Director of Public Prosecutions v Rennie

[2019] NSWLC 11

Local Court

New South Wales

Medium Neutral Citation:

DPP v Rennie [2019] NSWLC 11

Hearing dates:

1 October 2019 (submissions)

Date of orders:

2 October 2019

Decision date:

02 October 2019

Jurisdiction:

Criminal

Before:

P Stewart LCM

Decision:

Imprisonment 3 years 2 months with non-parole period 2 years.

Catchwords:

SENTENCING – Particular Offences – Domestic violence – Contravene AVO – Common Assault – Indecent Assault - repeat domestic violence offender – contravention of domestic violence orders involving acts of violence – need for both specific and general deterrence – need to protect the community – recognition of harm to the victim – poor prospects of rehabilitation

Legislation Cited:

Crimes Act 1900 ss 61, 61L (repealed)

Crimes (Domestic and Personal Violence) Act 2007 s14

Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 21A(2), 53A, 66

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

Cherry v R [2017] NSWCCA 150

Munda v Western Australia [2013] HCA 38

R v Doan (2000) 50 NSWLR 115

R v Edigarov [2001] NCWCCA 436

R v Hamid [2006] NSWCCA 302

R v Patsan [2018] NSWCCA 129

R v Thomson; R v Houlton (2000) 49 NSWLR 383

The Queen v Kilic [2016] HCA 48

Vragovic v R [2007] NSWCCA 46

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW) (prosecution)
Brian Rennie (defendant)

Representation:

Prosecution: Mr E Freelander, Solicitor, DPP (NSW)

Defendant: Mr S Wright, Solicitor, Legal Aid Commission

File Number(s):

2018/361652

Publication restriction:

There is to be non-publication of any material that might tend to identify the complainant

Judgment

Offences and the Pleas

1. The offender Brian Rennie pleaded guilty on 20 August 2019 to offence of ‘Contravene Apprehended Violence Order (AVO)’ contrary to section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (two counts), Common Assault (domestic violence related) contrary to section 61 of the Crimes Act 1900 (two counts) and Assault with Act of Indecency (domestic violence related) contrary to section 61L of the Crimes Act 1900 (repealed 30.11.2018).

2. The guilty pleas were entered immediately upon a strictly indictable matter being withdrawn. A discount is allowed of 25% for the utilitarian value of those guilty pleas: see R v Thomson; R v Houlton (2000) 49 NSWLR 383.

Maximum Penalties

3. The maximum penalty for Contravene AVO is 2 years imprisonment and/or a fine of up to $5,500.

4. The maximum penalty for common assault is 2 years imprisonment.

5. The maximum penalty for Assault with Act of Indecency is 5 years imprisonment on indictment, 2 years in the Local Court. The principles enunciated in R v Doan (2000) 50 NSWLR 115 at [35] per Grove J have application, namely that the jurisdictional limit of the Local Court is not reserved for worst case.

Facts

6. A statement of Agreed Facts was tendered. They can be summarised as follows.

7. The offender Brian Rennie was 30 years old at the time of the offences. The victim, LH, was 19 years old. The offender and victim were in a domestic relationship.

8. In early 2018 the offender moved into the victim’s home because he needed somewhere to stay. Soon after he moved in, he became verbally and physically abusive and accused the victim of cheating on him.

9. In April 2018 the offender had an argument with the victim and physically prevented her from leaving the house. The victim subsequently made a statement to police and an Apprehended Violence Order was served upon the offender. The offender moved back in with the victim in August 2018 after he was released to parole. He suggested to LH that they have access to each other’s phones, so the victim gave her passcode to Mr Rennie.

10. On Sunday 4 November 2018, the offender accused LH of posting naked Facebook photographs. The victim ended the relationship and asked the offender to leave, which he refused. She called police and Mr Rennie left prior to their arrival. LH told police she would allow Mr Rennie to remain at the house so that he could pack his belongings and save enough money to move out.

11. A few weeks after they had ended their relationship, the offender was in the kitchen with the victim and grabbed her mobile phone from her. He put his leg behind hers and pushed her to the ground and pinned her down with his left leg on the victim’s throat. He then grabbed her left wrist with his right hand and squeezed her wrist, twisting her hand backwards to get her hand open and access to her fingers. He then used her fingers on the fingerprint scanner to try and access her locked mobile phone.

12. The pulling back of the victim’s fingers caused “a fair amount of pain”. The victim said, “Please leave me alone…don’t touch me…please let me leave, just go.” The victim tried to scream but was unable to as the offender was still on top of her. The incident lasted for about one minute and the offender did not manage to access her phone. The offender told the victim that he was sorry, and said, “You’re the luckiest girl in the world to have me. I know I have problems and I’m trying to fix them, but you need to help me.” The victim did not call the police after this incident because the offender told her not to.

13. After this night, the victim began sleeping regularly on the couch. After she fell asleep, the offender would carry her to the bedroom. She would go back to the couch, and he would again carry her to the bedroom. He would say to her, “I’m your husband, you’re my wife, let’s stop the argument and go back to bed.” The victim would say to the offender, “Stay on your side of the bed, stop touching me.” The offender would respond, “My wife, it shouldn’t be a problem, stop being ridiculous.” The offender and victim had consensual sex three or four times during this period.

14. On the morning of 21 November 2018, the victim and offender had an argument. When he returned later that day, the victim was having a bath with the door closed. The following conversation took place.

Victim: “Please leave I’m trying to have a bath.”

Offender: “I just want to look at your phone to see if you have texted anyone today.”

Victim: “I don’t see the point; you can wait ‘til I get out of the bath.”

Offender: “Can I please look at your phone to see if you have texted anyone today?”

Victim: “Can this please wait, we’re no longer in a relationship, can you please wait?”

Offender: “You’re recording me secretly.”

15. The offender hit the top of the victim’s mobile phone out of her hands and it fell into the bath. The victim retrieved the mobile phone from the water. The victim got out of the bath, put on her bathrobe and tried to put her phone in her pocket, but the offender grabbed the phone from her hand. The following exchange took place:

Victim: “Give it back.”

Offender: “I’m not going to give it back until you unlock it and let me look through it.”

Victim: “It’s my phone, give it back to me. I can’t unlock it unless you give it back.”

16. The offender had his back to the victim; she reached over his shoulders to retrieve her phone. As the victim leaned over the offender, he bent down and stood up, lifting the victim off the ground. The offender then jumped backwards towards the bed and the victim landed on her back on the mattress, with the offender landing on top of her. The victim felt pain on her stomach and chest, and she felt winded, trying to catch her breath. The offender rolled onto the side of the bed and as he did so, the victim’s robe opened so that she was lying naked, face up on the bed.

17. The offender tried to instigate sexual intercourse to stop the argument, which had occurred in the past. The offender said, “Fuck this”, and wedged his knees between the victim’s legs, forcing them to stay open. The offender touched the outside of the victim’s vulva using two or three fingers for approximately 30 seconds to one minute. The victim felt pain, as it felt like the offender’s nails were scratching her vulva. The victim cried and said ‘stop’. The victim tried to get away and used both her hands to claw at the offender’s back. The offender got off the victim. She curled up into a ball and stayed on the bed.

18. The victim began to experience the symptoms of a panic attack, as though she could not breathe and was going to throw up. The victim said, “I feel like I’m going to throw up.” The offender said, “I haven’t assaulted you, I thought you wanted me to do that….If you just did what I said, none of this would have happened.” The victim (got up) and ran towards the front gate, as she reached the bedroom window, the offender picked the victim up and carried her, horizontal to the ground, back into the house. The following exchange took place:

Victim: “Let me go, I should be allowed to go.”

Offender: “Shut up, stop being an idiot.”

Victim: “I’m calling 000”.

Offender: “You’re a dog. You always do this. You go back on your words.”

19. The victim did not call 000. A friend saw the victim on the ground crying, breathing very fast, holding her belly and rocking back and forth. The victim disclosed the attack and she was taken to Broken Hill Hospital. The victim informed the nurse that she had been “body slammed” but did not disclose the indecent assault.

20. On Thursday 22 November 2018, police spoke with the victim and she disclosed the attack. The victim was unable to finish the statement because she became upset and was tired. The victim was driven home by police. The offender ran from the home when he saw police.

Criminal Record

21. The offender is 31 years old. When he was 18 years old, he appeared in court for offensive language and failing to comply with a direction. He was placed on a good behaviour bond for Contravening an AVO at the age of 23, and that was subsequently called up upon committing further offences of Contravene AVO. He was imprisoned for 3 months on the breach, with further wholly concurrent sentences of 7 months for five separate Contravene AVO matters and one count of Use Carriage Service to Menace/Harass or Offend.

22. In 2011, the offender committed a further offence of Contravene AVO and was placed on a 3 year supervised good behaviour bond and fined $1,000.

23. In 2015, he was convicted and fined for a domestic violence related common assault. Two months later, he was placed on a section 9 good behaviour bond for a domestic related Damage Property matter and convicted of failing to appear at court. Later that year, he was convicted for possession of a prohibited drug, and the bond called up, revoked and in lieu he was sentenced to imprisonment for 1 month. He was sentenced to 9 months imprisonment for two counts of domestic violence related Common Assault and a further count of Contravene AVO. There was also a 3 month fixed term for another Contravene AVO matter. Further, he was placed on a good behaviour bond for Goods in Custody – the bond called up the following year and revoked with a fine imposed in lieu.

24. Only 3 months later, in February 2016, the offender was again dealt with for a further count of Contravene AVO. He was placed on a supervised good behaviour bond for 18 months. The bond was called up 3 months later and he was imprisoned for 2 months. This sentence was wholly concurrent with a 4 months sentence for a further offence of Contravene AVO which expired in July 2016.

25. In June 2017, the offender was placed on a good behaviour bond for Attempting to Bring Thing into a Place of Detention without Authority. He was also given 3 months imprisonment for another Contravene AVO offence ending in November 2017.

26. In August 2018, the offender was sentenced to 2 months by fixed term for Resist Police, and 8 months imprisonment backdated to 2 June 2018 for a further offence of Contravene AVO. He was paroled on 13 August 2018 after serving only 2 months.

27. The offender’s criminal record affords him no leniency. I shall refer to his record again when discussing various authorities for sentencing persons for domestic violence offences.

Conditional Liberty

28. The offender was on conditional liberty at the time of the offences for which he is to be sentenced by virtue of him being on parole for Contravene AVO. The commission of further offences whilst on conditional liberty is an aggravating factor per section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.

Sentencing Assessment Report

29. The sentencing assessment report indicates that the offender was born and raised in Broken Hill. The offender commenced drinking alcohol at the age of 12. He has previously used illicit drugs. Neither drugs nor alcohol are currently an issue for the offender.

30. He told the report writer that he believes the current offending occurred due to a miscommunication. I reject that. His comments are a clear indication of his lack of empathy for the victim and lack of insight as to his offending. In fact, the report on page 4 notes that Mr Rennie has previously reported to Community Corrections how his actions towards a victim of his domestic violence were misinterpreted and that he had done nothing wrong.

DPP Submissions on Sentence

31. Mr Freelander for the DPP provided written submissions. The offender’s parole was revoked on 23 November 2018. He was arrested on the current matters on 23 November 2018, and I am informed that Mr Rennie served the balance of parole in prison from 26 November 2018 to 4 February 2019. The DPP submit that the time in custody solely referable to the current offences; therefore Mr Rennie has remained bail refused from 4 February 2019 to today. I note the period 23 November to 25 November inclusive should also count as time in custody solely referable to these offences.

32. It was submitted that the section 5 threshold was crossed in relation to each offence. The Court was reminded of a line of authorities dealing with sentencing of domestic violence offenders.

33. The Crown submits that each offence is a serious example of their type when considered in the context of a domestic relationship characterised by escalating violence. The objective seriousness of each matter should be considered in the context of the wider course of conduct rather than in isolation.

34. The offences occurred in the home of the victim, which is an aggravating factor per section21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999.

Defence Submissions

35. It was appropriately conceded that the section 5 threshold had been crossed.

36. It was submitted that the course of conduct was the same for counts 2 and 3 (Common Assault and Contravene AVO), and for counts 4 and 5 (Common Assault and Contravene AVO).

37. The offender has two children who reside interstate and he has limited contact with them. He has family living in Broken Hill, but due to him being on protection, he cannot be housed at the Broken Hill Correctional Centre. It was submitted that the fact the offender is in protection and the fact that his immediate family won’t readily be able to visit him in prison should be taken into account to make a finding that the conditions in which the offender will serve his sentence will be more onerous.

38. The offender works as a machine operator and a truck driver when at liberty.

39. Mr Rennie had problems in the past with drugs and alcohol; however they are not issues facing him presently.

40. It was submitted that the offender is apologetic – but for reasons given above, that must be firmly rejected.

41. Finally, it was submitted that whilst the time solely referable to this matter commenced from 4 February 2019, the Court has discretion to commence the sentence from an earlier date.

General Remarks

42. There is a long line of authority from superior courts in relation to sentencing principles for domestic violence offenders, and in particular repeat domestic violence offenders. Some of those authorities are cited in R v Patsan [2018] NSWCCA 129, a decision referred to in the DPP submissions. I will refer to some of those cases, as well as others.

43. In R v Edigarov [2001] NCWCCA 436 Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]:

“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.”

44. In R v Hamid [2006] NSWCCA 302 Johnson J (Hunt AJA and Latham J agreeing) said 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.”

45. Justice Adams (Howie and Price JJ agreeing) said in Vragovic v R [2007] NSWCCA 46 at [33] on the issue of sentencing domestic violence offenders:

“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…”

46. The remarks in that case are particularly apposite to the current sentencing matter.

47. In Munda v Western Australia [2013] HCA 38 at [54] the Court referred to:

“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.”

48. The Court recognised the role of criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection: see Patsan (supra) at [41].

49. In The Queen v Kilic [2016] HCA 48 at [21], it was said that:

“Current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence.”

50. In Patsan (supra) at [43], it was noted that:

“The approach sanctioned by the High Court in Munda v Western Australia and The Queen v Kilic has frequently been applied by this Court: see, for example: Cherry v R [2017] NSWCCA 150 at [78]-[79]; and Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]-[84].”

51. In Cherry (supra) at [79], it was said that:

“It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.”

52. Mr Wright appearing for the offender made submissions about the Contravene AVO and associated charge or charges being part of the one course of conduct.

53. In Cahyadi v R [2007] NSWCCA 1, Howie J saidat [27]:

“ There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both”.

54. Offences of domestic violence occur whether or not there is an AVO in force. A domestic violence offence that occurs in contravention of such an Order gives rise to a separate offence under section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

55. Per section 14(4) of the (Crimes Domestic and Personal Violence) Act 2007:

“Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.”

56. Although the facts attach notations indicating facts that constitute the various offences, the indecent assault is the latter part of a continuing course of violent conduct. The second Contravene AVO matter, sequence 4, upon any reading of the facts encompasses the actions of the offender immediately prior to hitting the victim’s phone out of her hands whilst she is in the bath to the indecent assault and subsequently picking her up when she attempted to leave the premises and carried her back inside.

57. While each offence of 21November, being Common Assault and the Indecent Assault, are independently capable of constituting a breach of the AVO, it is the overall conduct that breaches the Order.

58. The sentences for each Contravene AVO matter will not be wholly concurrent.

59. I would assess the offender’s prospects of rehabilitation as being poor. Supervised bonds, sentences of imprisonment and court orders by way of AVOs have failed to stop this offender from committing domestic violence related offences.

60. I note his risk assessment on page 2 of the sentencing assessment report to assist in the prediction of sexual recidivism as being ‘above average.’

61. I have already noted his lack of victim empathy, lack of insight, and the remarks made previously by him about ‘miscommunication’.

Objective Seriousness

62. In assessing the objective seriousness of each offence, I take into account the context of the offending. It all occurred in the home of the victim in circumstances where their prior intimate relationship had ended.

63. The first assault involved tripping his former partner to the ground and pinning her down with his left leg and knee on her throat. The victim was incapacitated by those actions, enabling the offender to further assault her by grabbing her wrist and squeezing it, twisting her hand backwards so as to access her fingertip to gain access to her phone. The objective seriousness is above mid-level.

64. The corresponding Contravene AVO matter is of similar objective seriousness.

65. In relation to the second assault, which commenced with the slapping of the phone in the bathtub and continued with him picking up the victim and jumping backwards, ‘back-slamming’ her onto the bed, landing on top of her, winding her and causing pain is just above mid-level objective seriousness.

66. The Indecent Assault occurred immediately following the slamming of the victim onto the bed. The relationship was already over. Through his actions, the victim’s bathrobe opened, leaving her vulnerable due to being winded and in pain, naked, lying face up on the bed.

67. The offender then forcefully assaulted the victim by forcing her legs apart and violently touching her on the outside of her vulva with two to three fingers for between 30 seconds and 1 minute.

68. The objective seriousness of this matter is very high. The objective seriousness of the Contravene AVO (sequence 4) is also very high.

69. I have regard to the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999.

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

70. I am satisfied, having considered all possible alternatives, that no penalty other imprisonment is appropriate on all charges – section 5 of the Crimes (Sentencing Procedure) Act 1999.

71. I propose dealing with the offender on those charges by way of an aggregate sentence per section 53A of the Crimes (Sentencing Procedure) Act 1999. Having applied the discount for the utilitarian value of the plea, considered the objective seriousness as well as aggravating and mitigating factors, and the principle of totality, I have determined the indicative sentences as follows:

Offence (H69484050)	Indicative sentence
Contravene AVO (sequence 2)	13 months
Common Assault (sequence 3)	13 months
Contravene AVO (sequence 4)	16 months
Common Assault (sequence 5)	12 months
Indecent Assault	2 years

72. The aggregate sentence is one of 3 years 2 months.

73. As the sentence exceeds 3 years, there is no alternative to full time custody. In any event, any sentence for these offences other than full-time custody would fail to give proper weight to the purposes of sentencing and to the case law regarding the sentencing of domestic violence offenders

74. The offender’s conduct was controlling, manipulating, demeaning, shameful, cowardly and violent. His offending behaviour is denounced.

75. I note that the offender was in custody from 23 November 2018. It is the case that his parole was revoked from that date and from 26 November 2018 to 4 February 2019 he was in custody both for revocation of parole and these offences.

76. In sentencing the offender I must have regard to the principle of totality. I therefore must have regard to the sentence that he was serving, even though on parole, at the time of these offences. Having taken that offence into account, I have reduced the sentence to 3 years and 2 months. Had I not been required to consider the matter for which he was on parole, a longer sentence would have been imposed. I have however taken into account the aggravating factor of him being on parole.

77. I will backdate the sentence to 23 November 2018.

78. I will make some allowance for the fact that Mr Rennie is an Aboriginal man who won’t be able to enjoy the frequency of visits that he might enjoy had he been housed in Broken Hill prison. I also make some allowance for the fact that serving his sentence on protection may tend to make his time in custody more onerous.

79. There were no other submissions relating to special circumstances.

Orders

80. The offender Brian Rennie is sentenced by way of aggregate sentence to a term of imprisonment of 3 years and 2 months from 23 November 2018 to 22 January 2022.

81. The non-parole period is 2 years from 23 November 2018 to 22 November 2020.

Magistrate P Stewart

Broken Hill Local Court

2 October 2019

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Appeal Note: A sentence appeal to the NSW District Court in this matter was upheld in part and the term of imprisonment was varied to 2 years 6 months, with a non-parole period of 1 year 3 months.

Decision last updated: 29 September 2021