Perrin v R

[2021] NSWDC 408

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Perrin v R [2021] NSWDC 408

Hearing dates:

6 August 2021

Decision date:

17 August 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

The sentence appeal is upheld in part. I confirm the conviction but vary the sentence imposed by the Local Court; For sentence see [126].

Catchwords:

APPEAL - Appeal against sentence

CRIME – Domestic violence offences- multiple offences - Reckless wounding- assault occasioning actual bodily harm – common assault

CRIMINAL PROCEDURE− accumulation of sentences on existing Local Court sentences – was the statutory limit of 5 years in s58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) exceeded?

STATUTORY INTERPRETATION - s 58 Crimes (Sentencing Procedure) Act 1999 (NSW) - comity with Supreme Court decision- interrelationship of ss 44, 47 s 58 Crimes (Sentencing Procedure) Act 1999- strict construction where liberty of the subject is concerned

SENTENCING — Appeal against sentence — Powers of court — Appeal to the District Court

SENTENCING - Relevant factors on sentencing - Aboriginal offender –deprived background– objectively high moral culpability- subjective reasons to reduce moral culpability- history of disadvantage - young offender – delay - early guilty plea – victim vindication – protection of the community- giving effect to guilty plea when offences disposed of summarily are serious - summary jurisdictional limit on maximum penalties- -accumulation on existing sentences- totality principle summary jurisdictional limit on cumulative sentences

Legislation Cited:

Crimes (Appeal and Review) Act 2000

Crimes Legislation Further Amendment Bill 2003 (NSW)

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act1986

Mental Health Act 2007

Cases Cited:

Alesbhi v R; Esbhi v R [2018] NSWCCA 30

Al-Katebv Godwin (2004) 219 CLR 562; [2004] HCA 37

Attorney General’s Application No. 1: (2002) 56 NSWLR 146

BP v R [2010] NSWCCA 159

Brough vDirector of Public Prosecutions [2014] NSWSC 1396

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chenhall v R 2021] VSCA 175

Cherry v R [2017] NSWCCA 150

Clarke-Jeffries v R [2019] NSWCCA 56

Courtney v R [2007] NSWCCA 195; 172 A Crim R 371

Devaney v R [2012] NSWCCA 285

DM v R [2005] NSW CCA 181

DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

Engert v R (1995) 84 A Crim R 67

Fernando v R (1992) 76 A Crim R 58

Hoskins v R [2021] NSWCCA 169

Howard v R [2019] NSWCCA 109

Hurst v R [2017] NSWCCA 114

Jeffries v R [2008] NSWCCA 144; (2008) 185 A Crim R 500

JM v R [2014] NSWCCA 297

Kennedy v R (2008) 181 A Crim R 185

Kentwell v R (No 2) [2015] NSWCCA 96

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Liles v R (Cth) [2014] NSWCCA 289 at [45]

Markarian v The Queen (2005) 228 CLR 357

Martin v R [2014] NSWCCA 124

Mill v The Queen (1988) 166 CLR 59

Mill v The Queen (1988) 166 CLR 59

Moodiev R [2020] NSWCCA 160

Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Postiglione v R [1996] 189 CLR 295; [1997] HCA 26

R v Burton [2008] NSWCCA 128

R v Cahyadi [2007] NSWCCA 1; (2007] 168 A Crim R 41

R v Derbas [2004] NSWCCA 174

R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115

R v Gordon (1994) 71 A Crim R 459 at 466

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Hookey [2018] NSWCA 147

R v Israil [2002] NSWCCA 255

R v Kalache [2000] NSWCCA 2

R v Knight [2005] NSWCCA 253 :(2005) 155 A Crim R 252

R v Lewis [2014] NSWSC 1127

R v MJB [2014] NSWCCA 195

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Stoneham [2021] NSWSC 735

R v Thomson; R v Houlton [2000] NSWCCA 309: (2000) 49 NSWLR 383

RvTodd [1982] 2 NSWLR 517

R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38

Ryan v R [2017] NSWCCA 209

Smith vCorrective Services Commission (1980) 147 CLR 134

The Queen v Kilic (2016) 259 CLR 256

Veen v R (No 2) 164 CLR 465; [1988] HCA 14

Weininger v The Queen (2003) 212 CLR 629

Worboyes v R [2021] VSCA 169

Texts Cited:

Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5

Category:

Principal judgment

Parties:

Cody Perrin (the appellant)
Director of Public Prosecutions (the respondent)

Representation:

Solicitors:
Mr M Ward, Morrisons Law (for the appellant)
Ms T Lasschuit (for the respondent)

File Number(s):

2020/00054156

 Decision under appeal 

Court or tribunal:

Wollongong Local Court

Jurisdiction:

Local Court Crime

Date of Decision:

21 June 2021

Before:

McGowan LCM

File Number(s):

2020/00054156

Judgment

Introduction

1. Cody Perrin was born in 1996. In 2015 he began a relationship with the complainant. She was 9 years older than him and had a child, then aged 4. Although they did not live in the same house Perrin was a regular visitor. The complainant had a mental illness. He had an undiagnosed mental illness. One area they bonded over was the use of illicit drugs but the complainant stopped her drug use when she became pregnant to him in 2016. He did not stop his drug use. Their child was born in early 2017.

2. From soon after they first met until September 2019 Perrin committed a significant number of assaults on the complainant. After his arrest in 2020 he pleaded guilty to 16 offences. Another 6 were placed on a Criminal Procedure Act1986 Form 1. Their number, their severity and the accompanying acts of humiliation and degradation justified considerable custodial sentences. On 24 June 2021 at Wollongong Local Court (WLC), Magistrate McGowan sentenced Perrin to an aggregate sentence of 5 years with a non-parole period of 3 years and 2 months. Her Honour directed the sentence commence on 19 August 2020: s 47(2)(a) Crimes (Sentencing Procedure) Act 1999 “C(SP) Act”. He can be considered for parole on 18 October 2023.

3. When he was formally arrested for these matters on 19 February 2020 Perrin was in custody serving two other concurrent sentences that had been directed to commence from the date he went into custody on 22 September 2019. The last of those sentences expired on 21 November 2020.

4. He was not sentenced for these earlier matters during the currency of those sentences. A guilty plea was entered at WLC on 19 May 2021. He was not sentenced until 24 June 2021. His sentence was backdated so as to be partly concurrent and partly cumulative on those now expired earlier sentences. His total accumulated sentence was just under 5 years 11 months.

5. As is his right Perrin has appealed against that aggregate sentence to the District Court: s11 Crimes (Appeal and Review) Act 2000 “C (AR) Act.” Accordingly, I am obliged to “rehear the matter and determine it based on the evidence given in the Local Court and any fresh evidence put before me”: s17 C (AR) Act. It is important to note, as here, that a judge rarely has the benefit of reasons given by the Magistrate.

6. Both here and in the Local Court, the sentencing exercise and the application of proper principle was complicated by the number and relative seriousness of most of the offences. But the Appellant is also entitled to have his subjective case taken into account and in the ordinary course should receive some discernible benefit for his guilty pleas.

7. The Appellant gained an advantage by having his matters dealt with in the Local Court as any indicated sentence cannot exceed the summary jurisdictional limit set by the Criminal Procedure Act1986 and that Court cannot impose cumulative sentences longer than 5 years: s58 C (SP) Act.

8. For the Director of Public Prosecutions (DPP), Ms Lasschuit, Solicitor (who also appeared in the Local Court), submitted that given the severity of the offences individually and collectively her Honour, even making allowance for the guilty pleas, properly came to indicated sentences that had to capped at her jurisdictional limit. And similarly, her 5 year sentence had to be capped and would have been longer had she an unlimited jurisdiction.

9. Ms Lasschuit also submitted that given when her Honour imposed the sentence she was not bound by s58 C (AR) Act; relying on a recent decision of Justice Ierace - R v Stoneham [2021] NSWSC 735. That decision was handed down the same day her Honour sentenced the Appellant.

10. The prosecution case here is clear and simple: taking into account all relevant factors - many of the individual matters justify sentences in excess of the jurisdictional maximum, even after full allowance is made for subjective factors and the guilty plea. Further, accumulation of sentences was also required and, even with proper allowance for the principle of totality, the aggregate sentence would exceed 5 years and would be capped at that point. This is what Magistrate McGowen did and there was no error in what she did. To the contrary, the DPP submit, Her Honour’s sentence was an appropriate one and on appeal there is no reason to vary it.

11. For the Appellant, Mr Ward, Solicitor, submits that there must be some allowance not just for the fresh evidence tendered on appeal but also some demonstrable benefit for the pleas of guilty. Further, he suggests that my independent consideration of each count requires that for many of the offences, unlike her Honour, I indicate a sentence below the jurisdictional maximum. Although error is not required to be shown in sentence appeals Mr Ward suggested her Honour erred in two respects:

1. First, she accumulated this 5 year sentence on the other sentences imposed by WLC - a breach of s 58 C(SP) Act. And,

2. Secondly, she failed to allow for the plea of guilty in the sentences imposed. There was no obvious indication of a 25% reduction in the indicated sentences or in the aggregate sentence imposed.

12. Further, he submitted a detailed psychological report now before this court (which was not available to Her Honour) raised a number of matters that called for a more lenient disposition.

Chronology

13. The following dates are important:

• 1996 - Perrin born.

• 2015 – Perrin commences relationship with complainant.

• 2015 – The first offences present/appeal matter.

• 19 November 2015 - ADVO served.

• 19 February 2016 - Arrest for breach of ADVO.

• 26 February 2016 - Arrest for unrelated summary offences.

• 16 March 2016 - WLC for breach of ADVO - s 10 dismissal.

• 2 May 2016 - Fines for unrelated summary offences.

• 20 May 2016 - Breach ADVO.

• 20 June 2016 - Arrest for breach ADVO.

• 24 August 2016 - WLC fine for breach ADVO.

• 10 September 2016 - breach of ADVO and arrest.

• 5 October 2016 - WLC fine and s 9 bond for breach of ADVO.

• 14-15 September 2016 - Breach of ADVO, destroy property and assault and arrest.

• 10 June 2017 - stalk and intimidate charges.

• 1 September 2017 – Sentence WLC - 150 hours community service imposed for breach of ADVO.

• 1 December 2017 - Last offences in present/appeal matter.

• 8 February 2018 - WLC s 9 Bond for a stalk and intimidate offence.

• 5 July 2018 - WLC call-up and arrest warrant multiple breaches.

• 9 August 2018 - WLC call-ups before the court

• 13 August 2018 - Another arrest warrant issued for call-up breaches.

• 22 August 2019 - WLC 15 month Aggregate Intensive Corrections Order (ICO) imposed for multiple breach matters.

• 22 September 2019 - Offence and for assault and destroy property.

• 22 September 2019 – Perrin in custody bail refused.

• 14 January 2020 - WLC 12 month sentence 6 month NPP for assault and destroy property from 22 September. Non-parole Period (NPP) expires 21 March 2020 - sentence expires 21 September 2020.

• 28 January 20 - State Parole Authority - ICO revoked – Balance of Parole (BOP) - ICO from 22 September 2019 to 21 November 2020.

• 19 February 2020 – Arrest at MRRC for present/appeal matters

• 29 April 2020 WLC first appearance present matters - bail not applied for refused.

• 21 September 2020 – 12 month sentence expires.

• 21 November 2020 - ICO expires.

• 19 May 2021 – WLC charge negotiations resolved - guilty pleas entered.

• 24 June 2021 – WLC - 5 year sentence for the present matters.

• 30 June 2021 - Appeal to District Court lodged.

• 6 August 2021 - First appearance District.

Agreed facts

14. There are agreed facts before the court. This is a summary.

15. The complainant and Perrin were in an intimate relationship for about 4 years between 2015 and 2018. They have a daughter born in 2017. The relationship was characterised by drug use and Perrin’s controlling and jealous behaviour toward the complainant.

May 2015 incident

Form 1 (Seq 1) – Common Assault (DV)

16. In May 2015 Perrin became angry with the complainant. He would not allow her to leave the premises alone. They went out together in a car. She was driving. He was in the passenger seat. During the drive the pair argued. He yelled at her constantly with comments such as "you're a fucking putrid slut". The complainant became upset and hit him over the mouth saying, "Don't speak to me like that". Perrin became enraged and pushed the complainant.

Seq 2 – Assault Occasioning Actual Bodily Harm (DV)

17. Perrin wanted his possessions from inside the complainant's home. As the complainant opened the door, she was grabbed by the hair and pushed into the lounge room and down to the floor. As she landed on the floor, he kicked her hard all over her body and head, causing her great pain.

18. She scrambled along the ground but he followed her and continued to kick into her. He also punched her to the head and body. Throughout this, he screamed derogatory comments into the complainant's ears so loud that it caused her to feel pain in the ears. As this occurred, he spat saliva all over her.

Seq 45 – Common Assault (DV)

19. The complainant was crying and screaming for help. Perrin placed one of his hands over her mouth and nose preventing her from screaming. This also made it hard for her to breathe. He then put his other hand around her throat and commenced squeezing, making her dizzy.

Seq 6 – Stalk/Intimidate (DV)

20. After Perrin got off the complainant. She ran to her son's bedroom. He followed her, pushed her onto her son's bed and spat on her. He threatened her and called her derogatory names.

21. Perrin then went to the kitchen and took a 20cm knife. He returned to the bedroom, waving the knife around. The complainant begged him to stop. She was pleading for her life. She believed he was going to kill her. He held the knife above his head as if he was going to stab her. He brought the knife down and pointed it at her. He lashed out at the complainant with the knife in a swooshing movement.

22. The complainant, believing she was going to be killed, attempted to wrestle the knife out of Perrin's hands whilst begging "please stop". The knife fell to the ground in the struggle. He pushed the complainant onto the bed and spat on her.

Seq 31 – Assault Occasioning ABH (DV)

23. Perrin then kicked the complainant to the vagina with such force that the complainant was in a great deal of pain. He called his mother. She arrived soon after and he left with her. As a result of the assault, the complainant bled from the vagina for about a week as well as having ringing in the ears for several days from the screaming.

July 2015 incident

Seq 7 – Assault Occasioning Actual Bodily Harm (DV)

24. Perrin and the complainant didn't speak for several days but he began messaging and calling the complainant asking for forgiveness. After about a week, he returned to the complainant's home and they recommenced their relationship.

25. A few weeks later, the complainant and Perrin began to argue. The pair were standing in the complainant's lounge room. He punched the complainant to the chest and pulled her to the ground. He sat on top of the complainant, straddling her. He was shouting into the complainant's ear so loud, the complainant's ears were hurting. He repeatedly punched and kneed her, causing bruising and swelling.

26. She curled up into a ball on her right side, leaving her left arm exposed. He repeatedly punched the complainant's left arm in the same spot. He spat all over the complainant as he did this.

Seq 46 – Common Assault (DV)

27. The complainant screamed. He placed one hand around the complainant’s throat and began to squeeze, whilst placing the other hand over her mouth and nose. He slapped her face and said, “Are you gonna be quiet?” several times until she said, “Yes.”

Seq 13 – Assault Occasioning Actual Bodily Harm (DV)

28. The complainant began crying. He continued to beat her by punching, kicking, biting and spitting for around half an hour. He stopped when she went limp and no longer moved. She said "enough, just cuddle me". She was covered in bruises and bite marks all over her body for several weeks afterwards.

Next Incident

Form 1 (Seq 9) – Common Assault (DV)

29. A few weeks later, Perrin and complainant had an argument in the lounge room of her home. He became angry and threw her to the floor and began punching and kicking her. He spat on the complainant numerous times as he did this.

The following day

Form 1 (Seq 11) – Destroy/Damage Property (DV)

30. The following day, the complainant told Perrin to pack his stuff and to get out of her house. She left the house but returned later in the day to find her home had been trashed. The furniture had been overturned, the clothes horse holding washed clothing had been broken, a mug full of coffee had been smashed into the lounge room wall, and several walls had dents and holes the size of a fist.

Seq 47 – Common Assault (second Victim)

Form 1 (Seq 48) – Stalk/Intimidate (Second Victim)

31. The following day, the complainant had a male friend visit. She received a picture message from Perrin showing him cuddling a female from behind. The complainant sent a photo back to him of herself and her friend sitting next to each other smiling.

32. Soon after, her friend went into the laundry to have a smoke. She heard him yell for help. She ran to the laundry and saw Perrin in the laundry holding him up against the wall. She yelled at him to let him go and to leave. He did not let the other man go. She began punching and kicking Perrin, trying to make him let that man go.

33. The complainant's neighbour entered the property and chased Perrin away.

October 2015

Seq 39 – Common Assault (DV)

Seq 49 – Stalk/Intimidate (DV)

34. On 14 October 2015, the complainant and Perrin had an argument in her bedroom. He punched her repeatedly to the face and body. He also kicked her all over her body. He screamed derogatory comments into her ear causing pain in the complainant's ear. He spat all over her.

35. She managed to get away, grab her mobile phone and call 000. But he grabbed the phone and terminated the call before she could say anything.

Seq 50 – Common Assault (DV)

36. She screamed. He put one of his hands around her throat and the other over her mouth and nose. She couldn't breathe. He squeezed the complainant's throat until she became dizzy. He left the complainant's home before police arrived.

Interim ADVO

37. Although the complainant did not provide police with a statement, police believed an incident had taken place and applied for (and were granted) an Appended Domestic Violence Order (ADVO) for the complainant.

38. The interim ADVO was served on Perrin on 19 November 2015 in person. The final order with the same conditions was served on him on 30 November 2015 in person with an expiration date of 25 November 2016.

February 2016 - incident 1

Seq 51 – Common Assault (DV)

39. On Perrin's birthday, Perrin was at the complainant's house, in her bedroom, despite an ADVO being in place prohibiting contact between them. Perrin wanted the drug "ice" as a present from the complainant. The complainant didn't have any money and said she couldn't buy it for him, but promised him some new shoes when she got paid. Perrin became angry desperately wanting drugs. Perrin demanded the complainant purchase the drugs "on tic", meaning buy now, pay later. The complainant refused to do this.

40. Perrin grabbed the complainant around the throat and squeezed, choking her. Her son was present. She managed to get away from Perrin and grabbed her mobile phone. He called his mother who came around soon after and took him away with her.

February 2016 - incident 1

Seq 16 – Assault Occasioning Actual Bodily Harm (DV) (Principal in the First Degree)

41. In February 2016 the complainant was scheduled under the Mental Health Act 2007 after making threats of self-harm. She was in hospital for approximately two weeks. Within two weeks of her being released from hospital, Perrin was at her house. They were cooking in the kitchen when they began to argue. Perrin became angry at her and started throwing her around the room by pushing and pulling her. Perrin punched the complainant numerous times.

42. He threw her to the ground and spat on her. He began “hocking gollies,” spitting them all over her face and body. He punched and kicked into her repeatedly while she was on the ground. He called her a "dog" and said "you wanna be a dog, I'll treat you like a dog. Get on ya hands and knees. Crawl over and cook".

43. In fear about what he would do if she didn't obey him, she began to crawl to the kitchen. She felt humiliated and decided to stand up and not do as she was ordered to do. He was enraged by this act of defiance and punched into her repeatedly. He pulled the complainant's hair so hard that clumps fell out of her scalp.

44. She sustained significant welt marks all over her body as well as bruising.

Form 1 (Seq 17) – Destroy/Damage Property (DV)

45. The complainant managed to break away and ran out of the house. She went to a friend’s home. Her friend and her partner returned with the complainant in an attempt to remove Perrin from the home. But he had left already. The complainant's home was trashed. The furniture was upturned, and her bedside lamps and photo frames had been smashed. The complainant's bedroom television was also smashed.

46. A few days later, Perrin returned to the complainant's home and they continued their relationship.

A son is born

47. During 2016, the complainant became pregnant to Perrin. The complainant was no longer consuming drugs. However, Perrin continued to smoke ice. During 2016 and early 2017, Perrin was charged with offences committed against the complainant that have already been dealt with by the courts.

July 2016

Seq 20 – Assault Occasioning Actual Bodily Harm (DV)

48. In 2016, Perrin and complainant were at the complainant’s home when they began to argue. He pinned her head to something on the outside of the bathroom window, like a downpipe or the external window sill. He pushed her head into this object with force, holding her head there, causing the complainant pain. As her did this, his finger entered her eye. He pushed his finger further into her eye until she felt the finger go behind the eyeball causing a popping noise to occur.

49. She screamed with pain "my fucking eye". He stopped immediately and pulled his hand away. He said "sorry, sorry, show me". He pulled her back inside the window as he said this. Her eye began to swell immediately. He applied a cold compress to it and allowed her to rest. The eye area swelled black and remained a deep black for several weeks after this incident.

Breach of ADVO

50. Over the next several months, Perrin was arrested several times by police for breaching his ADVO conditions, however returned to the complainant upon release each time.

February 2017

Seq 24 – Common Assault (DV)

51. Soon after the birth of their child the complainant drove to Perrin’s mother and aunt’s house so that he could spend time with their child. After his mother left he immediately started insulting the complainant about her appearance. She, feeling upset, collected her belongings and walked to her car to leave. She put the baby in her car seat. As she stood up, he grabbed her by the hair and began slamming her head into the car roof. Perrin’s aunts yelled at Perrin to leave the complainant alone.

Form 1 (Seq 25) – Destroy/Damage Property (DV)

52. Perrin then grabbed her car keys and used them to scratch the car’s roof. He then threw the keys across the road into a grassy hill. A cousin helped search for the keys and located them so that she could leave.

December 2017

Seq 27 – Reckless Grievous Bodily Harm (DV)

53. In late 2017, the complainant was pregnant to Perrin again. She was lying on her bed in her room with their now eight-month-old child. He asked her to drive him to a location. She said no and asked him to go home. He got annoyed and told her to get up so he could lay with the baby. She again said no and asked him to go home. He became angry, and an argument broke out. He placed one knee on her chest, bearing his weight down onto her. She pleaded with him to let her and the kids leave.

54. Her son entered the bedroom holding a small Swiss army knife in front of him. He yelled at Perrin, “Get off my mum”. Perrin laughed and said, “What ya gonna do with that ya weak dog?” He got up. As her son cowered and began crying Perrin laughed and made fun of him.

55. Whilst Perrin was distracted, she and the kids attempted to run out the rear laundry door. He saw what was happening and grabbed hold of her, stopping her from leaving. She gave the baby to her son and told him to get in the car, which he did. Perrin, stomped on the complainant’s left foot using his heel, causing such pain the complainant believed her foot to be broken. She begged, “Please just let us go”. He said, “I’m taking your phone then”, and took it. She ran out the back door and drove to a friend’s house.

56. Her foot was badly bruised and swollen for some time. X-rays on the foot later revealed the foot to be fractured in three places.

Offender’s Arrest and ERISP

57. Perrin was arrested in relation to these matters on 19 February 2020. He participated in an interview with police whilst in custody at Silverwater Correctional Complex on 19 February 2020. During the interview he accepted he was violent towards the complainant during their relationship. He admitted that he committed a number of the assaults on the complainant during the relationship and that he damaged the complainant’s property on a number of occasions. Mr Perrin also explained during the interview that drugs were a significant problem during his relationship with the complainant.

Assessment of Seriousness

58. The offending was, at times, accompanied by specific aggravating features including:

1. The actual or threatened use of a weapon: Sequence 6;

2. Committed in the presence of a child Sequences 51, 24 & 27

3. A large number of offences were committed in the complainant’s home.

4. The offences committed after 19 November 2015 were committed in breach of an enforceable ADVO: Kennedy v R (2008) 181 A Crim R 185 at [8]; Cherry v R [2017] NSWCCA 150 at [80].

5. From October 2016 onwards the Appellant was on conditional liberty; a Section 9 C(SP) Act bond for breaching the ADVO in relation to the complainant: Sequences 20, 24 & 27: Jeffries v R [2008] NSWCCA 144; (2008) 185 A Crim R 500 at [91].

59. The seriousness of what was done can be demonstrated by these short summaries. With few exceptions each were serious examples of the sort of offences generally dealt with in the Local Court. None were trivial; all had the potential for even more serious physical harm to be caused. While no long-term physical injury was reported; in many cases the bruising and other physical impacts of the assaults lasted for days or weeks. The short term and long term psychological injuries often caused by such offences cannot be underestimated. The absence of a Victim Impact Statement does not give rise to an inference that an offence had little or no impact on a victim: s 30E (5) C(SP) Act 1999

• Sequence 2 (Assault Occasioning Actual Bodily Harm (ABH) - involved various acts of assault, despite the complainant’s attempt to escape Perrin inflicted a great deal of pain on her.

• Sequence 45 (Common Assault (DV) - involved force being applied to the complainant’s mouth, nose and throat with the consequent risk of loss of consciousness.

• Sequence 6 (Stalk/Intimidate) - while being threatened use of a weapon, the complainant had to plead for her life, believing Perrin was going to kill her.

• Sequence 31 Assault Occasioning ABH)- involved a kick to the vagina with such force that the complainant bled from the vagina for about a week.

• Sequence 7 (Assault Occasioning ABH) - involved various acts of assault in the one course of conduct. Resulting in bruising and swelling as a result of being punched and kicked.

• Sequence 46 (Common Assault (DV)) again force was applied to the complainant’s mouth, nose and throat, which caused her to feel dizzy.

• Sequence 13 (Assault Occasioning ABH) - involved various acts of assault in the one course of conduct. He did not stop assaulting the complainant until she was limp and no longer moving. She was left was covered in bruises and marks all over her body for several weeks afterwards.

• Sequence 47 (Common Assault (DV)) - Perrin assaulted one of the complainant’s friends, by holding him up against a wall.

• Sequence 39 (Common Assault (DV)) - involved various acts of assault in the one course of conduct. The punches and kicks were directed at the complainant’s face and all over her body.

• Sequence 49 (Stalk/Intimidate) Perrin screamed derogatory comments at the complainant and then preventing her from seeking assistance from 000.

• Sequence 50 (Common Assault (DV)) – involved another example of force being applied to the complainant’s mouth, nose and throat, interfering with her breathing and making her feel dizzy.

• Sequence 51 (Common Assault (DV)) - involved force being applied to the complainant’s throat – while her son was present.

• Sequence 16 (Assault Occasioning ABH)­ - involved various acts of assault in the one course of conduct accompanied by extremely derogatory conduct by him. It only ceased when the complainant managed to break away from him and run out of the house. The complainant sustained bruising all over, clumps of hair fell out of the complainant’s hair, and she had significant welt marks all over her body from being bitten by the him.

• Sequence 20 (Assault Occasioning ABH-involved various acts of assault in the one course of conduct.

• Including an attack on the complainant’s eye causing extreme pain, fear and long term bruising.

• Sequence 24 (Common Assault (DV)) - involved her hair being grabbed as she attempted to get away from him. Her head was slammed her head into a car roof in the presence of the couple’s baby. Family members had to intervene.

• Sequence 27 (Reckless Grievous Bodily Harm (DV)) - this offence occurred while the complainant was pregnant. It was committed in the presence of the two children. The indignity was compounded as when her son attempted to intervene and protect her, he was mocked by Perrin. As a result of the assault, the complainant’s foot was fractured in three places.

60. As the prosecution properly submit, the offences individually and collectively represent a very serious course of domestic violence offending from May 2015 to late 2017. The offending took place in the context of a coercive and controlling relationship in which he exercised power, dominance and control over the victim: R v Burton [2008] NSWCCA 128 at [97].

61. Offences such as these necessarily entail the abuse of a relationship of trust: The Queen v Kilic (2016) 259 CLR 256 at [28]. That breach was compounded here by gratuitous cruelty and an intention to humiliate and demean indicating objectively a high level of moral culpability. Hurst v R [2017] NSWCCA 114 at [162]-[164],

62. The offending persisted despite an ADVO being put in place and Perrin being arrested several times for breaching the ADVO conditions. While the appellant is not being sentenced for the breach offences this sentence will be accumulated on those sentences. If the authority of the courts in making these orders is simply ignored, as Perrin did, the law and the courts are diminished and the court’s capacity to protect vulnerable individuals is impeded. The offending also continued despite the complainant being scheduled under the Mental Health Act2007 and despite their child being born and her second pregnancy.

The jurisdictional maximum in the Local Court

63. The jurisdictional maximum in the Local Court does not supplant the maximum penalty for the offence. That jurisdictional maximum is not necessarily to be reserved for a worst category case: R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115.

“Where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.” Doan at [35].

The guilty plea

64. A sentencing court must have regard to any guideline judgment: s 42A C (SP) Act; Moodie v R [2020] NSWCCA 160 at [24]. In accordance with the guilty plea guideline judgment; where there has been a guilty plea before a contested hearing generally a reduction of up to 25% in the otherwise appropriate sentence is allowed: R v Thomson; R v Houlton [2000] NSWCCA 309: (2000) 49 NSWLR 383. The guideline reflects the long standing practice that a plea of guilty should attract a lower sentence than would otherwise be imposed. Three reasons are usually advanced to justify the practice:

1. First, the plea is a manifestation of remorse or contrition.

2. Secondly, the plea has a utilitarian value to the efficiency of the criminal justice system.

3. Thirdly, in particular cases - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence: Thompson at [3].

65. In fixing the Guideline the Chief Justice noted that the determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. Two circumstances generally affect the appropriate level of discount in a particular case:

1. The time at which a plea is entered.

2. The complexity of the issues and the difficulty of assembling the relevant evidence - the greater the length and complexity of the trial, the greater the utilitarian value of a plea: At [154].

66. The Chief Justice did however recognise that if there are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate and that there are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate: At [153] to [157].

An aggregate sentence

67. When an aggregate sentence is imposed each guilty plea must be taken into account: Martin v R [2014] NSWCCA 124. The correct approach is to apply discounts to individual sentences and then accumulate in such a way that the effect of the discount is not eroded: Liles v R (Cth) [2014] NSWCCA 289 at [45].

68. Principles relating to aggregate sentences were helpfully distilled by Justice R A Hulme in JM v R [2014] NSWCCA 297 at [34] – [40]. The imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality: R v MJB [2014] NSWCCA 195. It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.

69. The criminality involved in each offence needs to be assessed individually. I am thus required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63.

70. Considerations of concurrence, accumulation and totality are matters within the discretion of a sentencing judge: R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 per Hall J at [52] citing R v Cahyadi [2007] NSWCCA 1; (2007] 168 A Crim R 41 at [27]. For incidents that form part of a single episode of criminality the sentence for one main offence can, at times, comprehend and reflect the criminality of the others, but there are circumstances where some accumulation is required. Generally however, separate incidents require some separate punishment. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight [2005] NSWCCA 253 :(2005) 155 A Crim R 252 at [112].

The Form 1

71. When I sentence for the reckless wounding offence, 6 other offences will to be taken into account on a Criminal Procedure Act Form 1. They do operate to increase the sentence that would otherwise be appropriate. I do not “in any sense” impose sentences for that offence. The increase recognises the need for personal deterrence and retribution: Attorney General’s Application No. 1: (2002) 56 NSWLR 146: Attorney General’s Application No. 1 at [68.]: Markarian v The Queen (2005) 228 CLR 357 at [51]-[54].

A limitation on consecutive sentences

72. When dealing with a sentence on appeal the District Court has the statutory limitations of the Local Court. Section 58 (1) C (SP) Act  puts a particular limitation on consecutive sentences imposed by the Local Court:

“The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.”

73. The explanatory memorandum to the Crimes Legislation Further Amendment Bill 2003 (NSW), which introduced an amendment to s 58 C(SP) Act that extended the maximum period of limitation, stated that the Bill:

“… extends the 3-year period … to 5 years, so that a Local Court will now be prohibited from imposing a sentence of imprisonment on a person so as to result in his or her being subject to consecutive sentences of imprisonment totalling more than 5 years.”

74. The orthodox position is that s 58(1) means the Local Court cannot accumulate sentences so as to yield an overall result that exceeds 5 years: Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [83]; R v Derbas [2004] NSWCCA 174.

75. Section 58 C (SP) Act  operates to the benefit of an offender: Brough v Director of Public Prosecutions [2014] NSWSC 1396 at [56]. When interpreting a statute affecting the liberty of the subject, the court should prefer a strict construction: Smith vCorrective Services Commission (1980) 147 CLR 134; Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37, at [19.

76. In Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735, at issue was whether the Local Court Magistrate (LCM) exceeded his judicial authority by adjourning the sentence proceedings expressly in order to avoid the legislative constraint in s 58. In Stoneham if the LCM had not adjourned the sentence (over objection) the limitation in s58 would have applied. Justice Ierace held that decision amounted to a jurisdictional error and remitted the matter to the Local Court.

77. The Director’s position here, following Stoneham, is that s 58 applies only to sentences accumulated on a sentence unexpired at the time an offender is being sentenced. As was submitted in Stoneham:

“The correct interpretation of s 58 is that it operates if, at the time the Local Court looks to “impose a new sentence”, there is an existing sentence; its application is not determined by whether there is an existing sentence at the time that the new sentence commences” at [30].

78. This proposition was apparently accepted by Justice Ierace in Stoneham, at [33]. A proposition based on reading s58 together with s 47(6) C(SP) Act, which provides:

“A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.”

79. In Stoneham Justice Ierace rejected the plaintiff’s contention that the words ‘existing sentence” in s58(1) should …be read as meaning, existing and unexpired ‘at the time the new sentence commences’.” His Honour held at [33]:

“Section 58, in my view, obliges a sentencing magistrate to make its determination as to whether a new sentence of imprisonment would exceed the jurisdictional constraints of the provision as of the date that the sentence is to be imposed.” 

80. He so held because: “Were it otherwise, the purpose of the section would be avoided, thus thwarting the intention that is apparent from the terms of the legislation and extraneous material in the form of the explanatory memorandum to the Crimes Legislation Further Amendment Bill:” as extracted at [73] above. His Honour was determining a jurisdictional question concerning the remedy available to the Stoneham determining that any determination about the jurisdictional limit must be made at the sentence date. He held that determination cannot be put off.

81. As the Director now wants me to interpret the section - as long as the new sentence is imposed after the earlier sentences have expired s 58 could not be invoked. The difficulty I have with that interpretation is that it would be contrary to the words of, and defeat, the clearly expressed purpose of the section.

82. Here the sentence date on all existing sentences had expired on 21 November 2020. Magistrate McGowan sentenced Perrin on 24 June 2021. Her Honour could theoretically have imposed her 5 year sentence to commence on that date but to do so she would have had to go behind the accepted way of crediting for time served and ignore a specific direction in s47 (3) C (SP) Act:

“In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence:” My emphasis. 

83. Further, to backdate the sentence would have meant ignoring the sentencing principle of totality.

“When a custodial sentence is to be imposed which will be cumulative upon, or which would overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of the criminality involved in all of the offences to which that total period is attributable”. R v Gordon (1994) 71 A Crim R 459 at 466; cited with approval in Postiglione v R [1996] 189 CLR 295; [1997] HCA 26.

84. Her Honour did not make that mistake. She followed accepted principle and the statute and backdated the sentence making it partly cumulative on the earlier sentences. This was a regular sentencing exercise.

85. The Appellant had been in custody serving sentences since 19 August 2019. He had been on remand for these matters since his arrest while in custody on 19 February 2020. Her Honour intended that her aggregate sentence, that is “her new sentence of imprisonment,” be served partly cumulative on the earlier sentences, then existing. She was bound by s 58. That section applied in its terms. To say the earlier sentences were not existing at time of sentence would defeat the purpose of s 58 as it would mean the Appellant would be subject to consecutive sentences of more than 5 years.

86. That is not what Justice Ierace intended; as his Honour implicitly made clear by his reference to “in the context of this matter.” Magistrate McGowan applied orthodox sentencing principle. The result was a total sentence as accumulated of just under 5 years 11 months. That the new sentence would end more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began and thus infringed s 58.

87. Section 47 C (SP) Act requires that this sentence begins on a date which is concurrent partly accumulative with an existing sentence which expires after that date.

88. Considering the matter today as a fresh exercise of the sentencing discretion; I could start the sentence today and reduce it by time served. If I did so I would not be bound by s 58 C (SP) Act but I would fall into the same error of approach as the LCM in Stoneham. I do not intend to make that error. I intend to follow the orthodox position.

89. Section 58 only has work to do if, at the time the Local Court looks to “impose a new sentence”, there is an existing sentence. Section 58’s application is not determined by whether there is an existing sentence at the time that the new sentence commences.

90. This is because while s47(1) states “A sentence of imprisonment commences on the day on which the sentence is imposed,” Section s47 (2) provides that, “A court may direct that a sentence of imprisonment— is taken to have commenced on a day occurring before the day on which the sentence is imposed”

91. In making that decision I must have regard to s47(3) “In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

92. When I do so s47(6) give me a choice:

“A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.

93. Section 58 (4) provides that.

“existing sentence” means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).”

94. Reading s 58(4) into s 58(1) in the context of this sentencing exercise –

The [District Court on appeal] may not impose a new sentence of imprisonment to be served …partly concurrently and partly consecutively with [any unbroken sequence of expired sentences] if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.

95. Considering s 58 at today being “the date of sentence” –

1. I intent to take into account time served and

2. I intend to commence the sentence on a date before it is imposed and

3. that sentence will be taken to have commenced on that date.

96. My sentence will be served partly concurrently and partly consecutively with the unbroken sequence of expired sentences that commenced on 22 September 2019. Applying s58 that sentence must expire within 5 years from 22 September 2019, that is, on before 21 September 2024. To do otherwise would to impose on the Appellant a continuous sentence of more than 5 years something s 58 says I cannot do.

Subjective case

97. A psychological assessment from Mr Wong was tendered on appeal. It details Perrin’s background. Although not supported by evidence on oath, the history and diagnosis was uncontroversial and not in dispute. I can accept it: Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209, at [9] and [10].

98. An Aboriginal Australian, Perrin never knew his father. Although his mother was always able to provide for him, his early years were marred by violence and drug use in the home they shared with other relatives. Police were “constantly” at the home. Although things improved when he was 10 after they moved in with his mother’s new partner, in that home there was still excessive alcohol use and physical and psychological violence. He had an unhappy school life and says he was both bullied by other students because he was overweight, and on one occasion sexually abused by a teacher. He left school in year 8.

99. There was further improvement in his home life after he turned 13 but while his family life was pro-social many in the neighbourhood were not. He fell in with that anti-social group. By the time he was in his mid-teens he was stealing cars and using all the drugs he could get. By 17 he was regularly using methylamphetamine and often not sleeping for 3 to 4 days. These acts and violent behaviour gave him some social acceptance.

100. At this time he also started seeing “demons” and “receiving messages from the television.” This was his condition and way of life when, at 19, he met the complainant. His delusions continued; they were often persecutory and involved feelings his partner was cheating on him. His violence against her occurred in this context; which he now can see, to his shame, was brutal. Perrin told Mr Wong that “I can’t believe I did that to somebody I loved. I tear up every time I read the brief.”

101. Mr Wong noted that when he spoke to Perrin using AVL on 30 July 2021, he still showed psychotic symptoms; although he now had some insight into them. After testing, Mr Wong concluded Perrin, on face value, meets the criteria for Schizophrenia, stimulant use disorder and Cluster B personality disorder. He needs on going psychological intervention to manage his risk of re-offending as his risks of violent re-offending is in the moderate range. If he can get the assistance and treatment he needs Mr Wong concludes Perrin’s prospects for rehabilitation appear to be good, especially given his young age.

102. He will however need both a psychiatric assessment and more thorough psychological assessment. In custody and on release he would benefit from Dialectical behaviour Therapy, focussed on managing his psychotic symptoms, attendance at the Violent Offender’s Treatment program for at least 12 months.

Undiagnosed mental illness

103. Sentencing offenders who suffer from a mental illness raises difficult questions of judgment and assessment. Those problems are exacerbated where serious crimes are committed. They have been described as "to an extent intractable:” Courtney v R [2007] NSWCCA 195; 172 A Crim R 371, per Basten JA at [1]. They require a "sensitive discretionary decision:" Engert v R (1995) 84 A Crim R 67 per Gleeson CJ.

104. A judge has to consider the purposes of the sentence in s 3A the Crimes (Sentencing Procedure) Act and also common law principles such as "... protection to society, deterrence of the offender and of others who might be tempted to offend, retribution and reform." Veen v R (No 2) 164 CLR 465;[1988] HCA 14 at 476.

105. As the decisions in Veen (No 2) and Engert make clear, the mental illness of the offender, even if causally relevant to the commission of the crime, does not lead, as an automatic (or logical) consequence, to a reduction in sentence because of its effect on moral culpability. In some circumstances, considerations of community protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [28]

106. Other principles that can be applied when sentencing an offender suffering from a mental illness, intellectual disability or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, at [177]. Omitting citations they are:

• Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

• It may reduce or eliminate the significance of specific deterrence.

Deprived background

107. Coextensive with the problems associated with his mental illness Perrin’s background has left a mark and compromised his capacity to mature and learn from experience. His moral culpability is less than the culpability of an offender whose formative years have not been marred in that way: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

108. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: Bugmy at [40]. Such childhood exposure may explain his recourse to violence when frustrated such that his moral culpability for the inability to control that impulse may be substantially reduced: Bugmy at [44].

109. The social exclusion and disempowerment of persons of Aboriginal descent seems to have made an environment of violence, alcohol and drugs more prevalent in the Aboriginal community than in the total population. The answer is no longer incarceration but lies in the treatment that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environment.” R v Hookey [2018] NSWCA 147 at [61]; Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92]; R v Lewis [2014] NSWSC 1127 at [37]-[38]; Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5; Hoskins v R [2021] NSWCCA 169.

110. The effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy; Fernando v R (1992) 76 A Crim R 58 at 62. But attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment as social deprivation may impact on those purposes in different ways: Engert v R . The Bugmy/Fernando principles do not all favour mitigation of sentence. A court must also recognise that there may be countervailing factors, such as the protection of the community, which might reduce or eliminate its effect.

111. It must also be recognised that change for the victims of domestic violence can only occur when men take responsibility and become part of the solution. Women in particular should not be forced to bear an unfair burden. Victims of serious crimes should not be deprived of the protection which it is assumed punishment provides. Courts must avoid the perception that serious violence committed by Aboriginal men will be treated by the law as a matter of little moment: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [134] (Bell J, in dissent as to the outcome); Bugmy; Fernando.

112. In cases such as this it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes but while mitigating factors must be given appropriate weight they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offences. The High Court has made it quite clear that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. Sentencing courts have an obligation:

• to vindicate the dignity of each victim,

• 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 the offending: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38, [52] to [58]

113. As Basten JA noted recently:

“These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency: Hoskins v R [2021] NSWCCA 169 at [4].

Youth

114. There is a general sentencing practice that lesser sentences can be imposed on youthful offenders than those imposed on adults who commit similar crimes. The principle underpinning the practice lies in the recognition of the immaturity of youth: DM v R [2005] NSW CCA 181. The weight to be given to the element of youth does not vary depending on the seriousness of the offence Hearne v R (2001) 124 A Crim R 451.

“…the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s:” Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109, per Fullerton J at [13]. KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571.

Delay

115. Sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 at 519: Mill v The Queen (1988) 166 CLR 59, at [14]. Here these were the first offences he committed. They were however part of a series so it could not be said he has used the delay to his benefit. But, since they were committed Perrin has grown older and had some chance to mature. But while most of that maturity has occurred while in custody, he has benefited from another relationship that appears to be more stable. He has also benefit from his time in custody, as his underlying mental conditions have been recognised so that further investigation and treatment can occur.

Consideration

116. Each of the matters for sentence individually and collectively called for terms of imprisonment. Their number and severity meant even making allowance for the Perrin’s undiagnosed mental illness and background of deprivation an aggregate sentence of over 5 years could be justified. Many of the subjective features can be accommodated by the structure of the aggregate sentence and the relatively between its parole and non-parole period.

117. There must also be some accumulation on the earlier sentences which commenced on 22 September 2019. Magistrate McGowan was not wrong in reaching those conclusions.

118. As I indicated above she did however err in her application of s58 C (SP) Act. There was a limit of 5 years on any continuous series of sentences.

119. I differ from her Honour in one other important aspect of the sentencing process. The guilty pleas entered here were of considerable utilitarian benefit and importance to the justice system. If the Appellant had exercised his right and put the prosecution to proof his victim would have had to undergo considerable trauma of being tested on events from some time before, event which given her earlier refusal to cooperate with police (out of misguided loyalty to the appellant) may have been difficult to prove. It may be that the appellant received some benefit flowing from the charge negotiation process however I have no information in relation to that and my decision making process must be transparent.

120. Further, a plea of guilty entered during the currency of the pandemic is worthy of greater weight in mitigation and amelioration of sentence than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects: Worboyes v R [2021] VSCA 169; Chenhall v R 2021] VSCA 175. Perrin has served his sentence to date subject to all the restrictions placed on prisoners because of the pandemic.

121. The aggregation of penalty should not except in the most extreme of cases lead to the erosion of the benefits given for guilty pleas. Serious as they were, these were not crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate: Thompson at [158] using the example of R v Kalache [2000] NSWCCA 2. There must be some discernible benefit for the guilty plea. Accordingly, I have allowed six months off the otherwise appropriate and available sentence.

Synthesis

122. Minds often differ as sentencing courts must synthesise many competing features. There is no one correct sentence. My duty as a sentencing judge requires I attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment which must be expressed here as in time in custody: Weininger v The Queen (2003) 212 CLR 629, at [24]. Ultimately, any sentencing exercise must return to consider a just sentence that is proportionate to what was done and assists community protection. Perrin’s crimes were so serious and so persistent he must be removed from the community for a period but he must also be returned to it.

123. His overall time in custody will be moderated by the restrictions on the extent to which summary matters can be accumulated. His offences were too numerous and too serious for him to get the full benefit given for his guilty pleas but here there must be some discernible reduction to recognise the utility in sparing a mentally ill victim the ordeal of a defended hearing about matters of some age, many of which were not reported or at the time initially denied.

124. Perrin must be released to the community. If Perrin can be released a better person than when he went into custody good; but he is at risk of offending violently on release. That risk can be moderated by adherence to a treatment plan including ongoing psychological treatment and intervention focussed on managing his risk of future violence. He will need help dealing with his long standing illicit drug use.

125. Perrin is still young. He still has an opportunity to prove he can lead a law abiding life. While he will have to earn his parole, the longer he is supervised, monitored and assisted on release the safer the community will be. That, and the accumulation of those sentence on those already served, requires a finding of special circumstances and the structuring of the sentence to allow as long a time on parole as possible. I note however that his minimum period in custody must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 717 at [59].

Orders

126. The sentence appeal is upheld in part. I confirm the conviction but vary the sentence imposed by the Local Court.

Indicative sentences

127. I indicate the following sentences

1. Sequence 02 Assault occasioning actual bodily harm (DV) - 1 year 11 months.

2. Sequence 45   Common assault (DV) - 11 months.

3. Sequence 06   Stalk/intimidate (domestic) - 1 year 6 months.

4. Sequence 31   Assault occasioning actual bodily harm (DV) - 1 year 10 months.

5. Sequence 07   Assault occasioning actual bodily harm (DV) - 1 year 6 months.

6. Sequence 46    Common assault (DV) - 11 months.

7. Sequence 13 Assault occasioning actual bodily harm (DV) - 1 year 10 months.

8. Sequence 47   Common assault - 4 months.

9. Sequence 39   Common assault (DV) - 1 year 1 month.

10. Sequence 49   Stalk/intimidate (domestic) - 6 months.

11. Sequence 50   Common assault (DV) - 1 year 1 month.

12. Sequence 51   Common assault (DV) - 1 year 1 month.

13. Sequence 16   Assault occasioning actual bodily harm (DV) - 1 year 10 months.

14. Sequence 20   Assault occasioning actual bodily harm (DV) - 1 year 10 months.

15. Sequence 24   Common assault (DV) - 11 months.

16. Sequence 27   Reckless grievous bodily harm (DV) - Taking into account the matters on Form 1, 2 years

Aggregate sentence

128. In lieu I impose an aggregate sentence of 4 years 6 months.

129. There will be a non-parole period of 2 year 9 months commencing 22 March 2020 and expiring 21 December 2022. The balance of the sentence 1 year 9 months is to commence upon the expiration of the non-parole period on 22 December 2022 and expiring on 21 September 2024

130. A total effective sentence as accumulated of 5 years with a non-parole period of 3 years.

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Amendments

18 August 2021 - Typographical errors

Decision last updated: 18 August 2021