New South Wales

District Court

  • R v Amante [2019] NSWDC 222 (1 May 2019) – New South Wales District Court
    Arson’ – ‘People affected by substance abuse’ – ‘Property damage’ – ‘Special circumstances

    Charges: Destroying or damaging property x 1.

    Case type: Sentencing.

    Facts: As at January 2018, the offender had been in a turbulent domestic relationship with the victim. The situation between them deteriorated to a point where the victim had obtained an apprehended violence order against the offender. The offender started a fire in the victim’s unit ([16]). As a consequence, the fire caused serious damage to the limited personal belongings of the victim, who was in a somewhat perilous financial situation so as to require Housing Commission accommodation ([25]).

    Issue: The Court determined the appropriate sentence for the offence in the circumstances.

    Held: An important consideration in sentencing the offender was the fact that it was a domestic violence offence ([45]). Colefax SC DCJ noted the offender’s long history of offending, and unresolved drug abuse and psychological issues. His Honour stated that the offender is a ‘man of intelligence’, who has been able to work hard and has the support of his immediate family ([51]). The offender’s father was a violent man and he was sexually abused by his brother ([32]-[33]). His mental health problems and excessive drug consumption contributed to the commission of the offence. No rational person would have reacted to a break-up by setting fire to another person’s house, threatening other people’s lives ([42]). Because of his mental health issues, he was not seen as an ‘appropriate vehicle for the full application of general deterrence’ ([44]). The offending was aggravated by the fact that the offender was on bail and that the property damaged was the victim’s home ([28]). He pleaded guilty at the first available opportunity, indicating an element of remorse ([46]). However, remorse is an important but not determinative factor. It was also important to note that the offender had not received effective treatment for his underlying mental health or drug addiction issues ([48]).

    Taking into account his guilty plea, reasonable prospects of rehabilitation and the fact that he was in protection, the offender was sentenced to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years.

  • R v Phillip Michael Summerfield [2019] NSWDC 126 (16 April 2019) – New South Wales District Court
    Bail’ – ‘Following, harassing and monitoring’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charges: The offender pleaded guilty to 3 charges, namely, stalking or intimidation with intent to cause fear of physical or mental harm (Count 1), assault occasioning actual bodily harm (Count 2), and sexual intercourse without consent (Count 3). There was also a charge of driving while suspended.

    Case type: Sentencing.

    Facts: The victim had been in an intimate domestic relationship with the offender for approximately 2 years, during which time the offender sometimes lived at the victim’s home. The relationship was characterised by violence. On 10 May 2017, the offender carried out the attack after picking the victim up from her home. He began shouting at the victim about a man named Adam. The victim tried to escape from the car. The offender stopped the car, opened the passenger’s door and punched the victim several times in the face, causing bleeding (Count 2). The victim moved to the back seat of the car and called 000 on 3 separate occasions in the hope that the operator would hear what was happening. The offender drove to an address in Young, where he committed Count 3. Count 1 related to the offender’s ongoing threatening and violent behaviour towards the victim. The offender later drove the victim to her home, and apologised to her. When he was arrested, he agreed to be interviewed and admitted to assaulting the victim.

    The offender asked the Court to also deal with his appeal against sentence severity in relation to an aggregate sentence of 26 months with a non-parole period of 15 months which had been imposed at the Local Court in respect of two offences (one of which was contravention of a domestic violence order). That offending was committed while the offender was on bail for the other offences for which the offender appeared for sentence.

    Issue: The Court determined the appropriate sentence for the offences in the circumstances.

    Held:

    Severity appeal from the Local Court:

    His Honour dismissed the appeal, and confirmed the convictions and the aggregate sentence of 26 months with a non-parole period of 15 months.

    Sentence matters:

    Judge Lerve noted that the offending was committed in contravention of an apprehended domestic violence order, and highlighted the need for general deterrence in such cases ([35]-[42]). The circumstances in which Count 2 was committed were relevant to the assessment. It was particularly nasty and cowardly as it occurred on the side of the road; however the injuries were limited to bleeding ([19]). Count 1 was found to be serious, as it involved an ongoing course of violent and aggressive threats ([20]). In relation to Count 3, his Honour noted that, in light of the victim’s reaction and the violence which occurred that day, it must have been obvious to the offender that the victim was not consenting ([21]).

    Further, the offender’s criminal history was extensive, and he had previously been convicted of offences including contraventions of domestic violence orders, intimidation of a police officer, damage to property, and a number of assault matters. However, the offender had not previously been charged with a sexual offence ([43]-[48]). He also regularly uses drugs, and self-reported that he was diagnosed with PTSD and experienced trauma as a child. He attended a rehabilitation facility while on bail in 2018, but was discharged because of non-compliance with the requirements of the facility ([54]). Judge Lerve could not be satisfied on balance that the offender had good prospects of rehabilitation ([58]). The evidence before his Honour suggested that, given his lack of treatment, he is at an increased risk of violent re-offending in the future ([57]).

    His Honour recorded a conviction for each of the matters to which the offender pleaded guilty, and imposed an aggregate sentence of 7 years and 4 months with a non-parole period of 5 years. He also recommended that the offender participate in the Violent Offenders Treatment Programme while in custody. The total effective sentence was one of 8 years and 4 months with a period of 6 years in actual custody.

  • R v Lumsden [2019] NSWDC 149 (15 March 2019) – New South Wales District Court
    Burden of proof’ – ‘Credible witness’ – ‘Damaging property’ – ‘Evidence’ – ‘Physical violence and harm

    Charges: Intentionally or recklessly destroy/damage property x 1; common assault x 1.

    Case type: Appeal against conviction.

    Facts: The appellant and complainant had separated and have a child together. They had ongoing issues regarding the complainant’s use of a phone and their separation in general. The appellant grabbed the complainant’s handbag, containing her phone. In cross-examination, he confirmed that he held the bag to taunt her about the phone because he was upset ([11]). The altercation resulted in the complainant suffering bruises and a scratch on her leg.

    Issue: The appellant appealed against the conviction, pursuant to section 18 Crimes (Appeal and Review) Act 2001.

    Held: Grant DCJ allowed the appeal. He quashed the conviction, set aside all other orders of the Local Court, found the appellant not guilty and dismissed the charges.

    The appellant gave sworn evidence of his good character which was uncontested ([10]). The magistrate was faced with a single witness with no independent supportive evidence ([12]). The appellant had the presumption of innocence ([22]).

    Grant DCJ found that, in determining the guilt of the appellant, the Magistrate engaged in ‘illogical, speculative, reverse reasoning’ that led him into error. The Magistrate’s reasoning in respect of the matters listed at para [14] was found to be flawed. He wrongly inferred that because the complainant had not been cross-examined about any inconsistency with a statement made to police, the evidence she gave must be consistent with that statement, therefore supporting her credibility. Such an inference was found to be entirely speculative as no one knew the contents of the statement. Further, Grant DCJ held that making a self-serving statement, or any statement to the police, and giving evidence in accordance with that statement, does not automatically add to a witness’ credibility ([15]-[16]).

    The appellant was given the opportunity to conduct an electronic record of interview which he declined. Grant DCJ found that the Magistrate correctly set out the law in that the refusal to participate in a record of interview cannot be construed as an admission of guilt. However, the Magistrate went on to say that such a refusal was relevant in assessing the accuracy of memories in relation to a certain account noted in [19]. Grant DCJ found that this reasoning would lead to the proposition that ‘if a defendant engaged in a record of interview and it was consistent with his evidence, then a witness could be looked upon as a more credible witness.’ This finding would undermine the appellant’s right to silence and may shift the onus on the appellant to demonstrate his credibility by participating in a record of interview ([18]-[20]).

    To find the appellant guilty, the magistrate would have to disbelieve his account beyond reasonable doubt ([23]). Grant DCJ was not persuaded that the Magistrate could have properly convicted the appellant ([23]).

  • R v Smethurst [2018] NSWDC 488 (9 November 2018) – New South Wales District Court
    Imprisonment’ – ‘Options’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Suffocation

    Charges: Assault occasioning actual bodily harm x 1.

    Case type: Sentencing.

    Facts: The offender had known the complainant for a number of years. In the course of a dispute between the parties at the complainant’s residence, the offender put a pillow over her face (common assault). The complainant then ran out of the house, followed by the offender. The offender pushed her on the ground and started to drag her towards the house by the shirt which caused a graze to her back (assault occasioning actual bodily harm). The complainant ran onto the neighbour’s driveway and told the neighbour to ‘call the police’. The police attended the complainant’s residence soon after the incident and recorded her statement on camera.

    Issues: The Court determined the appropriate sentence for the offence in the circumstances.

    Decision and reasoning: The Court sentenced the offender to an aggregate period of imprisonment of 22 months which, after a discount of 15% for his guilty plea, was a sentence of 18 months ([64]). A non-parole period of 12 months was imposed.

    The Court assessed the objective seriousness of the offending, and found that aggravating factors included the offender’s five good behaviour bonds and a string of intensive corrections orders at the time of offending, the place of the offending (complainant’s home), and the brutality of the consecutive acts committed over a short period of time ([13]-[17]).

    The Court must be satisfied that imprisonment is more appropriate than all other alternatives, such as non-custodial sentences ([54]). The benefits of rehabilitation in the community were found to be outweighed by the fact that the offender previously had the benefit of conditional liberty orders and failed to comply with them ([56]). General principles of sentencing, such as denunciation, accountability, punishment, deterrence and protection were considered at [46]-[52]. The offender had a number of prior convictions, including common assault, contravention of an AVO, and assault occasioning actual bodily harm ([21]). The matter before the Court was the fourth domestic violence type offence for which the offender had been charged ([30]). Although the number of previous offences was a relevant factor, they were of moderate application as there was no evidence of any present risk. Nevertheless, the court observed at [33] that the offender had a history of domestic violence and non-compliance with court-ordered community based sentencing options.

    Although the offender pleaded guilty, the Court was reluctant to accept his expressions of remorse, particularly given his partial attribution of blame to the victim in the Sentencing Assessment Report. The Court referred Munda v Western Australia (2013) 649 CLR 600 at [54]-[55] which held that the State has an obligation 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’. The Court noted the offender’s history of drug abuse at [24]-[29], but did not accept that a piece of oral evidence at [29] was sufficient to establish a connection between his domestic violence offending and his substance abuse. The offender’s prospects of rehabilitation were also seen to be ‘guarded’ ([45]).

  • 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]).