R v AK

[2019] NSWDC 456

District Court

New South Wales

Medium Neutral Citation:	R v AK [2019] NSWDC 456
Hearing dates:	5 April 2019
Date of orders:	19 June 2019
Decision date:	19 June 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [93]
Catchwords:	CRIMINAL LAW – SENTENCING – domestic violence matters – detain – sexual intercourse without consent – act to procure acquittal – psychiatric conditions
Legislation Cited:	Crimes Act 1900 ss 61; 61I; 86; 323A Crimes (Domestic and Personal Violence) Act 2007 ss 13; 14 Crimes (Sentencing Procedure) Act 1999 s 3A
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Munda v Western Australia (2013) 249 CLR 600 Pearce v The Queen (1998) 194 CLR 610 The Queen v Kilic (2016) 259 CLR 256
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) AK (Offender)
Representation:	Counsel: Mr D Robinson (Crown) Mr D Roff (Offender to 17 May 2019) Mr P Kondich (Offender from 17 May 2019)   Solicitors: ODPP (Crown) Legal Aid (Offender to 17 May 2019) Powerhouse Law (Offender from 17 May 2019)
File Number(s):	2016/147185
Publication restriction:	Non-Publication Order on name of Offender and victims

Judgment

1. The Offender appears before the Court today for sentencing after pleading guilty to Counts 2, 3, 4 and 5 on the Indictment. The offences for which the Offender is to be sentenced carries the following maximum penalties, which provide guideposts to sentencing.

2. In relation to Count 2, being that on 10 May 2016 at Bonnyrigg in the State of New South Wales the Offender detained his wife, who I will refer to by the initials SM, without her consent with the intention of obtaining an advantage, namely psychological gratification in breach of s86(1)(b) of the Crimes Act, the maximum penalty is 14 years imprisonment and there is no standard non‑parole period which applies.

3. In relation to Count 3, being that on 10 May 2016 at Bonnyrigg in the State of New South Wales the Offender detained his stepdaughter, who I will refer to by the initials PC, without her consent with the intention of obtaining an advantage, namely psychological gratification in breach of s86(1)(b) of the Crimes Act. The maximum penalty which applies is again 14 years without any applicable standard non-parole period.

4. In relation to Count 4 that is, that on 10 May 2016 at Bonnyrigg in the State of New South Wales the Offender did an act, namely communicated with SM intending to persuade SM, a person to be called as a witness in a judicial proceedings to withhold true evidence with intent to procure an acquittal of the Offender in a serious indictable offence, namely assault occasioning actual bodily harm in breach of s323(a) of the Crimes Act. The applicable maximum penalty is imprisonment for 14 years without a standard non-parole period.

5. Finally, in relation to Count 5 being that on 10 May 2016 at Bonnyrigg in the State of New South Wales the Offender had sexual intercourse with SM without her consent and knowing that SM had not consented to the sexual intercourse in breach of s61I of the Crimes Act. The maximum penalty applicable is 14 years imprisonment with a standard non‑parole period of seven years. The standard non-parole period does not apply to convictions following a guilty plea, but it remains a guidepost to which I have had regard.

6. In addition, by admitting guilt to the matters on the s166 Certificate, the Offender has requested that the Court sentence him in respect to the following charges. There are four, they all carry the same charge number ending 787, the first is:

1. sequence 1 being contravene an ADVO in breach of s14(1) of the Crimes (Domestic and Personal Violence) Act;

2. sequence 2, being common assault in breach of s61 of the Crimes Act;

3. sequence 3, being common assault in breach of s61 of the Crimes Act; and

4. sequence 5, being stalk/intimidate with the intention of causing fear of physical harm in breach of s13(1) of the Crimes (Domestic and Personal Violence) Act.

7. There is also a charge on the Form 1 which has been signed by the parties and by me. In signing the document, I confirm that I will take that charge into account with a view to increasing the penalty which would otherwise be appropriate for the principal offence to which the Form 1 attaches. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need personal deterrence and second is the community’s entitlement to extract retribution for serious offences.

8. The charge which is on the Form 1 was originally Count 1 on the Indictment being enter a dwelling with intent to intimidate. That is that he entered the dwelling house of SM with the intent to commit a serious indictable offence, namely to intimidate in breach of s111(1) of the Crimes Act and that charge attaches by reason of the Form 1 to what I have previously referred to as Count 2, namely the detention for advantage of SM.

9. The Offender was born in 1959 and is now 59 years of age. The offending was committed on 10 May 2016 when he was 56 years of age. He was arrested and charged two days later.

10. On 1 March 2017, the Offender was committed for trial to the District Court from the Campbelltown Local Court. The Offender pleaded guilty to the charges on 14 May 2018 which was two days into the trial and a relatively late stage at which to enter a guilty plea. I note that at that point when the plea of guilty was entered the principal complainant, that is the wife of the Offender, was in the process of giving evidence in Court.

11. The Offender has been in custody for these offences since his date of arrest.

12. The evidence on sentence comprised the following:

1. the Crown Bundle (Exhibit A), containing antecedents and full facts in relation to prior offending;

2. the Offender’s Bundle containing three psychiatric reports (Exhibit 1);

3. a supplementary report by Dr Chew (Exhibit 2);

4. Submissions on Sentence by counsel then appearing for the Offender (MFI 1); and

5. Submissions for the current counsel appearing for the Offender (MFI 2).

13. The facts were agreed between the parties as follows:

14. SM (the victim) and AK (the Offender) were married in 2013.

15. Together they had a child NK in July 2013. That child was two years old at the time of the offences in May 2016. The victim had two children from a previous marriage, who will be referred to as NC and PC. NC was around 20 years of age and PC 15 years old at the time of the offences in May 2016.

16. Around August/September 2014, the victim and NK moved to Australia to be with the Offender. They lived in a home in Bonnyrigg. NC lived with them for a time but moved out in April 2016. PC then moved separately from Fiji into the premises in or about April 2016.

17. In December 2014, the Offender assaulted the victim and pleaded guilty such that he was convicted and fined in relation to that matter.

18. In April 2016, the Offender assaulted the victim again causing actual bodily harm and also intimidated her. He was granted bail but obliged to abide by the terms of an AVO which included a condition that he not enter the premises to which I have previously referred. Following the incident, the victim did not remain at the premises during the evenings. She would attend the premises during the day but returned to stay at the home of a friend at night with NK and PC.

19. In February 2017, the Offender pleaded guilty to the April 2016 assault and he was at that time sentenced to a short term of imprisonment.

20. On 10 May 2016, three weeks after his release to bail for the April 2016 offences and three days before the matter was next due before the Court the Offender attended the premises contrary to the conditions of the AVO. Initially when he arrived NK and PC were not present. At around 7:30am, the victim arrived at the premises with NK and PC.

21. A short time later, the victim was in the kitchen when she saw the Offender standing by the door in the nearby sunroom. She was scared when she saw him. The Offender entered the dwelling intending to intimidate the victim. That is the charge which forms the basis of the matter on the Form 1.

22. The victim was scared and tried to run away from the Offender towards the front door of the property. She yelled to PC to open the door. The Offender caught up with the victim before she could leave and grabbed her by the back of the head around her hair so she could not run.

23. The victim told PC again to open the door. The Offender told PC that if she opened the door he would kill her and grabbed PC by the hair as well. PC said to the Offender “don’t hurt us, don’t hurt us”.

24. The Offender then walked the victim and PC into the dining room area of the property. The Offender sat the victim on a dining room chair and at the same time pushed PC into a wall causing a fingernail to break. The Offender told PC to sit on a chair. PC asked the Offender if she could go to the bathroom and after some time she was permitted to do so. She returned thereafter.

25. Over the ensuing hours the Offender spoke further with the victim about the impending court case. The Offender said words to the effect of “save me from the Court, I will lose my licence, I will lose my job, if you call the Police I will suicide”. In fear, and feeling guilty, the victim said she would say whatever the Offender wanted her to say in court. Whilst the Offender was inside the premises he did not allow the victims to leave. Both SM and PC were detained without their consent for the Offender’s psychological gratification. That is the basis for Counts 2 and 3 on the original Indictment.

26. By virtue of the conversations with the victim the Offender was intending to persuade SM, a witness in judicial proceedings, to withhold true evidence with intent to procure his acquittal for a serious indictable offence. That is Count 4 on the Indictment.

27. During the time in the premises the Offender led the victim to a bedroom. He told her that he wanted to talk to her in private. NK followed them into the bedroom. The door was closed and locked for approximately two hours. Inside the bedroom the Offender said “I’m sorry I hit you, I love you.” He told he loved her and that he wanted to sleep with her. The Offender guided the victim’s body around so that she was facing away from him on the bed in the room. He pulled her pants and underpants down and inserted his penis into her vagina. The Offender had penile/vaginal sexual intercourse with the victim without her consent knowing that she was not consenting. During this incident the victim did not scream or make a lot of noise as her children were nearby. Those are the facts which pertain to Count 5.

28. After the sexual act the Offender and the victim ended up back in the lounge room. The Offender continued to talk to the victim about the upcoming court case and their relationship telling her to “please save me, I’ll be good to you, we won’t fight anymore”.

29. During the day the Offender spoke to his brother over the telephone, then in Fiji. The Offender told his brother that he was going to send him $3,000. He then turned to the victim and said “I sent him $3,000, if anything happens to me that money is for you, for him to kill you.”

30. The Offender asked PC what time her brother was coming home, she said “around 5:30”. The Offender waited until it was dark before leaving saying to the victim “if you report this to the Police I will suicide”. At around 5.50pm the victim contacted her friend who I will refer to by the initials AS. AS then collected the victim and PC, and I assume also the young child previously referred to as NK who at that time was just two years of age.

31. AS took the victims to Green Valley Police Station where they spoke to Police. The victims went home with AS where the victim showered and the clothes she had been wearing at the time of the incident were washed. The following day at around 9:42am the victim spoke with her domestic violence social worker Melanie Thompson who took the victim to Fairfield Police Station.

32. The victim then attended Liverpool Hospital where a SAIK was conducted. A medical forensic examination was conducted on the victim’s genital area and swabs were taken for analysis. Semen was detected on the high vaginal smear. A mixed DNA profile was recovered from the high vaginal swab. The major component of the mixture had the same DNA profile as the Offender. The minor component of the mixture is consistent with originating from SM, the victim. Police then took the victim back to the premises where they conducted a recorded walkthrough.

33. At around 11:45am on 12 May 2016, Police attended the Offender’s workplace; they informed him of the allegations, cautioned him and placed him under arrest. The Offender was conveyed to Fairfield Police Station. During that journey the Offender told Police that he had attended the premises contrary to the AVO. He said he arrived at around 6am and had gone there to “see his boy”. He said he left at around 5:30pm and the victim had not wanted to let him go in case he was seen at the property. He agreed that he had breached the AVO by attending the premises but denied sexually assaulting the victim, stating “no, I did not rape her, my two‑year‑old boy was there, how could we have sex?”

34. He told Police he entered the premises through the back sliding door of the property. Upon arrival at the Fairfield Police Station, the Offender was introduced to the Custody Manager and informed of his rights. He participated in a short recorded interview with the Police with the assistance of an interpreter. He told the Police that he did not want to answer questions about the allegations. Police asked him about the conversation with Police on the journey to the Police Station and the Offender adopted the content of that conversation.

35. Before imposing a sentence upon an Offender it is necessary for the Court to make an assessment as to the objective seriousness of the offending. The starting point in the legislative guideposts to which I have referred, next one has regard to the particular circumstances of the offending in assessing the overall criminality.

36. Given these matters are of a domestic violence nature I am mindful of the comments of the High Court in the matter of Munda v Western Australia (2013) 249 CLR 600 at [54]-[55] where the Court referred to the role of the criminal law in the context of domestic violence as including:

“the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. …

… A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

37. Whilst the facts of that case are plainly different from the facts of this case, the principles nevertheless have some application.

38. The High Court in the matter of The Queen v Kilic (2016) 259 CLR 256 at [21] also recognised a societal shift in relation to domestic violence. I note the following:

“… current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.”

39. The Crown submitted the offending as a whole was very serious, referring to the Offender’s conduct as an ongoing disastrous response for the breakdown of his marriage.

40. It was submitted on behalf of the Offender, that whilst the offending itself was serious, when considering all the factors surrounding the offences the offending as a whole falls below the middle of the range of objective seriousness, and in fact towards the lower end.

41. Mr Kondich of Counsel who was retained for the Offender more recently provided similar submissions regarding objective seriousness. In relation to the detention counts it was submitted by counsel that the Court would have regard to a number of factors in determining the objective seriousness of the detention charges. Those matters being the following:

1. the period of detention;

2. the circumstances of detention;

3. the person being detained; and

4. the purpose of the detention.

42. In relation to those considerations the period of detention appears to have been approximately ten hours, from 7:30am according to the Agreed Facts when the victim and her children arrived at the premises until around 5.30pm when the Offender left the premises. I also note that during the course of that period of ten hours there was a period of two hours when the principal complainant, that is his wife and their young son NK were detained in a bedroom behind a locked door.

43. As for the second consideration, being the circumstances of the detention, it is relevant that as part of the detention there were acts of violence perpetrated in relation to his wife and his step-daughter. His wife was the subject of intimidation so as to change her story before going to court three days later. I also note that the circumstance of the detention include the fact that whilst detained the Offender had sexual intercourse with his wife without her consent knowing that she was not consenting. I note that these are the subject of independent charges.

44. The third consideration is the person being detained. In this case that included the wife of the Offender who, during the course of the detention, was assaulted and also the subject of sexual intercourse without consent, together with her 15‑year‑old daughter who was also assaulted and her two‑year‑old son.

45. The final matter that counsel submits the Court should have regard to is the purpose of the detention. That is difficult to discern particularly in circumstances where the Offender has not given evidence. I should have observed that part of the evidence relied upon by the Offender includes a handwritten letter provided to the Court today which has been marked Exhibit 3. Other than acknowledging that his behaviour was “not appropriate” and expressing other sentiments which may amount to remorse, the letter fails to shed any light on the purpose for detention. Plainly one purpose was to persuade the principal complainant, that is his wife, to change her evidence, that is to give false evidence, with a view to the Offender being acquitted of the pending charge. It may also be a purpose of the detention that the Offender wished to engage in sexual intercourse with his wife without her consent knowing that she was not consenting. As there is no evidence from the Offender as to the purpose of the detention the Court is left in a position of speculation as to its purpose. In any event, that conduct is the subject of separate charges.

46. Counsel for the Offender submitted to the Court the Crown cannot prove beyond a reasonable doubt as to the duration of detention. In that regard I note that the facts as agreed between the parties are that the detention ran from 7:30am, as previously noted, through to the time the Offender left the premises which was sometime it would seem in the order of 5:30pm or perhaps slightly earlier. I note also that this question may be informed by the fact that the victim contacted her friend at around 5:50pm suggesting that by that time the Offender had left the premises.

47. It was submitted on behalf of the Offender that it is not possible to determine the period of detention as it would involve speculation and inference against the interests of the Offender and it is submitted that it ought not be found that the detention was of a significant duration.

42. Whilst the evidence does not permit an assessment as to the precise time of the detention it is plain that it lasted at least from 7:30am well into the afternoon. I note the concession made by counsel that the detention was at least for a period of hours. But the second consideration, namely circumstances of the detention, counsel submitted that there was no kidnap and that the victims were “simply detained”.

43. It is further submitted that “there were no persons who were subjected to anguish through fear for the wellbeing of the detainee” and reference is made to other cases involving ransom and hostages, and the like, and the submission is made that the victims were ultimately released by the Offender. I have already made my observations about the circumstances of the detention and in my view “anguish” was caused to the wellbeing of the detainees, at least the mother and her older child.

44. Further, in submissions the counsel for the Offender stated “the purpose of the enterprise was to convince his wife to reconcile with him”. The precise basis for that is unclear. There is no evidence which would permit that conclusion to be drawn. Those are matters about which the Offender could have provided evidence but chose not to. As to whether that was in fact the intention, that is, to reconcile with his wife seems contrary to the evidence that he was intimidating her so as to cause her to change her evidence with her saying that she will say whatever he wants her to say in court in order to attempt to secure an acquittal. As I have already observed, another purpose of detention may have been sexual intercourse but we are left in the dark as to the intention of the Offender in that regard.

45. In relation to the detention, being Counts 2 and 3 on the Indictment, I find that the offending objectively falls in the mid‑range for offending of that type.

46. In relation to count 4 on the Indictment, namely, communicating with SM intending to persuade her to give, rather withhold, true evidence, I also find that it falls win the mid‑range of offending for that type.

47. In respect of count 5, namely sexual intercourse without consent knowing that consent was not forthcoming, I find that it falls at or slightly above the mid‑range, noting that the sexual intercourse occurred in the presence of the young child NK who was approximately two years of age at the time.

48. In respect of the matters on the s166 certificates, namely contravention of AVO, I find that it falls above the mid‑range given that it included detention and sexual violence. In relation to sequence 2, common assault, I find that it falls below the mid‑range. In relation to sequence 3, common assault, again I find below the mid‑range of objective seriousness. In relation to stalking and intimidating, being sequence 5 on the s 166 certificates, I find that it falls at or about the mid‑range for offending of that type.

49. The subjective case is limited by the Offender’s choice, as is his right, not to give evidence. I have, however, read the letter provided to the Court today, a handwritten letter from the Offender and signed by him in which he indicated the inappropriateness of his behaviour, as well as an acceptance of his responsibility for his actions. Given that the Offender was provided the opportunity on at least one occasion of giving sworn evidence as to remorse and other matters and given that this letter comes to the Court after the Offender initially pleaded not guilty and subjected his wife to giving evidence in Court I find that I am unable to give very much weight at all to the letter from the Offender.

50. There are, however, some medical reports. The first report is by Dr Adams and was ordered with a view to assessing the Offender’s fitness to stand trial. Dr Adams found that the Offender found it difficult to provide an accurate account of his mental health history, save for being in regular contact with mental health clinicians whilst in custody as well as being prescribed psychiatric medication. When the Offender was asked by Dr Adams whether he was concerned about his mental health he replied “yes, I’m very much worried, slowly, slowly, I am diminishing my memory”. The remainder of the history was generally unremarkable with no history of drug or alcohol abuse. The Offender worked as a bus driver when he arrived in Australia but did not work for a significant period of time after the breakdown of his first marriage. Dr Adams noted that the Offender seemed to describe both short and long‑term memory problems and that he heard voices.

51. At the time of the 2016 report Dr Adams diagnosed the Offender was suffering from a neurocognitive disorder with possibilities of a dementia type illness with psychotic symptoms. Additionally, at the time of writing the report Dr Adams found that in his view the Offender did not satisfy the Presser minimum standards and would be unfit to stand trial.

52. Dr Adams wrote a second report dated 13 June 2017 after assessing the Offender on 5 June 2017. The Offender recalled their previous meeting and he believed that his mental health had improved over recent months, attributing improvement to medication. He reported that he felt safe and denied experiencing any persecutory concerns. Dr Adams noted that the concerns he had in 2016 were with regards to the Offender’s overall cognitive impairment and his low mood, both of which had improved substantially by June 2017. Plainly with the improvement that occurred over time, Dr Adams expressed a different opinion and found ultimately that the Offender was fit to stand trial.

53. The third substantive psychiatric report was authored by Dr Gerald Chew who assessed the Offender via AVL from the Goulburn Correctional Centre. The Offender reported to Dr Chew he is being treated for various conditions by medication, he was unable to specify what they were. Some medications were referred to in the report by Dr Chew and some related to diabetes and hypertension. The remainder of the history provided to Dr Chew was consistent with histories provided to Dr Adams. It was the opinion of Dr Chew that the Offender suffered from a serious mental illness, most likely major depression with psychotic features and prominent cognitive features. Dr Chew also opined that it was likely that at the time of the offending behaviour he was suffering from that illness. There was controversy at the sentence hearing as to the source of the information with regards to the medical records pertaining to medication.

54. A subsequent report from Dr Chew dated 14 May 2019 indicated that Dr Chew in fact liaised with Justice Health and Forensic Mental Health Network to access to the Offender’s medical records.

55. Other considerations affecting the sentence to be imposed in this case include the following aggravating factors:

1. the actual or threatened use of violence. I mention that only to the extent that it does not involve double counting in respect of the assault matters which include as an element of the offending an act of violence;

2. the offences were committed in the presence of children, namely NK aged two and PC who was then aged around 15 years of age. Of most concern is the fact that not only was PC present but she was also the subject of violence, and also of concern to the Court and an aggravating factor in relation to the sexual intercourse count being count 5 on the Indictment, that offending occurred in the presence of the two year old child;

3. it is also an aggravating factor that the offences were committed in the home of the victims, a place where they are entitled to expect to be safe and free from this type of conduct, particularly in view of the fact that an AVO had been taken out with conditions which precluded the attendance of the Offender at those premises; and

4. the offending is aggravated further by the fact that the offences were committed whilst the Offender was the subject of conditional liberty.

62. It was proffered in the sentence hearing that an additional aggravating factor could be that the offending was part of a planned or organised criminal activity. I cannot be satisfied beyond reasonable doubt as to that matter and I decline to make that finding, particularly the sexual intercourse without consent that seemed to have been opportunistic rather than planned but the evidence does not permit a firm finding.

63. The mitigating factors which exist here include the following:

1. the Offender’s guilty plea, although made after his wife was subjected to giving evidence in court; and

2. the Offender’s claim of remorse, and I will return to that in a moment.

64. Those matters were taken into account to the extent relevant in assessing the objective seriousness of the offending.

65. The Offender has two prior offences, namely common assault having occurred on 26 July 2014, and assault occasioning actual bodily harm and stalk/intimidate intending to cause fear of physical or mental harm occurring on 20 April 2016. In my view the criminal history does not aggravate the objective seriousness of the offences for which he is to be sentenced. It does however disentitle him to any leniency which may flow from a finding of good character.

66. In terms of remorse prior to today the only evidence was a note made by Dr Chew that the Offender was “very sorry for what he had done. He said that he had accepted responsibility for his actions and wrongdoing”. As I have now mentioned that expression of remorse has been amplified in the handwritten letter to the Court in which he expresses that his behaviour was inappropriate and he accepts responsibility for his conduct, he expressed that he is sorry and ashamed of his actions, he apologised to the Court and to the community, and seemingly without reservation accepted full responsibility for his actions. In view of the matters to which I have previously referred I give that little weight and decline to find statutory remorse as a mitigating factor.

67. Given the medical conditions that have been referred to in the evidence the Offender’s mental condition could have the effect of reducing his moral culpability and matters such as general deterrence, retribution and denunciation may as a result have less weight in the sentencing process. This is especially the case where the mental condition, according to the evidence, contributed to the commission of the offending in a material way.

68. Without going through the authority in detail I note the observations of the McClellan CJ at CL in the matter of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], where his Honour listed a number of propositions that may arise in circumstances such as these. I have had regard to those observations, and I find that, by reason of his mental condition, the Offender’s moral culpability is slightly reduced.

69. I also find that by reason of his mental condition and the need for treatment a custodial sentence may weigh more heavily upon the Offender. I decline to find that it reduces the need for specific deterrence and I find that by reason of the mental condition from which the Offender suffers he may present more of a danger to the community than others who do not suffer from those conditions resulting in specific deterrence being a matter which looms large in the sentencing exercise.

70. The intuitive process of sentencing involves synthesising the objective seriousness of the crime and the subjective circumstances of the Offender to arrive at a sentence that best meets the objectives or purposes of sentencing. Those purposes are set out at s3A of the Crimes (Sentencing Procedure) Act which generally reflect the common law. The purposes often overlap and may point in different directions. The promotion of rehabilitation of the Offender if successful is the best way of ensuring that the Offender does not commit other similar offences, yet the promotion of rehabilitation may point to a different conclusion or different synthesis than factoring into the sentence adequate punishment and the denunciation of the conduct of the Offender. Each of the purposes are guidelines to the fixing of an appropriate sentence and none of them can be considered in isolation.

71. Plainly in the circumstances which arise here there is a need for adequate punishment to reflect the community’s present attitudes to offending of this type, as well as denunciation, acknowledgement of harm done to the victims of the offending, together with considerations of rehabilitation.

72. Before sentencing the Offender to a period of imprisonment I must be satisfied having considered all possible alternatives that no sentence, including non‑custodial sentences other than imprisonment is appropriate. In this case the Crown contends that the threshold under s 5 has been met and that a term of imprisonment is warranted. Counsel for the Offender has conceded as such and I find that the threshold provided under s5 of the Act is crossed and that accordingly no sentence other than full‑time custodial imprisonment is appropriate.

73. Before sentencing the Offender I also must have regard to the fact that he did ultimately plead guilty. Both parties suggested a discount of 5% would be appropriate to reflect the limited value of the guilty plea at the time it was provided. Considering the plea came after the empanelment of a jury and after the principal complainant had commenced giving evidence I find that a discount of 5% is appropriate.

74. It is not agreed between the parties that special circumstance exist so as to justify a departure from the statutory ratio for parole. As to non‑parole the Crown does not accept that special circumstances exist, this is based on the primary factor going to special circumstances in this case it is said it will be the Offender’s first time of any lengthy custodial sentence.

75. It was submitted on behalf of the Crown that due to the fact that he will face a lengthy sentence even with the application of the standard statutory ratio of parole to non‑parole any need for rehabilitation will be accommodated by the standard period on parole. The Offender submitted that special circumstances would be found on the basis that it is the Offender’s first time in custody, his age and also his health issues.

76. Whilst I accept the Crown’s submission that the standard period on parole would ordinarily be sufficient to address such issues I do find special circumstances such that there will be a minor adjustment to the statutory ratio.

77. The sentence date for commencement is said to be between 12 May 2016 and 28 July 2016. It was submitted on behalf of the Crown that it should be backdated only to 28 July 2016 in order to satisfy the criminality of the prior offending, that is, to permit accumulation in acknowledgment of the prior offending. It was submitted on behalf of the Offender that it could be backdated to 12 May 2016 and of course it is a matter for the Court’s discretion. I find that in order to accommodate the principle of totality some accumulation should occur and I will commence the sentence from 20 June 2016.

78. The Court has discretion to aggregate sentences when sentencing for multiple offences, that is, the sentence can be partly concurrent and partly cumulative. The purpose of aggregation is to avoid the imposition of multiple sentences which when viewed as a whole is crushing.

79. Some offences, for example, those involving substantial temporal disconnect or a completely different nature may not permit aggregate sentencing. In my opinion the current offences do warrant an aggregate sentence so as to satisfy principles of totality and also by reason of the fact that the offences arose out of a course of conduct which occurred over the same, or virtually same, period of time.

80. Before announcing the indicative sentences in respect of the matters to be sentenced I note that the charge on the Form 1 attaches to Count 2 and that all of the indicative sentences are provided after a discount of 5% for the guilty plea.

81. In relation to the matters to be sentenced there is only one matter to which a standard non-parole period applies and that is Count 5 being sexual intercourse without consent. The circumstances here warrant a departure from the standard non-parole period given that the Offender has pleaded guilty to the charge.

82. I provided the following indicative sentences:

83. In relation to sequence 1 being a charge on the s166 certificate, namely contravention of the ADVO, I note the maximum penalty of two years but indicate a sentence of ten months after discount.

84. In relation to sequence 2 being common assault, also on the s166 certificate, noting the maximum term of imprisonment if sentenced in the Local Court is two years, I indicate a sentence of ten months after discount.

85. In relation to sequence 3 being common assault, on the s166 certificate, again with the Local Court maximum jurisdiction of two years, I provide an indicative sentence of ten months after discount. I pause to note that sequence 4 which was act with intent to influence a witness was previously withdrawn in the Local Court.

86. In relation to sequence 5, being stalk/intimidate intending to cause fear of physical harm, which is also on the s166 certificate, were it dealt with in the Local Court there would be a maximum penalty of two years imprisonment, I provide an indicative sentence of 12 months after discount..

87. In relation to Count 2 on the Indictment being sequence 6, that is, take or detain a person with the intention of obtaining an advantage, that is, in this case his wife, to which the Form 1 attaches, I provide an indicative sentence of six years after discount.

88. In relation to Count 3 being sequence 7 and the same charge but relating to the Offender’s step-daughter, I provide an indicative sentence of five years after discount.

89. In relation to sequence 8, being Count 5, namely sexual intercourse without consent, I provide an indicative sentence of five years after discount and an indicative non-parole period of three years and eight months.

90. In relation to sequence 9 being Count 4 on the Indictment, namely acting with intent to influence to potentially procure an acquittal, I provide an indicative sentence of five years after discount.

91. Having given careful consideration to the principles of totality as discussed in the decision of Pearce v The Queen (1998) 194 CLR 610 having arrived at the indicative sentences in relation to each of the offences I have stood back and considered whether the overall sentence to be imposed is just and appropriate and whether it reflects the total criminality involved.

92. I have also had close regard to questions of accumulation and concurrency and will accommodate those principles by adjusting the aggregate sentence appropriately.

93. You are convicted of the four offences set out on the Indictment, namely:

1. Count 2 being detain a person, that is your wife, with the intent of obtaining an advantage in breach of s86(1)(b) of the Crimes Act;

2. Count 3 on the Indictment, being detain a person with the intent of obtaining an advantage in breach of the same section of the Act relating to your step-daughter;

3. Count 4 on the Indictment, being to act with the intent to influence a witness in breach of s323A of the Crimes Act; and

4. Count 5 on the Indictment, being sexual intercourse without consent in breach of s61I of the Crimes Act.

94. You are also convicted of the four related offences on the s166 certificate being:

1. sequence 1, contravention of a prohibition in an ADVO in breach of s14(1) of the Crimes (Domestic and Personal Violence) Act;

2. sequence 2, being common assault in breach of s61 of the Crimes Act;

3. sequence 3, being common assault in breach of s61 of the Crimes Act; and

4. sequence 5, being stalk or intimidate with the intention of causing fear or physical harm in breach of s13(1) of the Crimes (Domestic and Personal Violence) Act.

95. In respect of those convictions I impose an aggregate sentence of ten years imprisonment commencing 20 June 2016 and expiring 19 June 2026. I impose a non-parole period of seven years which will expire on 19 June 2023 at which time you will be eligible to be considered for parole.

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Decision last updated: 03 September 2019