Barber v Director of Public Prosecutions (No 2)

[2021] NSWDC 8

District Court

New South Wales

Medium Neutral Citation:

Barber v DPP (No 2) [2021] NSWDC 8

Hearing dates:

03 February 2021

Date of orders:

03 February 2021

Decision date:

03 February 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 35

Catchwords:

CRIMINAL LAW – severity appeal – domestic violence offence – whether appellant’s subjective apprehension of violence relevant – comparison of relevance of objective threat to appellant

Legislation Cited:

Crimes Act1900 (NSW), s 91

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 9, 21A

Cases Cited:

MundavWestern Australia (2013) 249 CLR 600

Category:

Principal judgment

Parties:

Mr A Barber (Appellant)
The Director of Public Prosecutions (Respondent)

Representation:

Counsel:
Mr Matthew McAuliffe for the Appellant
Solicitor Advocate for the Direct of Public Prosecutions

Solicitors:

File Number(s):

2019/60843; 2019/60824

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

21 February 2020

Before:

Magistrate L McManus

File Number(s):

2019/60843; 2019/60824

Judgment

1. Earlier today, I dismissed the appellant’s appeal against conviction of committing the offence of common assault, being contrary to s 61 of the Crimes Act1900 (NSW). The offence was committed by the appellant against his then partner (who I will henceforth refer to as the victim), at the family home in Campsie, on 24 February 2019.

2. In the Burwood Local Court, Magistrate McManus sentenced the appellant to a community corrections order, subject to the standard conditions, for a period of 9 months. In light of his unsuccessful appeal against the conviction, the appellant now seeks to appeal the severity of that sentence.

3. In Counsel for the appellant’s short submissions, he contended that this Court should make a conditional release order under s 9 of the Crimes (Sentencing Procedure) Act1999 (NSW) (‘CSP Act’).

NATURE OF THE OFFENDING

4. In dismissing the appeal against conviction, I accepted the learned Magistrate’s account of how the assault actually occurred and there was no material dispute as to what led to the assault.

5. The immediate context was that the appellant was engrossed in playing a computer game on his laptop, on the couch. The victim was trying to attract his attention. She wanted sunscreen to be fetched from the car and, for reasons not now material, wanted the appellant to do it. The appellant ignored her requests. This led to the victim throwing a set of keys at the couch and eventually, also a make-up bag, in the appellant’s direction; striking the laptop computer and causing disruption to the continuous flow of the computer game.

6. More broadly, I found that the relationship, such as it appeared in the evidence, for at least over a year was somewhat tempestuous, and that the victim had particular difficulty controlling her emotions. This led to a range of incidents in which actual or threatened physical conduct or threats to damage the appellant’s property were made by the victim. In particular I found that whether or not the appellant’s state of mind was reasonable, it was possible that the appellant perceived that on the occasion of the subject of the incident, that the victim would take further steps that might threaten his person or his property. There is no doubt, however, that the appellant was at least partly angered and frustrated by the disruption of his enjoyment of his computer game.

7. In response to the victim’s conduct, the appellant got up and grabbed the victim. She was located about a metre away from him (and not moving forward in his direction) and had nothing in her hand. Thereafter he forced the victim to the ground and grabbed her neck, choking her for at least a period of 5 seconds.

8. The objective gravity for conduct of this kind is usually gauged by assessing the extent and nature of the injuries; the degree of violence; and the offender’s state of mind. It may be accepted that the conduct was impulsive and was not planned.

9. Counsel for the appellant emphasised that although it may not constitute a defence to the offence, there was a level of provocation by the victim which contributed to the appellant acting in the way that he did. I think that the consideration of provocation is better deferred in consideration of the appellant’s subjective case, which I will shortly turn to. Otherwise, he submitted very little.

10. Ms Crown submitted that the offending conduct fell at or above the mid-range of serious conduct for offending of this kind. She emphasised the context of it being domestic violence and cited the circumstance of the distress evinced by the victim when she rang the police.

11. Certainly the finding that the Magistrate made, not interfered with by me, that the victim was choked for 5 seconds, was very serious; even if no enduring harm was suffered. At least for the period of time in which it occurred, the victim must have been terrified. Further, to have been choked whilst she was held back with the appellant behind her added a layer of degradation.

12. To my mind, the nature of violence was significant; albeit that it was not of long duration and there is no real evidence of enduring effect, in terms of harm. I would assess the offending conduct as approaching, but just below the level of, the mid-range.

13. The Crown also submits, and there was no dispute that, as would commonly be expected in a case of this kind, the offending occurred in the victim’s home, in aggravation of the offending.

SUBJECTIVE CIRCUMSTANCES

14. Counsel for the appellant’s main point, which he put rather delicately, and was at pains not to over-emphasise, was that the appellant was provoked.

15. Provocation is a mitigating factor (s 21A(3)(c) of the CSP Act). Provocation may be relevant in various ways in sentencing: it may reduce the seriousness of the offending (in relation to culpability); it may reduce the need for specific deterrence and point to enhanced prospects of rehabilitation; and reduce the need for denunciation and general deterrence. It may bring into play the principle of mercy.

16. I consider that provocation is relevant in this context. The Crown did not dispute that the victim acted irrationally and, as I found in my reasons for conviction, was someone whose past conduct evinced a difficulty in being able to effectively control her emotions. This Court cannot say to what extent that problem was the result of her relationship with the appellant or whether it was a more temperamental or constitutional issue.

17. But the provocation was only relatively slight: it involved physical attempts by the victim to capture the appellant’s attention after verbal entreaties had failed. It was not suggested that the appellant had acted in the disproportionate way that he did in the light of earlier incidents of the kind brought to the Court’s attention. He was not angered by what the victim had done in the past. He was angered and frustrated by what the victim had done to secure his attention and disrupt his leisure.

18. Associated with the notion of provocation is the consideration of the appellant’s culpability. I found that it was at least reasonable that the appellant subjectively apprehended that he, or his property, might be the subject of further harm inflicted by the victim; even if that may not have been objectively reasonable. This, to some degree, reduces his culpability and moderates only to a small degree, the significance of general and personal deterrence.

19. Since my initial drafting of these reasons, I have read the sentencing remarks of the learned Magistrate. I agree with her Honour that, from an alternative perspective, if the appellant was actuated by concern about what the victim might have done on the basis of past incidents, the question may be asked why he remained with her, or at least, why he had not taken other steps to protect himself and his property.

20. The appellant did not give evidence on this severity appeal. Representations were made on his behalf by his Counsel from the Bar table. Nevertheless, much of what the appellant’s Counsel submitted was not disputed.

21. I was informed that he is 26 years of age, or 25 at the time of offending. He has no prior criminal convictions. To that extent, he is a person of good character.

22. I was informed that he was brought up by parents who were drug users and that he had a heightened support role for the care of his sister. He works as a machine operator and has at all material times been gainfully employed.

23. He has been diagnosed with depression, although there was no suggestion that this played any causative role in the offending conduct.

24. None of this was disputed.

25. More contentiously, it was submitted on the appellant’s behalf that, although he contested the charge upon which he was convicted with vigour, including attacks, at his behest, upon the credibility of the victim, he later apologised, more than once, to the victim. To this extent, he had shown remorse. In my view, evidence of that kind is not appropriate to be led through a legal representative where the appellant is seeking to persuade this Court to intervene in a penalty imposed by the Magistrate. I am unable to find remorse or contrition.

26. Counsel for the appellant says that the relationship with the victim has subsequently ended. He is subject to an AVO. This being so, and given that he has not been in any trouble with the authorities since the event two years ago, I should find that his prospects of re-offending are slight. I accept that he is hardly likely to re-offend against this particular victim, but on the evidence presented before the Court on this appeal, I am unable to generalise further, given the particularly violent nature of the conduct in response to what, objectively, should be regarded as trivial action which prompted the appellant to act as he did.

27. No evidence, specifically, was led as to the appellant’s good character. I was informed that he is in a relationship with another partner, but that partner did not give evidence to support him and no one else from the community did as well.

28. There was very little to point to his prospects of rehabilitation beyond the uneventful nature of his behaviour since his arrest. The Court was not pointed, for example, to treatment, pharmacological or otherwise, he has received.

INSTINCTIVE SYNTHESIS

29. I have considered the sentencing principles in s 3A of the CSP Act. I also have regard to the maximum penalty, and what was the limited extent of the Local Court’s jurisdiction which, to some extent, coincides with this Court’s (2 years’ imprisonment or, in the case of the Local Court, and/or $5,500).

30. As indicated, Counsel for the appellant urged upon me that a conditional release order should be imposed. It was suggested that in the light of his background, the appellant has done better in his life than might have been supposed; that he has some purpose, in the sense of a desire to undertake study at university, and that he has had a previously ‘clean record’.

31. I accept that consideration of subjective deterrence does not loom large; although it is not irrelevant in the view of his absence of remorse and any tangible acknowledgment of responsibility for his conduct. But I am most concerned about the violent nature of the offending conduct. General deterrence looms as the paramount consideration. For conduct of this kind, the protection of the community is also significant.

32. In addition, I am conscious that this is no ‘garden variety’ assault between strangers, but an assault perpetrated in a context of domestic violence. In that connection, the High Court in Munda v Western Australia (2013) 249 CLR 600 at [54] referred to the role of the criminal law in the context of domestic violence as including:

“the long-standing 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…”

33. Closely associated to this is the need to hold the offender to account.

34. I have considered each of the matters set out in s 9(2) of the CSP Act. Having regard to the serious nature of the offence, the degree of violence of and general seriousness of the conduct, and the context in which it occurred, which, as the Crown noted, features the exertion of physical control, the offending conduct is not of such triviality or insignificance as to incline me to accept the appellant’s submission that a conditional release order be imposed.

ORDER

35. The appeal against the severity of the learned Magistrate’s sentence is dismissed.

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Decision last updated: 05 February 2021