appellant, Burns J accepted that the offences warranted terms of imprisonment. The appellant was sentenced to six months’ imprisonment for the first offence and two months’ imprisonment for the second offence. The total sentence of seven months’ imprisonment was backdated to recognise the two months the appellant had already spent in custody, and suspended thereafter. Burns J imposed a good behaviour order for two years with the conditions the appellant accept supervision and obey reasonable directions; undertake programs or counselling as directed, including the Family Violence Cognitive Self Change Program if appropriate; and undertake counselling or treatment with respect to mental health issues.

  • Guy v Anderson [2013] ACTSC 5 (14 January 2013) – Australian Capital Territory Supreme Court
    Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Forgiveness’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Perpetrator programs’ – ‘Physical violence and harm’ – ‘Reconciliation’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Victim contribution

    Charge/s: Damaging property, assault occasioning actual bodily harm.

    Appeal type: Appeal against sentence.

    Facts: The male appellant was in an intermittent relationship with the female complainant. During the course of an argument, the intoxicated appellant shouted in the complainant’s face and hit her. The appellant then sat on top of the complainant and attempted to choke her. He stood up and kicked her in the ribs when she screamed for help. The appellant sat on top of her again and choked her until her vision went blurry. She started retching and the appellant dragged her to the toilet by her hair. When she finished retching, he poured half a bottle of wine over her head and again placed his hands around her throat. The appellant then pulled the complainant into the lounge room and the complainant tried to calm him down. She went to the police the next day. He was sentenced to 3 months imprisonment for common assault and 6 months imprisonment, wholly suspended and conditional on a good behaviour order, for assault occasioning bodily harm.

    On a subsequent occasion, the complainant and the appellant again started arguing. The appellant went outside the house to have a cigarette and the complainant locked him out. She packed his bag and left it at the rear door. The appellant, who had not seen the bag, began knocking on the rear door and the window. As the complainant was on the phone to police, she heard the sound of the appellant breaking the window. The complainant told the appellant his belongings were at the front door and he left. He pleaded guilty to damaging property and sentenced to 1 month imprisonment. The conviction constituted a breach of the earlier imposed good behaviour order and the magistrate imposed the full 6 months of this sentence.

    Issue/s: The sentence for damaging property and the action taken in respect of the breach of the good behaviour order was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. First, the sentence for the offence of damaging property was manifestly excessive in the circumstances. Although this was a domestic violence offence, this did not mandate a particular response and the circumstances as a whole needed to be considered. Refshauge J accepted the fact that complainant and the appellant had reconciled needed to be treated cautiously. He stated that, ‘Forgiveness by victims of domestic violence offences is highly problematic and must be treated with considerable caution for the reasons outlined by Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) at 8. As her Honour said, “the victim’s attitude to sentencing … was not a matter which should have influenced the sentencing decision”.’ However, reconciliation of the complainant and the offender (as opposed to her forgiveness) can be relevant as to prospects of rehabilitation.

    Second, the magistrate’s decision to impose the full 6 months suspended sentence was manifestly excessive. While the breaching offence was not trivial, it was at the low end of seriousness for the offence and was also of a different character from the original offence. Significantly, the appellant had also complied with the probation condition, sought mental health assistance of his own volition and participated in the Family Violence Cognitive Self-Change Program. See re-sentencing [1]-[5].

  • Saddler v Pavicic [2011] ACTSC 199 (9 December 2011) – Australian Capital Territory Supreme Court
    Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Deterrence’ – ‘Family members’ – ‘Manifestly inadequate’ – ‘Older people’ – ‘Parent/s’ – ‘Physical violence and harm

    Charge/s: Assault occasioning actual bodily harm, assault.

    Appeal type: Crown appeal against sentence.

    Facts: During the course of an argument, the 31 year old respondent and his 60 year old mother (the first complainant) began pushing and shoving each other. This culminated in the respondent grabbing the complainant by the neck and pushing her, causing her to fall and fracture her wrist (assault occasioning actual bodily harm). Later that afternoon, the first complainant was visited by the male second complainant and his 4 children. The second complainant heard a revving noise and saw the respondent holding a chainsaw outside the window. The respondent said, ‘You fucking Australian cunt, come out here, I am going to cut you, like this’, and then tried to enter the backdoor. When he failed, the respondent picked up a fish gaff and swung it above his head (assault). The magistrate recorded a conviction and fined the respondent $1,000 for assault occasioning bodily harm and $1,500 for assault.

    Issue/s: One of the grounds of appeal was that the sentences imposed were manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. The sentence for the assault occasioning actual bodily harm was manifestly inadequate. The respondent was not entitled to leniency in sentencing on the basis of his prior criminal history or on the basis of his plea. The sentence imposed gave little, if any, weight to the requirements of specific and general deterrence, nor did it reflect the objective seriousness of the offence, even taking into account the provocation from the complainant. The appellant was re-sentenced to a suspended sentence of 7 months imprisonment.

    In reaching this conclusion, Burns J noted that this was clearly a domestic violence offence. He noted that, ‘It is now well settled that offences of domestic violence must be treated seriously, and frequently display aggravating features not present in offences occurring outside a domestic relationship. The only reason the respondent was in a position to commit the offence on his mother was because of that relationship. As such, the offence involved a serious breach of the trust reposed in the respondent as a son by his mother. Additionally, the age of the complainant was an aggravating circumstance attending the commission of the offence’at [12].

    The sentence imposed by the magistrate in relation to the assault was also manifestly inadequate.

  • Donoso v Koster [2011] ACTSC 192 (24 November 2011) – Australian Capital Territory Supreme Court
    Common assault’ – ‘Hardship’ – ‘Non-conviction order’ – ‘Offender character references’ – ‘Physical violence and harm’ – ‘Recording a conviction

    Charge/s: Common assault.

    Appeal type: Appeal against sentence.

    Facts: The appellant forcibly pulled sheets from on top of the complainant when she was in bed. The sheets caught on the complainant’s necklace and this caused pain and a red welt on her lower neck. The magistrate recorded a conviction.

    Issue/s: A conviction should not have been recorded.

    Decision and Reasoning: The appeal was allowed. The prosecution submitted that, as this was a family violence offence, it had a certain degree of seriousness and a conviction ought to be recorded. Burns J accepted that ‘there are circumstances and principles relating to family violence offences which that they must be taken particularly seriously’. However, the objective seriousness of the offence and the subjective circumstances of the offender are always relevant. Objectively, this offence came very close to the bottom of the range of seriousness of offences of this nature. Further, the appellant was otherwise a man of good character. He had no prior convictions and was spoken of highly in provided testimonials. Further, he was employed in an area in which the recording of a conviction would result in particular hardship (i.e. termination of employment). The conviction was set aside and a good behaviour order for a period of 12 months was imposed.

  • Connelly v Allan [2011] ACTSC 170 (13 October 2011) – Australian Capital Territory Supreme Court
    Evidence’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Voice recognition evidence

    Charges: Contravening a domestic violence order (two counts)

    Appeal type: Appeal against conviction and sentence

    Facts: The appellant was subject to a domestic violence order that prohibited him from contacting his former partner (the applicant), behaving in a harassing manner towards her or threatening her. The appellant breached this order by making a number of phone calls to the applicant. He was charged with two counts of breaching the domestic violence order and was convicted of both charges. Those convictions amounted to a breach of two good behaviour orders previously made when the appellant was convicted of stalking and two additional counts of contravening a protection order in December 2007 and common assault in June 2007. He was sentenced to six months’ imprisonment on each of the counts of breaching the domestic violence order, to be served concurrently. On the breach of the first good behaviour order he was sentenced to four months’ imprisonment, one month of which was to be cumulative on the other sentences. All the imprisonment to be served by periodic detention.

    In convicting the appellant, the magistrate accepted evidence from the applicant and a friend that they recognised the appellant’s voice. The phone calls were allegedly made using a public phone, so this voice recognition was the only evidence to support that the appellant was guilty of the offences.

    The appellant had a long history of criminal offending comprising of 52 charges. A pre-sentence report stated that the appellant had suffered a dysfunctional, violent and unstable family background. His father was an alcoholic and was violence towards his mother. The appellant also abused alcohol, drinking about six stubbies every night. Since the offending, the appellant reported that he was still drinking but not at a problematic level. However, there was no evidence to support these assertions. The appellant suffered from depression and anxiety that ‘result in markedly diminished capacity in judgement’, according to a psychologist’s report. Another psychologist concluded that the appellant’s offending history was alcohol induced and based.

    Issues:

    1. The ground of appeal against the conviction was that the magistrate failed to direct and warn herself adequately in relation to the voice identification evidence.
    2. The grounds of appeal against the sentence were:

      1. The sentence was manifestly excessive;
      2. The magistrate failed to have proper regard to the significance of the appellant’s alcoholism in structuring an appropriate sentence; and
      3. The magistrate erred in not finding that community service was appropriate in all the circumstances.

    Decision and reasoning: The appeal against the conviction was dismissed. In considering whether the appellant was guilty, the magistrate scrutinised the applicant’s evidence as to voice recognition carefully. Both witnesses knew the appellant well and recognised his voice on the phone. While the magistrate should have given a warning, it would have been confined to the fact that the conversations were limited and that people can be mistaken about the voices of those they know well. Despite the lack of warning, Refshauge ACJ held there was no miscarriage of justice, as even if a warning was given, it would not have affected the magistrate’s conclusion.

    However, the appeal against the sentence was allowed and the appellant was ordered to be re-sentenced. The appellant’s offending was at the lower end of the spectrum of contravening a domestic violence order. However, the magistrate did not err in concluding that imprisonment was the appropriate punishment when considering his offending history and breaches of good behaviour orders. Rather, the magistrate erred in dismissing the option of suspending a term of imprisonment with a good behaviour order to include a community service condition. The offences were not so serious that a suspended sentence was too lenient.

  • In the matter of an application for bail by Hutchings [2011] ACTSC 83 (20 April 2011) – Australian Capital Territory Supreme Court
    Bail’ – ‘Breach of a domestic violence order’ – ‘Breach of conditions’ – ‘Conditions of orders’ – ‘Physical violence and harm’ – ‘Special or exceptional circumstances favouring the grant of bail’ – ‘Temporary protection order’ – ‘Uncharged allegations

    Charge/s: Breach of a domestic violence order.

    Appeal type: Appeal against refusal to grant bail.

    Facts: Mr Hutchings breached an interim Domestic Violence Order by sending the female complainant a letter summarising his feelings towards her and the end of their relationship. This was also in breach of bail conditions imposed for a dangerous driving offence. He was granted bail with a condition included that he not contact the complainant in any way. The complainant later received a telephone call and message, alleged to be from Mr Hutchings. He was arrested and charged with breaches of the Domestic Violence Order. This activated s 9D of the Bail Act which provided that bail could not be granted unless there were special or exceptional circumstances favouring the grant of bail. The magistrate refused bail in those circumstances.

    Issue/s: Whether there were special or exceptional circumstances favouring the grant of bail.

    Decision and reasoning: The appeal was rejected. The Police were concerned that Mr Hutchings would commit further breaches of the Domestic Violence Order if allowed on bail. They noted that the complainant had made further complaints against Mr Hutchings but there was insufficient evidence to justify the commencement of proceedings. Burns J noted that the courts must be very cautious about relying on uncharged allegations but concluded that it was a concern to be taken into account [10]. While Mr Hutchings’ daughter was pregnant and needed Mr Hutchings to drive her around, Burns J noted that she could make other arrangements [12]. Accordingly, there were no special and exceptional circumstances justifying the grant of bail.

  • Ross v Mothersole [2010] ACTSC 125 (19 October 2010) – Australian Capital Territory Supreme Court
    Assault occasioning actual bodily harm’ – ‘Drug and alcohol programs’ – ‘Glassing’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Victim contribution’ – ‘Victim's views

    Charge/s: Assault occasioning actual bodily harm, assault, threatening to harm a public official, obstructing a public official.

    Appeal type: Appeal against sentence.

    Facts: The male appellant and the female victim of the two assaults were in a relationship. The first offence occurred when the intoxicated appellant swore at the victim and smashed a beer glass in her face. She required five stiches (assault occasioning actual bodily harm). At the watch house, the appellant threatened violence against police officers and resisted search attempts. On a subsequent occasion, the appellant and the victim were out drinking together and, during the course of argument, the appellant yelled, ‘I could kill you right now and no-one would ever know’. He then put the victim into a headlock, and head-butted and punched the complainant in the face (assault). A total head sentence of 36 months imprisonment was imposed with a non-parole period of 18 months.

    Issue/s: The sentence for the assault occasioning actual bodily harm was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. The sentencing magistrate failed to take proper account of the appellant’s plea of guilty in sentencing (See [78]). Refshauge J noted that it is very desirable that a sentencing magistrate or judge makes express reference to the issue of a plea of guilty to show that it has been taken into account. Further, the sentencing magistrate did not address the relevant mental state of the appellant (intention or recklessness). Refshauge J stated, ‘there is no doubt that “glassing” is a serious offence, whether intentionally (significantly more serious) or recklessly. It is a cruel and vicious offence, especially where the damage done is to the victim’s face, the scars from which will be long obvious and distressingly disfiguring. It is a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody’ (See [88]). However, notwithstanding this, on the facts, it was more likely than not that the appellant did not intend to use the glass as a weapon (See [90]).

    In re-sentencing the appellant, Refshauge J had regard to a letter from the victim. It showed that she was still devoted to the appellant and wanted to maintain their relationship. She stated, ‘ I know he is truly sorry for hurting me and the time he has spent in jail he has not wasted one day doing everything possible to completely turn his life around, every course available in the prison Egan has not only completed but done so with proud achievement’. This showed that the insight and rehabilitative opportunities noted in the original sentencing hearing had been fulfilled and the appellant had addressed his offending behaviour (See [92]-[94]). The appellant was re-sentenced to 2 years imprisonment for the assault occasioning bodily harm. The other sentences were confirmed leaving a head sentence of 30 months, with a non-parole period of 10 months.

  • Tuckey v Ede [2010] ACTSC 95 (8 September 2010) – Australian Capital Territory Supreme Court
    Assault’ – ‘Non-conviction order’ – ‘Physical violence and harm’ – ‘Victim contribution

    Charge/s: Summary offence of assault.

    Appeal type: Appeal against conviction.

    Facts: The intoxicated male appellant started arguing with his partner (the female complainant) in their house. The appellant kicked a chair at the complainant and broke it. She threw the broken chair at him and he slapped her in the face. The complainant called the police. After discussion, the appellant agreed to plead guilty to a summary charge of assault and the prosecution agreed to make submissions not opposing the making of a non-conviction order. Her Honour refused to make a non-conviction order, convicted the appellant and imposed a 12 month good behaviour order.

    Issue/s: One of the issues was that the sentencing process was flawed.

    Decision and Reasoning: The appeal was upheld because the sentencing process in the Magistrates Court was flawed in light of further evidence provided about the agreement between the prosecution and the defence before the hearing. Although the appellant was not entitled to assume that the magistrate would make the orders that had been agreed upon, he was entitled to expect that the prosecution’s attitude to a non-conviction order would have been articulated during the hearing (See [26]-[42]).

    Another sentence was appropriate in this case. The appellant had no criminal record nor any identified problem with alcohol or anger management. The offence was an isolated incident in which the complainant also took part. The couple had reconciled and were again living with their child. The appellant had a sound employment record, had already been punished by spending the night in police custody and was unable to return home for 3 weeks because of his bail conditions. Finally, the conviction would make it difficult for him to see his partner’s family in Vietnam (See [43]-[45]).

    The appellant’s conviction was set aside and a good behaviour order imposed for 12 months. In re-sentencing the appellant, Penfold J stated:

    ‘However, the appellant should not interpret this conclusion as in any sense condoning of his use of physical violence on his partner (or anyone else for that matter). Rather, it is a recognition that while it is vital for domestic violence to be taken seriously by the police and the prosecuting authorities and the courts, it is also important for a victim of domestic violence to be able to call for help when she needs it in the belief that after her immediate needs have been addressed, the longer-term consequences of the call for help will be decided in a calmer environment in which her longer-term interests and wishes will also receive recognition. The appellant should be aware however, that if there were any repetition of this kind of behaviour by him, I expect that a sentencing court would take it very seriously’ (See [47]).

  • Elson v Ayton [2010] ACTSC 70 (15 July 2010) – Australian Capital Territory Supreme Court
    Assault’ – ‘Assault occasioning actual bodily harm’ – ‘Damaging property’ – ‘Emotional abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentence accumulation’ – ‘Sentencing’ – ‘Totality

    Charge/s: Assault occasioning actual bodily harm, assault x 3, damaging property x 2.

    Appeal type: Appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship. The appellant became very angry with the complainant and she got in her car with her daughter to leave. The appellant punched the driver’s side window of the car causing the window to shatter. He then punched the complainant in the nose and eye, causing her nose to bleed. On a subsequent occasion, in breach of his bail conditions, the intoxicated appellant went to the complainant’s house. He abused her saying, ‘he would kill her and hurt her,’ and put his right arm around her throat. He threw a jar and punched his fist through the microwave door. On a third occasion, again in breach of bail conditions, the appellant went to the complainant’s home with his teenage son. He grabbed her by the throat, punched her in the face, and kicked her. The appellant only stopped when the complainant’s 10 year old son called the police.

    While the sentencing magistrate stated that she intended to impose a total sentence of 48 months, with a 24 months non-parole period, the accumulation of sentences the magistrate articulated in court was only a total of 30 months. However, amendments were subsequently made to the bench sheets to reflect what Her Honour intended.

    Issue/s:

    1. The sentencing magistrate erred in amending the sentences.
    2. The sentencing magistrate erred in imposing the maximum penalty for the damaging property offences.
    3. The sentence was manifestly excessive and the sentencing magistrate misapplied the totality principle.

    Decision and Reasoning: The appeal was upheld. First, the parties should have been given an opportunity to be heard before the sentences were amended. This failure amounted to an error requiring the sentence to be set aside (See [81]-[93]). Second, the offences of damaging property were not in the worst category of offences — the damage was not considerable and there were no matters of aggravation of either offence such as planning or premeditation. The magistrate erred in imposing the imposition of the maximum penalty on these offences (See [94]-[103]).

    Third, the sentence of 15 months imprisonment imposed for the second assault was excessive in light of the sentence of 18 months imprisonment for the first assault. The first assault was more serious. It involved the smashing of a window, the appellant caused the complainant’s nose to bleed, it was committed in the presence of a child, and the appellant pleaded not guilty to this offence (See [105]-[109]). Further, by merely accumulating the sentences for the three episodes, the sentencing magistrate could not be said to have applied the principle of totality (See [109]-[116]).

    The appellant was re-sentenced by Refshauge J to a total sentence of 34 months imprisonment, with a non-parole period of 15 months based on evidence that the appellant had taken steps to address his drug and alcohol use (See [121]-[130]). His Honour noted, ‘these offences are serious, particularly because they are offences of family violence, some committed in the presence of children, some committed whilst on bail and in breach of conditions of that bail. The repetition of assaults on the victim also makes the offences serious’ [122].

  • Goundar v Goddard [2010] ACTSC 56 (29 June 2010) – Australian Capital Territory Supreme Court
    Anger management programs’ – ‘Appeal against sentence’ – ‘Assault’ – ‘Physical violence and harm’ – ‘Probation’ – ‘Purpose of sentencing’ – ‘Rehabilitation

    Charge/s: Assault.

    Appeal type: Appeal against sentence.

    Facts: The male appellant and his wife, the complainant, were involved in a lengthy argument regarding the conduct of the complainant’s daughter. The appellant swore at the complainant and said, ‘I’m going to kill you’. He then pushed the complainant on her forehead, causing her to fall backwards into her chair. The complainant went to her daughter’s bedroom and was followed by the appellant. The argument continued and at one point the appellant came so close he caused the complainant to stumble backwards onto the bed. The appellant pleaded guilty to assault. Counsel for the appellant sought a non-conviction sentence and the prosecution made no opposing submissions. The magistrate imposed a good behaviour order which required the appellant to subject to probation for 18 months and required the appellant to attend counselling on anger management and inter-personal relationships.

    Issue/s: The condition of the good behaviour order requiring the appellant to be subject to probation for 18 months was manifestly excessive.

    Decision and Reasoning: The appeal was allowed and the period of supervision set aside. This was an offence at the lower end of the scale of seriousness for such offences, notwithstanding that this was a family violence offence. It was committed by a person with no criminal history. Further, a substantial number of very positive references were submitted attesting to the appellant’s good character (See [44]-[47]).

    The respondent submitted that weight had to be given to general and specific deterrence because this was a family violence offence. Refshauge J accepted this but noted that ‘supervision on probation is not ordinarily seen as part of the deterrent component of sentencing’. It is generally a rehabilitative part of sentencing. Here, unless actual supervision was required for a rehabilitative purpose, i.e. to ensure the appellant attended counselling, it was not appropriate to make a probation condition. There was no suggestion on the facts that the appellant would benefit from such guidance (See [48]-[59]).

  • Twerd v Holmes [2010] ACTSC 55 (25 June 2010) – Australian Capital Territory Supreme Court
    Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘Unlawful confinement

    Charge/s: Unlawful confinement.

    Appeal type: Appeal against sentence.

    Facts: The appellant unlawfully confined his former partner by forcing her into a taxi and compelling her to travel with him, against her will. He then took her to another person’s house where she was prevented from answering her phone. She was held captive for approximately 2 hours. The magistrate imposed a sentence of 20 months imprisonment, with a non-parole period of 15 months.

    Issue/s: One of the issues was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The sentence could not be said to be manifestly excessive. This was a very serious offence. Its seriousness was not diminished by the fact that it occurred within the context of a relationship breakdown, that it was not carried out for financial gain, and that it was committed in the presence of third parties. Further, the appellant had a long criminal history (See [3]-[4]).

  • In the matter of an application for Bail by Breen [2009] ACTSC 172 (31 December 2009) – Australian Capital Territory Supreme Court
    Aboriginal and Torres Strait Islander people’ – ‘Bail’ – ‘Emotional and psychological abuse’ – ‘People with mental illness’ – ‘Presumption against the grant of bail’ – ‘Threatening to kill

    Charge/s: Threatening to kill, failing to surrender firearms x 3, possessing a quantity of cannabis.

    Appeal type: Appeal against refusal to grant bail.

    Facts: Mr Breen, an Aboriginal man, was in a relationship with a woman and they had three children. Mr Breen rang the mother of his partner, asking if she knew where his partner was. He was extremely agitated and said, ‘If we were married, we would now be divorced’ and ‘I’ve got big problems with my head’. Mr Breen then said, ‘and if [his partner] gets boyfriends out of this, I will get my gun and blow all their heads off. I will kill us all. Better that than have them molested as I was’. Mr Breen stayed on the phone to his partner’s mother for an hour and on two occasions he threatened to kill the whole family. When police later arrived, Mr Breen said he was depressed and ‘wanted to end it all’. A search of the property uncovered three unregistered rifles and cannabis. He was arrested and was refused bail by a magistrate for ‘mental health issues’ and his access to ‘illicit’ firearms.

    Issue/s: Whether Mr Breen should be granted bail.

    Decision and reasoning: Section 9B of the Bail Act meant that the presumption in favour of bail did not apply. Refshauge J noted that, in determining whether to grant or refuse bail, the court had to engage in an assessment of ‘future risk’. Given that refusal of bail is tantamount to preventative detention, the court should not make a decision on the basis of suspicion or speculation (See [57]-[61]). His Honour stated, ‘the appropriate initial view was that this was a serious offence which was engendered in emotional circumstances where very serious violence, at least to Mr Breen himself if not to his partner and children, was threatened and where there were apparent means to carry out such a threat. This was exacerbated by the fact that Mr Breen clearly [had] some mental health issues which [made] the likelihood of unpredictable outcomes greater’ at [61].

    However, on the basis of tendered evidence, Refshauge J was satisfied that the imposition of strict bail conditions could manage these concerns (See [91]). Mr Breen’s behaviour was caused by a mental impairment that was treatable (and treatment were already occurring). While Mr Breen had a worrying fascination with guns and weapons, he was not in a realistic position or had the immediate capacity to carry out his threat. There was no evidence to satisfy Refshauge J that Mr Breen’s partner would be in danger with the provision of suitable bail conditions. Mr Breen had work available and his parents were prepared to offer a cash surety.

  • Talukder v Dunbar [2009] ACTSC 42 (16 April 2009) – Australian Capital Territory Supreme Court
    Anger management programs’ – ‘Common assault’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Victim contribution’ – ‘Victim impact statements

    Charge/s: Common assault.

    Appeal type: Appeal against sentence.

    Facts: The appellant and the complainant had been married for eight years and had two children. An argument arose between the appellant and the complainant. Their 12 year old son stepped between them but was pushed away by the appellant. The appellant grabbed the complainant by the hair, pulled her into the bedroom and threw her on the bed. The complainant called the appellant’s mother a prostitute and he twisted her arm behind her back and slapped her face several times. The police were called. The appellant made full admissions. In sentencing submissions, counsel for the appellant informed the magistrate that a conviction would prevent the family from migrating to Canada and asked for a short adjournment to procure such evidence from his office. The magistrate refused. The appellant was convicted and made subject to a good behaviour order for 12 months.

    Issue/s: One of the grounds of appeal was that the magistrate failed to provide procedural fairness by not permitting an adjournment.

    Decision and reasoning: The magistrate erred in refusing to allow an adjournment for the material relating to the potential barriers of a conviction to migrating to Canada to be procured. The adjournment would only have been brief and the issue of migration status was of major concern to the family. It was not appropriate to deny the appellant the opportunity of putting his case before the court just because his legal representation had failed to have the requisite documents on hand. The appeal was allowed and it fell to Refshauge J to re-sentence the appellant (See [34]-[51]).

    In re-sentencing the appellant, His Honour had particular regard to the issues of the migration process to Canada and the views expressed by the complainant in a letter to the court. First, Refshauge J accepted that there was a real likelihood that in a case of domestic violence the appellant would be refused admission to Canada. This would adversely affect the family (See [73]-[78]). Second, in relation to the letter from the complainant, His Honour stated that:

    ‘In my view, there is a great danger in putting a victim of domestic violence in the position where they are seen to have some power to influence a sentence. This is often likely to be an intolerable choice between the bonds of affection which often persist despite the violence and their need for protection against recurrence and for the offender to be held accountable’ at [82].

    His Honour accepted the letter for the following: the appellant had previously good character, the incident was a one-off occurrence, he voluntarily participated in an anger management course, and it confirmed the effect on the family if they were unable to migrate to Canada. But, in light of the issues mentioned above, accepting the letter as evidence of reconciliation needed to be treated with caution (See [79]-[84]).

    The appellant had no prior convictions and previous good character. The offence was serious but at the lower end of the criminal calendar and, as a matter of marginal extenuation, the victim was equally as abusive. A non-conviction order was warranted because of the appellant’s immediate engagement in a rehabilitation program, his plea of guilty and early confession, and the risk to the family if their immigration plans were thwarted (See [92]-[97]).

  • R v Taylor (No 2) [2008] ACTSC 97 (12 September 2008) – Australian Capital Territory Supreme Court
    Contravention of a protection order’ – ‘Following, harassing, monitoring’ – ‘Good behaviour orders’ – ‘People affected by substance misuse’ – ‘Perpetrator programs’ – ‘Protection order’ – ‘Purpose of sentencing’ – ‘Rehabilitation’ – ‘Subjective circumstances’ – ‘Suspended sentence

    Charge/s: Contravention of a protection order.

    Hearing type: Sentencing hearing.

    Facts: On 16 January 2007, the offender was found guilty for breaching a Domestic Violence Protection Order, protecting Ms Perrin (with whom he had two children). He drove past Ms Perrin’s residence, yelled at her, and summonsed another man at the premises to fight him. The offence was committed in breach of two earlier imposed and unrelated good behaviour orders for aggravated robbery and assault occasioning bodily harm (‘the 2004 offences’). Accordingly, it fell to Rares J to sentence the offender for the breach of the protection order and re-sentence the offender for the 2004 offences. At the time of sentencing, the offender and Ms Perrin had reconciled.

    Decision and Reasoning: The offender was sentenced to 12 months imprisonment, wholly suspended with conditions [2]. In sentencing the offender, Rares J was satisfied that the offender had made a serious and concerted effort to turn his life around — the offender had stopped taking cannabis and alcohol, had obtained employment, paid for his own attendance with Ms Perrin at a Relationships Australia course, and had the support of his family and Ms Perrin’s family to make a good life for their children. His Honour also took into account the fact that he had pleaded not guilty to the offence of breaching the domestic violence order and that he had a prior criminal history.

    Rares J noted that while he did not want to undermine the offender’s ‘terrific’ improvement, a penalty had to be crafted that appropriately reflected the offender’s criminality, the seriousness of the conduct and general deterrence. His Honour noted:

    ‘In many, many cases before the courts, the subjective impact of a punishment on an offender once brought to justice can be seen to be great. But to do justice according to law, must be to uphold the laws themselves and their purpose to ensure that we all obey the law. The community must know that offenders, whatever their personal circumstances are, receive a punishment that is appropriate and recognises the seriousness of the offending and the breaches of the community’s standards embodied in its criminal laws’ at [17].

  • Redden v Slavin-Molloy [2008] ACTSC 37 (29 April 2008) – Australian Capital Territory Supreme Court
    Breach of a protection order’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘Protection orders’ – ‘Repeated breaches’ – ‘Specific deterrence

    Charge/s: Contravention of a protection order x 2.

    Appeal type: Appeal against sentence.

    Facts: The female complainant obtained a protection order against the male appellant, her former partner. In breach of this order, the appellant attended her home. When she refused to let him inside, he began yelling and attempted to break down the door. She called for help and the appellant fled. The next day, the appellant again tried to obtain entry to the complainant’s home. He struck and damaged the front door when he was refused entry and again ran off when he was told the police had been called. In December 2007, the offender was sentenced to 10 and 15 months imprisonment respectively for these breaches. Earlier, in May 2007, the offender had been sentenced for a number of other offences, including four charges of contravening a protection order. For the most serious of these breaches, he was sentenced to six months imprisonment to be served as periodic detention.

    Issue/s: One of the grounds of appeal was that the sentence of 10 months imprisonment and 15 months imprisonment was manifestly excessive.

    Decision and reasoning: The appeal was allowed. Penfold J noted that:

    ‘To the extent that punishing an offender ever more severely because of repeat offending, rather than because the individual offences have become more serious, is justifiable, such an approach must relate to the need for specific deterrence of an offender who appears unwilling to learn from previous penalties. Even in that case, the penalty must still remain referable in some way to the actual offence committed’ at [38].

    Here, the sentence was manifestly excessive (See [42]). In particular, the two sentences imposed were at least twice as severe as the most severe penalty previously imposed for breach of a protection order in May 2007. However, if the May 2007 breaches were so much less severe than the conduct here, it was hard to see how they would have justified imprisonment at all (See [37]). Further, at the time of the August breaches, the offender had not served any full-time custody or even any periodic detention. It could not be assumed that his actions in August were informed by any understanding of the reality of a custodial sentence (See [39]). Other relevant mitigating factors were taken into account (See [30]).

    The appellant was re-sentenced to 6 months imprisonment for each breach.

  • Miller v MacDonald [2006] ACTSC 76 (30 June 2006) – Australian Capital Territory Supreme Court
    Conditions of orders’ – ‘Conflict between orders’ – ‘Contravention of a protection order’ – ‘Explaining the orders’ – ‘Family court orders’ – ‘Mistake of law’ – ‘Protection order’ – ‘Recklessness’ – ‘Repeated breaches

    Charge/s: Contravention of a domestic violence order x 2.

    Appeal type: Appeal against conviction and appeal against sentence.

    Facts: The appellant’s former wife, with whom he had a daughter, obtained a domestic violence protection order against him, prohibiting contact. Shortly before the appellant left for an extended visit to the United States, the Family Court made an order which vacated this contact order. It stated that while the appellant was out of the country, he could send gifts and correspondence or postcards to his daughter provided that the contact was directed to the child and that he could send a photograph from time to time. When he was back in Australia, the appellant sent his daughter a package containing photographs, gifts and a letter. Additionally, the appellant mistakenly sent his former wife an email when he sent a group message to his siblings. He had previously been interviewed by police for a similar mistake. The appellant had spent 42 days in custody on remand. The magistrate imposed a six month term of imprisonment from the date he was taken into custody and directed he be released after serving 42 days, effectively that he be released the day following the hearing. He also imposed an 18 month good behaviour bond, subject to some conditions (see[22]).

    Issue/s:

    1. The appellant made an honest and reasonable mistake of law by sending his daughter a package.
    2. The email to his wife was sent in error.
    3. The sentence was manifestly excessive.

    Decision and reasoning: The appeal was dismissed. First, His Honour held that: ‘[I]t is certainly fair to say that if a person seeks to rely on a Family Court order that varies what is otherwise a clear domestic violence order, it is incumbent upon that person to take steps to understand what the Family Court order says. And it seems to me that the Magistrate was perfectly entitled to find that Mr Miller was at least reckless in assuming that that order, which on its face only covers the time that he was out of the country, continued to apply after he had returned to Australia’ at [5].

    Second, on its own, the email sent in error to his former wife would have been unlikely to meet the requisite standard of intent or recklessness. However, given that the appellant had made the same mistake before and had been interviewed by police for this, there was at least recklessness in relation to the sending of that message.

    Third, the sentence could not be said to be manifestly excessive. His Honour noted that these were low level breaches of a domestic violence order, they involved recklessness rather than intent, and the nature of the correspondence in both the letter and the email was non-violent and non-threatening. However, the appellant had three prior appearances relating to seven convictions for breaches of a protection order. Connolly J stated:

    ‘It seems to me that even though these were lower level, indeed very low level breaches in the sense that there was no actual or apprehended or threatened violence, repeated breaches however low level, do inevitably meet with an increase in sentence on the basic premise that when low level sentences do not stop the offending behaviour a court has little option but to continue a pattern of steadily ramping up the sentence’ at [20].

  • R v Bell [2005] ACTSC 123 (1 December 2005) – Australian Capital Territory Supreme Court
    Impact of domestic violence on women and children’ – ‘Persons affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Risk factor- strangulation’ – ‘Sentencing

    Charge: Assault occasioning actual bodily harm

    Proceeding: Sentencing

    Facts: The offender and victim had previously been in a relationship and had two children together. The offender and victim’s version of events differed. The victim alleged that after consuming alcohol with the offender one night, the offender dragged her out of bed, hit her three time in the face and put his hands around her neck and pushed his thumbs into her throat. While doing so, the offender said something to the effect of “Slut, I’ll kill you, I’ll kill you”. When she woke up the next morning the offender continued to follow and abuse her. The offender said that the offending occurred after he blacked out after drinking substantial amounts of alcohol. He said that the assault occurred after the victim, who was drunk, was following him between pubs and abused him verbally and physically by kicking him. After she got in an altercation with a patron, she was removed from the pub and was spoken to by police officers. The offender agreed to take the victim home, where they sat outside smoking marijuana and drinking bourbon. They then got in an argument over their children and the victim struck the offender. According to the offender, this is when he grabbed her throat and beat the victim.

    Higgins CJ, after hearing corroborating witnesses, accepted that the assault occurred in the way described by the offender. However, he did not suggest that the victim was fabricating her account: ‘She was savagely beaten, she had a lot to drink and it is unsurprising that some of the details became confused in her mind’ ([26]).

    In relation to this conduct the offender was charged and pleaded guilty to one count of assault occasioning actual bodily harm.

    For three months prior to the assault, the offender had undergone rehabilitation at Oolong House. He had a long history of offending, including 28 prior assaults. Most of the previous offending occurred after the offender had consumed alcohol. While he acknowledged his alcohol abuse, the offender did not consider he needed drug and alcohol intervention. He also admitted to feeling ‘horrified by what he had done’ and said ‘violence towards women is not in his makeup and he has no excuses for what he has done’.

    Issue: What sentence should the offender receive?

    Decision and reasoning: The offender was sentenced to two and a half years’ imprisonment with a non-parole period of 18 months. While the preceding conduct on the night of the offending and the alcohol abuse engaged in by both the parties may explain the offending, it did not excuse it. There were some prospects of rehabilitation for the offender. However, having regard to the severity of the attack and the offender’s criminal history and alcohol abuse, a sentence of imprisonment was appropriate: ‘No other sentence will say to men who abuse women that such conduct is abhorrent and will result in severe punishment whatever the status or record of the offender’ ([32]).

    In considering the purposes of sentencing domestic violence offending, Higgins CJ noted that while alcohol may have been a triggering factor, offenders must take responsibility for their actions and be seen to do so. As domestic violence offences are often hidden, general deterrence is also an important consideration in sentencing. So too is specific deterrence. Higgins CJ emphasised that domestic violence ‘is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred’ ([30]).

  • Gray v Burt [2005] ACTSC 93 (23 September 2005) – Australian Capital Territory Supreme Court
    Application to revoke domestic violence order’ – ‘People with disability and impairment’ – ‘Protection orders’ – ‘Sexual and reproductive abuse’ – ‘Victim contribution

    Appeal type: Appeal against refusal of a magistrate to revoke a Domestic Violence Order.

    Facts: On 22 October 2003, a Domestic Violence Order was made by the Deputy Registrar of the Magistrates Court for the protection of the female respondent against the appellant, with whom she was in a sexual relationship. Both parties had disabilities. During their ‘physical relationship’, the respondent suffered three separate fractures of her legs. She had no history of such injuries prior to the physical relationship and no history of such injuries subsequent to the physical relationship. On 24 May 2004, the Order was varied by consent and in particular the Order restrained and prohibited the male appellant from taking certain actions in relation to the respondent. The appellant applied to have the order revoked but a magistrate declined to revoke the Order. His Honour concluded that the physical nature of the relationship represented a genuine risk to the well-being of the respondent.

    Issue/s: The magistrate erred in failing to revoke the order. His Honour made three errors in reaching his decision to not revoke the order –

    1. The magistrate failed to take into account the fact that the injuries occurred while the respondent was living in an apartment with the appellant and was not receiving the same degree of care as she did now.
    2. The magistrate failed to take into account evidence about counselling that the parties had commenced and intended to continue.
    3. The magistrate failed to take into account the likelihood of future sexual contact between the parties in circumstances where the appellant was now under full-time supervision at Hartley Court (a disability support facility).

    Decision and reasoning: The appeal was dismissed. First, the location of where the injuries occurred was not relevant because it was the physical relationship that caused the injuries. Second, there was no evidence that the counselling had been concluded nor that it would reduce the likelihood of injury if the physical relationship was to continue. Accordingly, this was not a relevant consideration. Finally, the magistrate did consider the fact that such a relationship was likely to continue on the basis of evidence before him.

    Further, the magistrate did not fail to take into account the fact that persons with disabilities had the same basic rights as other members of Australian society. The magistrate specifically referred to the wishes of the respondent to continue the relationship with the appellant. However, His Honour concluded that the risk to the respondent resulting from such a relationship as such that he was unable to be satisfied that the order preventing such a relationship was no longer necessary for her protection.

  • R v In [2001] ACTSC 102 (2 November 2001) – Australian Capital Territory Supreme Court
    Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘General deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor-suicide threats’ – ‘Sentencing’ – ‘Unlawful confinement

    Charge/s: Unlawful confinement, assault occasioning bodily harm.

    Hearing type: Sentencing hearing.

    Facts: The offences occurred after the male offender and his wife, the complainant, had separated and the offender had moved out of the family home. He occasionally stayed overnight to see the children. After seeing his wife kiss another man, the offender arrived at the family home late at night, when the children were present in the house. The complainant let him in and went back to bed. The offender followed her and sat on top of her. He placed a sharp object against her throat and said, ‘This is a knife. If you move I will fucking kill you’. He then placed pre-cut strips of duct tape over the complainant’s mouth and eyes. He bound her wrists and ankles and tied her hands and feet together. He said, ‘You’ll have your wish — you’ll see me die tonight, you’ll see me die’.

    The complainant had difficulty breathing and the offender removed the duct tape. He interrogated her about her relationship with the other man, hitting her several times around the head and shoulders. He left the room saying, ‘If you fucking move I’ll kill you’ and returned with a telephone book. The offender asked for the other man’s phone number before leaving the room again. The complainant heard him enter the nearby bedroom, occupied by two of their daughters and heard him say, ‘Now take this darling. I know it tastes awful, doesn’t it’.

    He returned to the complainant and resumed interrogating her, striking her. He said multiple times that he was going to kill himself and take the children with him. The offender eventually became tearful and untied the complainant. She rang the emergency number and asked for an ambulance, thinking her children had been poisoned. The police and ambulance arrived. The children were unharmed. The offender left the premises and went to the police station the next morning.

    Decision and Reasoning: The offender was sentenced to 6 years imprisonment for unlawful confinement and 3 years imprisonment for assault, concurrent and a non-parole period of 18 months. Crispin J took into account a number of subjective factors in imposing this sentence. The offender pleaded guilty. At the time the offender entered the house, while there was some measure of pre-meditation in the appellant’s actions (the decision to confine and interrogate the complainant), the offender did not intend to threaten the complainant with a knife or to kill his children. The offender stopped the violence and threats of his own volition.

    At the time of offending, the offender was suffering from serious psychological illnesses including acute depression and adjustment order. It was submitted on the offender’s behalf that, because of this illness, this made the offender an inappropriate vehicle for general deterrence. Crispin J disagreed and stated,

    ‘The extent of his psychological condition is relevant to the issue of general deterrence but, in my view, the need to protect former spouses or partners from conduct of this nature cannot be so easily dismissed. Many people no doubt experience great stress upon the breakup of their marriages or other close relationships and in some cases they may suffer from symptoms of an underlying psychological illness or even become psychologically ill for the first time. One may and should respond with sympathy. However, when a person commits serious criminal acts against a former spouse or partner the court must take into account the need to deter other people from similar conduct. The risk of serious injury and, as in this case, grave emotional trauma may be at least as serious when the offender is psychologically ill. Accordingly, the need for deterrence should be given due recognition, though the weight which should be given to that factor will vary according to the circumstances of the case, and the actual sentences must be determined by reference to all relevant factors’ (See [19]).

    Other relevant factors included that the offender was remorseful, he had no prior convictions and was previously a committed father and a person of impeccable character. He had taken steps to obtain counselling and achieved a significant measure of rehabilitation. He had already been imprisoned for 8 months and this caused significant distress in light of his inability to see his children and his potential to be a suicide risk.

    However, Crispin J was unable to accept counsel submissions that the offender should be released on parole immediately. The offences were too serious to be dealt with in that manner — the complainant was confined for an extended period and intended to cause significant fear in the complainant.

  • R v Lorenz [1998] ACTSC 275 (14 August 1998) – Australian Capital Territory Supreme Court
    Assault occasioning bodily harm’ – ‘Battered woman syndrome’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘General deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful confinement’ – ‘Where the offender is also a victim

    Charge/s: Robbery with an offensive weapon.

    Trial: Judge only trial.

    Facts: On 20 November 1996, Ms Lorenz (‘the accused’) entered a supermarket and attempted to purchase some cigarettes with her EFTPOS card from the complainant. The transaction could not be completed because there were insufficient funds in the account. The accused maintained she was sure there were funds in the account and re-tried the card but it was again declined. She then left the store. Ten minutes later, the accused returned to the store with a pen knife. She approached the complainant, held the knife out in front of her and said, ‘give me all your fucking money or I’ll slit your throat’. The complainant gave the accused $360 in cash and the accused left the store. While initially denying any involvement, the accused made admissions to the police.

    Counsel for the accused argued that the accused was acting out of duress on the basis of a threat made by Ms Lorenz’s partner on the night before the robbery and repeated the following morning to the effect that if she did not obtain enough money to enable him to re-register his car he would kill her. This threat followed a pattern of violent and threatening behaviour towards the accused over a number of years (See [11]). On the morning of the robbery, the accused, who was pregnant with the couple’s third child, found out that she was unable to get the immediate payment of an advance payment from the Department of Social Security to pay the re-registration.

    Decision and Reasoning: There was some discussion in this case of ‘battered woman syndrome’ (See [26]-[31]). Crispin J accepted that upon failing to receive advance payment from the Department of Social Security, the accused became frightened and confused and the robbery was an impulsive act due to her fear that her partner would kill her. His Honour stated: ‘In my view her failure to attempt to extricate herself from the situation whether by leaving him or otherwise is largely explicable by her fear and confusion. Furthermore, she may have thought that any escape would have been only temporary and that sooner or later [her partner] would have been bound to have caught up with her and carried out his threat’ at [30].

    However, ‘a diagnosis of battered woman syndrome does not of itself give rise to any defence. The law does not recognise any general principle that people should be absolved from criminal conduct because they had been beaten or abused or because a psychological condition caused by such treatment may have led them to commit the offences with which they are charged. Nonetheless, evidence that such a person may have had a psychological condition of this kind may be relevant to several defences known to the law’ at [31].

    Here, counsel for the appellant unsuccessfully attempted to rely on the defence of duress. In the accused’s favour, His Honour found that the threat was effective at the time of the offence, the accused did not fail to take advantage of a reasonable opportunity to render the threat ineffective, and, in light of the extremity of the actual and threatened violence displayed by the accused’s partner, a person of ordinary firmness of mind may have acted in the way the accused did (See [35]-[37]). However, the accused’s partner did not direct the accused to commit the offence and accordingly the defence of duress failed (See [38]-[41]). In the alternative, counsel for the accused attempted to rely on the defence of necessity. However, His Honour held that the imminence of danger fell well short of the required standard for the successful proof of the defence (See [42]-[45]). She was accordingly found guilty.

    The accused left her partner shortly after the robbery and had formed a relationship with another man. She had just turned 23, had three children and was pregnant to her new partner. The new relationship was apparently a happy one. In these circumstances, and to give her the opportunity to start a new life for herself and her children, Crispin J found it appropriate to defer passing sentence on the condition that she enter into recognisance to be of good behaviour for a period of three years.

New South Wales

Court of Appeal

  • Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001) – New South Wales Court of Appeal
    Expert evidence’ – ‘General principles’ – ‘Negligence’ – ‘Opinion

    Appeal Type: General civil appeal.

    Facts: This decision was not concerned with domestic and family violence but is relevant in relation to the admission of expert evidence in cases involving domestic and family violence. The plaintiff was injured after falling down the stairs at work and sued her employer for negligence. At trial, her employer was found to have breached their duty of care because the stairs were slippery and this was the reason the plaintiff fell. This finding of fact made at trial was largely based on expert evidence adduced by the plaintiff. The expert attested to the slipperiness of the stairs. The plaintiff was awarded damages. But for the expert’s report, ‘a conclusion that the stairs were not slippery would have been inevitable’ (see at [56]). The defendant appealed on the basis that, inter alia, the trial judge erred in accepting the expert evidence.

    Issues: Whether the trial judge erred in accepting the opinion of the expert regarding the slipperiness of the stairs.

    Decision and Reasoning: The appeal was upheld. All members of the Court of Appeal agreed that the trial judge ought not to have accepted the evidence. Importantly, this appeal was concerned with whether the evidence ought to have been accepted by the trial judge, not with its admissibility. Heydon JA firstly considered whether the expert’s testimony ‘(complied) with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions’ ([59]). It was in this context that his Honour engaged in general discussion about the admissibility of expert evidence. Expert evidence cannot usurp the role of the trial judge (or jury if present) in making findings of fact. The task of the tribunal of fact is to make an independent assessment of expert evidence in forming its own conclusion. It cannot do this, ‘if the expert does not fully expose the reasoning relied on’ (see at [67]). The Court is not obliged to accept the opinion of an expert, even if no other evidence is called to contradict it (see at [87]). This is important especially where the evidence goes to the ultimate issue in the case. Evidence which goes to the ultimate issue is not inadmissible for that reason (see s 80 of the Evidence Act 1995 (NSW)). Essentially, an expert gives opinion based on facts, and as such must prove ‘by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based’ (see at [64]).

    See at [85] where his Honour summarises the general principles of the admissibility of expert evidence –

    ‘In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).’

Court of Criminal Appeal

  • Glynn Kaderavek v R [2018] NSWCCA 92 (11 May 2018) – New South Wales Court of Criminal Appeal
    Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Strangulation’ – ‘Systems abuse

    Charges: Assault x 1; Recklessly causing grievous bodily harm x 1; Perverting the course of justice x 1.

    Appeal type: Appeal against sentence.

    Facts: The applicant and complainant lived together and had two children. The assault charge occurred when the applicant choked the victim and chased her around the backyard with a wooden stick. The grievous bodily harm charge occurred when the applicant punched the victim, breaking her jaw. The offender then smashed walls with a tow bar and broke belongings in the house. The offender gave a false statement to police alleging that there was a home invasion ([8]).

    The chronology of sentencing was ‘unusual’ ([7]). The present offences were committed in August 2013, but the complainant did not report them to the police until July 2014 because of emotional abuse from the applicant ([8]). In March 2014, the applicant committed further offences against the complainant and was sentenced for those offences. At the time of sentencing for the present offences, the applicant was still in custody for the March 2014 offences ([7]). The judge made a finding of special circumstances to recognise the applicant’s mental health issues. The sentencing judge stated that he would reduce the non-parole period so that the offender could be appropriately supervised when released into the community ([27]).

    The applicant was sentenced to an aggregate sentence of 7 years’ imprisonment with a non-parole period of 5 years. The sentence was ordered to commence on 7 July 2015 ([5]), the date of expiry of the total sentence (non-parole period and the balance of the term) for the March 2014 offences ([7]).

    Issues: The applicant argued that the sentencing judge erred in wholly accumulating the sentence on earlier sentences because the judge failed to take into account:

    • a period of pre-sentence custody;
    • the effect of the earlier sentences on the total ratio between the non-parole period and total sentence; and
    • the principle of totality ([6]).

    Decision and Reasoning: The first ground was upheld because Hamill J (Beazley P and Schmidt J agreeing) found that the sentence should have commenced on 7 April 2015, the expiry date of the non-parole period for the March 2014 offences. Hamill J dismissed the second and third grounds of appeal because there was no error in wholly accumulating the sentences or the judge’s application of the principle of totality ([23]-[24]).

    Hamill J held that the total impact of the sentence negated the judge’s finding of special circumstances. This was because the when the entire period of imprisonment was taken into account, there was no decrease in the non-parole period ([28]).

    Hamill J considered that he needed to exercise the sentencing discretion afresh, in accordance with Kentwell v The Queen [2014] HCA 37 ([30]). Hamill J imposed the same head sentence. His Honour commenced the sentence on 7 April 2015 and reduced the non-parole period to 4 years and 6 months to reflect the finding of special circumstances ([31]).

  • Ussher-Clarke v The Queen [2018] NSWCCA 61 (13 April 2018) – New South Wales Court of Criminal Appeal
    Factors affecting risk’ – ‘Impact on consent and disclosure’ – ‘Pregnancy’ – ‘Systems abuse’ – ‘Women

    Charges: Recklessly cause grievous bodily harm x 1; Intending to procure a witness to give false evidence x 1.

    Appeal type: Application for leave to appeal against conviction.

    Facts: The appellant kicked his partner, the complainant, in the abdomen. The complainant was 12 weeks pregnant, and she miscarried the following morning ([10]). There were conflicting opinions given by experts as to the likelihood that the kick could have caused the miscarriage (see [17]-[44]).

    The complainant gave statements to the police immediately after the incident indicating that the appellant had kicked her. In the weeks after the incident, the appellant made a number of phone calls to the complainant to encourage her to lie to the police. In a subsequent statement and in her evidence at trial, the complainant claimed that the appellant had not assaulted her ([8]).

    The appellant pleaded guilty to the charge in relation to influencing a witness. The applicant was convicted of the recklessly cause grievous bodily harm charge and was sentenced to a head sentence of 5 years and 6 months with a non-parole period of 4 years.

    Issues: Whether the conviction was unreasonable and unable to be supported by the evidence.

    Decision and Reasoning: Leave to appeal was refused. The Court discussed the principles governing granting leave to appeal against conviction ([59]-[60]). The Court noted that the Crown had to prove that the kick was a significant cause of the miscarriage, not that that it was the sole cause ([60]-[61]). The Court concluded that it was open to the jury to accept the experts’ evidence, while conflicting, as supporting the conclusion that the kick caused the miscarriage ([89]).

  • Diaz v The Queen [2018] NSWCCA 33 (14 March 2018) – New South Wales Court of Criminal Appeal
    Aggravated kidnapping’ – ‘Damaging property’ – ‘General deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Specific deterrence’ – ‘Women

    Charges: Aggravated kidnapping x 1; Sexual intercourse without consent x 1; Destroying or damaging property x 4; Assault occasioning actual bodily harm x 1; Common assault x 1.

    Appeal type: Appeal against sentence.

    Facts: The applicant and victim had been in a relationship for approximately 5 months. The assault and destroying property charges were in relation to arguments where the applicant pulled out some of the victim’s hair, and smashed her phone, a vase and a television set ([13]-[15]). The aggravated kidnapping and sexual intercourse without consent charges occurred when the applicant pinned the victim onto a bed ([17]). He digitally penetrated her, became angry about the contents of her Facebook and text messages ([18]) and punched her approximately 20 to 30 times ([19]-[20]). This continued for about 5 hours ([21]). The applicant had a ‘disturbing’ criminal history including two similar domestic violence offences where the applicant detained the victim in her apartment ([28]-[31]). The applicant was on parole for those sentences at the time of this offence ([33]).

    The applicant was sentenced to a head sentence of 7 years and 9 months imprisonment with a non-parole period of 4 years and 6 months ([10]).

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Acting Justice Hidden at [47] endorsed the trial judge’s characterisation of the manner in which the applicant detained the victim “by instilling fear and control over her... by his conduct, demeanour, words and assault” (at [39]).

    It was significant that the offences were committed while the applicant was on parole. The domestic violence context of these offences was also important, with Hidden AJ quoting from Johnson J’s judgement in R v Hamid [2006] NSWCCA 302 at [86]:

    In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.

    Justice Garling added: ‘[in] R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41] of violent attacks in domestic settings this:

    Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth, such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

  • Armstrong v R [2017] NSWCCA 323 (15 December 2017) – New South Wales Court of Criminal Appeal
    Conviction’ – ‘Exposing children to violence’ – ‘Humiliation’ – ‘Sentencing’ – ‘Sexual abuse’ – ‘Tendency evidence’ – ‘Women

    Charges: Assault x 1; Sexual assault x 2; Aggravated sexual assault x 2.

    Appeal type: Appeal against conviction and sentence in relation to the two counts of aggravated sexual assault.

    Facts: The appellant and complainant were in a relationship. In the presence of the complainant’s son, the appellant punched and bit the complainant, held her down while she was screaming and pushed his fingers into her vagina and anus ([15]).

    The prosecution sought to adduce tendency evidence ([8]). CCTV footage showed the appellant dragging the complainant by her hair ([13]). The Crown relied upon the CCTV evidence to argue that the appellant had a tendency to be violent towards the complainant ([8]). The tendency evidence was admitted, and the appellant was found guilty of the two counts of aggravated sexual assault and was sentenced to a head sentence of 8 years and 9 months’ imprisonment with a non-parole period of 5 years and 9 months.

    Issues: Whether the tendency evidence) should have been admitted; and whether the sentencing judge erred in determining the objective seriousness of the offences by not taking into account the fact that they were not committed for sexual gratification.

    Decision and Reasoning: The appeal against conviction was dismissed and leave to appeal against sentence was refused. In relation to the appeal against conviction, the Court (Meagher JA, Rothman and Button JJ) stated that tendency evidence need not directly establish the elements of an offence charged, but should make one or more of the facts in issue significantly more likely ([20]). The Court at [19] quoted the majority of the High Court in Hughes v The Queen [2017] HCA 20 (14 June 2017) at [40]:

    The test posed by s 97(1)(b) [of the Evidence Act 1995 (NSW)] is as stated in Ford [(2009) 201 A Crim R 451 at [125]]: ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. [emphasis in original]

    Since the appellant’s case was that he was acting in self-defence, the Court held that the trial judge did not err in admitting the CCTV footage. The footage was sufficiently probative of the appellant’s propensity to act violently towards the complainant ([21]).

    In relation to the appeal against sentence, the Court held that the trial judge did not err, Meagher JA stated that: ‘there is nothing to commend the proposition that engaging in sexual intercourse without consent to gratify oneself is in any sense more objectionable than doing so to humiliate and physically dominate another’ ([35]). Thus, the trial judge did not err in measuring the objective seriousness of the offence.

  • R v Evans [2017] NSWCCA 281 (21 November 2017) – New South Wales Court of Criminal Appeal
    Aggravating circumstances: breach of bail and protection order’ – ‘Assault’ – ‘Fair hearing’ – ‘People with children’ – ‘Power and control’ – ‘Sexual abuse’ – ‘Strangulation’ – ‘Systems abuse’ – ‘Text messages’ – ‘Women

    Charges: Indecent assault x 1; Common assault x 2; intentionally destroy property x 1; Contravene apprehended domestic violence order x 1; Do act with intent to influence witness x 1.

    Appeal type: Appeal against sentence.

    Facts: The applicant and complainant had been in a relationship and had three children ([10]). The common assault charges occurred when the applicant grabbed the complainant’s throat and forced her against the wall, onto the bed and onto the ground ([11]-[14], [22]-[24]). The indecent assault charge occurred when the applicant forced her onto the bed and placed his fingers in her vagina ([15]-[18]). The ‘do act with intent to influence witness’ charge occurred when the applicant asked the complainant over text message to drop the charges on at least 16 occasions ([33]). For example, one of the text messages said, ‘you will be left with the kids full time with no break so I couldn’t handily [sic] going away so that’s why I want you to drop the charges’ ([33]).

    After a plea of guilty, the applicant received a head sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months ([3]). For the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 3 years and 2 months’ imprisonment ([4]).

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. Adamson J, with whom Hoeben CJ at CL and Davies J agreed, held that the sentence was manifestly excessive.

    In relation to the ‘do act with intent to influence witness’ charge, Adamson J at [38] quoted the sentencing judge:

    [the charge] reveals a course of conduct that I regard as being particularly serious. It was repetitive and was clearly designed to emotionally manipulate and blackmail the complainant to discontinue the charges against him. It was also conduct that was in breach of his bail conditions as well as another court order, namely an interim ADVO. These are aggravating features.

    Adamson J similarly commented at [46] on the importance of the charge (s 323(a) of the Crimes Act 1900 (NSW)) in the context of domestic violence offences:

    It is within the common experience of courts that many charges of domestic violence cannot be prosecuted because the defendant manages to persuade the complainant, including by threatening violence, not to give evidence against him. Conduct of this nature against complainants is inimical to the interests of justice and the administration of justice. The perpetrators of domestic violence may, by committing offences under s 323(a) of the Crimes Act, effectively immunise themselves from prosecution.

    However, his Honour considered that the text messages were not as serious compared to other possible offences under s 323(a) of the Crimes Act, such as bribing a witness or threatening violence (see [48]-[51]). Therefore, the sentence of 3 years and 2 months was manifestly excessive, and led to the head sentence being manifestly excessive ([51]).

    The applicant was re-sentenced to an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years ([61]). On the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 1 year imprisonment (after applying the 20% reduction for his plea of guilty) ([59]).

  • Cherry v R [2017] NSWCCA 150 (28 June 2017) – New South Wales Court of Criminal Appeal
    Contravention of a domestic violence order’ – ‘Escalation of violence’ – ‘People affected by substance misuse’ – ‘Strangulation

    Charges: Assault occasioning actual bodily harm x 3; Assault x 4; Breaking and entering x 1; Contravening domestic violence order x 4.

    Appeal type: Application for leave to appeal against sentence.

    Facts: The applicant and complainant had been in a relationship since 2013 ([12]). The applicant committed a series of assaults, including striking the complainant with his hands ([16]) and car keys ([13]), touching her with a hot pipe used to smoke ice ([27]), and choking her, once until she was nearly unconscious ([14], [20], [25]). The applicant also entered the home of the complainant’s friend, assaulted her and stole her mobile phone ([34]). The applicant pleaded guilty, and was sentenced to 6 years’ imprisonment with a non-parole period of 4 years ([6]).

    Issues: The applicant appealed on three grounds: first, that the judge erred in finding that the offending was in the mid-range of objective seriousness; second, that the sentence accorded insufficient weight to the prospects of rehabilitation; and third, that the sentence was manifestly excessive ([9]).

    Decision and Reasoning: The appeal was dismissed.

    Justice Johnson briefly dismissed the first and second grounds of appeal ([60, [68]). On the third ground, His Honour discussed the importance of general and specific deterrence and denunciation in domestic violence cases (see [74]-[80]).

    His Honour observed: “It is correct to characterise the Applicant’s course of conduct towards NR as one involving escalating violence. His act of choking NR in Count 4 had the potential for very grave consequences. Although not applicable to the Applicant in this case, it is noteworthy that in the second reading speech in support of the Crimes Amendment (Strangulation) Act 2014, which amended s.37 Crimes Act 1900, the Attorney General, Mr Hazzard, observed that strangulation “is prevalent in domestic violence incidents” (Hansard, Legislative Assembly, 7 May 2014)” [75].

    He further noted: “In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54].” [79]

    The applicant’s regular use of the drug Ice was a relevant factor but not a of itself a mitigating circumstance.[81]

    This case concerned repeated offences of escalating violence, in breach of a domestic violence order ([80]). Having regard to these considerations, the sentence was not manifestly excessive ([83]).

  • Vaiusu v The Queen [2017] NSWCCA 71 (5 April 2017) – New South Wales Court of Criminal Appeal
    Appeal against sentence’ – ‘Ex tempore judgement’ – ‘Impact on children’ – ‘Imprisonment’ – ‘Manifestly excessive’ – ‘Perpetrator victim of domestic violence’ – ‘Subjective circumstances

    Charges: Wounding with intent to do grievous bodily harm x 1.

    Appeal type: Appeal against sentence.

    Facts: The victim was the appellant’s brother in law. The victim had hit the appellant’s sister, apparently accidentally, in a scuffle outside a nightclub. The appellant’s sister told her that the victim had hit her, but she did not tell her that it was an accident. The appellant followed the victim to a train station and stabbed him in the neck with a broken bottle ([7]).

    The appellant pleaded guilty and was sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 2 months.

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The appellant argued that the trial judge failed to take sufficient account of her background as a victim of domestic violence by her stepfather growing up ([23]). It was also submitted that the appellant was subject to domestic violence by her husband, whose death she was still mourning at the time of the offending ([24]). Further, the trial judge made no mention of the fact that her daughter would be left without a parent if the appellant was sentenced to imprisonment ([26]).

    The Court of Appeal (Bathurst CJ, R A Hulme and Beech-Jones JJ) emphasised that a trial judge cannot carefully consider their remarks while delivering an ex tempore judgement. If a trial judge does not mention a particular factor, that does not mean that they have not had regard to it ([31]). Even though the trial judge did not specifically mention the factors raised by the appellant, it was evident that the trial judge adopted a sympathetic approach to sentencing while having regard to the maximum sentence and current sentencing practices ([36]-[38]).

  • Morgan v R [2016] NSWCCA 298 (16 December 2016) – New South Wales Court of Criminal Appeal
    Exposing children to domestic and family violence’ – ‘People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘Physical violence and harm’ – ‘Women

    Charges: Specially aggravated break, enter and commit an indictable offence, namely reckless wounding x 1.

    Appeal type: Appeal against sentence.

    Facts: The applicant and complainant (both women) lived together with the victim’s two children and had been in an intimate relationship ([4]). The victim and applicant argued, which escalated into a physical confrontation. The victim barricaded herself in a bedroom and picked up her infant child. The applicant broke into the room and stabbed the victim in the back. The applicant continued to chase, hit and choke the victim, and the victim sustained stab wounds to her buttock, arms, wrist and neck ([5]-[8]). The applicant pleaded guilty and was sentenced to 6 years and 3 months’ imprisonment, with a non-parole period of 2 years and 9 months.

    Issues: Whether the sentence is manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The Court of Appeal (Ward JA, Bellew J and Hidden AJ) had regard to the applicant’s subjective circumstances, such as the fact that she had experienced domestic violence and sexual abuse as a child, and had been diagnosed with anxiety, depression and borderline personality disorder ([10]-[12]). The Court of Appeal found that the trial judge had adequate regard to the subjective circumstances proffered by the applicant ([27]). The victim did not sustain any serious injuries ([16]).

    The Court of Appeal remarked that the charge of break and enter was unusual in this case, given that the applicant broke an internal door. This fact made it impossible to find comparable cases ([22], [26]).

  • Silva v The Queen [2016] NSWCCA 284 (7 December 2016) – New South Wales Court of Criminal Appeal
    Manslaughter’ – ‘Physical violence and harm’ – ‘Reasonableness’ – ‘Relevance of past violent conduct’ – ‘Self-defence

    Charge/s: Manslaughter.

    Appeal Type: Appeal against conviction.

    Facts: The female appellant was in a relationship with the deceased, James Polkinghorne, and they had a child together. Evidence was led at trial that the deceased had physically and verbally abused the appellant throughout their relationship. She was unable to leave the relationship and saw seeking help from the police as impossible.

    On the 13 May 2012, the appellant went to her parents’ place, against the deceased’s wishes. During the course of the day, there were 80 calls and SMS messages between the appellant and the deceased. These messages and calls were tendered as evidence at trial (recordings were available because the police had been tapping the deceased’s phone in light of his suspected involvement in a previous murder). These messages, while not phrased in terms of ‘killing’ the appellant, were extremely threatening and abusive. The deceased was affected by methylamphetamine.

    That night, the deceased went to the home of the appellant’s parents. He was ‘going crazy, screaming and kicking items’. The appellant’s brother called 000. From here, there were some inconsistencies in the accounts of the appellant’s father, brother and the record of interview from the appellant produced after the killing. There was no contention that the appellant was punched and thrown around by the deceased. Both the appellant in her record of interview and her brother at trial said that the deceased yelled, “I’m going to fucking kill her’ and ‘I’ll get youse cunts’. The appellant’s father and brother started fighting with the deceased. The appellant retrieved a knife from inside and stabbed the deceased. After trial by a jury, she was found not guilty of murder but guilty of manslaughter and sentenced to 18 months imprisonment wholly suspended.

    Issue/s: Whether it was open for the jury to conclude, to the criminal standard of proof, that the fatal stab wound inflicted by the appellant was not a reasonable response to the circumstances as she saw them?

    Decision and Reasoning: The appeal was allowed (McCallum J and RS Hulme AJ in majority, Leeming JA in dissent). In the majority judgment, RS Hulme AJ first held that there was no rational reason for the jury to reject the substance of the evidence before them. This evidence included the terms and tone of what the deceased had said in the phone calls and messages that day. As per His Honour at [163]:

    ‘Certainly he had not in terms threatened to “kill” the Appellant. However he was powerful, had been violent in the past, had previously attacked the Appellant and on the day in question he was very angry, irrational, and had threatened to seriously hurt her and to come to where the Appellant was, thus providing some opportunity to carry out his threats’.

    Further, notwithstanding the inconsistencies, much of the evidence suggested that the appellant and her brother had been in serious danger. Accordingly, RS Hulme AJ concluded that there was sufficient evidence that the appellant believed her act was necessary to defend herself or some other person (see [170]).

    Second, His Honour held that the appellant’s response was reasonable. This was in circumstances where the police would have taken time to arrive, the appellant saw substantial disadvantages in calling the police, and it was not obvious that they would be able to overwhelm the deceased. Therefore, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant had not acted in defence of herself or her brother and father (see [171]-[173]). The appeal was allowed.

    McCallum J largely agreed with RS Hulme AJ but provided some additional comments. Her Honour was also unable to accept that the jury could, acting reasonably, have been satisfied beyond reasonable doubt that the appellant’s conduct was not reasonable in the circumstances as she perceived them at the time of the stabbing (see [93]). Her Honour noted that Leeming JA in dissent had placed emphasis on the objective medical evidence and the evidence of eye witnesses at the confrontation. Acknowledging that it is important to have regard to the whole of the evidence, McCallum J continued:

    ‘Ultimately, however, the critical issue in this case is the reasonableness of inflicting mortal injury judging that issue by reference to an assessment of the circumstances in that instant as perceived by Ms Silva. While the evidence directly relating to the time of the stabbing is important, that assessment is also critically informed by a close analysis of the circumstances leading up to the fatal confrontation’ (see [94]).

    McCallum J’s own assessment was that the appellant could only have seen the deceased’s attack on her that evening as ‘urgent, life-threatening and inescapable’ and that the events in the street could not be divorced from the ‘irrational, menacing rage exhibited by the deceased in his calls to Ms Silva in the period leading up to the time when he confronted her physically’ (see especially [95]-[109]). Her Honour concluded at [110]:

    ‘The circumstances described in the evidence in this case are the kind in which, more commonly, it is the woman who is killed. In my assessment of the record of the trial, the evidence was not capable of proving beyond reasonable doubt…that Ms Silva’s conduct in fatally stabbing the deceased was not reasonable in the circumstances as she perceived them at the time of the stabbing’.

    In dissent, Leeming J was not persuaded that a deep penetrating stab into the deceased’s chest cavity, while he was struggling with two other men, was a reasonable response to the circumstances as the appellant saw them at 9.09pm and it was therefore open to the jury to reach this conclusion (see discussion at [83]). His Honour also noted that the jury had the advantage of seeing the evidence first hand and therefore declined to interfere with the verdict.

    See also R v Silva [2015] NSWSC 148 (6 March 2015).
  • Browning v The Queen [2015] NSWCCA 147 (17 June 2015) – New South Wales Court of Criminal Appeal
    Breach of an apprehended domestic violence order’ – ‘Conditional liberty’ – ‘Deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Repeated breaches’ – ‘Using etc explosive substance or corrosive fluid etc with intent to burn, maim, disfigure, disable or do grievous bodily harm

    Charge/s: Using etc explosive substance or corrosive fluid etc with intent to burn, maim, disfigure, disable or do grievous bodily harm, breach of an apprehended domestic violence order x 2.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and the complainant had been married for 30 years but separated in August 2012. The complainant obtained an Apprehended Domestic Violence order (ADVO) against the applicant for 12 months. Notwithstanding this, the applicant breached the order on two occasions. On a subsequent occasion, the applicant doused the complainant in petrol and made a sustained attempt to light her on fire. He was stopped by three teenage boys. The applicant was sentenced to 7.5 years imprisonment for the offence of using an explosive substance or corrosive fluid with intent, with a non-parole period of four years.

    Issue/s: One of the grounds of appeal was that the Court’s finding that the offence of using an explosive substance or corrosive fluid with intent was in the mid-range of seriousness failed to adequately account for the Court’s findings that:

    1. the offence was not pre-meditated but spontaneous;
    2. no significant harm was occasioned to the victim;
    3. the applicant’s attempts to carry out his intended actions were less determined than in other examples of this offence; and
    4. other matters bore on the assessment of the seriousness of the offence.

    Decision and Reasoning: This ground of appeal was dismissed. Garling J held (Gleeson JA and Johnson J agreeing) that the finding of the sentencing judge that this offence was in the mid-range was, if anything, unduly favourable to the applicant. This was a sustained attempt to set the complainant alight after the applicant had doused her in petrol. The only impediment to his success was the repeated intervention of the teenage men (See [96]-[100] and [3]).

    Johnson J made some additional observations at [5]-[8]. His Honour cited with approval Spigelman CJ’s observations regarding apprehended domestic violence orders in John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101 at [20]:

    ‘The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law’.

    His Honour further noted that the applicant was a repeat domestic violence offender. Accordingly, in sentencing for these offences, it was appropriate to have in mind the statement of the Court in R v Hamid [2006] NSWCCA 302 (20 September 2006) at [86]:

    ‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’.

    Finally, Johnson J stated:

    ‘Where a court has made an apprehended domestic violence order to protect a person, and then further orders are made by way of conditional liberty for criminal offences arising from breaches of that order, the commission of another offence, in breach of that conditional liberty, will constitute significant aggravating circumstances: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. This is especially so where the offence against the protected person is of the very grave character of the s 47 offence in this case, with the offence being committed so soon after the applicant had been given the benefit of conditional liberty by order of the District Court’.

  • Ahmu v The Queen; DPP v Ahmu [2014] NSWCCA 312 (15 December 2014) – New South Wales Court of Criminal Appeal
    Crown appeal against sentence’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Indecent assault’ – ‘Offender often believes violence is justified’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Protection of the community’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Vindication of the victim’ – ‘Women

    Charge/s: Rape x 15, indecent assault x 2.

    Appeal Type: Appeal against conviction and Crown appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship and had a two year old son at the time of the offences. At trial, it was alleged by the prosecution that the appellant was sexually predatory, violent and abusive in his relationship with the complainant and that he was a child molester with a sexual interest in children, including his two year old son. The complainant obtained an apprehended violence order against the applicant in 2009 but the relationship resumed in 2010 because she was concerned about the appellant having unsupervised access with the child. The rape and indecent assault offences occurred throughout one night in 2010, in the presence of their two year old son. The complainant, who was pregnant at the time, pleaded with the appellant to stop, but the appellant threatened to kill her and continued regardless. A number of the sexual acts were accompanied by humiliating and degrading conduct. The appellant was sentenced to seven years imprisonment, with a non-parole period of four years.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal against conviction was dismissed but the Crown appeal against sentence was allowed. The overall sentence demonstrated that the sentencing judge either misapprehended the significance of the standard non-parole period or underestimated the objective seriousness of the offences. Here, the gross, repeated attacks on the complainant occurred over an extended period and were committed by the appellant who understood what he was doing despite his (limited) mental issues and possible intoxication. This, combined with deliberate additional humiliation and a callous indifference to the presence of their son, meant that the objective seriousness of the offence fell within the middle of the range and brought the standard non-parole period into sharp focus as a yardstick: Muldrock v The Queen (See [78]-[79]).

    Even in light of the residual discretion of the Court to decline to interfere with the sentence, re-sentencing the appellant to nine years and six months imprisonment with a non-parole period of six years and six months was appropriate in the interests of justice. As per Adams J at [83]:

    ‘In considering the exercise of the residual discretion, it is appropriate in my view to bear in mind - in terms not usually used but implicit in sentencing for offences such as the present - the need to do justice to the victim, so appallingly dealt with, whose vindication is part of the function of the administration of criminal justice. This applies with particular force in cases of so-called domestic violence, where there seems to often be present in offenders a degree of self-justification as if, in some way, the victim (to use the vernacular) had it coming. I do not say that this was specifically the offender's state of mind in the present case but the facts strongly suggest that he thought he had some kind of right to do what he did. This aspect of domestic violence emphasises the importance, to my mind, of general deterrence, as well as the protection of the community, especially women, who are far too often the victims of this attitude. These considerations also underline the importance of denunciation’.

  • Pasoski v The Queen [2014] NSWCCA 309 (15 December 2014) - New South Wales Court of Criminal Appeal
    Admissibility’ – ‘Assault occasioning actual bodily harm’ – ‘Context evidence’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Sexual assault’ – ‘Tendency evidence

    Charges: Assault occasioning bodily harm x 2, sexual assault x 5.

    Appeal type: Application for leave to appeal against conviction and sentence.

    Facts: The applicant and complainant lived together with their daughters and were in a relationship since 2003. In November 2010, the applicant physically assaulted the complainant in their home on two occasions, by kicking her in the legs, and slapping her face, causing her to fall (see [13]). The sexual assault charges were alleged to have occurred on one night, where the applicant had vaginal penile intercourse five times without her consent (see [13]).

    At a voir dire during trial, the applicant’s trial counsel successfully objected to the admission of other evidence of previous penile vaginal penetration without consent (see [27]). That evidence was not admitted because the trial judge found that the ‘evidence is more in the nature of tendency evidence than contextual evidence’ (see [31]). However, evidence of the applicant’s controlling behaviour was admitted, and was relied upon at trial (see [12]).

    In summing up, the trial judge gave directions as to the use of the evidence of controlling behaviour, stating that ‘the Crown relies upon this evidence only for one purpose… to put the complainant's allegations concerning the offences in November 2010 into a realistic context’ (see [42]). Her Honour also stated: ‘if that evidence was not there, you would be asking yourselves, well, why would the accused throw his weight around in this horrible manner with the complainant completely out of the blue, when they had been in an apparently normal relationship for the previous six years?’ (see [42]).

    Issues: Two of the grounds of appeal concerned ‘context evidence’ (see [6], [44]):

    1. ‘A miscarriage of justice was occasioned by the admission of the so-called context evidence’ because it was not relevant and was prejudicial, and
    2. The trial judge erred by failing to identify the precise issues to which the evidence was directed.

    Decision and Reasoning: Leave to appeal was refused on both the ‘context evidence’ grounds.

    In relation to the first ground, Meagher JA referred to the use of context evidence as being admissible if it is used to ‘remove implausibility that might attach to a complainant’s account of what otherwise would be seen as isolated incidents’ (see [24]). His Honour referred to HML v The Queen [2008] HCA 16; 235 CLR 334 [6] to observe that ‘by doing so, it bears upon the assessment of the probability of the existence of facts directly in issue (Evidence Act 1995 (NSW), s 55) … Similar observations were made in Roach v The Queen [2011] HCA 12; 242 CLR 610 at [42] and BBH v The Queen [2012] HCA 9; 245 CLR 499 at [146]-[150].’

    Meagher JA held that the evidence was properly admitted (see [45]). His Honour found that from the conduct of the trial, ‘it was apparent that the Crown was relying upon it only as showing that the relationship was an unhappy one from the complainant's perspective so as to make more plausible her evidence that she did not consent to having sexual intercourse with the applicant on the five occasions in question’ (see [33]). Furthermore, the fact that trial counsel had not objected to the evidence at the voir dire, despite having objected to the evidence of the other sexual assaults on the grounds that it might invite propensity reasoning, indicated that ‘the parties and the Court were conscious that evidence tendered to explain the context in which the alleged offences occurred might, depending on its content, be relied on or used for a tendency purpose’ (see [30]).

    In relation to the second ground, regarding the directions given by the trial judge to the jury, Meagher JA held that the directions did not give rise to a real risk that the jury might employ propensity reasoning, and thus did not occasion a miscarriage of justice (see [49]). His Honour found that the direction regarding the applicant ‘throwing his weight around’ did verge on an invitation to the jury to employ propensity reasoning (see [47]). However, his Honour held that, assessed in context, the other directions made clear to the jury that the evidence of controlling behaviour was not being relied upon to suggest a ‘propensity of the applicant physically or sexually to impose his will on the complainant’ (see [48]).

    The other issues concerned two failures of the trial judge. First, the trial judge failed to properly comply with s 55F(2)(b) of the Jury Act 1977 (NSW), and therefore two counts of sexual assault were quashed (see [8]-[11]). Second, the trial judge erred in taking into account as an aggravating factor in sentencing that the offences were committed in the complainant's home: EK v R [2010] NSWCCA 199; 79 NSWLR 740 at [79] (see [54]). Accordingly, the aggregate sentence of imprisonment was reduced from five years and six months with a non-parole period of two years and nine months to four years and eleven months with a non-parole period of two years and five and a half months.
  • Monteiro v The Queen [2014] NSWCCA 277 (26 November 2014) – New South Wales Court of Criminal Appeal
    Aggravated rape’ – ‘Deterrence’ – ‘Emotional abuse’ – ‘Physical violence and harm’ – ‘Relevance of a prior relationship’ – ‘Sentencing

    Charge/s: Aggravated rape namely, immediately before sexual intercourse the appellant inflicted actual bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant was physically and verbally abusive towards the female complainant throughout their relationship. At the time of the offence, the relationship had ended and the appellant started yelling at the complainant that they should resume this relationship. He slapped the complainant in the face and proceeded to have sexual intercourse with her without her consent. The appellant was sentenced to 11 years imprisonment with a non-parole period of six years and six months for the principal offence of aggravated rape.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The manifest excess argument was dismissed. Counsel for the appellant submitted that the prior relationship between the appellant and the complainant was a factor that should have mitigated the sentence imposed. Bellew J noted that while the existence of a relationship between offender and victim can be a relevant consideration in determining the objective seriousness of sexual offending, each case must turn on its own facts. Here, the relationship was over and it therefore followed that the existence of a prior relationship was not a factor that warranted mitigation of sentence. In particular, this was not a case where the complainant had invited the appellant to engage in sexual intercourse with her or had indicated that she was prepared to do so (cf NM v R [2012] NSWCCA 215 and Norman v R [2012] NSWCCA 230.) His Honour continued at [131]-[132]:

    ‘What remains important is that even though the relationship had ended, the offending occurred in what might be loosely described as a domestic setting. In R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41]:

    "As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell [2000] NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

    These principles were confirmed, after a review of the relevant authorities, by Johnson J (with whom Hunt AJA and Latham J agreed) in R v Hamid [2006] NSWCCA 302 at [65] and following. Leaving aside the question of general deterrence, the observations of Wood CJ at CL are directly apposite to the present case’.

  • R v Eckermann [2013] NSWCCA 188 (15 August 2013) – New South Wales Court of Criminal Appeal
    Aggravated break and enter and commit serious indictable offence’ – ‘Damaging property’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Sentencing’ – ‘Suspended sentences’ – ‘Where the offender is known to the victim

    Charge/s: Aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm).

    Appeal Type: Crown appeal against sentence.

    Facts: After being in a domestic relationship for nine years and having two children together, the respondent and the complainant separated due to domestic violence perpetrated by the respondent. The complainant was asleep when she was woken by the respondent breaking into the property. He was shouting and looking for the complainant’s new partner. This woke and scared the children. He started throttling the complainant and then punched her in the face. The complainant managed to call the police. In sentencing, the judge characterised the offending as being towards the lower end of the spectrum. This was in light of a number of factors including that the respondent was not a stranger to the complainant (and therefore the offence would have been less frightening than a home invasion by a stranger) and that the respondent’s primary motivation was to protect his children from danger from the complainant’s new partner. The respondent was sentenced to two years imprisonment, suspended conditional upon entering into a good behaviour bond.

    Issue/s: Some of the grounds of appeal were –

    1. The sentencing judge erred in characterising the objective seriousness of the offending as being ‘towards the lower end of the spectrum’.
    2. The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to imprisonment with a non-parole period of 14 months and a balance term of 10 months. First, Price J held that the sentencing judge erred in characterising the objective seriousness of the offence as at the lower end. Home invasion offences do not become less serious by virtue of a prior domestic relationship between an offender and the victim. Rather, the objective gravity of the crime is to be assessed on the facts of the case and here it was not open to the sentencing judge to conclude that the offence would have been less frightening than a home invasion by a stranger (See [35]-[36]). Further, very little weight could be given to the respondent’s motivation to protect his children. His actions terrified the complainant and the children. The offending was aggravated by the fact that it was committed in the presence of the children (See [37]-[45]). Accordingly, the offending was towards the middle of the range for such offences (See [46]).

    Second, notwithstanding the respondent’s subjective circumstances including his love for his children, his employment, and good prospects of rehabilitation, a suspended sentence was manifestly inadequate. As per Price J at [54]-[55]:

    ‘This was a serious offence of violence by the respondent. When women (and men) enter into a new domestic relationship, they are entitled to do so without the threat of violence from a former partner. This is particularly so when there are children of the prior relationship as acts of violence towards a parent particularly when committed in the children's presence have the potential to impact severely upon their well-being and future development.

    This Court has emphasised the seriousness with which violent attacks in domestic settings must be treated: Hiron v R [2007] NSWCCA 336. Specific and general deterrence, denunciation of the offending conduct and the protection of the community are important factors in sentencing a domestic violence offender: R v Dunn [2004] NSWCCA 41; R v Edigarov [2001] NSWCCA 436; R v Hamid [2006] NSWCCA 302. In my view, the respondent's subjective circumstances could not justify the suspension of the sentence. A full-time sentence of imprisonment was called for’.

  • McLaughlin v R [2013] NSWCCA 152 (3 July 2013) – New South Wales Court of Criminal Appeal
    Assault occasioning actual bodily harm’ – ‘Common assault’ – ‘Exposing children’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Protection orders

    Charge/s: Assault occasioning actual bodily harm x 2, common assault.

    Appeal Type: Appeal against sentence.

    Facts: The female complainant and her young son moved from Tasmania to Victoria to live with the male applicant, her then de facto partner. At the time of offence, the complainant was vulnerable and isolated in that she was unemployed, cut off from friends and family, and suffered from a physical disability to her leg. Count 1 occurred when the applicant and complainant were arguing and the applicant dragged her off the bed, causing her to hit her jaw and bite her lip. Count 2 occurred when the applicant and complainant were again arguing and the applicant hit her to the side of her head near her eye. Count 3 occurred when they were arguing about an apprehended violence order (AVO) that had been made for the protection of the complainant and, as the complainant walked into her son’s room, the applicant grabbed her by the hair and throat. The applicant was sentenced to a total head sentence of two years and four months imprisonment with a non-parole period of four months.

    Issue/s:

    1. The sentencing judge erred when she found that the offences were aggravated by the fact that they took place in the generalised presence of a child under the age of 18 years.
    2. The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Error was demonstrated with ground one of the appeal. While there was evidence for Count 3 on which it might have been open to the sentencing judge to find that the child must have realised what was happening (even though he did not see the events), Her Honour did not make such a finding. Accordingly, the sentencing judge erred in taking into account that the offence was committed in the presence of the child (See [31]). Further, for Counts 1 and 2 there was no direct evidence of the presence of a child (See [32]). However, Button J declined to intervene with the sentence on appeal (See [54]-[55]).

    The second ground of appeal was dismissed. At [48]-[49] Button J noted that:

    ‘The approach of this Court to men who assault vulnerable women is well established and need not be elaborated upon by me: see R v Edigarov [2001] NSWCCA 436, R v Dunn [2004] NSWCCA 41, and R v Hamid [2006] NSWCCA 302’.

    ‘If an offender sees fit repeatedly to visit violence upon a woman in breach of a bond and an apprehended violence order imposed months before with regard to the same behaviour and the same victim, he should expect to be imprisoned, and not for an insubstantial period’.

  • R v Cortese [2013] NSWCCA 148 (26 June 2013) – New South Wales Court of Criminal Appeal
    Indecent assault’ – ‘Mitigating factors’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Indecent assault, rape.

    Appeal Type: Crown appeal against sentence.

    Facts: The female victim told the male respondent that she wanted to end their relationship. They argued, during which the respondent tried to make sexual advances towards the victim, including trying to kiss her and rubbing her vagina. Despite protestations from the victim, the respondent stayed over the night. The next morning the respondent forced himself on top of the victim, forced at least two fingers into her vagina, and then forced his penis into her vagina and had penile/vaginal intercourse with the victim without her consent. The respondent was sentenced to a good behaviour bond for twelve months for the indecent assault and two years imprisonment, wholly suspended, for the rape offence. In assessing the seriousness of the offending, the sentencing judge stated that the ‘prior sexual relationship [between the respondent and the victim] is an important mitigating factor’ and held the offending was at the bottom of the range (See [36]-[39]).

    Issue/s: One of the grounds of appeal was that the sentencing judge erred in her assessment of the objective seriousness of each offence.

    Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to three years imprisonment with a non-parole period of 18 months. The sentencing judge erred in her characterisation of the seriousness of the offending. In reaching this conclusion, Beech-Jones J stated at [55] that:

    ‘…cases confirm that the mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality involved. Needless to say, each case will depend upon facts, but one common circumstance in which a pre-existing relationship has been found to diminish the seriousness of the offence is where it suggests some prevarication or at least initial consent on the part of the victim. Thus, if sexual contact is initiated by the victim or initially consented to by the victim, then the ensuing offence may be considered less serious’: See NM v R [2012] NSWCCA 215; Bellchambers v R [2011] NSWCCA 131; R v Hendricks [2011] NSWCCA 203; Stewart v R [2012] NSWCCA 183.

    Here, the pre-existing relationship had no relevance as the victim repeatedly expressed her lack of consent (See [55]). Following from this, it was clear that the sentencing judge’s assessment of the culpability of the respondent was clearly erroneous. This was a case involving the rape of a young woman which occurred in the context of threats of violence, as well as aggressive and humiliating language. It came after she was detained overnight. The offending would likely fall below the mid-range of offences of this character but was not ‘bottom of the range’ (See [56]-[58]).

  • ZZ v The Queen [2013] NSWCCA 83 (19 April 2013) – New South Wales Court of Criminal Appeal
    Aggravated rape’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Aggravated rape (recklessly inflicting actual bodily harm), rape.

    Appeal Type: Appeal against sentence.

    Facts: The sexual offences were committed in the context of a sexual relationship between the male applicant and the female complainant. The applicant and complainant had been drinking, taking drugs and engaging in consensual sexual relations. The applicant then asked the complainant to drink his urine and, after urging the uncertain complainant to try it, the applicant urinated into her mouth. The complainant, gagging and nearly vomiting, tried to pull away but the applicant forced her head back towards his penis (count 1 — rape). After further sexual activity, the complainant became increasingly distressed and uncomfortable. She attempted to leave but was pushed into the bathroom wall by the applicant. He penetrated her anus with his penis so forcefully that she smashed her head against the tiles and suffered a deep four-centimetre laceration to her forehead. He continued penetrating her and smashed her head against the wall again (count 2 — aggravated rape). The applicant was sentenced to a total effective sentence of nine years and six months with a non-parole period of seven years.

    Issue/s: Some of the grounds of appeal were that –

    1. The sentencing judge erred in the assessment of the objective seriousness of count 1.
    2. The sentencing judge erred in the way the applicable standard non-parole periods in respect of the sexual assault offences were taken into account.

    Decision and Reasoning: The appeal was allowed. First, while the sentencing judge accepted the offence as ‘being in the mid range of seriousness’, His Honour later incorrectly referred to count 1 as ‘being at the top of the mid range’ and erroneously sentenced the applicant on this basis. Second, the standard non-parole period played a greater role in the sentencing judge’s decision than as a guidepost, to be taken into account with other factors on sentence, contrary to the principle articulated in Muldrock v The Queen.

    In re-sentencing the applicant, Johnson J took into account the objective gravity of the applicant’s offences, his subjective circumstances and other aspects bearing upon the question of sentence, including the maximum penalty and the standard non-parole period for counts 1 and 2. Johnson J noted that the objective gravity of the applicant’s offences needed to be assessed in the context of the relationship between the applicant and the victim. It was true that the complainant was not sexually assaulted by a stranger, where, if she had been, a further element of fear and terror would have been expected. However, the fact that the victim knew the offender and trusted him provided her with ‘little comfort’ here (See [103]). In a case such as this, involving significant violence and infliction of injury, the context of this relationship offered no real assistance to the offender on sentence (See [107]).

  • Norman v The Queen [2012] NSWCCA 230 (9 November 2012) – New South Wales Court of Criminal Appeal
    Evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse

    Charge/s: Rape x 3.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: During the course of the complainant’s 13 year marriage to the appellant, the complainant and the appellant had anal intercourse five times but only twice with her consent. At trial, the Crown sought to tender evidence of non-sexual domestic violence (see [22]). They argued that the evidence was not being admitted as evidence indicating a propensity on the part of the appellant which rendered it more likely that he had committed the crimes with which he was charged (therefore ss 97 and 101 of the Evidence Act and the test in Pfennig v R [1995] HCA 7; 182 CLR 461 did not apply). The trial judge accepted this argument and ruled that evidence of non-sexual domestic violence could be admitted for the purpose of showing the relationship between the appellant and the complainant. The appellant was found guilty.

    Issue/s: One of the grounds of appeal was that 'relationship' evidence should not have been admitted.

    Decision and Reasoning: The appeal was dismissed. MacFarlane J noted the relevant law, stating that: ‘As pointed out in Roach v R [2011] HCA 12; 242 CLR 610, evidence which incidentally shows propensity but which is otherwise relevant will not be excluded provided that the jury is properly warned against its use as propensity evidence (see also BBH v R [2012] HCA 9 at [146] - [149])’.

    Relationship evidence may be relevant if it assists in the evaluation of other evidence such as that of a complainant. His Honour continued at [26]: ‘In other words, relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context’.

    However, the Courts have emphasised that it is necessary to consider carefully the basis upon which ‘relationship’ evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG v R [2010] NSWCCA 173 at [36] - [37]) (at [29]).

    Here, MacFarlane J held that evidence of two isolated incidents of non-sexual domestic violence was irrelevant and should have been excluded. While the Crown submitted that the evidence was relevant to demonstrate ‘the nature of the relationship,’ MacFarlane J noted:

    ‘[C]onsistently with the approach taken by this Court in Qualtieri and DJV, it is insufficient to rely solely upon such a proposition. Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJV per McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed’.

    The evidence was also not relevant to demonstrate why the alleged sexual assaults were not reported earlier, and nor could it be said that the evidence would have assisted the jury, in any permissible way, in evaluating the complainant’s evidence (see [32]-[34]).

    Therefore, His Honour concluded at [35]-[36]:

    ‘[E]vidence of the two isolated incidents of non-sexual domestic violence was not necessary to place the sexual assaults within a meaningful context... [I]t is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning that the appellant was the type of man who might have sexual intercourse with a woman without her consent. Whilst the trial judge directed the jury not to reason in that way, there was unfairness to the appellant in the evidence being before the jury when it was not relevant on any basis’.

    Despite this, on the facts, there was no substantial miscarriage of justice. The Crown case against the appellant was so overwhelming there was no significant possibility that a jury would have acquitted the appellant (See [38]).
  • Stewart v The Queen [2012] NSWCCA 183 (29 August 2012) – New South Wales Court of Criminal Appeal
    Dominance’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Psychological consequences’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Victim impact statements

    Charge/s: Rape.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and female complainant had been in a somewhat disrupted and non-continuous relationship for some years. On the day of the offence, the complainant informed the applicant that their relationship was over and she was communicating with other men on Facebook. Jealous, the applicant smashed the complainant’s mobile phone. Later that evening, the intoxicated applicant lay on top of the complainant and, while she was struggling, placed his fingers into her vagina for about 30 seconds. The applicant was sentenced to five years and six months imprisonment, with a non-parole period of two years and eight months. In his remarks, the sentencing judge noted that:

    ‘I just want to make it clear, as I have to do unfortunately in cases of this nature, as far as I am concerned, cases of sexual assault have significant effects on the victim. There are two particular ways, they result in significant distrust as far as the victim is concerned in forming relationships, particularly with males if the assailant was a male. The other very broad area that is affected is the confidence or self-confidence of the victim is significantly damaged, they have concerns about their own self-worth, sometimes that is demonstrated by self-harm but there are other ways in which it is demonstrated. There is no satisfactory material yet available to indicate how long those matters may last, I always proceed on the basis that they will continue to be present for a very long time’ at [58].

    Issue/s: Some of the grounds of appeal included –

    1. The sentencing judge erred in his consideration of the impact of the offence on the victim.
    2. The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The first ground of appeal was dismissed. It would have been preferable for the sentencing judge not to state that he ‘always’ proceeded on the basis that the psychological effects of sexual assaults would last for a long time. This ground of appeal may have had some force if there had been evidence that the complainant had not suffered psychological injury. However, here, the victim impact statement contained clear evidence of the significant psychological injuries the complainant had suffered (See [62]-[64]).

    The second ground of appeal was also dismissed. This was a serious example of an offence against the section. Button J noted at [69] that:

    ‘The matter can be sharply contrasted with a case where two persons are engaged in intimate contact by consent, and one of them fleetingly goes too far. The digital penetration in this case was not fleeting, and it was preceded by a physical assault upon the victim. Throughout the sexual offence the victim was making her lack of consent abundantly clear and struggling to put an end to the invasion of her body. Most importantly, His Honour found that the offence was an attempt to demonstrate dominance over a young woman who was in truth free to engage in Facebook contact, or any other kind of contact, with whomever she wished. An offence of sexual penetration that is motivated by a desire to dominate the victim, because he or she has failed to comply with the expectations of the offender, will very rarely be anything other than a serious offence’.

    Further, while this was a stern sentence in light of the applicant’s subjective circumstances, it was not manifestly excessive (See [71]).

  • Bellchambers v The Queen [2011] NSWCCA 131 (10 June 2011) – New South Wales Court of Criminal Appeal
    Mitigating factors’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Rape x 4.

    Appeal Type: Appeal against sentence.

    Facts: The female complainant and the male applicant were in a relationship. Counts 1 and 2 took place after the complainant refused to have sex with the applicant but he had sexual intercourse with her regardless. The complainant reported these incidents to her general practitioner and the applicant was charged. Despite these charges, a sexual relationship continued between the applicant and the complainant. Counts 3 and 4 took place again after the complainant said she did not want to have sexual intercourse with the applicant. The applicant was sentenced to ten years imprisonment with a non-parole period of seven years.

    Issue/s: Some of the grounds of appeal included –

    • The sentencing judge erred by failing to impose a non-parole period for the first two counts.
    • The sentencing judge failed to determine the objective seriousness of the offences.
    • The sentencing judge did not properly assess the totality of the criminal offending by determining the individual sentences and then assessing the totality but rather did the reverse.
    • The sentence was manifestly excessive.

    Decision and Reasoning: The sentencing judge’s decision was replete with errors and the appeal was allowed. First, the sentencing judge failed to set a non-parole period for the first two counts (See [30]-[31]). Second, the sentencing judge erred by stating that the objective seriousness of the offences were ‘at least’ in the mid-range of gravity. The sentencing judge must make apparent and define the extent to which the offence is above the mid-range (See [32]-[36]). Third, the sentencing judge did not follow the approach set out in R v Pearce.

    Finally, the sentence was manifestly excessive. The sentencing judge failed to fix individual sentences and review these provisional sentences to ensure they were appropriate for the offences at hand. Further, the sentencing judge erred in his characterisation of the objective seriousness of the offences. While the offences were serious, they occurred in the context of a domestic relationship ‘which involved considerable ambivalence on the part of the complainant’ (See [47]). The sentencing judge also failed to review the subjective circumstances of the applicant. The applicant was resentenced to seven years imprisonment with a non-parole period of five years.

  • Sudath v The Queen [2008] NSWCCA 207 (9 September 2008) – New South Wales Court of Criminal Appeal
    Assault’ – ‘Evidence issues’ – ‘Evidence via cctv’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse

    Charge/s: Rape, assault.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: The male appellant had become violent and abusive towards the female complainant throughout their relationship. On the night of the offences, the complainant was breast feeding their child when the appellant started pulling up her night dress. The complainant said no. She then put her son down and tried to get something from under the bed. While she was kneeling, the appellant forced his penis into her anus. She screamed no but the appellant continued. The next day the appellant yelled at the complainant and physically assaulted her. The appellant was sentenced to three years and six months imprisonment with an aggregate balance of term of two years.

    Issue/s: One of the grounds of appeal was that the trial judge erred in law by holding that he was ‘satisfied’ within the meaning of s 294B(6) of the Criminal Procedure Act 1986 that the complainant was “entitled” to give her evidence pursuant to the provisions of s 294B(3) of the Act.

    Decision and Reasoning: The appeal was dismissed. The trial judge was correct in ruling that evidence could be given by alternative means. For complaints in sexual offence proceedings, it is generally not a sufficient reason to deny the use of CCTV or other technology merely because the jury might form the impression that the accused is/was violent. As per McClellan CJ at [29]:

    ‘The submission which the appellant made could of course be made in any case where there is an allegation of sexual intercourse without consent in a relationship of ongoing violence. There are many cases of this character. It was because of the personal trauma likely to be experienced by a complainant when giving evidence that s 294B was enacted. If the submission was accepted a substantial purpose of the legislative provision would be defeated. It may be that in an unusual case a submission in these terms may be accepted by a trial judge. However, the discretion is to be exercised in the individual circumstances of each case’.

  • Raczkowski v The Queen [2008] NSWCCA 152 (4 July 2008) – New South Wales Court of Criminal Appeal
    Attempted rape’ – ‘Breach of apprehended domestic violence order’ – ‘Detain with intent to obtain advantage occasioning actual bodily harm’ – ‘Indecent assault’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Relevance of a prior relationship’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Using a prohibited pistol without a licence or permit

    Charge/s: Using a prohibited pistol without a licence or permit, detain with intent to obtain advantage occasioning actual bodily harm, attempted rape, indecent assault, breach of apprehended domestic violence order.

    Appeal Type: Appeal against sentence.

    Facts: The complainant was the applicant’s wife of over 40 years. Their relationship had deteriorated and an apprehended domestic violence order (ADVO) had been issued for the protection of the complainant. The applicant breached this order on a number of occasions and was charged. He was bailed on conditions which included that he not approach or contact the complainant. However, again, the applicant breached these conditions. He wrote to the complainant. Further, one night the applicant, who was intoxicated, entered the property of the complainant without her consent and engaged in serious misconduct throughout the night including physically assaulting the complainant, typing her up, attempting to rape her, pulling out a pistol and threatening the complainant with it, and sexual assaults.

    Issue/s:

    • The sentencing judge gave insufficient weight to the fact that the applicant was suffering from severe depression at the time of the offences.
    • The sentence was manifestly excessive in light of the applicant’s depression and that they occurred in the context of a domestic relationship.

    Decision and Reasoning: These grounds of appeal were dismissed but the appeal was allowed on other grounds. First, the sentencing judge was not obliged to find that the applicant’s judgment was impaired by his illness. To the extent that the depression may have contributed to the applicant’s poor judgement, its significance was diminished by the applicant’s voluntary consumption of large amounts of alcohol. Additionally, there was evidence of advance planning by the applicant. In these circumstances, specific and general deterrence were particularly important. This approach of the sentencing judge was amply endorsed by authority, particularly when offences have been committed in a domestic context: R v Hamid and when such offences occur in breach of extant restraining orders such as an ADVO: Hiron v The Queen(See [33]-[37]).

    Second, the sentence could not be said to be manifestly excessive. The relevance of depression was considered in the above ground of appeal. Additionally, in terms of the relevance of a (broken down) domestic relationship, as per Grove J at [46]:

    ‘That a violent and pre planned attack occurred in what might be classified as a domestic setting is not a matter of mitigation. This Court has repeatedly stressed that it is a circumstance of significant seriousness: R v Edigarov; R v Dunn; and R v Burton’.

    Here, the applicant detained and abused his wife verbally, physically and sexually. He did so in defiance of the conditions imposed by the ADVO and by bail. The production and use of the pistol, particularly where the applicant was ingesting significance quantities of alcohol, magnified the fear in the complainant (See [47]).

  • Jeffries v The Queen [2008] NSWCCA 144 (26 June 2008) – New South Wales Court of Criminal Appeal
    Aggravated kidnapping’ – ‘Aggravating factor’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing

    Charge/s: Detain for advantage and cause actual bodily harm, detain for advantage.

    Appeal Type: Appeal against sentence.

    Facts: The victim of the aggravated kidnapping was the male applicant’s domestic partner (AW) and the victim of the kidnapping offence was AW’s 15 year old daughter, KW. The relationship between the applicant and AW had been marked by incidents of physical violence. At the time of the offence, AW had obtained an apprehended domestic violence order (ADVO) against the applicant. The applicant physically assaulted and verbally abused AW and KW, including partially ripping AW’s tongue. There was a knock on the door during the incident and someone called out, ‘It’s the police’. The applicant told AW and KW not to say anything. AW and KW were unable to leave the house that night. The applicant was sentenced to seven years and six months imprisonment.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The sentence was not manifestly excessive in light of the objective seriousness of the offences and the absence of any subjective factors operating in the applicant’s favour (at [99]). The offences involved the protracted detention of AW and KW for the advantage of fending off police intervention with respect to the applicant’s violence against both victims. They were committed in the context of the applicant’s controlling and violent relationship with the victim, and he inflicted actual bodily harm of a serious (and bizarre) type on AW. Great fear was instilled in both victims (See [90]).

    Significant aggravating factors existed on the facts namely, that the offences were committed whilst the Applicant was on bail for an offence of violence committed against AW and was subject to an apprehended domestic violence order intended to control his conduct towards his domestic partner. These were flagrant violations of both forms of conditional liberty intended to protect AW (See [91]). It was also a significant aggravating factor that the offender’s ‘recidivist conduct demonstrated a propensity to act violently towards his partners’ (See [92]).

  • R v Burton [2008] NSWCCA 128 (20 June 2008) – New South Wales Court of Criminal Appeal
    Assault occasioning bodily harm’ – ‘Common assault’ – ‘Community protection’ – ‘Denunciation’ – ‘Detain for advantage’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Influencing witness’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Relevance of victim's expression of forgiveness’ – ‘Victim contribution’ – ‘Victim's wishes

    Charge/s: Common assault x 3, assault occasioning actual bodily harm x 2, detain for advantage, influencing witness.

    Appeal Type: Crown appeal against sentence.

    Facts: The respondent was released on parole as part of a sentence of imprisonment for break, enter and steal. He subsequently commenced a relationship with the female complainant, who was eight years older than him, and moved into her home with her two children. The respondent committed a series of offences against the complainant involving violent assaults and threats, including an offence of influencing a witness by convincing the complainant to withdraw the charges against him. The total effective sentence included a non-parole period of one year and nine months with a balance of term of one year. The sentencing judge backdated sentences for Counts 1, 2 and 3 so that they operated concurrently with the balance of parole. Even at sentence, the victim provided a measure of support to the respondent.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. The sentences imposed failed to reflect the objective seriousness of the offences and were so inadequate as to be plainly unjust. Several aspects of the sentence imposed supported this conclusion. First, the approach of making the sentences concurrent meant that no effective sentence was imposed for three separate and serious offences of violence (See [92]-[93]). Second, the sentence for the detain for advantage offence did not reflect its objective seriousness, which was aggravated by the use of a knife. It was committed in the context of a ‘controlling and violent relationship’, extended over some hours, and involved actual threats of violence towards the victim (See [94]-[95]). It was additionally noted at [97] domestic violence offences involve the exercise of ‘power, dominance and control’ over the victim.

    Third, the use of a bond for the offence of influencing a witness diluted significantly, and erroneously, the objective criminality in this case and a custodial sentence should have instead been imposed. Johnson J then made some observations regarding the role of victim’s attitude towards the respondent in sentencing, noting that it ought to play ‘no part on sentence’ at [102]. His Honour quoted (at [104]) the remarks of Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) which deal directly with this issue:

    There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.’

    Fourth, the sentencing judge’s remarks made no reference to specific deterrence, general deterrence nor the need for denunciation of the respondent’s conduct (See [106]-[107]). Finally, the final count of assault was a significant and unusual feature, committed after the respondent had been in custody for over two months. It was a further incident of control or dominance by the respondent over the victim, this time in a prison setting (See [108]-[110]).

    In resentencing, the Court emphasised the importance of general and personal deterrence, denunciation and community protection, and noted that the offending took different forms and occurred at different times against the same victim and often in the presence of his children. The respondent had a substantial criminal history and showed little prospects for rehabilitation. The total effective sentenced was increased to four years and six months, with a non-parole period of three years (See [115]-[130]).

  • Shaw v The Queen [2008] NSWCCA 58 (14 March 2008) – New South Wales Court of Criminal Appeal
    Aggravated break and enter (with actual bodily harm)’ – ‘Damaging property’ – ‘Denunciation’ – ‘General deterrence’ – ‘Malicious damage’ – ‘Offender character references’ – ‘Relevance of victim's expression of forgiveness’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Victim contribution’ – ‘Victim's wishes

    Charge/s: Aggravated break and enter with actual bodily harm, malicious damage to property.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female complainant had been in a domestic relationship for approximately five years and lived together with their three children. Following a domestic dispute, the complainant went with the three children to stay at a friend’s place. Over the next five days, the applicant made a number of threats to the complainant’s physical safety by telephone before he, intoxicated, broke into the friend’s place. He demanded to see his son before grabbing the complainant by her hair and striking her a number of times. The applicant had a long criminal history of offending in the domestic context and while those incidents did not involve actual violence, they evidenced a propensity to harassment in domestic situations and a failure to manage his anger. The complainant submitted a statutory declaration taking some responsibility for what she considered to be her part in provoking the applicant to act as he did. The applicant pleaded guilty and was sentenced to six years imprisonment, with a non-parole period of four years.

    Issue/s: Whether the sentence was disproportionate to the gravity of the offending.

    Decision and Reasoning: The appeal was allowed. Fullerton J found that the fact the offence was a domestic violence offence and that the victim was in a vulnerable position, did not elevate the offending to an ‘objectively high’ level. (See at [36]). The offending was not planned or premeditated, and the applicant did not arm himself with a weapon to inflict injury. As such, the offending was better characterised as in the middle of the range. In relation to the victim’s strong expression of support for the applicant, His Honour acknowledged the caution that must be exercised in attaching weight to such sentiments. In R v Glen [1994] NSWCCA 1 (19 December 1994) Simpson J said:

    ‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind [general evidence of forgiveness and desire that the assailant/ partner not be imprisoned] in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.

    There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

    For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases…’

    Notwithstanding this, Fullerton J was persuaded to give the victim’s support significant weight in this case. The victim’s view that the offending was ‘totally out of character’ was also supported in evidence from the applicant’s work supervisor. The sentence was reduced accordingly (See at [48]).

  • Kennedy v The Queen [2008] NSWCCA 21 (22 February 2008) – New South Wales Court of Criminal Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Grievous bodily harm with intent’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing

    Charge/s: Grievous bodily harm with intent.

    Appeal Type: Appeal against sentence.

    Facts: The male Aboriginal applicant had been in a de facto relationship with the female Aboriginal victim of the assault. Their relationship had been volatile and the police had taken out an interim apprehended violence order (AVO) on behalf of the victim. Three weeks prior to the offence, the victim had ended the relationship and taken the applicant’s medication for schizophrenia with her in her handbag. The applicant began experiencing auditory hallucinations and attacked the victim. She suffered severe physical injuries including facial fractures, fractures to her nasal bones and fractures of the mandible.

    At sentence, the applicant explained that he did not obtain replacement medicine because there was no doctor and he did not want to leave his sick father. Nevertheless, the sentencing judge found that the applicant’s state of mind was induced by his failure to take his medication, such that his psychological status was of his own default. The applicant was sentenced to a term of imprisonment consisting of a non-parole period of four years, with a balance of term of three years.

    Issue/s: Some of the grounds of appeal included –

    • The sentencing judge erred in finding that the applicant’s psychological status was his own fault.
    • The sentencing judge erred in his assessment that the offence was in the ‘upper level of seriousness’.
    • The sentencing judge failed to appropriately take into account the applicant’s mental disorder when imposing sentence.

    Decision and Reasoning: The appeal was allowed. First, the sentencing judge failed to give reasons for his finding that the applicant’s psychological status was his own fault. In particular, the sentencing judge failed to examine the circumstances which led to the applicant ceasing to take his medication. Such failure means that the sentencing judge could not arrived at such a conclusion beyond reasonable doubt (See [25]-[27]). Second, the sentencing judge erred in determining the objective seriousness of the offence by only having regard to the physical aspects of the assault and failing to consider the applicant’s psychological condition (See [38]-[40]). Third, the sentencing judge failed to take into account the applicant’s mental disorder as being relevant to the applicant’s moral culpability (See [46]-[49]). Relevant to domestic violence, an aggravating factor of this offending was that at the time of the offence, the applicant was subject to an AVO, taken out to protect the victim (at [8]).

  • Hiron v The Queen [2007] NSWCCA 336 (7 December 2007) – New South Wales Court of Criminal Appeal
    Assault occasioning actual bodily harm’ – ‘Denunciation’ – ‘Deterrence’ – ‘False imprisonment’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Protection of the community’ – ‘Sentencing

    Charge/s: Assault occasioning actual bodily harm x 4, false imprisonment, resist arrest x 2.

    Appeal Type: Appeal against sentence.

    Facts: The female victim of the assaults and false imprisonment was the applicant’s de facto partner, who was pregnant at the time. The applicant was sentenced to a total effective sentence of imprisonment comprising of a non-parole period of four years with a balance of term of two years.

    Issue/s: Some of the grounds of appeal included –

    • The sentencing judge erred in not having proper regard to the totality principle.
    • The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Price J noted at [32] that:

    ‘Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see for example R v Edigarov; R v Dunn; and R v Hamid’.

    Price J then quoted from Wood CJ in Edigarov at [41] where it was said that:

    ‘…such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’

    Here, the sentence could not be said to be manifestly excessive or that the sentencing judge erred in his application of the totality principle. Each of the four offences of assault occasioning actual bodily harm involved separate episodes of violence towards the victim. After each occasion, the applicant had the opportunity to stop. The false imprisonment was serious and distressing to the victim. Some offences involved the use of a weapon and the offences involved gratuitous cruelty. The offences were committed while the applicant was on conditional liberty. The offender abused a position of trust, as the partner of the victim and the father of their children. The victim was vulnerable in that she was a pregnant female of much smaller build than the applicant (See [34]-[39]).

  • Vragovic v The Queen [2007] NSWCCA 46 (27 February 2007) – New South Wales Court of Criminal Appeal
    Characterisation of seriousness’ – ‘Deterrence’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Sentencing’ – ‘Women

    Charge/s: Grievous bodily harm with intent.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: The male applicant and the female victim had been married for some years before they divorced in mid-2003. The victim then commenced a relationship with another man and an apprehended domestic violence order was obtained protecting both the victim and her new partner. One evening, the victim was at home alone speaking on the telephone when the line went dead. The applicant then broke into the house and beat her with a piece of exhaust pipe and a shortened firearm. The applicant was sentenced to 12 years imprisonment, with a non-parole period of 8 years. This sentence was partially accumulated upon an earlier imposed sentence for grievous bodily harm with intent against the victim’s new partner. Accordingly, the effective overall sentence for both offences was 14 years imprisonment, with a non-parole period of 10 years.

    Issue/s: One of the grounds of appeal was that the sentencing judge erred in his description that the offence ‘must be near the top of the range of seriousness’.

    Decision and Reasoning: The appeal was dismissed. Adams J stated at [33]:

    ‘It was once thought in some circles that domestic violence was somehow less serious than criminal violence inflicted in other circumstances. I do not agree. In many cases of domestic violence a distinguishing characteristic is the notion of the offender that he (and it is almost invariably a male) is entitled to act as he did pursuant to some perverted view of the rights of a male over a female with whom he is or was intimately connected. It is this characteristic of self-justification which requires particular emphasis to be given, in cases of this kind, to the elements of general and personal deterrence. In this case, the appellant had already been arrested for another extremely vicious attack on [his ex-wife’s new partner] for motives which were plainly related to those for which he attacked his ex-wife. The notion that this was some kind of temporary aberration is, I think, disproved by this concatenation of events. There was no a sudden loss of control arising out of circumstances beyond his capacity to deal with. It was a cold, calculating and brutal attack upon a helpless woman at night in her own home’.

    Here, the characterisation of the offence by the sentencing judge as ‘near the top of the range of seriousness’ related not to the actual physical injuries or to the overall seriousness of the offence but to the circumstances in which the injuries were inflicted. This characterisation was correct (See [34]).

  • Walker v The Queen [2006] NSWCCA 347 (1 November 2006) – New South Wales Court of Criminal Appeal
    Attempted wounding with intent to cause grievous bodily harm’ – ‘Distress at the breakdown of a relationship is no excuse for violence’ – ‘Objective seriousness’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Attempted wounding with intent to cause grievous bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The offence arose out of the breakdown of the fifteen year marriage between the applicant and the victim. The victim told the applicant that she was seeing another man and that their marriage was over. Some days later, the applicant beat the victim and attacked her with a 32 cm long kitchen knife. The applicant was sentenced to a head sentence of three years with a non-parole period of eighteen months.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The sentencing judge correctly characterised the objective criminality of the offending as very serious. The sentencing judge emphasised, as many on the bench had done so previously, that however sad and distressing a matrimonial breakdown might be, violence of any kind is not to be accepted as a more or less natural incident of such a breakdown (See [7]). The sentencing judge further gave appropriate weight to the relevant subjective matters (See [8]-[9]).

  • R v Hamid [2006] NSWCCA 302 (20 September 2006) – New South Wales Court of Criminal Appeal
    Assault occasioning bodily harm’ – ‘Denunciation’ – ‘General deterrence’ – ‘Multiple victims’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Repeat domestic violence offenders’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Vulnerability of the victim’ – ‘Wounding

    Charge/s: Assault x 2, assault occasioning actual bodily harm x 5, detaining without consent and with intent to obtain an advantage (to avoid detection for assaulting her), malicious wounding.

    Appeal Type: Crown appeal against sentence.

    Facts: The total effective sentence included a non-parole period of two years and six months, with the balance of the term lasting two years. The offending involved prolonged and serious violence committed against three women with whom the respondent was either married or in a relationship over an eight year period.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. Johnson J at [65] - [88] provided a very useful summary of the relevant principles, particularly of relevant Court of Criminal Appeal authority. This authority has placed great emphasis on general deterrence, due to the prevalence of domestic violence, as well as the vulnerability of victims and breaches of trust involved. Specific deterrence and denunciation is also important.

    Johnson J also quoted Wood CJ in R v Edigarov [2001] NSWCCA 436 who stated –

    ‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell(2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’

    Her Honour went on at [77] –

    ‘These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pp 6-7.

    Her Honour then commented specifically on the relevant considerations when sentencing — ‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’ at [86].

    ‘This is not to say that promotion of rehabilitation of the offender is not an important factor. It remains necessary to provide individualised justice in the circumstances of the particular sentencing decision. Nevertheless, the factors to which reference has been made above assume particular significance in the case of a domestic violence offender who has committed a series of offences over an extended period of time against different victims’ at [88].

    While the respondent did have a mental illness, Her Honour found that it was not such as to reduce his moral culpability, or reduce the need for general deterrence, as he was aware of the gravity of the offending. In applying these principles to the facts, Johnson J found that the sentences imposed at trial were manifestly inadequate and did not reflect the ‘objective criminality’ that was involved. The respondent showed minimal remorse, was seeking to ‘justify his crimes’ and had a criminal record of assaults and breaches of apprehended domestic violence orders. The respondent was re-sentenced accordingly (See at [152]).

  • R v Kershaw [2005] NSWCCA 56 (1 March 2005) – New South Wales Court of Criminal Appeal
    Breach of apprehended violence order’ – ‘Rape’ – ‘Relevance of victim's expression of forgiveness’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Victim's wishes

    Charge/s: Rape, breach of an apprehended violence order.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and the complainant had been married for 16 years and lived with their eight year old daughter. They had been arguing when the applicant pushed the complainant forcefully. She rang the police and obtained an apprehended violence order (AVO) restraining intimidating conduct and restraining the applicant from being at their premises under the influence of alcohol, liquor or drugs. The applicant arrived back at their premises and complained about the AVO. He then stripped naked. The complainant told the applicant that she was not willing to have sex with him and was not going to change her mind about the AVO. He then raped the complainant. The applicant pleaded guilty and was sentenced to 5 years imprisonment, with a non-parole period of two and a half years. A 10 percent reduction in sentence was made to take into account this guilty plea.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The Court held that the discount for the guilty plea was appropriate, was not ‘meagre’ and was actually quite significant. Further, the applicant contended that the trial judge erred by taking a ‘harsh view’ in finding that the applicant and the complainant continuing their relationship is an issue with regards to the applicant’s rehabilitation. The complainant maintained a ‘favourable’ view of the applicant and the relationship (See at [21]). Bryson JA held that the complainant’s ‘forgiving and optimistic attitude’ should not play a large part in the sentencing decision. The trial judge was correct to conclude that the fact that the offence was committed against his wife was an aggravating factor. As per the trial judge, at [24] ‘The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence’.

    The trial judge’s view that the gravity of the offence was severe was correct. Other aggravating factors included his previous conviction for assaulting his wife, the fact that offence was committed after ongoing supervision and a good behaviour bond was completed, and it was in breach of an AVO. This justified a correspondingly high sentence.

  • R v Dunn [2004] NSWCCA 41 (23 February 2004) – New South Wales Court of Criminal Appeal
    Assault occasioning actual bodily harm’ – ‘Breach of an apprehended violence order’ – ‘Break and entering a dwelling armed with an offensive weapon’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Purposes of sentencing’ – ‘Sentencing

    Charge/s: Breaking and entering a dwelling armed with an offensive weapon, assault occasioning actual bodily harm, breach of an apprehended domestic violence order.

    Appeal Type: Crown appeal against sentence.

    Facts: The de facto relationship between the male respondent and the female complainant had ended in mid-2000. In 2001, the respondent was convicted of assault occasioning actual bodily harm and placed on a bond for two years. Six months later, the poorly disguised respondent crashed his car into the complainant’s car, which she was driving with her two children. The respondent then tried to force the complainant out of her car and punched her in the nose, eye and head. In 2002, the respondent broke into the complainant’s house and attacked her with a Stanley knife. The complainant’s new partner intervened. The respondent was sentenced to three years and nine months imprisonment with a non-parole period of one year and nine months.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. Adams J stated at [47]:

    ‘Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind’.

    He found that the sentencing judge did not give adequate weight to the need for deterrence and denunciation. Further, the extent of injury committed by the offender is an important factor in assessing the appropriate measure of punishment and the sentence here did not adequately reflect the pain and suffering the respondent caused. Finally, the sentencing judge erred in imposing wholly concurrent sentences because there were two distinct and separate instances of violence against the complainant and her new partner. The respondent was re-sentenced to four years and six months imprisonment.

  • R v O’Brien [2003] NSWCCA 121 (6 May 2003) – New South Wales Court of Criminal Appeal
    Battered woman syndrome’ – ‘Defences’ – ‘Expert evidence’ – ‘Forensic psychiatrist’s evidence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Where the victim is an offender

    Charge/s: Manslaughter.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: The appellant was found guilty of the manslaughter of her daughter, who died of malnutrition at the age of 14 months. The appellant refused to take the child to the hospital, against the advice of medical practitioners and friends. In a record of interview, the appellant said that she did not take the deceased to the hospital because her husband believed that children should not be infused with fluids or have any artificial substances injected into their bodies. At trial, the appellant gave evidence that her husband was controlling, verbally abusive and violent, and she was afraid to contravene his wishes. Defence counsel also called evidence from a forensic psychiatrist, Dr Nielssen. Dr Nielssen did not find that the appellant suffered from any kind of psychiatric disorder but that her situation fitted ‘battered wife syndrome’. As a result of this, the appellant accepted the decisions made by her husband, despite having reservations about them (See [31]). The appellant was sentenced to five years imprisonment with a non-parole period of two years.

    Issue/s: Some of the grounds of appeal included –

    • The trial judge erred in summarising Dr Nielssen’s evidence altogether, as it related to the defence of duress. Rather, His Honour ought to have summarised the parts of Dr Nielssen’s evidence that were relevant to the subjective test, and then after describing the objective test, directed the jury’s attention to those parts of Dr Nielssen’s evidence that were relevant to that test and how a hypothetical person in the same circumstances, i.e. a battered wife, would have acted as to withdrawing from the relationship etc.
    • The trial judge’s summing-up on the evidence of battered wives syndrome from Dr Nielssen was inadequate.

    Decision and Reasoning: The appeal was dismissed. First, as per Durford J at [43], ‘although it is undoubtedly the duty of a trial judge in summing up to relate the different pieces of evidence to the different issues in the trial: R v Zorad (1990) 19 NSWLR 91 at 105, this was a "single issue" trial and that single issue was duress. The evidence of Dr Nielssen about the battered wife syndrome was relevant to both the subjective and objective tests and there was no need to divide it up in a way which had not been suggested by either counsel in their addresses: Osland v The Queen [1998] HCA 75 at [59]-[60]’.

    Second, a trial judge is not required to read or summarise the whole of the relevant evidence to the jury which has already been heard from witnesses, but merely to present a balanced summary of the salient parts which is fair to both sides. The evidence of Dr Nielssen was sufficiently and fairly summarised by the trial judge. Some of the questions and answers not repeated in the summing-up were merely elaboration of general propositions of the doctor which had been summarised, and one answer in particular which it was claimed should not have been omitted had been substantially paraphrased by the appellant's trial counsel in his final address (See [47]-[48]).

  • R v Palu [2002] NSWCCA 381 (17 September 2002) – New South Wales Court of Criminal Appeal
    Malicious grievous bodily harm’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Relevance of the attitude of the victim’ – ‘Sentencing’ – ‘Victim contribution

    Charge/s: Maliciously inflicting grievous bodily harm.

    Appeal Type: Crown appeal against sentence.

    Facts: The male respondent and the male victim were drinking partners and got into a fight. The victim suffered a skull fracture. The sentencing judge adjourned proceedings and granted bail to the respondent on certain conditions, under s 11 of the Crimes (Sentencing Procedure) Act

    Issue/s: In light of the seriousness of the offence and because it was inevitable that a full-time custodial sentence had to be imposed, it was outside the exercise of His Honour’s discretion to make an order adjourning proceedings.

    Decision and Reasoning: The appeal was allowed. This was not a case involving domestic violence but Howie J’s comments regarding the relevance of a victim’s attitude to sentence have been cited in subsequent domestic violence cases. Here, the sentencing judge was unduly influenced by the fact that the victim and the respondent were still friends. At [37] His Honour provided:

    ‘The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen [1994] NSWCCA 1 (19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim’.

    Howie J also noted that a sentencing judge should only give very limited weight to statements made by an offender to a psychiatrist or psychologist reproduced in reports, including expressions of remorse (See [39]-[41]).

  • R v Quach [2002] NSWCCA 173 (15 May 2002) – New South Wales Court of Criminal Appeal
    Contrition’ – ‘Forgiveness by the victim’ – ‘Good character’ – ‘Grievous bodily harm with intent to murder’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim contribution

    Charge/s: Grievous bodily harm with intent to murder.

    Appeal Type: Appeal against sentence.

    Facts: The applicant began to suspect that his wife, the victim, was having an affair (an allegation without basis). One morning, while the children were at school, the victim was lying in bed and was struck several times, mainly on the head, with a bottle wielded by the applicant. The applicant said to the victim that he wanted to kill her because she did not respect him. He then tied the victim up and gagged her whilst continuing to threaten to kill her and then himself. The victim was not released until her children returned home from school and the victim lost a lot of blood. The applicant was sentenced to nine years imprisonment with a non-parole period of five years. In imposing this sentence, the sentencing judge made reference to the former good character of the accused and stated:

    ‘We must all accept the fact that differences in marriages do occur and it is expected that people will try and resolve any differences without violence. However to go to the stage of wanting to end the marriage by killing someone is quite unacceptable of course and quite frightening to the wider community. There can be no mitigating factors in such an act with that intention. We do accept the realities of marriages breaking up and people separating but we can never accept or tolerate any person killing someone as the solution. And so it is difficult with reference to a person being a man of good character up until now. It is difficult to know what relevance that has where a person has considered the final solution’ at [16].

    The fact is that at the start of the assault that morning the prisoner did state and evidence an intention to kill. Such an expression and intention must immediately negate any consideration of mitigating factors because of good character, then to extend the trauma and terror of the assault all day until the late afternoon takes the actions of the prisoner into a further level of callousness’ at [17].

    Issue/s: Some of the grounds of appeal included –

    • The sentencing judge did not take into account the previous good character of the applicant when fixing the sentence.
    • The sentencing judge failed to consider the contrition of the applicant.

    Decision and Reasoning: The appeal was dismissed. First, O’Keefe J noted that there is nothing wrong with a judge discussing the weight which should be given to the previous good character of an offender. While the sentencing judge’s remarks at [16] were unexceptional, the sentencing judge erred at [17] when he completely excluded the applicant’s previous good character as a mitigating factor and therefore did not take it into consideration in mitigation of the penalty (see [19]). However, the sentence imposed by the judge and the non-parole period were very lenient given the objective gravity of the offence and taking into account the subjective features of the applicant, and a lesser sentence would not have been appropriate in the circumstances. This ground of appeal was therefore dismissed.

    Second, on the facts, it was arguable that the applicant showed contrition and further, the absence of an affirmative finding in relation to contrition by the sentencing judge was not to be regarded as a matter overlooked by His Honour (See [27]). Additionally, O’Keefe J commented on forgiveness of the victim at [28] and stated:

    ‘The fact that he expressed contrition to his wife and that she said that she forgave him did not detract from the duty of the judge to impose a proper sentence. Her views in relation to the contrition of the Applicant, as opposed to what he said to her, do not seem to have been tested. Furthermore, even the stated acceptance by the victim of her acceptance of her attacker's contrition does not bind the court, nor does it detract from the need to give proper weight to the principle of general deterrence, R v Kanj [2000] NSWCCA 408, a principle that is important in cases of domestic violence (R v Green [2001] NSWCCA 258; R v Glen [1994] [1994] NSWCCA 1). Furthermore, the fact that a victim may forgive her attacker is not determinative. Indeed, its weight in relation to general deterrence will be a variable depending on the offence and the circumstances. It is a matter for judgment by the sentencing judge’.

  • R v Edigarov [2001] NSWCCA 436 (5 October 2001) – New South Wales Court of Criminal Appeal
    Assault police officer occasioning actual bodily harm’ – ‘Common assault’ – ‘Deterrence’ – ‘Double jeopardy in sentencing’ – ‘Exposing children’ – ‘Kidnapping’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing

    Charge/s: Common assault, assault police officer occasioning actual bodily harm, kidnapping.

    Appeal Type: Crown appeal against sentence.

    Facts: On 3 August 1999, the respondent assaulted his wife (the victim) in the presence of their three year old daughter by pushing her against a refrigerator, pursuing her into the bedroom and pushing her to the floor. After throwing and kicking items, he left the unit and the victim went to a friend’s unit for safety. The respondent arrived there an hour later and threatened to kill her if she did not return home. Police were called and the respondent assaulted these officers. The respondent was released on bail and became subject to an apprehended domestic violence order. On 7 October 2000, the respondent kidnapped the victim while she was walking along the street with her daughter. He drove her to his parents’ home and repeatedly punched and kicked her. The victim managed to escape and called the police. The sentencing judge imposed the following sentences:

    • Common assault: six months imprisonment.
    • Assault police officer occasioning actual bodily harm: 18 months imprisonment, suspended upon the condition that he enter into a good behaviour bond.
    • Kidnapping: two years imprisonment with a non-parole period of six months and 12 days.

    In imposing the sentence for kidnapping, His Honour found that there were special circumstances in that all of the offences of the respondent were ‘by-products of (his) anger and frustration and disappointment at the failure of (his) marriage and at the imposition of the apprehended violence order against (him)’.

    Issue/s: One of the grounds of appeal was that the sentencing judge failed to give sufficient weight to the objective seriousness of the combination of the offences involved.

    Decision and Reasoning: The appeal was allowed. Wood CJ held that the sentence imposed failed to give sufficient weight to the objective seriousness of the offences and too much significance was attached to the emotional reaction of the respondent to being thwarted in the marriage, a circumstance that provided no excuse whatsoever for his behaviour (See [39], [52]). In relation to the assault of his wife, Wood CJ found that the offence involved the sustained use of physical violence causing fear in the presence of an equally terrified child. It could not be characterised as a momentary or uncharacteristic loss of self-control, as the aggression continued into the evening. Further, at [41]:

    ‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.

    Additionally, the kidnapping offence involved sustained violence by the respondent who caused substantial injury to his wife and again threatened to kill her. It was again committed in the presence of their young daughter and caused significant fear. Further, the sentencing judge failed to reflect three aggravating factors in the sentence namely, this was not an isolated act of violence, and the offence was committed while the offender was on bail and while the offender was subject to an apprehended violence order in relation to the same victim (See [47]-[51]). In re-sentencing the respondent, the court took into account the principle of double jeopardy (See [55]-[65]).

  • R v MacAdam-Kellie [2001] NSWCCA 170 (9 May 2001) – New South Wales Court of Criminal Appeal
    Aggravating factor’ – ‘Attempted murder’ – ‘Breach of an apprehended domestic violence order’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing

    Charge/s: Attempted murder.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and the victim had been married for 21 years before the victim left the family home and obtained an apprehended violence order. On the day of the offence, the victim was arriving at the Family Court accompanied by their four year old son when the applicant approached her and produced a knife, approximately 30 cm in length with a serrated edge blade. The victim fled but was chased by the applicant and almost fatally stabbed in the arm, back and stomach. The applicant was sentenced to 16 years imprisonment, with a non-parole period of 12 years. A psychiatric report tendered from Dr Nielssen diagnosed the applicant as suffering from a major depressive illness and a personality disorder.

    Issue/s: One of the grounds of appeal was that the sentencing judge erred in failing to accept the findings of Dr Nielssen and in concluding that there was no evidence which established a link between the major depressive illness the applicant was suffering and the commission of the offence (See [51]).

    Decision and Reasoning: The appeal was allowed. In light of the opinion of Dr Nielssen and fresh evidence adduced, there was a link between the illness suffered by the applicant and the offence (See [58]). James J also noted that the sentencing judge’s conclusions regarding the severity of the attack (particularly in light of the apprehended violence order) were entirely open to him. The attack was very severe and showed a degree of viciousness. The offence was committed in breach of an apprehended domestic violence order and this was a significant aggravating factor (See [37]-[38]).

  • R v Grech [1999] NSWCCA 268 (6 September 1999) – New South Wales Court of Criminal Appeal
    Deterrence’ – ‘People with disability and impairment’ – ‘Person in authority having sexual intercourse with person with intellectual disability’ – ‘Position of trust’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Person in authority having sexual intercourse with a person with intellectual disability x 2.

    Appeal Type: Appeal against sentence.

    Facts: The male complainant, who had an intellectual disability, lived in a group home where the male applicant worked as a team leader. They formed a sexual relationship. The complainant gave evidence at trial that the sexual contact commenced when he turned 18 and that they loved each other. The applicant was found guilty after a trial of two counts of a person in authority having sexual intercourse with a person who has an intellectual disability under Crimes Act 1900 (NSW) s 66F. The applicant was sentenced to a minimum term of three years imprisonment with an additional term of two years imprisonment.

    Issue/s: The sentencing judge failed to adequately take into account the evidence of the nature of the relationship between the applicant and the complainant together with the lack of evidence of psychological or other injury suffered by the complainant and his borderline degree of intellectual disability.

    Decision and Reasoning: The appeal was dismissed. Carruthers AJ held that even if one were to accept that there was a genuine mutual loving relationship on the facts (of which there was some doubt), this did not reduce the criminality of the applicant as assessed by the trial judge. His Honour noted that the legislature did not encumber s 66F(2) with qualifications and it was clearly intended to prohibit absolutely, persons with authority (as defined) having sexual intercourse with intellectually disabled persons over whom they have authority (See [32]). Deterrence looms large for offences under s 66F(2) as ‘it is the mark of a civilised society that those who are incapable fully of protecting their own interests, should be protected from exploitation by those in whom society vests the responsibility of caring for them. Carers who breach this trust must expect condign punishment’ (See [37]). The seriousness of the offence was explained by Carruthers AJ at [33]-[34]:

    ‘strong emotional relationships are quite capable of developing between carer and intellectually disabled person, whether they are of the same gender or not. It is essential, therefore, that persons in authority exercise the utmost care to avoid such situations developing, and immediately there are indications of such a situation arising, the obligation is on the person in authority to remove himself or herself from the relationship or, at the very least, immediately to seek expert counselling.

    ‘Neither of these courses was adopted in the subject case and, intolerably, the relationship developed into one of a continuing and prolonged violation of the provisions of s 66F(2). The applicant knew not only that he was in breach of his position of trust, but that he was in breach of the criminal law, and he was also aware that the complainant had previously been the victim of sexual exploitation and as a consequence a prior carer was serving a lengthy custodial sentence. The fact that the relationship may have developed, as the applicant contends, into a mutual loving relationship could fairly be described as an aggravating feature of the case rather than a mitigating factor’.

  • R v Kotevski [1998] NSWCCA 1 (3 April 1998) – New South Wales Court of Criminal Appeal
    Malicious wounding with intent to cause grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sentencing judge should not enter into a determination of the merits of matrimonial disputes

    Charge/s: Malicious wounding with intent to cause grievous bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The victim was the applicant’s estranged wife. Despite living apart and having commenced Family Court proceedings, they continued to work together in a takeaway food business. One day at work, they were arguing and the applicant ‘snapped’. He repeatedly stabbed the victim with a scraper and a trowel before picking up a long bladed knife and lunging at the victim. Someone heard the victim’s screams and managed to intervene. The applicant was sentenced to three years imprisonment with a minimum term of two years and three months.

    Issue/s: Some of the grounds of appeal included –

    1. Whether the sentencing judge erred in not taking into account, or in not sufficiently taking into account, the belief by the applicant that he had been unfairly treated by his wife and the applicant's consequential feelings of anger and frustration.
    2. Whether the sentencing judge erred in declining to enter into a determination of the merits of the matrimonial disputes between the applicant and his wife.

    Decision and Reasoning: The appeal was dismissed by James J (Simpson J agreeing). First, the sentencing judge did not proceed on the basis that the applicant’s belief and feelings about his wife were irrelevant in the sentencing of the applicant. On the contrary, the sentencing judge appropriately took into account these feelings expressly when he noted that the attack by the applicant on his wife was not pre-meditated and that the applicant while subject to stress had ‘snapped’ and had ‘on the spur of the moment’ engaged in a ‘heated’ attack. His Honour was not required to take the applicant’s belief and feelings about his wife any further into account (10-11). Second, the sentencing judge was justified in adopting the position that he would not enter into a determination of the merits of the matrimonial disputes (i.e. who was right and who was wrong) and this was irrelevant to sentencing, except insofar as determining the attack was not pre-meditated (11-14).

  • R v O’Grady [1997] NSWCCA 1 (13 May 1997) – New South Wales Court of Criminal Appeal
    Aggravated sexual intercourse without consent’ – ‘Character’ – ‘Denunciation’ – ‘Detention against will with intent to carnally know the victim’ – ‘Deterrence’ – ‘Factors not mitigating at sentence’ – ‘Public confidence in the criminal system’ – ‘Relevance of a prior relationship’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Women

    Charge/s: Aggravated sexual intercourse without consent, detention against will with intent to carnally know the victim.

    Appeal Type: Crown appeal against sentence.

    Facts: The female victim and the male respondent had previously been in a consenting sexual relationship but at the time of the offence the relationship had ended and they were merely seeing each other as friends. The respondent asked the victim for another chance at the relationship but the victim refused. He then threatened the victim with a knife and tied her up. The respondent fondled the victim and had penile intercourse with her without her consent. The respondent was sentenced to three years imprisonment, to be served by way of periodic detention for the aggravated sexual intercourse without consent and deferred sentence for the detention offence on the condition that the respondent enter into a recognisance to be of good behaviour for a period of five years. In imposing this sentence, the judge found that these offences were ‘foreign’ to the respondent’s normal character, had their roots in compulsive gambling, and were an ‘aberration committed by a young man who loved a young girl’.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. Sully J held that while there was sufficient evidence to support a finding that the offences were ‘foreign’ to the respondent’s normal character, the offending did not have its roots in ‘compulsive gambling’ and nor could the objective seriousness of the offences be broken down as being no more than ‘an aberration committed by a young man who loved a young girl’. These were extremely serious offences which resulted from the breakdown of the relationship between respondent and the victim and the victim’s rejection of the respondent’s request to resume the relationship (See 8). As per Sully J at p. 9 that where a relationship breaks down:

    ‘ the woman who is involved in the relationship is entitled to feel that, whatever other consequences ensue, her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of those with which we are now called upon to deal’.

    In sum, the sentences imposed were manifestly inadequate. They were wholly inadequate to denounce the violent rape, at knife point, of a defenceless young woman in what ought to have been the safety and security of her own home. They were wholly inadequate to properly denounce the victim’s violent and prolonged detention for that purpose. They were also wholly inadequate to deter both the respondent and other young men from similar behaviour. Further, very importantly, the sentences imposed were hopelessly inadequate to ensure that there is maintained public respect for and confidence in current standards of criminal justice (See 11). The respondent was resentenced to five years imprisonment for the sexual intercourse with consent offence with a minimum term of three years and three years imprisonment on the detention offence.

  • R v Rowe [1996] NSWCCA 1 (3 October 1996) – New South Wales Court of Criminal Appeal
    Deterrence’ – ‘Family hardship’ – ‘Kidnapping’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of victim's wishes’ – ‘Sentencing’ – ‘Victim contribution

    Charge/s: Kidnapping, rape.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female complainant lived in an ‘off and on’ de facto relationship over a period of five years and had two children together. Immediately prior to the offences, the relationship had broken down again. The applicant became jealous because he believed the complainant was seeing a new man. He then forced the complainant into his car, drove her to his premises, threatened to kill her family and this new man, and proceeded to have sexual intercourse with her without consent. He was sentenced to seven years imprisonment, with an effective minimum term of four years. The complainant wrote to the sentencing judge stating that she had resumed a relationship with the applicant, she did not want him to go to prison (particularly because of the trauma that would result to their children), and she had forgiven the applicant.

    Issue/s: Some of the grounds of appeal included –

    1. The sentencing judge gave insufficient weight to his subjective features including his age, background, disrupted and violent upbringing, education and employment.
    2. The sentencing judge gave insufficient weight to the wishes of the complainant

    Decision and Reasoning: The appeal was dismissed. First, the sentencing judge did not err when he rejected the claim that these subjective circumstances had a relationship to the commission of these offences and therefore ought to have mitigated the sentence (See 472). Second, Hunt CJ dismissed the contention that the sentencing judge ought to have given greater weight to the wishes of the complainant. As at 472-473:

    ‘This Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Glen, Simpson J pointed out that, whilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

    ‘This Court has also said more than once that the hardship upon the family of an offender will not be relevant in mitigation unless it goes beyond that which inevitably results in any case of incarceration and unless it is sufficiently extreme as to demand that the judge draw back. That has not been established in this case. It may be ironic, as has been suggested, that the victim and her children are going to suffer the punishment imposed upon the offender, but the fact remains that the law requires such a punishment to be imposed’.

  • R v Glen [1994] NSWCCA 1 (19 December 1994) – New South Wales Court of Criminal Appeal
    Deterrence’ – ‘Physical violence and harm’ – ‘Relevance of victim’s forgiveness’ – ‘Sentencing’ – ‘Sexual intercourse with consent’ – ‘Victim contribution

    Charge/s: Sexual intercourse without consent.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: The male appellant and the female victim had been in an intermittent relationship for two years and had a daughter together. The appellant had sexual intercourse with the victim without her consent in the front yard of his premises. At the time of offence, he was upset about his possible denial of access to his daughter.

    Issue/s:

    1. The appellant did not appreciate when he pleaded guilty that he was acknowledging the absence of consent of the victim to sexual intercourse.
    2. The admission of guilt involved in the plea should be regarded as tainted and not a free and voluntary confession.
    3. The sentencing judge fell into error by failing to give adequate weight to the lack of any relevant prior record, the emotional background to the incident - including the appellant’s fears concerning future contact with his daughter, the remorse expressed and the attitude of the complainant.

    Decision and Reasoning: As per Grove J (Loveday AJ and Simpson J agreeing) the appeal against conviction and the appeal against sentence was dismissed. First, counsel for the appellant at trial obtained adequate written instructions prior to the arraignment that the appellant wished to plead guilty. These evidenced that the appellant knew the consequences of pleading guilty (See 5-6). Second, the terms of the written instructions, the evidence of the solicitor and the lack of credibility attaching to the appellant’s assertion combine to made this ground of appeal untenable (See 7). Finally, none of the above matters were overlooked by the sentencing judge and no error was accordingly demonstrated. In particular, the sentencing judge made express reference to the attitude of the complainant, which cannot govern the duty of the court when proceeding to sentence (See 8).

    After agreeing with the reasons of Grove J, Simpson J made further comments on the relevance of the victim’s attitude of the offences to the sentence which should be imposed. Her Honour provided:

    ‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been be) could attain the victim's forgiveness.

    There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

    For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.

    The second reason of principle for treating with extreme caution the evidence of the forgiveness of the victim in the circumstances of this case is that the legislature has, since 1982, made clear its intention that special considerations apply to offences of domestic violence’.

Supreme Court

  • R v Jenkin (No 10) [2018] NSWSC 705 (18 May 2018) – New South Wales Supreme Court
    Audio visual link’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Safety and protection of witnesses’ – ‘Tendency evidence

    Charges: Murder x 1.

    Case type: Applications to adduce evidence from former partner of accused and to give evidence via video link.

    Facts: The defendant was on trial for murder of an associate. The prosecution sought to adduce evidence from the defendant’s former partner describing assaults he committed against her while he was on drugs ([5]). The prosecution sought to establish a tendency to ‘detain persons and to intimidate and physically assault them’ ([3]).

    Issues: Whether the evidence should be admitted.

    Decision and Reasoning: Most of the evidence was not admitted because it did not show that the accused had a tendency to detain persons ([8]). One paragraph of the evidence was admitted because it evidenced the defendant locking her in a room and making sure she couldn’t leave ([14]). While the evidence concerned uncharged acts of violence, the judge considered that there was little risk of prejudice given that the trial is a judge-alone trial ([14]).

    The former partner applied to give evidence via videolink after evidence from psychologists stated that giving evidence would be an extremely stressful situation. The judge accepted that using the videolink facility would reduce her trauma. The defence’s ability to assess her credibility was not significantly compromised ([18]).

  • R v TP [2018] NSWSC 369 (23 March 2018) – New South Wales Supreme Court
    Battered women’ – ‘Exposing children to violence’ – ‘Failure to protect’ – ‘Moral culpability’ – ‘People with children’ – ‘Sentencing’ – ‘Vulnerable groups

    Charges: Negligent manslaughter x 1.

    Case type: Sentence.

    Facts: The defendant’s husband, JK, pleaded guilty to murdering the defendant’s daughter, CN. The defendant was charged with failing to remove CN from violence and obtain medical treatment for her ([3]). JK inflicted horrific physical and psychological violence on the defendant and her two children for years ([4]), including tying CN to the bed and hitting her with wooden slats ([13]-[19], [36]-[38]). Expert evidence established that the defendant was suffering from post-traumatic stress disorder and severe depression caused by repeated exposure to violence ([5], [40]-[41]).

    Issue: Sentence to be imposed.

    Decision and Reasoning: Justice Hamill remarked that ‘[the] criminal law is a blunt tool in circumstances such as these’ ([8]). The defendant’s psychological conditions substantially impacted the application of the principles of sentencing, the purpose of punishment and reduced the ultimate sentence. The impact was significant because first, there was a direct link between the violence suffered by the defendant and her neglect of CN ([55]). Second, the weight afforded to general deterrence is greatly reduced ([56]-[57]). Third, the defendant’s rehabilitation through psychologists and psychiatrists would be interrupted by a custodial sentence ([58]). Fourth, a full-time custodial sentence will weigh more heavily on TP than it would on a person who does not suffer from the severe depression, grief and post-traumatic stress disorder ([59]). Fifth, the defendant was unlikely ever to offend again ([60]). The offending was aggravated by CN’s young age and fragility ([62]).

    Having considered all possible alternatives, including a fine, bond or community service order, Hammill J concluded that only a period of imprisonment was appropriate ([78]). Justice Hammill imposed a sentence of 4 years, with a non-parole period of 18 months ([79]-[80]).

    Annexed to the judgement, at [82], is a useful summary of comparable cases, although no cases had precisely the same features as this one.

  • Franklin v Commissioner of Police [2018] NSWSC 310 (14 March 2018) – New South Wales Supreme Court
    Assault’ – ‘Scope of subpoenas’ – ‘Self-represented litigant’ – ‘Systems abuse

    Charges: Assault x 1.

    Case type: Application

    Facts: The Plaintiff was charged with assaulting his wife ([2]). The Plaintiff issued a number of subpoenas to the Commissioner of Police and a hospital, seeking material including all police records for the immediate proceeding, the victim, all attendances at their home, all records of complaints proceedings instigated by the Plaintiff against the police, copies of notebooks of certain officers, and copies of all internal police communications in relation to the proceedings ([3], [28]).

    At a hearing on 5 April 2017 in a Local Court, the police objected to the subpoenas on the basis that they were too wide ([29]). The Plaintiff then issued two more subpoenas to prosecution witnesses, which were also objected to on the grounds of absence of legitimate forensic purpose and public interest immunity ([34]). At a hearing on 18 and 19 July 2017, the magistrate allowed access to some documents but refused access to others ([36]).

    Issues: The Plaintiff appealed against the Magistrate’s decision on 5 April 2017 on 5 grounds outlined at [37]. The Plaintiff appealed against the Magistrate’s decision on 19 July 2017 on 8 grounds outlined at [51].

    Decision and Reasoning: The appeal was dismissed because there was no error of law and no basis for a grant of leave for the Plaintiff to rely upon the grounds of appeal ([46], [81]).

    Justice Johnson appeared to refer to the Plaintiff being self-represented at [80]:

    I provided the Plaintiff with ample opportunity at the hearing on 2 and 10 November 2017 to advance arguments in support of his claim for relief. I have considered those arguments in this judgment, perhaps in greater detail than is called for by the limited statutory avenue of appeal which is available. One reason for taking this approach was to resolve what appeared to be a heavily litigated issue by the Plaintiff at the interlocutory level ahead of the summary hearing in the Local Court. It is appropriate that the way be cleared for the hearing and determination of the charge against him.

  • R v Fesus (No 9) [2018] NSWSC 176 (23 February 2018) – New South Wales Supreme Court
    Factors effecting risk’ – ‘Historical offence’ – ‘Historical sentencing practice’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Strangulation

    Charges: Murder

    Case type: Sentence.

    Facts: The defendant was convicted of the 1997 murder of his 18-year-old wife. The judge found that the defendant strangled his wife after she proposed to leave him and take the children with her ([50]). The defendant denied the allegations and attempted to cover up the murder, but later made admissions to an undercover police officer in 2013 ([23]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Justice Johnson had regard to sentences imposed for similar cases in 1997 ([88]-[93]) and imposed a head sentence of 22 years’ imprisonment with a non-parole period of 16 years and 6 months ([98)). At [50]-[51] Johnson J explained:

    The Offender murdered his young wife in the course of a domestic dispute arising from her declaration that she proposed to leave him and take the children with her. Although the Offender and Jodie had lived together for about two years, they had only been married for three months at the time of her death. Jodie was a young mother who, despite her considerable life experience at that time, was barely an adult. The Offender was 26 years old at the time of the offence.

    The fact that the marriage was breaking down (after only three months) does not assist the Offender. It has been observed that killings within a domestic situation occur very often when there has been a build-up of tension between the killer and victim over a period of years: R v Whitmore [1998] NSWCCA 75 at [16]. That is not the position in this case. Here, the Offender murdered his very young wife at a time of marital strain after just three months of marriage.

    Justice Johnson also noted the lack of previous domestic violence, and the prevalence of choking in domestic violence:

    The evidence does not suggest a prior history of domestic violence on the part of the Offender towards Jodie. That said, their relationship was not a particularly long one and his response to Jodie’s desire to leave was a savage and homicidal one.

    The use of choking in the course of domestic violence is now well recognised as a gross form of control with a capacity (as occurred here) to cause death: Cherry v R [2017] NSWCCA 150 at [75].

  • R v Stephen (No 2) [2018] NSWSC 167 (6 February 2018) – New South Wales Supreme Court
    Abused person’ – ‘Court processes’ – ‘Fair hearing and safety’ – ‘Mental health’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder

    Charges: Murder.

    Case type: Application by the accused to sit outside the dock.

    Facts: The accused was on trial for murder for stabbing the victim, who was her husband. It was undisputed that at the time of stabbing, she had been subjected to severe violence at the time of the offence, and for over a year prior to the stabbing (see R v Stephen (No. 3) [2018] NSWSC 168 (20 February 2018) ). The accused made an application to sit outside the dock, next to her legal team. The Crown supported the application ([1]-[2]).

    Issues: Whether the judge should exercise his discretion to grant the request pursuant to s 34 Criminal Procedure Act 1986 (NSW).

    Decision and Reasoning: The application was refused.

    Justice Button weighed up the countervailing factors. Factors in favour of granting the application were that the accused had been on bail for many months, she was not a security risk, she suffers from post-traumatic stress disorder, and she argued that sitting in the dock will be prejudicial for the jury ([3]-[6], [9]). Factors weighing against granting the application were that the accused is not a child or a person suffering from a disability, that the dock is a traditional symbol of the gravity of the proceedings, that there is no inconvenience for the accused being in the dock, and she is charged with a very serious offence ([8], [10]-[14]).

    Justice Button concluded that there was nothing exceptional about the matter to justify the request being granted. The next day, his Honour received further submissions with more detailed evidence about the accused’s mental health issues but declined to alter the ruling ([18]).

  • R v McMaster [2017] NSWSC 1063 (16 August 2017) – New South Wales Supreme Court
    Alcohol abuse’ – ‘Bail’ – ‘Co-operation with police’ – ‘Drug abuse’ – ‘Factors affecting risk’ – ‘Firearms

    Charges: Possession of unauthorised firearm x 1; Intimidation x 1; Handling firearm while intoxicated x 1.

    Case type: Bail application.

    Facts: While under the influence of alcohol and cocaine, the defendant repeatedly called and texted the complainant, his ex-partner ([5]). He drove to her house with the gun in the passenger seat (of which she took photographs). He aimed the gun at her with his finger on the trigger. He ultimately returned to his vehicle ([3]). The defendant refused to co-operate with the police or disclose the location of the firearm ([5]). The defendant had been in custody for four months ([6]).

    Issues: Whether bail should be granted. The application was opposed by police.

    Decision and Reasoning: Judge Harrison refused bail. The decisive matter was that the complainant had not revealed the location of the firearm, so there was a real possibility that he would have unrestricted access to it if he was released. But for this matter, Harrison J would have granted bail with appropriate conditions.

  • R v Walker (No 7) [2017] NSWSC 1049 (10 August 2017) – New South Wales Supreme Court
    Hearsay evidence’ – ‘Murder’ – ‘Not unfairly prejudicial

    Charges: Murder x 1.

    Case type: Voir dire.

    Facts: The accused was on trial for murdering his de facto partner. During the relationship, neither the victim nor the police had obtained an AVO against the accused, despite evidence of injuries caused by the accused ([3]). The Crown sought to adduce hearsay evidence of statements the victim had made to her doctor. In a discussion about the victim taking out an AVO, the victim had said ‘I don’t deserve it’ and ‘don’t want to cause trouble’ ([1]).

    Issues: Whether the evidence was admissible.

    Decision and Reasoning: The evidence was admitted.

    The statements fell within an exception to the hearsay rule because they were evidence of the victim’s state of mind (s 66A of the Evidence Act 1995 (NSW)) ([5]). Nevertheless, the accused argued that the statements should not be admitted for three reasons:

    • the statements were not relevant because they could not affect an assessment of the probability of the existence of a disputed fact ([5]);
    • the statements would result in unfair prejudice, because the victim had made contradictory statements that were not admitted ([6]); and
    • the statements were simply likely to invoke sympathy for the deceased ([7]).

    However, Schmidt J held that the statements should be admitted for three reasons:

    • the statements allowed the jury to consider why the victim never sought an AVO despite complaints of violence ([9]);
    • the statements allowed the jury to consider the reliability of other hearsay representations to establish the tendency evidence led by the Crown ([9]); and
    • the doctor to whom the representations were made was available to be cross-examined (citing R v Clark [2001] NSWCCA 494, per Heydon JA at [12]).

    Therefore, the statements were not unfairly prejudicial ([11]).

  • Romero v DPP [2017] NSWSC 1190 (17 July 2017) – New South Wales Supreme Court
    Error of law’ – ‘Judicial review’ – ‘Orders’ – ‘Post-separation violence’ – ‘Procedure’ – ‘Remitted to local court

    Charges: Common assault x 1.

    Appeal type: Appeal against conviction.

    Facts: The appellant was convicted of common assault against his former partner ([1]). The police applied for an apprehended domestic violence order ([3]). The Magistrate conducted the summary trial on the basis that the Magistrates Court had jurisdiction to hear the criminal proceedings and civil proceedings for apprehended violence orders concurrently, which was incorrect ([5], [15]).

    Issues: Orders to be made.

    Decision and Reasoning: The DPP conceded that the Magistrate erred in law, so the only contentious point was in relation to the orders to be made. First, McCallum J ordered the DPP to pay half of the plaintiff’s costs, since the plaintiff had been denied a hearing according to law ([22]). Second, the parties sought an order remitting the matter to a ‘differently constituted Local Court’ ([23]). Judge McCallum considered that there was no need for an order to a ‘differently constituted’ Court in the absence of apprehended bias or prejudgement ([24]). Judge McCallum remitted the matter of the assault charge to the Local Court to be heard and determined according to law.

  • R v De Beyer [2017] NSWSC 752 (13 June 2017) – New South Wales Supreme Court
    Children's evidence’ – ‘Murder’ – ‘Relationship evidence

    Charges: Murder x 1.

    Case type: Judgement on the admissibility of relationship evidence.

    Facts: The accused and deceased were married. The accused was on trial for her murder. It was the Crown case that the accused had stabbed his wife. He gave evidence that she stabbed herself. The prosecution case was circumstantial ([1]).

    Issues: Whether evidence of the accused and deceased’s relationship was admissible ([2]).

    Decision and Reasoning:

    Evidence that was admitted without objection:
    • Eyewitness evidence from the accused and deceased’s son and daughter, including witnessing the accused punching and kicking the deceased, throwing things at the deceased and threatening to kill her ([3], [17]).
    • Statements made to the police by one child, the deceased and police officers after police attendance at a violent incident ([9]-[10], [15]).
    • Parts of recordings made by the deceased of arguments between her and the deceased ([13], [25]).
    Evidence that was objected to, and admitted:
    • A conversation between the deceased and her sister, including statements that the accused would not let the deceased out of the house or have a phone “because he was scared she would call the police”, and that she would not leave him “because if he found her he would kill her” [23]. The statements were objected to on the basis that they were representations of the accused state of mind ([23]). The Court held that they were expressions of fear, and were admissible as an exception to the hearsay rule ([24]).
    • Notes and diary entries made by the deceased, which included assertions of fact about episodes of abuse, and statements about the deceased’s state of mind about the relationship ([31]). Only general statements of fact were admitted, because they were not hearsay evidence ([30]).
    Evidence that was not admitted:
    • Statements made by the deceased to her daughter that the accused attempted to drown her. The daughter only recollected these statements once she was shown the deceased’s diary. The daughter’s recollection did not appear to be firm. Therefore, Hidden AJ held that evidence was not highly probable to be reliable ([20]-[22]-[22]).
  • R v Biles (No 2) [2017] NSWSC 525 (3 May 2017) – New South Wales Supreme Court
    Aboriginal and torres strait islander people’ – ‘Murder’ – ‘Pattern of behaviour’ – ‘People affected by substance misuse

    Charges: Murder x 1.

    Case type: Sentence.

    Facts: The offender was found guilty at trial of murdering the victim, his 18-year-old girlfriend and mother of his child ([2]). Both were of Aboriginal descent ([32]). He had frequently been violent towards her over their relationship of two years ([8]). The murder occurred after both had consumed alcohol throughout the day ([13]). Six other women were in the house ([4]). The offender dragged her from the kitchen into the bedroom ([15]). There were no witnesses to the attack in the bedroom, but witnesses gave evidence that the deceased screamed for approximately twenty minutes before falling silent ([17]). When the police arrived, the bedroom was covered in blood, and she was declared dead at the scene ([21]). She had injuries consistent with multiple blows to the head ([24]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Fagan J sentenced the offender to 24 years’ imprisonment, with a non-parole period of 18 years.

    His Honour considered that the murder was in the middle of the range of objective seriousness ([31]). He considered that the deceased’s young age, vulnerability, and the fact that the offender lied to other women who tried to intervene, all contributed to the seriousness of the offence ([31]).

    His Honour examined the offender’s personal circumstances ([32]-[38]). His verbal comprehension was in the lowest 1% of the general population, a circumstance which contributes to a higher propensity to violence ([34]). He had a criminal history since 15 years old ([39]), but he proved unresponsive to good behaviour bonds and community service orders ([42]-[47]).

    His Honour considered that these offences were the culmination of a course of domestic violence (see from [52]). His Honour remarked at [52]:

    ‘The experience of courts in this State has shown that men who perpetrate violence against their female partners do not stop after one occurrence. Often they become accustomed to inflicting violence of escalating severity.’

    On the failure of the other women in the house to call the police, his Honour said [55]:

    ‘The apparent lack of a sense of urgency amongst the other women in the house … may have been due to resignation amongst them; a feeling that to some extent domestic violence is inevitable and must be endured and, perhaps, that it is a matter private to the couple, in which others should not interfere. None of that is so.’

  • R v Adams (No 6) [2016] NSWSC 1565 (4 November 2016) – New South Wales Supreme Court
    Evidence’ – ‘Judge-alone trial’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Tendency

    Charge/s: Murder.

    Hearing: Judge-alone trial judgment.

    Facts: On 27 September 2016, the accused pleaded not guilty to the murder of Mary Wallace (the deceased) on 24 September 1983. A significant part of the Crown’s circumstantial case was that the accused possessed a tendency at the time of the alleged murder to choke or strangle women in order to force them to submit to having penile/vaginal sexual intercourse with him. The Crown led evidence of three women who had alleged that they had been sexually assaulted by the accused.

    Issue/s: Whether the accused was guilty of the charge of murder.

    Decision and Reasoning: In reaching this decision, His Honour first listed the legal matters he took into account in reaching the verdict (see [320]-[359]). Most relevantly, Justice Button noted that it would have to be proven beyond reasonable doubt that at the time of offence the accused possessed a tendency to strangle women to cause them to submit to intercourse with him. This was for at least two reasons: (1) there was authority that tendency must be proven to the criminal standard in order to be taken into account (see the discussion of HML v The Queen in DJV v R at [30], and R v Matonwal & Amood at [92]). (2) In the circumstances of this case, it was agreed between parties that the alleged tendency was an indispensible intermediate fact with regard to the guilt of the accused (Shepherd v The Queen)(see [337]-[339]).

    Justice Button then stepped through his sequential reasoning for reaching the verdict of guilty (see [360]-[493]). One of the steps in this reasoning was that His Honour found that the accused possessed a tendency to rape women and to strangle them ancillary to that crime. This was after considering the evidence of three women (see [419]-[420]).

    In light of the following evidence, at [491]-[492], Justice Button held that the accused’s guilt had been proven beyond reasonable doubt:

    ‘the proven tendency of the accused to rape and strangle women; the marked similarities between his interaction with the deceased and his interactions with women whom, I am satisfied, he had raped and strangled; the fact that the deceased has never been seen again after she was in the company of the accused; the fact that, within 48 hours of his interaction with the deceased, the accused undertook an activity relating to his boot that featured the use of a hose; the fact that hairs (which shared a reasonably rare profile with those of the deceased) were seized from the boot of his vehicle, and not disputed at trial to be from the deceased; and the fact that, on any analysis, the accused had ample time to dispose of the body’.

    Justice Button concluded: ‘the accused treated the deceased very much as an object, just as he had treated three other young women’.
  • R v Silva [2015] NSWSC 148 (6 March 2015) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Manslaughter by excessive self-defence’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Sentence

    Charge/s: Manslaughter by excessive self-defence.

    Hearing: Sentencing.

    Facts: The offender stabbed and killed her partner, James Polkinghorne. The relationship had been characterised by escalating physical and verbal abuse from the deceased towards the offender. On the 13 May 2012, the deceased made increasingly threatening and abusive telephone calls and messages to the offender. That night, he went to the home of the offender’s parents, where the offender was present. He was highly aggressive and high on methylamphetamine. The facts of what followed were confused and confusing (see [29]-[36]). In summary, the deceased threatened to kill the offender, he assaulted the offender, and the offender’s brother and father intervened. They began fighting with the deceased. The offender retrieved a knife from inside and, while the offender was on top of her brother, stabbed and killed the deceased. The offender was found not guilty of murder but guilty of manslaughter.

    Decision and Reasoning: A sentence of 18 months imprisonment, wholly suspended was imposed. Hoeben CJ first made a number of factual findings. At [38] His Honour found that:

    ‘the offender stabbed the deceased with an intention to inflict grievous bodily harm because she believed her act was necessary to defend not only herself but her brother and father. However, in accordance with the jury’s verdict, the offender’s conduct was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence’.

    His Honour also had regard, with some qualifications, to the evidence of Associate Professor Quadrio, a consultant psychiatrist. In her report, Professor Quadrio concluded that during her relationship with the deceased, the offender developed chronic and complex Post Traumatic Stress Disorder (PTSD) with particular features which were described as ‘Battered Woman Syndrome’. She also concluded that the offender continued to suffer from PTSD. Hoeben CJ found at [40]:

    ‘In the absence of any psychiatric opinion to the contrary, I would normally accept such a diagnosis. In this case I am not prepared to do so. This is because the diagnosis is based upon significant pieces of history from the offender which are different to the evidence at trial and to what the offender said in her ERISP. I am prepared to accept that the offender currently suffers from PTSD. The events of the night of 13 May 2012 would of themselves be sufficient to bring about such a condition and there is no reason to doubt the existence of the symptoms which the offender described following the deceased’s death. What I am not prepared to accept is that the Post Traumatic Stress Disorder was due to the offender’s relationship with the deceased and was in existence before the deceased’s death’.

    However, His Honour did accept that the offender stabbed the deceased when she was in a highly emotional and hysterical state (see [41]-[43]).

    In reaching an appropriate sentence, Hoeben CJ took into account a number of considerations. These included that specific deterrence were not relevant in light of the offender’s rehabilitation and the unlikelihood of re-offending (see [58]). General deterrence was not accorded substantial weight in light of exceptional factual circumstances (the deceased had made escalating threats of violence approaching the offender’s home and the offender’s state of mind was affected by being already brutally assaulted and witnessing the struggle between her family members and the deceased) (see [59]). The objective seriousness was at the lower end of the range as was the offender’s culpability (see [60]-[61]).

    As against these matters, Hoeben CJ had regard to the sanctity of human life, the need to denounce the conduct of the offender and hold her accountable for her actions (see [62]).

    The offender successfully appealed against her conviction to the Court of Appeal. See Silva v The Queen [2016] NSWCCA 284 (7 December 2016).
  • DPP (NSW) v Lucas [2014] NSWSC 1441 (20 October 2014) – New South Wales Supreme Court
    Damaging property’ – ‘Evidence’ – ‘Intentionally or recklessly damaging property’ – ‘Intimidation’ – ‘Relationship/context evidence

    Charge/s: Intentionally or recklessly damaging property, intimidation.

    Appeal Type: Crown appeal against the dismissal of the charges.

    Facts: The male defendant had been in a domestic relationship with the female complainant that had ended some years prior to the offence. Since that time, the complainant had taken steps to conceal where she was living with her children from the defendant. He found where they were living and was permitted to have contact and access to children. One evening, the defendant turned up to the complainant’s home uninvited and unannounced. She locked herself and the children inside the house while the defendant was yelling and screaming and making threats, including threatening to deflate the tyres on her car. It was alleged that he then deflated a tyre on her car. These charges were dismissed by a magistrate.

    Issue/s: One of the grounds of appeal was that the magistrate erred in excluding evidence of a ‘pattern of violence’, such evidence being relevant to the intimidation charge under s 7(2) of the Crimes (Domestic and Personal Violence) Act.

    Decision and Reasoning: This ground of appeal was dismissed but the appeal was upheld on other grounds (failure to give reasons and error as to what constituted damage). Examination of the transcript indicated that the magistrate’s approach was that the prosecutor should lead evidence of the actual incident itself before leading any other evidence under s 7(2), if it was then considered necessary (See [24]-[30]).

  • R v Gittany (No 5) [2014] NSWSC 49 (11 February 2014) – New South Wales Supreme Court
    Character evidence’ – ‘Following, harassing, monitoring’ – ‘Moral culpability’ – ‘Murder’ – ‘Objective seriousness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder.

    Hearing: Sentencing hearing.

    Facts: The offender was found guilty for the murder of his female de facto partner after a judge only trial. While the relationship was, at times, loving and happy it was also tumultuous as the offender was a jealous and possessive partner. The offender scrutinised the victim’s conduct openly and covertly, keeping track of her movements through surveillance cameras and secretly monitoring her mobile phone. On 30 July 2011, the victim had decided she was leaving the offender and attempted to leave their apartment. She was physically dragged back into the apartment by the offender and sixty-nine seconds later she fell to her death from the balcony. McCallum J was satisfied beyond reasonable doubt that, in a state of rage, the offender carried the unconscious complainant to the balcony and ‘unloaded’ her over the edge.

    Decision and Reasoning: A sentence of 26 years imprisonment with a non-parole period of 18 years was appropriate in the circumstances. McCallum J took into account of a number of considerations in imposing this sentence. Her Honour assessed the objective seriousness of the offence. McCallum J was satisfied beyond reasonable doubt that the act of unloading the complainant’s body over the balcony was done with intent to kill and that, although unconscious, the complainant was undoubtedly in a state of complete terror in the last moments before her death (See [16]-[18]).

    A further relevant issue in assessing objective seriousness was whether the killing was planned or premeditated. The Crown tried to adduce evidence establishing that the offender had long had in mind the possibility of committing such an act, and making it look like suicide, in the event of her leaving him. Although witness testimony substantiating this assertion was excluded for its prejudicial content, other evidence was relevant to assessing the offender’s state of mind. During the relationship, the offender engaged in an extraordinary degree of manipulative behaviour and while he was not to be punished for this conduct nor did this conduct aggravate the offence, it did inform the state of mind in which he committed the offence. McCallum J was not satisfied that the offence was planned or premeditated in the traditional sense; however, she was satisfied that the offender must have anticipated the prospect that he would fly into a rage if ever she were to leave him (See [19]-[39]). Her Honour concluded:

    ‘In my view, that history informs the degree of moral culpability of the offence. The arrogance and sense of entitlement with which Mr Gittany sought to control Lisa Harnum throughout their relationship deny the characterisation of his state of mind in killing her as one of complete and unexpected spontaneity. By an attritional process, he allowed possessiveness and insecurity to overwhelm the most basic respect for her right to live her life as she chose. Although I accept that the intention to kill was formed suddenly and in a state of rage, it was facilitated by a sense of ownership and a lack of any true respect for the autonomy of the woman he claimed to love’ at [40].

    In sum, the objective seriousness of the offence committed was not above the middle of the notional range, having regard to the fact that the murder was not premeditated or planned. However, the offence was of sufficient seriousness that the standard non-parole period of twenty years was to be regarded as a strong guide in this case (See [43]).

    McCallum J also noted the offender’s personal circumstances, including a troubling prior conviction for malicious wounding (See [44]-[59]) and noted that the complainant was vulnerable. She took into account good character references provided (noting though the contradiction posed by the way he treated the complainant) but was not persuaded that any prospect of rehabilitation existed in this case (See [65]-[74]).

    This case was unsuccessfully appealed to the New South Wales Court of Appeal. See Gittany v R [2016] NSWCCA 182 (19 August 2016).

  • R v Yeoman [2003] NSWSC 194 (21 March 2003) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Difficulty leaving an abusive relationship’ – ‘Expert evidence - psychosocial report - specific experience in drug and alcohol related domestic violence issues’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Where the victim is an offender’ – ‘Women

    Charge/s: Manslaughter.

    Hearing: Sentencing.

    Facts: The female offender had lived with her male de facto partner, the deceased, for 25 years (since she was 17 years old). The deceased had been violent towards the offender throughout their relationship, including hitting her in the eye with a baseball bat, but she did not have the means to leave the relationship. The deceased would often taunt the offender and dare her to stab him. They both suffered from alcoholism. One evening, the offender was heavily intoxicated and stabbed the deceased in the chest, killing him. At the time, she did not intend to kill him nor did she realise he was dead and she went to bed. The next morning she called the police and made full admissions. The offender’s recollection of events was imperfect because of her intoxication.

    Decision and Reasoning: Buddin J had extensive regard to a psychological report prepared by Ms Danielle Castles, who had 17 years’ experience working in the social welfare field, with particular expertise about drug and alcohol issues and domestic violence (See [32]-[35]). Ms Castles commenced her report by explaining the nature of domestic violence and stated at [32] that:

    ‘domestic violence is the term used to describe the violence and abuse perpetrated upon a partner in a marriage or marriage like relationship. It is essentially the misuse of power and the exercise of control by one person, usually the man, over another, usually the woman. “Women experiencing domestic violence are often subjected to physical, sexual, emotional/psychological, social and economic abuse. Abuse may be overt (physical violence) or it might be deceptively subtle (emotional abuse). It is the interplay between making the woman fearful and reducing her self-esteem which results in the abuse having significant and prolonged effects on the woman.”

    The effects of domestic violence are such that women in violent relationships are convinced they are hopeless, that they need to be dependent upon the abuser and could not possibly survive without him. The most significant aspect of prolonged abuse is the gradual breaking down of a woman’s autonomy’.

    Ms Castles then set out the ways in which domestic violence impacted upon the offender here (See [33]-[34]).

    Buddin J ultimately found that the offender’s criminality was at the lower end of the scale of culpability of an offence of this kind i.e. non-intentional homicide in circumstances of tragic misadventure. Her intention was no more and no less than to engage in a desperate and objectively dangerous gesture, without intending any real harm or worse to the deceased. This, in conjunction with the very powerful subjective case advanced on behalf of the offender, meant that an exceptional sentence of a good behaviour bond for four years was appropriate, notwithstanding the fact that a life was taken (See [50]). The subjective factors that mitigated sentence included that ‘the offence took place against the background of continuing domestic violence over a prolonged period of time, the impact upon her of which cannot, for the reasons advanced by Ms Castles and others, be underestimated’ (See [45]). Buddin J also derived assistance from cases involving ‘battered spouse or partner syndrome’ (See [48]).

District Court

  • Degampathi Jayasekra [2018] NSWDC 59 (23 March 2018) – New South Wales District Court
    Appeal against conviction’ – ‘Damaging property’ – ‘Gifts’ – ‘Presumption of advancement’ – ‘Property ownership’ – ‘Trusts

    Charges: Destroy or damage property x 1.

    Appeal type: Appeal against conviction.

    Facts: In the course of an argument with the complainant, his wife, the appellant damaged a laptop and mobile phone ([4]). The appellant’s case was that he was the sole owner of the items, and thus could not be convicted of the offence ([5]). The appellant had purchased the items and had given them to his wife and did not say they were gifts ([6]). The complainant had day to day use of both items ([7]).

    Issues: Whether the items were the property of the appellant or another person.

    Decision and reasoning: In reliance on the law of trusts, Scotting J inferred from the actions of the parties that the items were intended to be gifts ([21]-[26]). The presumption of advancement could not be rebutted. The Magistrate’s decision that the items belonged to both the appellant and complainant was affirmed ([28]). Therefore, the appellant’s conviction for property damage is upheld.

  • R v MJ [2016] NSWDC 272 (12 May 2016) – New South Wales District Court
    Assault occasioning bodily harm’ – ‘General deterrence’ – ‘Myths and misunderstandings’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Sexual intercourse without consent’ – ‘Specific deterrence’ – ‘Women

    Charge/s: Assault occasioning bodily harm x 5, sexual intercourse without consent, common assault x 4, breach of AVO x 5.

    Hearing: Sentencing hearing.

    Facts: After being found guilty in a trial by jury, the offender was sentenced for 10 domestic violence offences committed against his former female partner. The offender was also sentenced for a number of other charges namely, driving disqualified and numerous breaches of an Apprehended Violence Order (AVO).

    Decision and Reasoning: Berman J imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 and a half years. At the outset, His Honour noted that: ‘Women, and it is usually women, too often find themselves subjugated to the demands of their partners, who seem to regard it as entirely acceptable for them to control and manipulate someone with whom they are in a relationship through violent and degrading means’ (see [1]).

    Berman J noted that the offender here felt a sense of entitlement and ownership over the victim and blamed her for his violent behaviour. His manipulation of the victim, using violence and protestations of love, was so effective that she did not leave the relationship (even after she had been repeatedly beaten and raped) until she received counselling (see [4]). She was left with significant physical and psychological injury (see [26]).

    Moreover, there were a number of serious features of this offending. The victim was assaulted in her own home. Many of the offences occurred in context of offender’s demands that the victim withdraw a complaint she made to the police about him. There were similarities in the way he had treated a previous partner. Some offences were committed in the presence of the victim’s daughter. Many offences constituted breaches of an AVO and demonstrated contempt of these orders (see [28]-[30]).

    In the context of mitigating factors, His Honour acknowledged that the offender grew up with domestic violence as a feature of his early life. However, this was not a case in which the offender thought that such behaviour was normal and acceptable because his stepfather was a good role model for him (see [33]-[40]). The offender had taken some steps towards rehabilitation and some references spoke positively of his character (showing how an offender can have a very different face in private life) but there was still need for the sentence to reflect an element of specific deterrence (see [42]-[43]). More importantly, the sentence needed to take into account general deterrence. As per Berman J:

    ‘Offences such as these cause enormous harm, both to the individual victims concerned and to the community generally. Offenders who commit crimes such as I have described, particularly after they have been subject to apprehended violence orders, put in place to protect their partners from precisely such conduct, need to be given in sentences which will deter others who may be tempted to act in a similar way. Most fundamentally in assessing the relevant sentence to impose upon the offender is, of course, the objective gravity of what he has done’ (see [42]).
  • Rich v The Queen [2015] NSWDC 71 (18 May 2015) – New South Wales District Court
    Common assault’ – ‘Contravention of a protection order’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Service

    Charge/s: Contravention of a protection order, common assault.

    Appeal Type: Appeal against conviction.

    Facts: A Provisional Apprehended Order was made nominating the appellant’s partner as the protected person and the appellant as the defendant. This was served on the appellant by the police. The appellant then appeared in court represented by counsel from the Aboriginal Legal Service and an interim Apprehended Violence Order (AVO) was made. The appellant assaulted the protected person and was charged. There was a hearing in the Local Court where a plea of guilty was entered with respect to the assault charge and the appellant defended the contravene AVO charge. The Local Court found the appellant guilty of the contravene AVO.

    Issue/s: Some of the grounds of appeal included –

    1. The prosecution was unable to prove service of the Provisional Apprehended Order on the appellant because the Statement of Service submitted breached the hearsay rule in s 59 of Evidence Act 1995.
    2. The magistrate in the Local Court should not have informed himself of the events of the appellant’s appearances in court for the interim AVO.

    Decision and Reasoning: The appeal was dismissed. First, the Statement of Service complied with the Local Court Rules. It did not need to be signed as it was served by a police officer and it was sufficient that the officer wrote ‘Dubbo’ in the space for the address (r 5.12 Local Court Rules). Rule 5.12 exists to serve the purpose of facilitating proof of service of the process (See [29]-[36]). In any event, the appellant was present in court when the Interim Order was made (See [48]). Second, the magistrate informed himself of the course of events by reading the bench sheet. He was entitled to do so (See [49], [57]).

Northern Territory

Court of Appeal

  • Olsen v Sims [2010] NTCA 8 (30 November 2010) – Court of Appeal of the Northern Territory
    Breach of restraining order’ – ‘Repeal of statute’ – ‘Statutory interpretation

    Charge: Breach of restraining order

    Appeal type: Appeal against sentence

    Facts: The appellant was convicted of breaching a restraining order. Some months later he was convicted of failing to comply with the terms of the order. Contrary to the order, the appellant visited the victim at her home and entered in a verbal argument with her after consuming alcohol. The restraining order was made and the offences were against the Domestic Violence Act 1992 (NT) (the former Act). This Act was repealed on 1 July 2008 and replaced by the Domestic and Family Violence Act 2007 (NT) (the current Act). The appellant’s trial in respect to the second offence did not occur until after the current Act came into force. The magistrate found that sentencing provisions under the former Act applied to the appellant. Under s 10(1A) of the former Act, where a person is found guilty of a second offence the Court must impose a minimum sentence of at least seven days’ imprisonment. Accordingly, the magistrate imposed a sentence of seven days’ imprisonment. Section 121 of the current Act provides no mandatory minimum sentence for a second breach where no harm is caused and the court is satisfied it is not appropriate to record a conviction and sentence in the circumstances.

    On appeal to the Supreme Court, Riley J held the magistrate did not err in sentencing the appellant.

    Issue: Whether the magistrate erred in punishing the appellant to a greater extent than was authorised by the current Act by imposing the mandatory sentence of imprisonment of seven days under s 10(1A) of the former Act.

    Decision and Reasoning: All three judges on the Court of Appeal allowed the appeal. The sentence was quashed and the matter was referred back to the Court of Summary Jurisdiction for the appellant to be resentenced.

    Section 14(2) of the Criminal Code (NT) provides that while the appellant could be sentenced under the former Act for his second breach of the restraining order, he could not be punished to any greater extent than was authorised by both the former Act and the current Act.

    Mildren J concluded that the mandatory minimum sentence of seven days’ imprisonment under s 10(1A) of the former Act is a punishment ‘to any greater extent than is authorised by the current law’ pursuant to s 14(2) of the Criminal Code (NT). The Magistrate’s discretion to impose a lesser sentence than seven days under the current Act conferred a punishment to a greater extent than authorised by the current Act.

    Southwood J, agreeing with Mildren J, held that the sentence of seven days imprisonment imposed on the appellant was a greater punishment than authorised by ss 121(1) and (3) of the current Act. Those provisions of the current Act decreased the severity of the penalty required to be imposed for a second breach of a restraining order for the purposes of s 14(2) of the Criminal Code (NT). The sentence imposed was disproportionate to the gravity of the offending. Had the magistrate sentenced the appellant pursuant to s 121, he would not have imposed a sentence of seven days’ imprisonment. As a result, the Magistrate failed to sentence the appellant in accordance with s 14(2) of the Criminal Code (NT).

    Blokland J held that s 121(3) of the current Act does not authorise a sentencing magistrate to sentence on the basis that its starting point is a conviction and seven days’ imprisonment unless that penalty is appropriate and just in all the circumstances. This was the approach of the magistrate in finding he was bound to apply the mandatory minimum term under s 10(1A) of the former Act. The sentence imposed by the magistrate was not authorised when considering the application of s 14(2) of the Criminal Code (NT).

  • Ashley v Marinov [2007] NTCA 1 (4 May 2007) – Court of Appeal of the Northern Territory
    Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double punishment’ – ‘Physical violence and harm

    Charges: Breach of domestic violence order, aggravated assault

    Appeal Type: Appeal against conviction

    Facts: The appellant was charged with breaching a domestic violence order and aggravated unlawful assault. The facts that formed the basis of both charges were the same. At trial, the prosecution was not able to disprove provocation, so the appellant was acquitted on the assault charge. However, he was then convicted of the breach offence.

    Issue: Whether the defence under s 18 of the Criminal Code (NT) would apply. In particular, the Court had to consider whether the appellant had already been convicted of a ‘similar offence’, within the meaning of s 17 of the Criminal Code (NT).

    Decision and Reasoning: The appeal was allowed and the conviction was quashed. The appellant had already been acquitted of a similar offence. The impugned conduct relied upon for the breach offence was substantially the same or includes the conduct impugned in the offence of aggravated assault’ ([14]). Applying R v Hofschuster [1994] NTCCA 73, the Court found that ss 17 and 18 of the Code substantially replicate the existing common law principle that ‘a person is not to be prosecuted twice for the same criminal conduct’ ([11]).

    However, the Court noted at [17] that this conclusion does not mean that a person charged with assault cannot also be convicted of a breach of a Domestic Violence Order – ‘Much will depend on the precise terms of the order said to be breached, the facts relied upon to constitute the breach and whether or not, even if a defence under s 18 is not open, the court should nevertheless stay the prosecution as an abuse of process: see for example R v Carroll (2002) 213 CLR 635.’

Court of Criminal Appeal

  • Emitja v The Queen [2016] NTCCA 4 (21 October 2016) – Court of Criminal Appeal of the Northern Territory
    Aboriginal and torres strait islander people’ – ‘General deterrence’ – ‘Personal deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawfully causing serious harm

    Charge/s: Unlawfully causing serious harm.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and the victim had been married in a traditional Aboriginal manner for 13 years before separating in 2013. The relationship had been blighted by domestic violence, one consequence of which was the issue of a domestic violence order in 2013 protecting the victim. In 2014, the applicant entered the victim’s house without permission. The applicant kicked the victim at the bottom of her left leg, causing her compound fractures. The applicant was sentenced to six years imprisonment without a non-parole period.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed by majority (Grant CJ and Kelly J concurring, Barr J in dissent). The majority made relevant statements about domestic violence in Aboriginal communities. Grant CJ and Kelly J quoted from Amagula v White (unreported, Supreme Court of the Northern Territory, 7 January 1998): ‘The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased’.

    Their Honours continued:

    ‘As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities’ (at [32]).

    They note that while ‘some Aboriginal communities have an unusually high incidence of serious crimes of violence and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence. Aboriginal women and children living in those communities ‘are entitled to equality of treatment in the law’s responses to offences against them’. The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature’ (see [33]-[34]). There are also practical societal reasons to consider personal and general deterrence. As in The Queen v Haji-Noor:

    ‘The offender’s crime against Mr Ellis was committed in a domestic context. Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it’.

  • R v Duncan [2015] NTCCA 2 (9 February 2015) – Court of Criminal Appeal of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Alcohol’ – ‘Exceptional circumstances’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Unlawfully causing serious harm’ – ‘Victim

    Charge: Unlawfully causing serious harm

    Appeal Type: Crown appeal against sentence

    Facts: The respondent and the victim were in a domestic relationship and had a young daughter. After drinking together near the remote community of Kalkarindji, the respondent and victim got in an argument. The respondent, who was intoxicated, threatened to stab the victim with a pen and subsequently stabbed him in the back with a knife.

    Following an early guilty plea the respondent was sentenced to 18 months imprisonment, suspended immediately. The respondent is an Aboriginal woman who attended school until the end of year 6. She had never been employed and lived with the victim, their child and family. She received parenting payments from Centrelink. The trial judge found the respondent’s remorse was genuine. She waited for emergency services to arrive, made immediate admissions to police and subsequent formal admissions. The respondent continued to look after her young child while living with the victim, who had forgiven her. Finally, the trial judge found she had reasonable to good prospects of rehabilitation having not consumed alcohol since she committed the offence.

    Issues:

    • Whether the sentence imposed was manifestly inadequate.
    • Whether the circumstances of the case were ‘exceptional’ pursuant to section 78DI of the Sentencing Act to displace the minimum mandatory term of 3 months imprisonment.

    Decision and Reasoning: The appeal was allowed and the respondent was resentenced.

    • The sentence imposed on the respondent was manifestly inadequate. The offending was objectively very serious, with the respondent’s violent response to the verbal argument being ‘utterly disproportionate’ ([18]). The Court noted that alcohol-related violent crimes are a great drain on the medical resources of the Northern Territory and are an enormous cost to the community’ ([18]). In light of this and the objective seriousness of the offending, the sentence imposed was ‘so manifestly disproportionate to the seriousness of the offending that it shocks the public conscience ([19]). While the respondent’s subjective circumstances entitled her to considerable leniency, they could not justify a sentence disproportionate to the offending. As such, the sentence was increased to a term of three years imprisonment, to be suspended after six months with an operational period of two years and six months. In determining this sentence, the Court took into account the respondent’s age of 19, her responsibility for her child and other mitigating factors referred to by the trial judge.
    • As the Court upheld the sentence as manifestly inadequate and imposed a sentence that involved actual imprisonment for more than three months, it did not consider whether ‘exceptional circumstances’ for the purposes of section 78DI were present on the facts. However, the Court noted in obiter that what amounts to ‘exceptional circumstances’ will be a matter for the court in considering the facts of each individual case. The Court considered that whether the victim’s wishes with respect to sentencing should be taken into account as exceptional circumstances is for the discretion of the court in each case ([24]).
  • The Queen v Haji-Noor [2007] NTCCA 7 (18 May 2007) – Court of Criminal Appeal of the Northern Territory
    Aggravated assault’ – ‘Control’ – ‘New partner’ – ‘Not manifestly inadequate’ – ‘Prosecution appeal against sentence’ – ‘s 188(2)(b) Criminal Code (NT)

    Charges: Intentionally causing grievous bodily harm x 1; Aggravated assault x 1; Possession of cannabis x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The respondent attacked his former girlfriend and her new partner with a baseball bat ([22]-[23]). The aggravated assault charge was in relation to the respondent attacking his former girlfriend, leaving her with bruises, and the grievous bodily harm charge was in relation to the attack on the former girlfriend’s new partner, leaving him with permanent disability ([25]). There had been a history of domestic violence in the relationship between the defendant and his former girlfriend ([9]-[18]). The sentencing judge imposed a head sentence of 8 years and 6 months’ imprisonment ([4]). In relation to the aggravated assault charge, the respondent was sentenced to 2 years and 6 months’ imprisonment ([34]).

    Issues: One issue was whether the sentence for the aggravated assault charge was manifestly inadequate.

    Decision and Reasoning: The Court held that the sentence for the aggravated assault charge was within range.

    Justice Angel at [31] quoted the sentencing judge:

    The crimes of violence of the type you have committed are prevalent and too often occur against the background of a breakdown in a domestic relationship complicated by problems of access to children. Women in these situations are particularly vulnerable. They are entitled to such protection as the law can give them. Deterring you and other men who are minded to behave like you towards their female partners is an important factor in the exercise of the sentencing discretion.

    I need to add this. It is not uncommon for men in your position to harbour a belief that their former partner had been unreasonable. Nor is it uncommon for violent men in your position to harbour a belief that the former partner has brought the violence on themselves by being unreasonable. You and others like you must learn that only you are to blame for the situation in which you now find yourself.

    Justice Southwood added at [183]:

    Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it.

  • R v Secretary [1996] NTCCA 18 (2 April 1996) – Court of Criminal Appeal of the Northern Territory
    *Note this case was decided under now superseded legislation (s 28(f) Criminal Code Act 1986 (NT)) however the case contains relevant statements of principle.
    Emotional abuse’ – ‘History of abuse’ – ‘Manslaughter’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Substance abuse

    Charge: Murder

    Appeal type: Question of law under s 408(1) Criminal Code (NT)

    Facts: The accused was charged and pleaded not guilty to murdering her husband (the deceased). For eight years leading up to this incident, the deceased had verbally, mentally and physically abused the accused and their children. The violence and abuse increased substantially in the months prior to the killing. During this time, the deceased threatened to kill the accused, beat her with his hands and a belt and sexually assaulted her. The deceased was a chronic drug abuser. On a road trip the accused noticed a rifle in the back of the car. Upon returning home, the deceased threatened to beat the accused with a belt, punched her in the head, throttled her, and made further threats of abuse. Fearing for her life, the accused retrieved the gun and shot the deceased while he was asleep. At trial, the judge ruled that the issue of self-defence should not be left to the jury. Following this, the accused’s counsel made an application that the subject of the ruling be reserved for the consideration of the Court of Criminal Appeal. Subsequently, the accused pleaded not guilty to the charge of murder, but pleaded guilty to the charge of manslaughter by reason of provocation. The indictment was amended accordingly and the jury found the accused guilty of manslaughter. No conviction was recorded; the trial judge postponed judgment until the Court of Appeal returned an answer on the reserved question of law.

    Issue: Whether the trial judge was correct in ruling that self-defence was not open for consideration by the jury in the circumstances of the case.

    Decision and Reasoning: In a 2:1 majority, the question was answered in the negative. The conviction was quashed and a retrial was ordered.

    The defence counsel contended that as the deceased was asleep at the time he was shot, the accused could not have been acting in self-defence. The trial judge had accepted this reasoning: that because the deceased was asleep he had no ability to implement earlier threats. Mildren J of the Northern Territory Court of Criminal Appeal found that self-defence as provided under s 28(f) of the Criminal Code (NT) does not require a temporal connection between the assault and the force used to defend the assault: ‘The lack of any specific requirement for an apprehension of immediate personal violence, so far as the Code definition of assault is concerned, reinforces the view that an assault is a continuing one so long as the threat remains and the factors relevant to the apparent ability to carry out the threat in the sense explained have not changed’ ([16]-[17]). Accordingly, it was open to the jury to find the deceased’s threat was an assault that continued while he was asleep. Having regard to the history of the domestic violence, it could also be inferred that, upon waking, the deceased intended to kill or cause grievous harm to the accused, and he had the ability to do so. It was also open for the jury to consider that the force used was not unnecessary in the circumstances. Mildren J regarded the jury’s verdict as a conviction despite no conviction being formally recorded by the trial judge. Having found the trial judge was incorrect in ruling self-defence was not open, Mildren J quashed the conviction and ordered a re-trial.

    Angel J, agreeing with Mildren J, held that self-defence extends to taking action to defend oneself from threatened assault even if this action is ‘a pre-emptive strike’. It was open to the jury to find the threat of the deceased constituted an assault and this assault continued to exist at the time of the shooting. Therefore, self-defence should have been left to the jury.

    In his dissenting judgement, Martin CJ found the trial judge was correct in his ruling. He considered the word ‘being’ in s 28(f) of the Criminal Code (NT) to require a contemporaneous connection between the assault and the act of self-defence. As the accused was asleep at the time of the shooting, no such connection could exist.

Supreme Court

  • Bush v Lyons [2018] NTSC 20 (28 April 2018) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Imprisonment’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘Perpetrator interventions’ – ‘Sentencing

    Charges: Contravention of domestic violence order x 1; Contravention of alcohol prevention order x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant was subject to an alcohol prevention order and a domestic violence order which named his wife and daughter as protected persons. The appellant attended the house at which his wife and daughter were residing, under the influence of alcohol, and caused a disturbance ([2]). The Local Court restored a previously suspended sentence and imposed cumulative terms of imprisonment of 4 months for the breach of domestic violence order and 5 days for the breach of alcohol protection order ([3]). The appellant had a history of breaching the same domestic violence and alcohol prevention orders ([5]).

    Issues: The appellant appealed on the grounds that the sentencing judge erred by:

    • misusing the appellant’s previous convictions in the sentencing process;
    • failing to include a rehabilitative component in the sentence;
    • failing to partially suspend the sentence; and
    • imposing a manifestly excessive sentence.

    Decision and Reasoning: The first, second and third grounds were dismissed (see [11], [19] and [25] respectively). The fourth ground, manifest excess, was upheld. Grant CJ outlined the following mitigating factors:

    • the low objective seriousness of the offending;
    • the maximum penalty of 2 years imprisonment;
    • the fact that the appellant has no record of violent offending against the protected persons; and
    • his early plea of guilty ([27], [35]).

    His Honour characterised the appellant’s repeated breaches as spontaneous and triggered by alcohol abuse, rather than premeditated ([32]). Quoting from Manakgu v Russell [2013] NTSC 48, his Honour agreed that penalties of more than 3 months’ imprisonment are properly reserved for conduct which constitutes physical assault or serious intimidation and threats ([31], [34]). His Honour reduced the sentence for breach of domestic violence order from 4 months to 2 months’ imprisonment ([37]).

  • Fernando v Firth [2017] NTSC 67 (25 August 2017) – Supreme Court of the Northern Territory
    Breach domestic violence order’ – ‘Particularise breach’ – ‘Post-separation violence’ – ‘Procedural fairness’ – ‘Threats

    Charges: Contravention of domestic violence order x 1; aggravated unlawful assault x 1.

    Appeal type: Appeal against conviction.

    Facts: The appellant and complainant were in a relationship for approximately 15 years. The offences occurred after the relationship ended ([10]). The appellant allegedly threatened to kill the complainant if she found another partner ([11]). At trial, the prosecutor did not particularise the words spoken by the appellant ([7]). The appellant denied threatening to kill her, but admitted to threatening to punch the complainant if she came near him, and telling her to stay away from him. The Magistrate accepted the defendant’s evidence, and convicted him of the charge on that basis ([32]).

    Issues: Whether the verdict was unsafe and unsatisfactory.

    Decision and Reasoning: The appeal was allowed. The Magistrate convicted the defendant based on his admissions, which evinced less serious conduct than the threats alleged by the prosecution ([49]). The charge required the complainant to have a ‘reasonable apprehension of violence’ ([50]). Since the prosecution did not specify the particular words used, held that the Magistrate did not accord the defendant procedural fairness by going outside the prosecution case ([49]).

  • R v Grant [2016] NTSC 54 (31 October 2016) – Supreme Court of the Northern Territory
    Relationship evidence’ – ‘Tendency evidence’ – ‘Unlawfully causing harm’ – ‘Unlawfully causing serious harm

    Charge/s: Unlawfully causing serious harm or unlawfully causing harm.

    Hearing: Voir dire hearing.

    Facts: The accused was charged with the offence of unlawfully causing serious harm to his female partner, the complainant, or, in the alternative, unlawfully causing harm to the complainant. The Crown sought the admission of tendency evidence related to the following fact in issue: whether the accused applied physical violence to the complainant in the early morning of 26 January 2016 and/or caused injuries to the complainant. The tendency sought to be proved was the tendency of the accused:

    1. To act in a particular way, namely engaging in verbal abuse and physically violent behaviour towards the complainant; and/or
    2. To have a particular state of mind, namely a violent and controlling disposition towards the complainant which he sometimes acted upon when he had been consuming alcohol.

    If the evidence (detailed at [5]) was not admissible as tendency evidence, the Crown sought to have it admitted as relationship evidence.

    Decision and Reasoning: The rulings on the voir dire hearing were –

    1. Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible in the trial as tendency evidence (see [61]-[72]).

      In order to be admitted for tendency purposes, the evidence had to satisfy the requirements in ss 97 and 101 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’). Two questions arose in determining the admissibility of the evidence: (1) did the evidence have significant probative value? The relevant test is whether ‘the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in question’: CEG v The Queen [2012] VSCA 55 (see [30]-[60]); (2) did the probative value of that evidence substantially outweigh any prejudicial effect it may have on the accused? As per the Court, ‘[t]he test of a danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of unfair prejudice by reason of the admission of the evidence’ R v Lisoff [1999] NSWCCA 364.

    2. Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible as ‘relationship’ or ‘context evidence’ (see [73]-[82]).

      Evidence may also be admitted for non-tendency purposes. One example of non-tendency purpose is ‘relationship’ or ‘context’ evidence that is not relied on for a tendency inference. The High Court in HML v The Queen is authority for the proposition that evidence of other conduct by an accused may, depending upon the circumstances, be admissible for non-tendency purposes, including the following purposes (see [75]):

      1. as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence (at [6], [155]–[156]);
      2. as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct and to explain the offences charged (at [425], [431]);
      3. to overcome a false impression that the event was an isolated one, that the offence happened “out of the blue”, where the acts are closely and inextricably mixed up with the history of the offence (at [500], [513]);
      4. to ensure that the jury are not required to decide issues in a vacuum (at [428], [498]); and
      5. as negativing issues raised such as accident or mistake (at [430]).

      Although HML was a case involving sexual offences, relationship evidence may also be admissible in cases involving violence, including assault-type offences (see examples at [76]).

      The admissibility of relationship evidence is governed by the general test of relevance in s 55 of the ENULA and the directions and obligations contained in Part 3.11 (especially ss 135 and 137). The Crown contended that the evidence was relevant and admissible as relationship or context evidence because it was necessary to:

      1. Avoid the circumstances of the alleged offence appearing inexplicable or being misunderstood in isolation; see Roach v The Queen [2011] HCA 12 at [45]
      2. Negative the defence case of self-inflicted injury; R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345 at [15], [22]-[45]; Bryant v The Queen [2011] NSWCCA 26 at [92]; McDonald v The Queen [2014] VSCA 80 at [28]- [29]
      3. Show the state of mind of the accused at the time of the alleged offence. R v Atroushi [2001] NSWCCA 406 at [33], [45], [47]; Boney v The Queen [2008] NSWCCA 165 at [29]
      The relationship evidence here was both relevant ([79]-[80]) and not excluded (its probative value was neither outweighed by the danger of unfair prejudice to the accused nor substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused) ([81]-[82]).
  • Houseman v Higgins [2015] NTSC 88 (7 December 2015) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Domestic violence order’ – ‘Formalities in making domestic violence order’ – ‘Service

    Charge: Breach of domestic violence order

    Appeal type: Appeal against acquittal, validity of domestic violence order

    Facts: The respondent was served with a police domestic violence order under s 41 of the Domestic and Family Violence Act 2007 (NT) (the Act). The order set out the reasons for making the order and conditions of full non-contact. However, it did not provide a specified period for which the order was in force. The Court of Summary Jurisdiction confirmed and varied the order to be in force for 12 months.

    After being in contact with the protected person, the respondent was subsequently arrested for breaching the domestic violence order. However, at the time of arrest the respondent had not been served with the court confirmed and varied domestic violence order. The magistrate found the respondent was not guilty on the basis that the domestic violence order made by the police ceased to be in force once confirmed by the court and the respondent had not been served with the court order.

    Issues:

    • Whether the domestic violence order was invalid because it did not state the period the order was to be in force.
    • If the order was valid, whether the magistrate erred in finding the respondent not guilty in failing to apply s 120(2)(b)(ii) of the Act.

    Decision and Reasoning: The appeal was upheld.

    • Southwood J found it is not necessary for police to state the duration of a domestic violence order for it to be valid. A police domestic violence order continues in force until it is revoked. Under s 27 of the Act a domestic violence order is in force for the period stated in it. This section does not state that an order cannot be made for an unspecified or unlimited period, nor does any other provision in the Act. Further, s 42 contained in Part 2.6 of the Act, provides the police must record the reasons for making the order and the time and place for its return. Again, this provision does not require police to specify the period for which the order is to be in force. The purpose of Part 2.6 is to protect the protected person until a court can consider the matter. Consistent with this purpose, a police domestic violence order is to remain in force until further order or until the order is revoked. This is made clear by s 82 of the Act which states that at a show cause hearing the court may either confirm the order with or without variations or revoke it.
    • Given the order was valid, the respondent’s conduct in contacting the protected person constituted a breach of both the domestic violence order made by the police and the confirmed and varied order made by the court under s 120(1) of the Act. The fact the respondent had not received a copy of the court order at the time of arrest was not a defence under s 120(2)(a) of the Act, as the police domestic violence order was still in force: s 120(2)(b)(ii) of the Act. Therefore, the charge should not have been dismissed and the magistrate erred in dismissing the charge and in failing to consider s 120(2)(b)(ii) of the Act.
  • Gorey v O’Neill [2015] NTSC 66 (1 October 2015) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Purpose of domestic violence order’ – ‘Sentencing’ – ‘Situational breach

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order restraining him from, among other conditions, approaching, contacting or remaining in the company of his wife (the victim) when consuming or under the influence of alcohol. On the day of offending, the appellant had been drinking and travelled in the car with the victim. His blood alcohol level was 0.05 per cent. The appellant claimed he was in the car with the victim to attend to matters in the administration of the estate of the victim’s father-in-law. He also denied knowing that the domestic violence order was still in force. In relation to this conduct the appellant was charged, pleaded guilty and convicted of breaching the domestic violence order.

    The appellant had an extensive offending history, including 16 convictions for aggravated assault, one conviction for causing grievous bodily harm and eight convictions for breaching domestic violence orders. Of these, 22 of the offences were committed against the victim. The magistrate considered this history of domestic violence offending and the need for specific deterrence together with the mitigating factor that the victim suffered no harm. The appellant was sentenced to three months imprisonment, taking into account a discount of 25 per cent for the early guilty plea.

    Issue: Whether the sentence was manifestly excessive in the circumstances.

    Decision and reasoning: The appeal was dismissed.

    While a starting point of four months imprisonment seemed high for a ‘situational breach’ in which no harm was caused, it was necessary to consider the preventative and protective role of domestic violence orders. Barr J noted that ‘Given the preventative purpose of DVO, the fact that the parties may have been drinking while sitting down ‘in a good way’, or that the offender has on the particular occasion not been aggressive or threatening or violent to the protected person, does not necessarily result in a lenient sentencing outcome for a recidivist offender’ ([28]). The appellant’s criminal history demonstrated that while no harm resulted from the breach, there was a real risk that physical or emotional injury could occur and protection was needed to prevent such harm. Further, it established that he had a ‘continuing attitude of disobedience of the law’ ([33]). Therefore, the magistrate’s starting point of four months imprisonment, while on the high end of the range for the nature of the breach, was not outside the bounds of sentencing discretion.

  • R v Stevenson [2015] NTSC – Sentencing Remarks 21353266 (Kelly J) (14 September 2015) – Supreme Court of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Alcohol’ – ‘Community protection’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘History of abuse’ – ‘Manslaughter’ – ‘Murder’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge: Murder (sentenced for manslaughter)

    Proceeding: Sentencing

    Facts: The defendant was charged with the murder of his wife (the victim) after hitting her with a crate twice, kicking her in the back, and subsequently bashing her for three hours then leaving her on the sidewalk. The next morning the defendant went to find the victim to discover she was dead. This occurred after the defendant and the victim had a fight over his drinking habits. He was intoxicated at the time the assaults occurred. A domestic violence order was previously made against the defendant in order to prevent him from being with, assaulting or threatening the victim. The Crown accepted the defendant’s guilty plea to manslaughter on the basis that intention to kill or cause serious harm could not be proved beyond reasonable doubt due to the defendant’s intoxication at the time of the violent assaults.

    Issue: What sentence should the defendant receive?

    Decision and Reasoning: The defendant was sentenced to 14 years imprisonment with a non-parole period of 8 years.

    The defendant had a history of domestic violence assaults against his wife. He had previously been convicted of three aggravated assault offences and one breach of a domestic violence order offence. Kelly J noted that each assault followed a similar pattern, with an argument resulting in the defendant ‘savagely’ bashing his wife. These attacks always involved alcohol and usually involved a weapon. These convictions meant the defendant was not a person of good character and was not entitled to a lighter sentence for being a first offender.

    The defendant is a Walpiri man who speaks Walpiri and some Gurindji. He left school in year 9 and speaks English but cannot read or write. The defendant has not worked since his first wife committed suicide in 2002. He began drinking as a teenager and was drinking heavily at the time of the offence.

    In providing her reasoning for sentencing, Kelly J highlighted the prominence of alcohol related violence in the Northern Territory: ‘Drunken violence is far too common in our community. It is particularly common, unfortunately, in Aboriginal communities and vulnerable Aboriginal women, vulnerable people of all kinds, deserve the fullest protection that the law can give them.’ The need to punish and for specific deterrence to prevent the defendant from reoffending, as well as the need to protect the community and other women from being hurt by the defendant, were emphasised. There were also a number of aggravating factors that made the offending more serious. The defendant used several weapons when attacking his wife, rather than just losing his temper and lashing out. He also went looking for his wife, having pre-planned the attack, and did not stop bashing her even when she begged him to.

    In the factually similar case of R v Wheeler [2005] NTSC – Sentencing Remarks 20505473 (Southwood J), the defendant (Mr Wheeler) received a sentence of 10 years and 6 months imprisonment. However, Kelly J found the defendant’s conduct in the present case was more serious. Unlike Mr Wheeler, he was not provoked by his wife, showed no remorse after he finished bashing her, and did nothing to help her. He also only pleaded guilty after a preliminary hearing had already occurred with 36 witnesses, whereas Mr Wheeler pleaded guilty immediately. These circumstances taken together resulted in Kelly J finding a proper sentence of 16 years imprisonment. A reduction of about 12 percent was given as a result of the guilty plea.

  • Mamarika v Rourke [2015] NTSC 42 (23 July 2015) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Alcohol’ – ‘Deterrence’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Pregnant victim’ – ‘Sentencing’ – ‘Totality

    Charge: Aggravated assault

    Appeal Type: Appeal against sentence

    Facts: The appellant, who was intoxicated at the time, pushed and punched his pregnant wife (the victim) in the stomach and head. After handing himself into police, he pleaded guilty to unlawfully assaulting the victim with the aggravation of male-on-female assault (under s 188(2)(b) Criminal Code 1983 (NT)). When asked why he assaulted the victim he said it was because his wife told him to stop drinking. The appellant was initially convicted and sentenced to a term of 10 months imprisonment, to be served cumulatively upon a restored sentence of seven months for previous offending including assaulting the same victim. This earlier assault involved the appellant striking the victim with a sword, then punching and kicking her.

    In sentencing, the magistrate emphasised that the victim was pregnant at the time the assault occurred: ‘Women of course deserve to be safe whether they are in Darwin, whether they are at home, and they do not deserve to be treated in this way, particularly – and it is an aggravating factor – when she was 28 weeks pregnant.’ (at [7]). A reduction to the sentence was given when considering the principle of totality and the presence of the appellant’s guilty plea.

    Issues:

    • Whether the magistrate erred in failing to properly give effect to the principle of totality.
    • Whether the sentence imposed was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    • The appellant argued that the magistrate did not assess the overall sentence and consider whether any further adjustment was warranted, as required by Mill v R [1988] HCA 70. That is, she did not make the sentence concurrent or partially concurrent with the restored sentence. Rather, the magistrate applied the principle of totality by reducing the sentence for the fresh offending. Barr J rejected this argument in finding the magistrate clearly stated she had applied the principle of totality and whilst the method was not preferable, it was nonetheless appropriate.
    • In determining whether the sentence was manifestly excessive, Barr J considered the previous offending of the appellant. In addition to a significant number of property offences, he had been convicted five times for aggravated assault and once for a breach of a domestic violence order. When considering this history of offending and the present assault, the objectives of denunciation, punishment, general deterrence and specific deterrence were relevant to the sentencing of the appellant. Barr J found when taking all these factors into consideration and characterising the offending as ‘mid range’ (at [16]), the appropriate starting point was 18 months. A discount of one third for the guilty plea, as given by the Magistrate, was justified in the circumstances, resulting in a sentence of 12 months. When applying the principle of totality to this sentence, there was some basis for concurrency of three months. This hypothetical sentencing exercise resulted in a total effective sentence of 16 months. Therefore, the sentence of 10 months imprisonment was not manifestly excessive in its own right or when fully accumulated with the restored sentence of seven months imprisonment.
  • Namundja v Schaefe-Lee [2015] NTSC 36 (12 June 2015) – Supreme Court of the Northern Territory
    Aboriginal and torres strait islander people’ – ‘Aggravated assault’ – ‘Alcohol’ – ‘Breach of alcohol protection order’ – ‘Deterrence’ – ‘History of abuse’ – ‘Mitigating factors’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Repeat offender

    Charges: Aggravated assault, breach of alcohol protection order

    Appeal type: Appeal against sentence

    Facts: The appellant, who was intoxicated at the time, had an argument with his wife (the victim). He subsequently dragged the victim outside, punched her in the face multiple times, shoved her into a shelf and punched her twice in the stomach. He was charged and pleaded guilty to one count of aggravated assault under s 188(2)(b) Criminal Code 1983 (NT) (victim suffered harm and male-on-female assault) and one count of breaching a police issued Alcohol Protection Order. The appellant had a number of previous convictions, including three counts of aggravated assault against the victim, four counts of breach of a domestic violence order and nine counts of breaching an Alcohol Protection Order. He resided in Oenpelli and had been an artist member of Injalak Arts for around 20 years. This job would continue on the appellant’s release. His counsel argued his prospects of rehabilitation would be improved if he participated in the Family Violence Program. At trial, the magistrate relied on the seriousness of the offending and his past history to conclude the appellant needed to be specifically deterred, despite any positive attributes, and the community needed to know such conduct is unacceptable. The appellant was sentenced to 12 months imprisonment after a reduction of four months for pleading guilty. A non-parole period was not fixed due to the seriousness of the offending and continued ongoing breaches of court orders.

    Issues: Some issues on appeal were whether the magistrate:

    • Failed to adequately consider the appellant’s prospects of rehabilitation;
    • Failed to adequately consider the principles outlined in Dinsdale v R [2000] HCA 54 that all relevant sentencing considerations must be reconsidered in determining whether to suspend a sentence; and
    • Failed to adequately consider the sentencing disposition of parole.

    Decision and Reasoning: The appeal was upheld on ground 3. Grounds 1 and 2 were dismissed.

    Blokland J began by noting that ‘Offending of this kind, men assaulting their wives or partners, is an intractable problem in the Northern Territory. With few exceptions, imprisonment is often the appropriate punishment… In most cases, particularly with respect to repeat offenders, positive subjective features generally need to be very carefully balanced as rarely will they outweigh the significance of the gravity of offending of this kind.’ ([19])

    • The fact the magistrate did not specifically refer to the appellant’s job history and prospective employment did not mean that he failed to adequately consider these factors. Given the severity of the offending, previous convictions, the need to protect the victim and the prevalence of domestic violence in the particular case, such factors would not have resulted in a lesser sentence.
    • While the magistrate did not explain every consideration taken, he was entitled to refuse a suspended sentence due to the appellant’s poor history of complying with orders.
    • There was no sufficient basis to decline to set a non-parole period in accordance with s 54(1) of the Sentencing Act 1995 (NT). Under s 53(1), a court must set a non-parole period in cases of imprisonment for 12 months or more ‘unless it considers the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such period inappropriate’. The magistrate failed to consider these factors, basing his decision primarily on the previous breaches of orders. Therefore, this ground of appeal succeeded and a non-parole period of 8 months was ordered.
  • Orsto v Grotherr [2015] NTSC 18 (31 March 2015) – Supreme Court of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Character’ – ‘Exceptional circumstances’ – ‘Exposing children’ – ‘Mandatory minimum sentence’ – ‘Sentencing’ – ‘Victim

    Charge: Aggravated assault

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order that restrained her from harming the victim. On the day of offending, the appellant and the victim got in an argument after the victim returned home from work for lunch against the appellant’s wishes. The appellant was upset that the victim woke up their daughter. She then forcefully struck the victim’s head. In relation to this conduct the appellant was charged, pleaded guilty and convicted of aggravated assault, with the circumstance of aggravation that the victim suffered harm. The victim had a prior conviction for aggravated assault (weapon-harm) in respect to the same victim. In his victim impact statement, the victim said he did not wish the appellant serve gaol time, as she was pregnant. A character reference was also provided by aboriginal community members that outlined the appellant’s positive characteristics as a mother who had suffered hardship throughout her life. The magistrate heard the appellant had previously been the victim of domestic violence in the relationship and grew up in a household with her parents who had domestic violence issues.

    Section 78D of the Sentencing Act 1995 (NT) requires a mandatory minimum sentence of three months actual imprisonment for aggravated assault, unless exceptional circumstances exist under s 78DI. The appellant’s counsel submitted exceptional circumstances existed on the facts. These circumstances were constituted by a combination of factors including that the victim did not wish the victim to go to gaol; the appellant had sought counselling; she was suffering hardship having attempted suicide the previous year and losing a child two months prior to sentencing; she had previously been the victim of domestic violence herself; and she had ongoing employment within the community. After determining these factors did not amount to exceptional circumstances, the magistrate sentenced the appellant to three months imprisonment.

    Issue: Whether the magistrate erred in finding the circumstances of the case were not exceptional for the purposes of s 78DI.

    Decision and reasoning: The appeal was allowed and the appellant was resentenced.

    Referring to the obiter comments made in R v Duncan [2015] NTCCA 2, Blokland J stated that exceptional circumstances do not exist unless the minimum term is greater than the term that would ordinarily be imposed ([37]). This was the case on the facts, as the magistrate noted he would have suspended the sentence but for the mandatory prescribed minimum. In determining whether exceptional circumstances exist, the court must consider the whole of the circumstances in the case. The individual factors do not need to be exceptional. Rather, the factors considered together must amount to exceptional circumstances.

    The magistrate erred in his consideration of whether exceptional circumstances existed. The remarks were ‘unnecessarily constrained’ and the magistrate failed to consider a number of mitigating factors. In support of the magistrate’s reasoning, Blokland J emphasised the need for general and specific deterrence given the offence occurred in the vicinity of a young child. Further, the victim’s wish that the appellant not be imprisoned has little weight in domestic violence cases. The fact the victim was previously a victim of domestic violence herself without additional information about the duration and extent of the abuse also carried little weight towards exceptional circumstances existing. However, Blokland J concluded that the appellant’s personal circumstances of having just lost a child at the time of sentencing and attempting suicide the year prior made the case exceptional. These personal circumstances were such that being away from family and community support whilst grieving meant imprisonment would be more burdensome on the appellant than other offenders. The sentence was quashed, and the appellant was resentenced to three months imprisonment wholly suspended with an operational period of six months.

    Note: at June 2018 this case is pending an appeal.

  • Kassman v Dwyer & Anor [2014] NTSC 60 (10 December 2014) – Supreme Court of the Northern Territory
    Domestic violence order’ – ‘Procedural fairness

    Procedure: Making of domestic violence order

    Appeal type: Appeal against imposition of domestic violence order

    Facts: The plaintiff, an Aboriginal Community Police Officer, was in a relationship with the victim. The victim made a number of allegations of domestic violence. As a result, a police domestic violence order was imposed against the plaintiff pursuant to s 41 of the Domestic and Family Violence Act 2007 (NT). In relation to this order, the plaintiff received a notice ordering him to appear before the court on 8 August 2014 to show cause as to why the order should not be confirmed. After the victim expressed an intention to leave Darwin, the plaintiff was informed that the order would stay in force to ‘keep the peace’ and would be revoked once the victim moved. The victim informed the plaintiff she would be leaving Darwin on 13 August 2014. As a result of this and advice given by the officer who made the police order, the plaintiff did not attend court on 8 August 2014 as required. The magistrate refused a short adjournment to enable the legal counsel to obtain further information to explain the absence of the plaintiff and confirmed the order for 12 months.

    Issue: Was the plaintiff denied natural justice?

    Decision and reasoning: Through the ‘unfortunate combination of events’ the plaintiff was denied natural justice. His superiors in the Police Force left him with the understanding that he was not required to attend court on 8 August 2014. As a result, the plaintiff was not given the opportunity to show cause as to why the order should not be confirmed. The magistrate confirmed the order without providing reasons for refusing the adjournment or confirming the order for 12 months. Additionally, the magistrate failed to provide the plaintiff the opportunity to make submissions, contrary to s 82(2) Domestic and Family Violence Act 2007 (NT). The decision was set aside and the matter was remitted to the Court of Summary Jurisdiction for determination.

  • R v Ashley [2014] NTSC 26 (15 July 2014) – Supreme Court of the Northern Territory
    Admissibility of evidence’ – ‘Hearsay’ – ‘Jury’ – ‘Murder’ – ‘Presumption of innocence

    Charge: Murder

    Proceeding: Reasons for rulings given during trial as to admissibility of evidence, discharge of jury member

    Facts: The accused was charged with murdering his ex-partner. He denied any involvement with her death and told police he believed another man or bikies associated with him likely murdered the victim. During the course of the trial, several witnesses were asked what they knew of the other man and his association with the victim and the accused. The prosecution sought to partially exclude evidence of three witnesses about what the accused had told them about people, including the other man, behaving suspiciously around him.

    During the trial Blokland J received a note from a juror that alleged three of the other jurors considered the accused guilty until convinced otherwise (Ashley v R [2016] NTCCA 2, [10]). The accused’s Counsel requested the jury be discharged.

    Issues:

    • Was the evidence of the three witnesses admissible?
    • Should the jury be discharged because of the juror’s note?

    Decision and reasoning:

    • The evidence of the three witnesses was hearsay. However, it was admissible as the exception in s 66 of the Evidence (National Uniform Legislation) Act 2011 (NT) applied. While an accused is not competent to give evidence as a witness for the prosecution, they are ‘available’ for the purposes of s 66 to give evidence in their own case. However, subsequent to this ruling during the trial the accused’s Counsel advised the court that the accused would not give evidence. Therefore, the jury were directed to disregard the evidence initially admitted under s 66.
    • Blokland J refused to discharge the jury and rather provided directions to the jury reminding them of the presumption of innocence, the need to remain impartial and the duty to keep an open mind when hearing the evidence.

    NB: The ruling not to discharge the jury was held to be an error on appeal in Ashley v R [2016] NTCCA 2. The conviction was quashed and a retrial was ordered.

  • R v Ashley [2014] NTSC 15 (10 July 2014) – Supreme Court of the Northern Territory
    Admissibility of evidence’ – ‘Hearsay’ – ‘Motive’ – ‘Murder

    Charge: Murder

    Proceeding: Pre-trial rulings on evidence

    Facts: The accused was charged with murdering his ex-partner with whom he had two children. The prosecution sought to adduce evidence relating to the state of the accused and victim’s relationship from the time of separation until the victim’s death. The prosecution was attempting to argue that motive could be inferred from the nature of the relationship between the parties contained within such evidence. Some of this evidence comprised hearsay representations made by the victim to other witnesses.

    Issue: Whether the evidence relating to the accused and victim’s relationship was admissible.

    Decision and reasoning: Evidence as to the state of the relationship is admissible if it is relevant to the accused’s anger towards the victim by the use of controlling behaviours and frustration directed towards the victim. This kind of evidence is relevant at common law and within the meaning of s 55 of the Evidence (National Uniform Legislation) Act 2011 (NT) as evidence that could rationally affect the assessment of a fact in issue. However, hearsay evidence can only be admitted under s 67 if the representations made by the deceased occurred when or shortly after the asserted fact occurred in circumstances where it was unlikely to be fabricated (s 65(2)(b)), or if it is highly probable the representations were reliable (s 65(2)(c)).

    Blokland J considered whether 31 pieces of hearsay evidence were admissible. The evidence included representations made by the victim to police officers prior to her murder, to the practitioner for the Department of Children and Families who was managing the case, and to her daughter. The representations related to the accused’s physical or emotional control over the victim and his history of assaulting her.

    One item considered was a statement the victim made to the police describing an assault by the accused. Representations contained within this statement regarding the assault and the accused taking the victim’s car keys were admitted. Text messages and statements regarding the accused’s threat to kill himself were also admitted. However, a statement made by their son was not admitted, as it was not a representation made by the victim as required by s 65. The statement also contained representations about the accused visiting the victim’s brother’s house and allegations that the accused was violent towards his daughter. These representations were also not admitted as evidence as their probative value outweighed the danger of prejudice against the accused.

    Some other representations that were not admitted included those made to the case management practitioner that the victim attempted to leave the accused but he would not let her; that the accused was not physically but emotionally abusive towards the victim; and that the accused was harassing the victim at her brother’s house.

    Note: Subsequent to this ruling, the accused stood trial and was found guilty of murder. Blokland J provided additional reasoning on two procedural matters that arose during the trial in R v Ashley [2014] NTSC 26. The accused subsequently successfully appealed the conviction in Ashley v R [2016] NTCCA 2 on procedural grounds amounting to a miscarriage of justice. The conviction was quashed and a retrial ordered.

  • Manakgu v Russell [2013] NTSC 48 (14 August 2013) – Supreme Court of the Northern Territory
    Aboriginal and torres strait islander people’ – ‘Alcohol’ – ‘Breach of domestic violence order’ – ‘Manifestly excessive’ – ‘Sentencing’ – ‘Situational breach

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order in favour of his wife (the protected person) that restrained him from ‘approaching, entering or remaining in the company of the protected person when consuming alcohol… or when under the influence of alcohol’. After attending the Gunbalunya Sports and Social Club and drinking 13 cans of beer, the appellant went to the protected person’s home. He was arrested and pleaded guilty to breaching the domestic violence order, which had been in force for nine months. The order had been complied with for the previous nine months, but the appellant had been in prison for five of them. The appellant had two prior convictions for breach of domestic violence orders. In considering this repeat offending and history of failing to comply with orders, the magistrate sentenced the appellant to 3 months imprisonment.

    Issue: Whether the sentence imposed was manifestly excessive in all of the circumstances?

    Decision and Reasoning: The appeal was allowed. Barr J observed: ‘Generally speaking, a breach where harm or fear of harm is caused to the protected person is worse than a merely ‘situational’ breach. The appellant’s breach was a low order ‘situational’ breach. No harm or fear of harm was caused’ ([16]). Barr J noted that in general, ‘the more egregious the conduct in terms of causing harm or fear of harm to the protected person, the greater the probable degree of contempt for the court’s order or orders’ ([17]). On the facts, the magistrate erred in assessing the appellant’s conduct as more than a ‘minor case’. While some actual imprisonment was justified for reasons of specific and general deterrence, the offending was at the low end of the scale of seriousness at [23]. The sentence of three months’ imprisonment was quashed, and a sentence of 15 days’ imprisonment was imposed.

  • JCM v LJN [2013] NTSC 50 (13 August 2013) – Supreme Court of the Northern Territory
    Both parties in vulnerable situation’ – ‘Domestic violence order conditions’ – ‘Fresh evidence’ – ‘Myths and misunderstanding - not leaving violence’ – ‘People with mental illness’ – ‘Variation of domestic violence order’ – ‘Victim

    Appeal type: Variation of domestic violence order

    Facts: A domestic violence order was taken out by police in favour of the appellant and her daughter (the protected persons). The order restrained the respondent from approaching, contacting or remaining in the company of the appellant or any place she was living, working, staying, visiting or is located. All parties consented to vary this non-contact order to a non-violence order restraining the respondent from ‘causing harm or attempting or threatening to cause harm to the protected persons; causing or attempting to cause damage to the property of the protected persons; and intimidating or harassing or verbally abusing the protected persons’ ([3]). At hearing, the Court of Summary Jurisdiction refused to grant the variation.

    The respondent subsequently presented fresh evidence in support of the variation from a non-contact to a non-violence domestic violence order. The appellant and her daughter briefly moved to a shelter after the domestic violence order was originally taken out. They then moved back into their home, leaving the respondent to move out in order to comply with the non-contact order. This was against the wishes of the appellant and their child, who wanted to continue living with the respondent. With nowhere else to stay, the respondent slept in his car while continuing to support the appellant and their child financially. He was unable to access tools needed for his work that were left in the house. The respondent suffered from a mental illness and had commenced treatment with the support of the appellant. In the circumstances, the police were satisfied a non-violence order was appropriate.

    Issues: One relevant issue concerned whether the Court of Summary Jurisdiction failed to properly consider and give due weight to the matters to be considered in making a domestic violence order under s 19(2)(e) of the Domestic and Family Violence Act 2007 (NT).

    Decision and reasoning: The appeal was allowed.

    The appellant’s wish to remain in a relationship with the respondent is not in itself enough to grant a variation of the domestic violence order. Blokland J noted that ‘the desire to stay in the relationship may be an indication of ongoing dependence, violence or intimation’ ([9]). However, this factor had to be considered in combination with the fact the original order was made on incomplete information, the respondent had not been in breach of a domestic violence order for five years, and the fresh evidence established that the non-contact order placed the appellant, the respondent and their child in vulnerable situations. While this was a situation where there was a need for a domestic violence order, a non-violence order would be more effective than a non-contact order and would continue to provide protection for the appellant and their daughter. The non-violence order would likely result in the respondent continuing treatment for his mental illness and taking further responsibility, thereby supporting protection in the context of an ongoing family relationship.

  • Watson v Chambers [2013] NTSC 7 (12 February 2013) – Supreme Court of the Northern Territory
    Aboriginal and Torres Strait Islander people’ – ‘Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Cumulative sentences’ – ‘Double jeopardy’ – ‘People living in regional, rural and remote communities’ – ‘Perpetrator intervention program’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order (two counts), aggravated assault

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim were in a relationship and resided together in the remote town of Maningrida. A domestic violence order was in place to protect the victim from the appellant harassing, threatening or verbally abusing her or assaulting or threatening to assault her. One afternoon the victim left their house when the appellant became angry and demanded she stay, saying ‘Don’t you move, I’m going to get a hammer and smash you in the arm’ (count 2). Several days later the appellant accused the victim of having an affair. He subsequently struck her in the arm with a metal cup, grabbed her hair and dragged her to their room where he threw her on the ground, punched her twice in the face and struck her with a steel mop handle (counts 4 and 6). In relation to this conduct, the appellant was charged and convicted of two counts of contravening a domestic violence order (counts 2 and 4) and one count of aggravated assault with the circumstances of aggravation under s 188(2)(b) Criminal Code 1983 (NT) that the victim suffered harm, it was a male-on-female offence and the victim was threatened with a weapon (count 6). The effective head sentence imposed by the magistrate was 11 months’ imprisonment to be suspended after the service of 6 months’ imprisonment, subject to the appellant completing the Indigenous Family Violence Offender Program (IFVOP). This head sentence comprised of:

    • Count 2: two months’ imprisonment
    • Count 6: six months’ imprisonment cumulative on the sentence imposed on count 2
    • Count 4: three months’ imprisonment cumulative on the sentence imposed on count 6

    The magistrate initially made the sentence on count 4 concurrent with count 6, making the effective sentence 8 months imprisonment. However, this was adjusted as a result of s 121(7) of the Domestic and Family Violence Act 2007 (NT) and the effective sentence was increased to 11 months.

    Issues: Some grounds of appeal were whether the magistrate:

    • Erred by finding the appellant guilty on count 4 and count 6 on the same facts; and
    • Erred in her application of the totality principle.

    Decision and reasoning: The appeal was allowed on both grounds and the appellant was resentenced.

    • Counts 4 and 6 referred to the same incident. Citing Ashley v Marinov [2007] NTCA 1, Blokland J noted that where the facts of the breach of the domestic violence order were the same or similar to the facts constituting the assault, the two findings cannot stand. To do so would violate the principle against double jeopardy. The conduct of the appellant in accusing the victim of having an affair did not constitute ‘harassing, threatening or verbally abusing’ as provided in the domestic violence order. The conduct was not particularised at trial and the magistrate erred in convicting the appellant on count 4. Blokland J ordered the quashing of the conviction and sentence in respect to count 4.
    • Blokland J agreed with Barr J’s remarks in Idai v Malogorski [2011] NTSC 102 in finding that the mandatory accumulation of sentences does not displace the principle of totality. The conduct that constituted counts 4 and 6 was a continuation of the offending of count 2. Therefore, while the sentences had to be accumulated, there should have been an adjustment to the individual sentences when the magistrate made the correction.

    The appellant was resentenced to 14 days’ imprisonment on count 2 and 6 months’ imprisonment on count 6. The total effective term of imprisonment of 6 months and 14 days was suspended after the service of five months and one week imprisonment. The condition of the appellant completing the IFVOP was upheld.

  • Palmer-Peckham v Westphal [2012] NTSC 74 (28 September 2012) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Manifestly excessive’ – ‘Sentencing

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant and victim had previously been in a relationship. The appellant was the subject of a domestic violence order that restrained him from harassing or harming the victim and approaching, entering or remaining in her company or in her place of residence or work when under the influence of alcohol or another intoxicating substance. After consuming alcohol one day, the appellant went to the victim’s mother’s house where she was living at the time. The victim was not home. He returned later that afternoon after consuming more alcohol. When the victim arrived home, the appellant allegedly assaulted her. However, there was not enough evidence to conclude this beyond reasonable doubt. In relation to this conduct the appellant was charged, pleaded guilty and was convicted of breaching the domestic violence order. The magistrate sentenced the appellant to two months’ imprisonment, suspended immediately with an operation period of 12 months.

    In sentencing, the magistrate noted that the appellant had breached the domestic violence order in three respects and considered the conduct as the upper end of offending. However, the appellant had no substantial offending history and entered his guilty plea early. The magistrate accepted that while the appellant had a problem with alcohol, he had work available and had good prospects of rehabilitation. He considered the starting point of six months’ imprisonment, reduced to two months’ imprisonment wholly suspended when considering the mitigating and aggravating factors.

    Issues: Whether the sentence imposed was manifestly excessive.

    Decision and reasoning: The appeal was allowed and the appellant was resentenced.

    Olsson AJ considered the general approach adopted by the magistrate in order to promote general deterrence was reasonable. However, the magistrate’s starting point of six months’ imprisonment was very high for a first conviction when considering the victim suffered no physical or lasting emotional harm. It is not clear from the magistrate’s sentencing remarks how he arrived at the ultimate reduction from six to two months’ imprisonment. A reduction of 30 per cent was given for the timely plea. Beyond this, the magistrate only noted the appellant’s character and prospects for rehabilitation for the further reduction. Accordingly, the sentence was so excessive as to manifest error on the part of the magistrate. Olsson AJ resentenced the appellant to 21 days’ imprisonment, suspended immediately with an operation period of 12 months.

  • Blitner v Vanzella [2012] NTSC 72 (26 September 2012) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Lapse of domestic violence order

    Charge: Breach of domestic violence order

    Appeal type: Appeal against conviction

    Facts: The appellant was the subject of a police domestic violence order that restrained him from approaching, contacting or remaining in the company of the protected person when consuming alcohol or under the influence of alcohol. Subsequently, the Court of Summary Jurisdiction made restraining orders against the appellant. These orders did not include any ‘non-intoxication conditions’. Four days after the restraining orders were made, the Court of Summary Jurisdiction allowed the police domestic violence order to lapse. The appellant was subsequently charged with breaching this order. He pleaded guilty to these offences and was convicted and fined.

    Issue: Whether the police domestic violence order was in force and capable of being breached.

    Decision and reasoning: The appeal was allowed and the conviction and sentence was quashed.

    Under s 82 of the Domestic and Family Violence Act 2007 (NT) the court must either confirm or revoke a police domestic violence order. The magistrate’s order to allow the police domestic violence order to lapse was an effective revocation under s 82. As a result, the appellant was not restrained by a domestic violence order from being or remaining in the company of the protected person when consuming alcohol or being under the influence of alcohol. Therefore, he could not be in breach of the revoked police domestic violence order.

  • Carne v Wride; Carne v Nicholas [2012] NTSC 33 (15 May 2012) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Cumulative sentences’ – ‘Emotional abuse’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Breach of domestic violence order, aggravated assault

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim were in an ‘on again off again’ relationship for approximately 18 years and had four children together. One evening the appellant went to the victim’s house where all four children were residing. The appellant threw the television over the balcony and forcibly took a ring off the victim’s finger. The appellant was charged with aggravated assault and a domestic violence order was made restraining him from contacting, approaching, intimidating or harassing the victim and exposing the children to domestic violence. Nine days later the appellant phoned the victim and visited her at the house. When she refused to let him in, the appellant unsuccessfully attempted to hang himself from the veranda. This was witnessed by his 14 year old son. In relation to this conduct the appellant was charged and pleaded guilty to breaching the domestic violence order.

    The two charges were sentenced together. After stating the need for general and specific deterrence in the circumstances, the magistrate sentenced the appellant to eight months’ imprisonment for breaching the domestic violence order and two months’ imprisonment for the aggravated assault. The sentences were to be served cumulatively, suspended after six months on conditions including supervision, counselling and abstinence from alcohol and drugs.

    Issues: Some of the grounds of appeal included:

    • Whether the magistrate had regard to irrelevant facts and circumstances in accepting the attempted suicide was within the definition of domestic violence;
    • Whether the magistrate erred in cumulating the sentences; and
    • Whether the sentences imposed were manifestly excessive.

    Decision and reasoning: The appeal was allowed on grounds 1 and 3. The appellant was resentenced.

    • Under s 5 Domestic and Family Violence Act 2007 (NT) domestic violence includes causing harm and intimidation. Further, s 6 defines intimidation to include any conduct that has the effect of unreasonably controlling or causing mental harm. It is probable that the appellant’s son suffered psychological harm as a result of witnessing his father attempting to hang himself and having to cut him down. However, no evidence was adduced to establish mental harm was actually suffered. In the absence of such evidence, Kelly J found it was not open to the magistrate to be satisfied beyond reasonable doubt that the attempted suicide was conduct that caused mental harm to the son in order to amount to domestic violence under s 6(1)(c). It was also not open to the magistrate to conclude the appellant attempted to cause mental harm under s 5(f). There was insufficient evidence to prove beyond reasonable doubt the attempted suicide was aimed at the victim and her children.
    • As a general rule, cumulative penalties should not be imposed when a number of offences arise from substantially the same conduct or a series of occurrences. The appellant’s two offences of aggravated assault and breach of the domestic violence orders did not arise out of such a closely related series of events. Rather, the conduct constituting the separate offences occurred on different days and were totally different acts. Therefore, the magistrate did not err in ordering the sentences to be served cumulatively rather than concurrently.
    • As ground 1 of the appeal was successful, the only actions by the appellant that constituted the breach of the domestic violence order were the conduct of phoning the victim and visiting her home. In these circumstances, the sentence of eight months’ imprisonment was manifestly excessive. Kelly J set aside the sentence and imposed a sentence of imprisonment for one month for the breach of the domestic violence order. The sentence was to be served cumulatively on the aggravated assault sentence, suspended after one month.
  • Idai v Malogorski [2011] NTSC 102 (14 December 2011) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Breach of domestic violence order’ – ‘Concurrent sentences’ – ‘Drugs’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order (two counts), aggravated assault (two counts), administration of a dangerous drug (cannabis)

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim had been in a relationship for three to four years. After self-administering cannabis one afternoon (count 2), the appellant became abusive and called the victim a slut (count 4). Early the next morning the victim locked herself in the bathroom to get away from the appellant. In response, the appellant banged and kicked the door, demanding the victim come out (count 5). When she did the appellant threw the contents of a bong and a flour tin over her (count 1). Later that day the appellant shouted at the victim, grabbed her chin and squeezed her cheeks to force her to face him (count 3). In relation to this conduct, the appellant was charged and convicted of two counts of contravening a domestic violence order (counts 4 and 5), two counts of aggravated male-on-female assault (counts 1 and 3) and one count of administering a dangerous drug (count 2). The effective head sentence imposed by the magistrate was 15 months’ imprisonment with a non-parole period of 10 months. This head sentence comprised of:

    • Count 4: five months’ imprisonment
    • Count 5: five months’ imprisonment cumulative on the sentence imposed on count 4
    • Count 1: five months’ imprisonment cumulative on the sentence imposed on count 5
    • Count 3: five months’ imprisonment concurrent with the sentence imposed on count 1
    • Count 2: $200 fine

    Issues:

    • Whether the magistrate erred in the application of the totality principle.
    • Whether the sentence imposed was manifestly excessive in relation to counts 4 and 5.

    Decision and reasoning: The appeal was allowed on ground 2 and the appellant was resentenced.

    • The conduct that constituted the breaches of the domestic violence order (counts 4 and 5) occurred very closely together in time. They could be seen as facets of the one course of conduct leading up to the aggravated assaults that occurred later that day (counts 1 and 3). Therefore, the sentences imposed for counts 4 and 5 would ordinarily have been made concurrent or substantially so under the general principle of totality. However, in a process of statutory interpretation, Barr J found s 121(7) of the Domestic and Family Violence Act 2007 (NT) requires the court to order the term of imprisonment for a domestic violence order offence to be served cumulatively on any other sentence. Therefore, the magistrate did not err in ordering that the sentences on both the domestic violence order offences (counts 4 and 5) had to be cumulative on one another and on the sentences on the aggravated assault offences (counts 1 and 3).
    • The magistrate allowed a discount of 25 per cent for the appellant’s guilty pleas, suggesting a point for each offence of approximately seven months imprisonment. Considering the offending was at the lower end of the scale, the individual sentences were manifestly excessive. Barr J found an appropriate starting point for each domestic violence offence (counts 4 and 5) was a sentence of four months, reduced to three months allowing for a 25 per cent discount for the guilty pleas. Each domestic violence order sentence (counts 4 and 5) should further be reduced to two months’ imprisonment, applying the principle of totality. Barr J ordered the appellant be resentenced on counts 4 and 5 to:
    • Count 4: two months’ imprisonment
    • Count 5: two months’ imprisonment cumulative on the sentence imposed on count 4

    The effective head sentence for all counts was therefore nine months’ imprisonment.

  • Malogorski v Peart [2011] NTSC 86 (21 October 2011) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘External orders’ – ‘Registration of interstate domestic violence order’ – ‘Statutory interpretation

    Charge: Breach of domestic violence order

    Proceeding: Question of law under s 96 Domestic and Family Violence Act 2007 (NT)

    Facts: The defendant was the subject of an interim violence restraining order made under the Restraining Orders Act 1997 (WA) (the WA Act). The interim order was registered as an external order in the Northern Territory pursuant to the procedures in Chapter 3 of the Domestic and Family Violence Act 2007 (NT) (the NT Act). Subsequently the interim order was made into a final order in Western Australia, however this was never registered in the Northern Territory. The defendant came into contact with the protected person in the Northern Territory, in breach of the external order. At trial, it was argued that there was no case to answer because the interim order made in Western Australia had ceased to be in force once the final order was made. Therefore, the interim order was also no longer registered in the Northern Territory as an external order under s 96 and could not be enforced.

    Issue: Whether an interim order under the WA Act continues to be ‘in force’ within the meaning of s 96 of the NT Act after the interim order is made final.

    Decision and reasoning: Kelly J answered the question in the negative.

    Under the WA Act, an interim order remains in force until one of the specified events in s 16(4) occurs, including when a final order comes into force. Section 96 of the NT Act provides that an external order is registered ‘for the period during which it is in force’. Therefore, on the date of the alleged offence the interim order was not ‘in force’ in WA; accordingly, there was no external order enforceable under the NT Act.

  • Bonney v Thompson [2011] NTSC 81 (7 October 2011) – Supreme Court of the Northern Territory
    Emotional and psychological abuse’ – ‘Exposing children’ – ‘Extension of domestic violence order’ – ‘History of abuse

    Appeal type: Appeal against refusal to extend domestic violence order

    Facts: The respondent, the appellant’s ex-partner, was the subject of a non-contact domestic violence order. The order was initially to be in force for 12 months, but the appellant applied for the order to be extended for a further two years. This application was dismissed. In deciding whether to grant the extension, the magistrate refused to consider the past history of domestic violence. The magistrate did not consider that a history of domestic violence is sufficient for the court to continue an order.

    The magistrate also refused to have regard to events that occurred after the making of the original order. The appellant alleged the respondent had approached her daughter, asked for money and threatened to hit her. The magistrate concluded this threat was not relevant because it related to ‘a different adult, not in the company of the complainant, not living with the complainant’ ([22]). The respondent also told his and the appellant’s children to tell the appellant that it was dangerous staying in town, and that she was ‘looking for trouble by living in town’.

    Issue: Some of the grounds of appeal included whether the magistrate erred in:

    • Finding that previous evidence of violence is insufficient to extend an order; and
    • Failing to have regard to statement made to the appellant’s family members in considering the reasonable fear of the appellant.

    Decision and reasoning: The appeal was allowed and the domestic violence order was extended.

    • The magistrate erred in failing to consider the history of domestic violence that led to making the original domestic violence order. In failing to do so, the magistrate made an error of law in failing to take into account relevant facts as required by s 53 and s 19(2)(d) of the Domestic and Family Violence Act 2007 (NT). The question is whether the court is satisfied that there are reasonable grounds for the protected person to fear domestic violence. This question may be satisfied based solely on past conduct of domestic violence: ‘To hold that an application to extend a DVO could never be granted solely on evidence of past domestic violence occurring before the date of the original order, would be tantamount to saying that a DVO can never be extended unless it has been breached.’ ([19)].
    • The magistrate also erred in failing to take into account the evidence of threats made by the respondent to the appellant’s daughter and their children. The threat to the appellant’s daughter was relevant to show the defendant had not reformed and was still prone to threats of violence. Further, the remarks to the children taken in context with the past history of domestic violence support that the appellant had reasonable grounds to fear the commission of domestic violence against her.
  • Parnell v Verity [2011] NTSC 47 (24 June 2011) – Supreme Court of the Northern Territory
    Assaulting police’ – ‘Resisting arrest

    Charge: Resisting arrest, Assaulting police in the execution of duty

    Appeal type: Appeal against conviction

    Facts: After speaking with the victim, two police officers decided there were grounds to order a police domestic violence order against the appellant. When driving to the station, they saw the appellant outside his mother’s house. After failed attempts to communicate with the appellant, one of the police officers drew his taser, but did not point it at the appellant. After the appellant was notified of his arrest for the purposes of making a domestic violence order against him, he was handcuffed. He then became aggressive, screaming to his mother for help and alleging the police were assaulting him. The appellant attempted to kick one of the police officers. As a result, the officer put his foot on the appellant’s leg. The appellant screamed out in pain and his family started to approach the officers aggressively. One officer again drew his taser and pointed it at the family and the other officer took out his pepper spray. The appellant then kicked one officer in the shin, who then pepper sprayed the appellant.

    In relation to this conduct, the appellant was convicted of resisting arrest and unlawfully assaulting a police officer in the execution of his duty with the circumstance of aggravation that the police officer suffered harm.

    Issues:

    • Whether the magistrate’s findings of guilt were unsafe and unsatisfactory;
    • Whether the magistrate made findings of fact that were not reasonably open on the evidence; and
    • Whether the magistrate erred in the interpretation of s 84(1) of the Domestic and Family Violence Act (2007) NT.

    Decision and reasoning: The appeal was allowed and the appellant was acquitted of both charges. In order for the police to remove and detain a person under s 84 of the Act there must be a reasonable belief that there are grounds for making a domestic violence order and it is necessary to remove the person to prevent an imminent risk of harm to another. There was no evidence before the magistrate of ‘domestic violence’ defined by s 5 of the Act. Therefore, the magistrate erred in finding the police officers had a reasonable belief that grounds existed for making a domestic violence order against the appellant. Further, there was no evidence that the appellant was likely to harm anyone as required by s 84(1)(a)(ii) of the Act. Therefore, the police officers did not have the power to arrest the appellant in order to impose the domestic violence order. The arrest was unlawful and the appellant was justified in resisting arrest and acted in self-defence when kicking the police officer.

  • Semkin v Verity [2011] NTSC 12 (15 February 2011) – Supreme Court of the Northern Territory
    Appeal against sentence’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order to protect his former partner (the victim). While serving a sentence of imprisonment for previous offences committed against the victim, the appellant breached the domestic violence order by sending the victim a letter. The content of the letter included apologising for his actions and for harming the victim. When asked why he sent the letter, the appellant replied ‘Broken heart, saying sorry and all that’ and that he was not aware it was a contravention of the domestic violence order. The appellant was convicted and sentenced to three months’ imprisonment to commence at the end of his prior sentence.

    The full no-contact domestic violence order was initially ordered after the appellant entered the victim’s house, removed all her clothes and burned them in the garden while she was not home. Following this, the appellant breached the order by texting the victim 17 times. The messages included threatening the victim, threatening self-harm and declaring his ‘undying love’. As a result of this conduct, the appellant was fined $750 and placed on a good behaviour bond. Sometime after recommencing their relationship, the appellant went to the victim’s workplace with two knives and a hammer and subsequently chased, punched and kicked the victim and threatened to kill her. The appellant was charged and convicted of aggravated assault, for which he was serving a term of imprisonment at the time of the current offending.

    Issues:

    • Whether the sentence was manifestly excessive.
    • Whether the magistrate erred in applying the principle of totality.

    Decision and reasoning: The appeal was dismissed.

    • Riley CJ rejected the argument that the appellant’s moral culpability was reduced because he claimed to be unaware that sending the letter was a breach of the domestic violence order. He had repeatedly breached the domestic violence order, on one occasion for sending text messages to the victim. Therefore, he should have known the conditions of the order and that sending a letter constituted a breach of it. The fact that his offending occurred while in custody for another offence against the victim was an aggravating factor. While the appellant had made efforts to rehabilitate whilst in prison, the need for personal deterrence was still a significant factor in sentencing considering his history of offending. When considering these circumstances as a whole, the sentence imposed was not manifestly excessive.
    • The magistrate did not err in applying the principle of totality. The current offending was not part of a course of offending. Sending the letter in breach of the domestic violence order was a separate incident to the aggravated assault that the appellant was in custody for. Therefore, the current offending required a separate sentence and the magistrate did not err in ordering the sentence to be served cumulatively.
  • Atkinson v Eaton [2010] NTSC 72 (17 December 2010) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Breach of good behaviour bond’ – ‘Deterrence’ – ‘Manifestly excessive’ – ‘Sentencing’ – ‘Totality

    Charges: Breach of domestic violence order, breach of good behaviour bond, resisting arrest

    Appeal type: Appeal against sentence

    Facts: The appellant and the victim were in a de facto relationship and resided together with their child and two children from the victim’s previous relationships. The appellant was the subject of a good behaviour bond with a condition that he not approach the victim when consuming or under the influence of alcohol. He was also the subject of a domestic violence order that restrained the appellant from approaching, contacting or remaining in the company of the victim or her three children (the protected persons) when consuming or under the influence of alcohol or another intoxicating drug or substance.

    On the day of offending, the appellant consumed alcohol whilst in the presence of all four of the protected persons. The appellant resisted arrest and attempted to escape custody. After he was arrested the police determined his blood alcohol level was 0.172 per cent. When asked his reasons for breaching the domestic violence order, the appellant replied ‘it was her choice’. In relation to this conduct the appellant was charged, pleaded guilty and convicted of one count of breaching the good behaviour bond, one count of breaching the domestic violence order and one count of resisting arrest. The magistrate sentenced the appellant to 21 days’ imprisonment, 21 days’ imprisonment and seven days’ imprisonment, respectively. All sentences were ordered to be served concurrently, with the total effective sentence of 21 days’ imprisonment.

    The appellant had previously breached the good behaviour bond and received a warning. He had also been convicted of breaching the domestic violence order, assault and aggravated assault.

    Issue: Whether the sentences imposed were manifestly excessive in all the circumstances.

    Decision and reasoning: The appeal was allowed and the appellant was resentenced.

    The magistrate erred in imposing a term of imprisonment for the breach of the good behaviour bond. Although there had been two breaches of the bond, Blokland J held that without knowing additional information on the initial breach that received a warning, imprisonment could not be justified for the breach in question. The sentence of 21 days’ imprisonment was therefore manifestly excessive and ordered to be set aside.

    The magistrate also erred in imposing a term of 21 days’ imprisonment for the breach of the domestic violence order. Blokland J recognised that this was the appellant’s second breach of the domestic violence order. However, although the protected persons were placed in fear, no harm resulted from the breach. Therefore, the sentence was manifestly excessive.

    The appellant was re-sentenced to seven days’ imprisonment for the breach of the domestic violence order and seven days’ imprisonment for resisting arrest to be served concurrently. When considering the circumstances of the offence, a short term of imprisonment was justified under s 121 Domestic and Family Violence Act 2007 (NT). Blokland J emphasised the appellant’s blood alcohol reading was significant and whilst he pleaded guilty, it was not an immediate plea ([25]). Blokland J refused to suspend the sentence when considering the appellant’s history of offending and the need for personal deterrence. No further sentence was imposed for breach of the good behaviour bond, as the breach occurred out of the same conduct as the breach of domestic violence order.

  • Walker v Verity [2010] NTSC 68 (7 December 2010) – Supreme Court of the Northern Territory
    Alcohol’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Emotional abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Multiple breach charges’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Threat to kill’ – ‘Victim’ – ‘Victim impact statement

    Charges: Breach of domestic violence order (6 counts), threatening to kill with intent to cause fear, resisting arrest, unlawfully assault of a police officer in the execution of duty, behaving in a disorderly manner, unlawfully possessing cannabis

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order in force to protect his daughter (the victim). The order restricted the appellant, among other conditions, from approaching, contacting or remaining in the company of the victim or at any place where the victim resided, worked or stayed while consuming or under the influence of alcohol or another intoxicating drug or substance. After consuming alcohol one day, the appellant sent a text to the victim (charge 1). He then resent this message four times before going to the victim’s home (charge 2). The victim was not home, but the appellant waited several hours for her to return (charge 3). After the victim left her home, the appellant rang the victim and swore at her (charge 4). The appellant eventually left the victim’s home after being asked several times only to return several hours later. The appellant then scratched the victim’s face (charge 5) and said ‘I love you, but I want to kill you’ (charge 6). He subsequently called her again and blamed the victim for his arrest (charge 8). Charge 7 was not referred to or specified.

    In relation to this conduct the appellant was charged and convicted of (inter alia) 6 counts of breaching a domestic violence order (charges 1-5, 8) and threatening to kill with intent to cause fear (charge 6), resisting arrest, unlawfully assaulting a police officer in the execution of duty, behaving in a disorderly manner, and unlawfully possessing cannabis. The appellant was sentenced on charges 1 to 4, to a fine of $1000; on charges 5 and 8, to 12 weeks’ imprisonment; and on charge 6, to 12 weeks’ imprisonment, each to be served concurrently with the aggregate sentence on charges 5 and 8.

    In the victim impact statement, the victim explained the physical and emotional injuries she suffered as a result of her father’s domestic violence ([27]). However, the victim expressed her wish that the appellant be ordered into rehabilitation rather than sentenced to imprisonment. The magistrate did not mention this wish of the victim in his sentencing remarks.

    Issues:

    • Whether the magistrate erred in failing to take into account the victim’s wishes as expressed in the victim impact statement; and
    • Whether the sentences imposed for charges 5, 6 and 8 were manifestly excessive.

    Decision and reasoning: The appeal was dismissed.

    • The magistrate did not err by merely failing to expressly refer to the victim impact statement. The magistrate was informed that the appellant had previously unsuccessfully attempted rehabilitation in the only two rehabilitation programs available to non-Indigenous males in the Northern Territory. Further, the victim’s wishes for the appellant not to be imprisoned should not have carried great weight when considering the aggravating factor of the appellant’s extensive offending history, and the need for specific and general deterrence. Barr J concluded that in domestic violence cases, the importance of general deterrence likely overrides any forgiveness on the part of the victim ([40-41]).
    • The effective sentence of 12 weeks’ imprisonment for charges 5, 6 and 8 was not manifestly excessive in the circumstances. The magistrate was entitled to regard charges 5, 6 and 8 as serious. Further, the magistrate gave due consideration to the appellant’s previous history of offending, including a previous threat to kill, offences of physical violence, and numerous breaches of domestic violence orders. The appellant established no error by the magistrate in sentencing, nor that theeffective sentence was manifestly excessive. Therefore, both grounds failed and the appeal was dismissed.
  • AB v Northern Territory of Australia [2010] NTSC 8 (18 March 2010) – Supreme Court of the Northern Territory
    Aggravated assault’ – ‘Compensation to victim’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Unlawfully causing serious harm

    Charges: Aggravated assault, unlawfully causing serious harm, rape

    Appeal type: Appeal against amount of compensation ordered for victim

    Facts: The appellant and the offender were living together in a domestic relationship. On the first occasion, the offender assaulted the appellant with a curtain rod, causing severe lacerations to her head, arms and body, substantial blood loss, broken teeth, and swelling and bruising to her face and lower back. In relation to this conduct, the offender was charged with aggravated assault. The appellant was again assaulted by the offender several weeks later, resulting in a fractured clavicle. The pattern of assaults continued when approximately three months later the offender followed the victim home, dragged her outside, bashed her with a stick and fists, verbally abused her and raped her twice. As a result, the victim suffered extensive injuries to her face and scalp, a fractured jaw and bruises all over her body. The offender was found guilty of unlawfully causing serious harm to the victim and two counts of sexual intercourse without consent.

    The victim made an application for compensation under the Victims of Crime Assistance Act 2006 (NT) (the Act) and was awarded $35,000 for the compensable violent act, as determined by an assessor. She subsequently appealed to the Local Court on the basis that the compensation awarded was inadequate when considering the injuries suffered. It was argued that the respondent erred in considering the three incidents constituted a single violent act and in failing to assess her psychological injuries. Alternatively, it was argued that the respondent erred in determining the award quantum under Schedule 3, Part 1(c) of the Act.

    Issue: Several questions of law were reserved for the Supreme Court including:

    • Were the criminal acts committed against the appellant on the three separate days a single violent act for the purposes of s 5 of the Act?
    • Does s 25 of the Act prevent the appellant from obtaining an assessment for psychological injury?

    Decision and reasoning: Kelly J first detailed the operation of the Act and its application to victims of domestic violence ([9]-[44]).

    • Kelly J answered this question in the negative. Section 5(4) of the Act provides that a series of related criminal acts constitutes a single violent act. Whether the three assaults constituted a series of related criminal acts depended on whether they could be said to ‘occur over a period of time’ under s 5(3)(b(ii). For this to be the case, the criminal acts must have been continuing in the sense of forming a single episode of offending. The assaults committed by Mr Barnes occurred months apart and each resulted in separate injuries. Therefore, the three sets of criminal acts were not committed ‘over a period of time’ within the meaning of s 5(3)(b)(ii).
    • Nothing in s 25 prevents the appellant from obtaining compensation for psychological or psychiatric injury suffered as a result of the assaults. The first two assaults are not ‘compensable violent acts’ within the Act however the appellant is entitled to claim an award for the ‘compensable injuries’ suffered as a result of those acts. As these offences are not included in Schedule 2 to the Regulations, she could only include a psychological or psychiatric injury as one of the three compensable injuries under Regulation 18 Victims of Crime Assistance Regulations (NT) if the recognisable psychological or psychiatric disorder was severely disabling (Reg 15(2)). The third incident involving raping the appellant is a compensable violent act and therefore she could apply for an award for the assault per se (s 10(4)(a)(i)) or an award for compensable injuries suffered as a result of the violent act. The appellant chose to do the latter, and therefore the assessor was obliged to take into account all of her injuries including any psychological or psychiatric disorders that resulted from the attack as part of the common law assessment of damages.
  • Midjumbani v Moore [2009] NTSC 27 (26 June 2009) – Supreme Court of the Northern Territory
    Breach of domestic violence order’ – ‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Gender of offender’ – ‘Manifestly excessive’ – ‘Sentencing

    Charge: Breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order that restrained her from contacting or approaching her former partner (the victim) directly or indirectly while intoxicated, among other restrictions. On the day of offending, the appellant went to the victim’s home while intoxicated, verbally abused him and threatened to arrange for the victim to be harmed and killed. Approximately two hours later, the appellant returned and threatened that her family would kill the victim. She then picked up a large rock causing the victim to retreat back inside his home. In relation to this conduct the appellant was charged, pleaded guilty and convicted of two counts of breaching a domestic violence order. She was sentenced to seven days’ imprisonment on each charge, to be served concurrently.

    The appellant had previously been convicted of breaching a domestic violence order, possession of cannabis, and two offences involving being armed with an offensive weapon. In support of the appellant, it was submitted she occasionally cared for the victim who was suffering from cancer, she entered an early plea of guilty and she had shown remorse.

    Issues: The grounds of appeal were:

    • The magistrate erred in interpreting s 121(3) of the Domestic and Family Violence Act 2007 (NT) and failed to consider whether ‘particular circumstances’ existed under s 121(3)(b);
    • The sentence was manifestly excessive; and
    • The magistrate failed to properly consider the gender of the appellant.

    Decision and reasoning: The appeal was dismissed.

    • Section 121 of the Act must be read altogether. Subject to s 121(3), a court must record a conviction and sentence a person to at least seven days’ imprisonment if that person has previously been found guilty of breaching a domestic violence order. This mandatory minimum sentence will always apply unless no harm has been caused to the victim: s 121(3)(a). If harm is not caused, the court must consider the particular circumstances of the offence to determine if it is appropriate to record a conviction and sentence the person to at least seven days’ imprisonment: s 121(3)(b). The magistrate did not err in its interpretation or application of this provision.
    • The magistrate did not err in sentencing the appellant in accordance with s 121 of the Act. However, Riley J noted that even if he did find error he would not have interfered with the sentence imposed. The sentence of seven days to be served concurrently for each breach of the domestic violence order was appropriate. The appellant failed to establish that the magistrate erred in sentencing or that the sentences imposed were manifestly excessive.
    • The appellant submitted that the magistrate failed to properly consider her gender as a female. Riley J did not accept that the gender of the offender is a relevant matter that should have been taken into consideration by the magistrate.
  • Norris v Sanderson [2007] NTSC 1 (12 January 2007) – Supreme Court of the Northern Territory
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle in relation to sentencing.
    Breach of domestic violence order’ – ‘Emotional abuse’ – ‘Manifestly excessive’ – ‘Offending while on bail’ – ‘Sentencing’ – ‘Unlawful damage

    Charges: Unlawful damage, breach of domestic violence order

    Appeal type: Appeal against sentence

    Facts: The appellant was the subject of a domestic violence order to protect his girlfriend (the victim) made under the repealed Domestic Violence Act 1992 (NT). He had a history of repeatedly breaching domestic violence orders both in relation to the victim and a previous girlfriend. The offending subject to the appeal was constituted by a series of events. On the first occasion the appellant went to visit the victim. In an attempt to prevent him from entering, the victim locked the door. As a result, the appellant punched the front window causing it to shatter and kicked the security door (count 1). A few days later the appellant telephoned the victim and then approached her at a nightclub (counts 2 and 3). He was subsequently arrested and granted bail. While on bail he again breached the domestic violence order by driving with the victim (count 4). He was arrested and remanded in custody only to be released on bail again. One month later he drove to the victim’s house, entered her front yard and yelled and swore at the victim (count 5). In relation to this conduct, the appellant was charged and convicted of one count of unlawful damage (count 1) and four counts of breaching a domestic violence order (counts 2-5). The effective sentence imposed by the magistrate was 140 days’ imprisonment, of which 70 days’ were suspended upon conditions providing for supervision. This comprised of:

    • Count 1: 60 days’ imprisonment
    • Counts 2 and 3: 30 days’ imprisonment, 20 days to be concurrent on the sentenced imposed on count 1
    • Count 4: 30 days’ imprisonment cumulative upon counts 1-3, wholly suspended on commencement
    • Count 5: 40 days’ imprisonment cumulative upon counts 1-3, wholly suspended on commencement

    Issue: Whether the sentence was manifestly excessive.

    Decision and reasoning: The appeal was dismissed. The magistrate did not err in his considerations and the sentence imposed was open to him to make.

    The offending in relation to count 1 was made more serious when considering the surrounding circumstances of the offending. The appellant’s response to being locked out by the victim was an ‘immediate, frightening and explosive outburst of violence’ ([19]). While the appellant did not have any prior convictions for unlawful damage, he had several convictions for offences of violence and it was the violent nature of this conduct that made the offending so serious in the circumstances.

    In relation to the breaches of the domestic violence order, the submission that the magistrate placed too much weight on the appellant’s criminal history was rejected. The prior convictions provided context for the offending and highlighted the culpability of the appellant. The appellant’s counsel also submitted the appellant had good prospects of rehabilitating when considering, amongst other factors, his youth, willingness to undertake counselling, good employment record and the ongoing support of the victim. While the magistrate regarded the appellant’s chances of rehabilitation with caution, h