R v Barnett

[2020] NSWDC 193

District Court

New South Wales

Medium Neutral Citation:	R v Barnett [2020] NSWDC 193
Hearing dates:	7 May 2020
Date of orders:	12 May 2020
Decision date:	12 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 79-84
Catchwords:	SENTENCE – detain, reckless wounding and contravention of AVO offences – mid-range seriousness of offences – offender’s subjective circumstances – role of alcohol disorder in offending conduct – reliance of COVID-19 pandemic as a sentencing consideration
Legislation Cited:	Crimes Act 1900 (NSW), ss 35, 86 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12, 14 Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5 21A Criminal Procedure Act 1986 (NSW), s 166
Cases Cited:	Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13 McCullough v R (2009) 194 A Crim R 439 Munda v Western Australia (2003) 249 CLR 600; [2013] HCA 38 Patsan v R [2018] NSWCCA 129 R v Newell [2004] NSWCCA 183 Scott v R [2020] NSWCCA 81
Texts Cited:	Odgers, Sentence (4th ed, 2018)
Category:	Sentence
Parties:	Director of Public Prosecutions Mr GW Barnett
Representation:	Counsel: Mr D Henschell for the Director of Public Prosecutions Ms K Stares for the offender   Solicitors: Solicitor for the Director of Public Prosecutions Aubrey Brown Lawyers for the offender
File Number(s):	2019/119673
Publication restriction:	Nil

SENTENCE REMARKS

INTRODUCTION

1. The offender is to be sentenced in respect of the following offences:

1. Aggravated detention of a person with intent to obtain advantage occasioning actual bodily harm in relation to the complainant Sasina JAGESSAR, contrary to s 86(2)(b) of the Crimes Act 1900 (NSW).

2. Aggravated detention of a person with intent to obtain advantage occasioning actual bodily harm in relation to the complainant Paul David WALLACE, contrary to s 86(2)(b) of the Crimes Act1900 (NSW).

3. Reckless wounding causing actual bodily harm contrary to s 35(4) of the Crimes Act1900 (NSW).

4. There is also a related charge on a s 166 certificate, being the contravention of a prohibition/restriction under an AVO, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

2. The maximum penalty for the detain offences under s 86(2)(b) is 20 years’ imprisonment. There is no applicable standard non-parole period.

3. The maximum penalty for the reckless wounding offence is 7 years’ imprisonment. There is a standard non-parole period for this offence of three years imprisonment.

4. The maximum penalty for the related charge is 2 years’ imprisonment.

CIRCUMSTANCES OF THE OFFENCE

5. The agreed facts (contained within Exhibit A) concerning the offending conduct are relevantly as follows:

“BACKGROUND

1. The offender is married to Sasina JAGESSAR, and they have been married for 27 years. They have not resided together for approximately 8 or 9 years. Despite not living together for a significant period of time, the offender and JAGESSAR have maintained a relationship, which has been intimate at times.

2. On 18 December 2018 a Final Apprehended Domestic Violence Order was made in Toronto Local Court for a period of two years; this order expires on 17 December 2020. This order named Sashina JAGESSAR as the person in need of protection. One of the conditions of the order prohibited the offender from approaching JAGESSAR r being in her company for at least twelve hours after drinking alcohol or taking illicit drugs.

OFFENCES

Contravene prohibition/restriction in apprehended domestic violence order

3. On the Friday prior to the offences, being 12 April 2019, JAGESSAR met the offender at the library at Tuggerah Westfield. The offender asked her to stay with him at Homeland Caravan Park, where he lives, and she agreed. When JAGESSAR told her mother she was staying with him, her mother got upset, so JAGESSAR decided to stay with the offender for a couple of days.

4. On 15 April 2019, JAGESSAR told the offender she was bored of sitting around, so they decided to visit his friend ‘Dave’ (Paul David WALLACE). JAGESSAR had not previously met WALLACE but the offender had said that he would have good music. JAGESSAR and the offender went to WALLACE’S caravan, also within Homeland Caravan Park.

5. A neighbour, BULL observed JAGESSAR and the offender walking up and down the street of the Caravan Park. The offender was carrying a bottle of alcohol, and they both appeared to be drunk because they were stumbling up the street, and holding each other up.

6. Throughout the night, WALLACE and JAGESSAR were discussing music in general and WALLACE’S music collection. JAGESSAR noticed the offender getting jealous of the conversation, because he was not really involved.

7. JAGESSAR had, at this stage consumed approximately three quarters of a bottle of wine, the offender had been drinking wine and Wild Turkey. WALLACE had also been drinking wine, and said at the time he felt moderately intoxicated.

8. At some stage the offender said he was going home. JAGESSAR told WALLACE she would give him some time before returning home, and they continued to listen to music.

9. At about 3am a neighbour, MACMAILLAN awoke to sounds of yelling and screaming. It was not particularly loud, and she could not make out what was being said. She was able to go back to sleep. Around this time, BULL also heard something being thrown at the offender’s garage, before hearing a big thump inside the caravan. BULL did not hear anything after that.

Aggravated detain with intent to obtain an advantage (JAGESSAR and WALLACE) causing actual bodily harm

Reckless wounding (JAGESSAR)

10. JAGESSAR saw the offender barge through the front door of WALLACE’s caravan. He was visibly angry and turned to WALLACE and said “You fancy my missus, don’t you?” WALLACE said “of course not” and JAGESSAR told him not to be ridiculous. JAGESSAR and WALLACE were telling the offender that nothing had happened but he would not listen to them. The offender insisted that JAGESSAR was being unfaithful with WALLACE, and the offender did not listen to the denials by JAGESSAR and WALLACE.

11. The offender appeared more intoxicated than when he had left the caravan. He was holding a 700mL Jim Beam bottle which he was drinking from, and which appeared at that time to be a third full.

12. The offender then produced a knife and held it towards JAGESSAR. He then walked towards WALLACE and pressed the tip of the blade on his chest, near his heart. He then moved away before placing the tip of the blade on WALLACE’S throat, and said something along the lines of “I know what is going on. I could hear you from outside. I could kill you” As a result, WALLACE suffered a superficial laceration to his throat.

13. JAGESSAR attempted to grab his arm and was pushed backwards, where she fell and hit furniture. She thinks she may have lost consciousness at this time. Each time she tried to get up, the offender would hit her against the walls and furniture. Her memory is vague but she remembers the offender cutting at her right leg, and holding the knife to her throat and making a sawing motion.

14. As a result of the offender cutting her leg, JAGESSAR suffered three wounds to her right leg. The most serious wound was 10cm long, and extended through the dermis and fat layer, into the muscle component. The second laceration was 15cm long, breaching the dermis, and the third was superficial, and approximately 20cm in length.

15. WALLACE saw the injuries on JAGESSAR’S legs and thought he might be able to get the knife off the offender. He tried to grab the knife but the offender pulled it away and it cut WALLACE’S finger. WALLACE suffered an open laceration to his finger, that required irrigation and bandaging. JAGESSAR tried to scream out for help and physically crawl from WALLACE’S van but the offender held the knife to WALLACE’S throat and told her “if you scream, Dave will get it.”

16. As JAGESSAR tried to crawl towards the door, the offender grabbed her and pulled her back into the van. She was trying to locate a phone but couldn’t. JAGESSAR was yelling at WALLACE to call an ambulance but WALLACE was scared to move. When he tried to stand up the offender said “you’re not going anywhere” and WALLACE was afraid the offender was going to injure him further so he remained on the floor.

17. The offender also cut JAGESSAR’S left leg, but she noticed these cuts were not as bad as those on her right leg. After this, the offender placed his hand over JAGESSAR’S mouth and said “if you scream or try to leave I’ll smash your teeth in again. I’m gunna cut your head off.’

18. JAGESSAR said to the offender ‘why don’t you go get a drink… Wild Turkey is in the fridge.’ The offender then left the premises for a brief period. In this time, JAGESSAR asked WALLACE to call the Police and Ambulance, however WALLACE froze and did not do so. The offender then returned and began wiping the blood of JAGESSAR’S face.

19. On his return the offender appeared calmer, and tried to help JAGESSAR, He looked around the room and found a pillow slip, he then made a tourniquet for her leg. He wrapped it around JAGESSAR’S leg.

20. During the period JAGESSAR was detained, JAGESSAR also suffered a shallow subdural haematoma, and bruising under her right eye. At the hospital, staff also noticed a number of other minor injuries; small abrasions, bruising and a displaced fracture of her left 9th rib.

21. Around 6am on 16 April 2019 the sun was coming up, and JAGESSAR again asked WALLACE to call an ambulance. The offender appeared much calmer. WALLACE told the offender he was going to call an ambulance and the offender agreed.

22. WALLACE walked to a neighbour, Annette MCCUBBIN, and asked her to call an ambulance. MCCUBBIN noticed he was covered in blood. WALLACE told her a friend had fallen and cut themselves. MCCUBBIN grabbed her phone, and followed WALLACE to his caravan. She dialled 000 and then entered the caravan; as she did so she noticed a woman lying on the ground, with two large cuts on her right leg, and a gash above her knee. MCCUBBIN also observed the offender inside the house, holding a sheet wrapped around JAGESSAR’S leg. MCCUBBIN noticed a strong smell of alcohol from inside the caravan.

23. MCCUBBIN called 000 and requested an ambulance. On the 000 call MCCUBBIN says that she has been advised by a neighbour that a woman has fallen. On the operator’s request MCCUBBIN goes into the caravan where JAGESSAR is. The operator asks MCCUBBIN to make some enquiries and MCCUBBIN then advised the operator that JAGESSAR said the fall was an accident. MCCUBBIN then says later to the operator that JAGESSAR is “saying someone slashed her” and that the injury was sustained with a knife, but does not provide further details as to who inflicted the injuries.

24. While MCCUBBIN was on the 000 call, JAGESSAR was asking for help, and the offender was saying “she’s fallen through the front glass door and cut herself” and had a firm grip on JAGESSAR’S leg.

25. WALLACE had at this point returned to his van, where the offender was trying to help JAGESSAR by placing pressure on the wound. The ambulance arrived and treated JAGESSAR and took her to hospital.

26. After the Ambulance had left MCCUBBIN heard WALLACE say ‘get out of here, go home’. The offender appeared to MCCUBBIN to be so drunk, that his speech was slurred and unintelligible. The offender approached WALACE with his arms out, and placed them onto WALLACE’S shoulder. WALLACE has taken the offenders arms off his shoulders and the offender had fallen back and hit his head on the ground. The offender struggled to get up off the road because he was so intoxicated he could not walk or stand straight.

27. WALLACE and the offender sat outside and the offender said “I am probably going to go to gaol for this” and began crying. WALLACE told him to go and clean up and the offender repeated that he did not want to go to gaol. WALLACE said “I don’t want to see you go to prison but you can’t do that”.

28. Around 8am that day, Colin CLARKE walked outside his van and saw WALLACE and the offender at the bottom of his stairs. WALLACE was bent over, holding his hand out, which was bleeding. CLARKE provided WALLACE with a rag, and he and the offender began walking back to WALLACE’S van. The offender then turned, looked at CLARKE and dragged his finger across his throat. CLARKE told him not to make any threats. The offender then approached CLARKE and appeared to be so drunk that he could hardly stand up. The offender told CLARKE his name. CLARKE told him to leave.

ARREST

29. On 16 April 2019 DSC JONES attended Site 71 Homeland Caravan Park and approached the caravan. The offender was observed laying underneath the caravan. He was asked to come out from underneath the caravan and he was assisted to do so. He was observed to have blood on him.

30. The offender was cautioned and placed under arrest for assaulting and stabbing JAGESSAR. On being informed of this the offender said things like “a stabbing?” and “what? Why? Is she alright? What happened to her? Where is she?”.

31. When being placed in the van the offender again seemed confused as to why he was being asked to get in the police car and asked repeatedly “what is going on”. He was observed to look down at his arm and said “fucking hell” and then asks repeatedly “has something happened? Is my wife alright? Is Sasha ok? What happened? What is going on with my wife?””

OBJECTIVE SERIOUSNESS

6. The main issue of contention when assessing the objective seriousness of the offending was the relevance, if any, of a pre-existing alcohol disorder in the offender.

Suggested Alcohol Use Disorder

7. The offender relied upon a report of Lee Knight, who is a clinical nurse with expertise in forensic mental health. Mr Knight has impressive academic credentials in relation to mental health. Mr Knight relevantly noted that the offender had commenced drinking since the age of 9 and thereafter commenced drinking every day. Co-incidentally, he also commenced smoking cannabis at about the same age; smoking this substance three or four times a week. The offender’s alcoholic intake increased significantly when he was 34 years old. He tried, periodically, to abstain. He had not used alcohol or illicit substances since being placed in custody.

8. Mr Knight opines that the offender suffers from alcohol use disorder. He also opined that despite the offender’s reporting of a depressed mood and symptoms of an anxiety disorder, his current pressing problem is the grief associated with the unexpected death of his wife. He was, Mr Knight thought, deprived of the opportunity of trying to reconcile the issues concerning their relationship as a result of his being placed in custody; itself the result of the offending conduct. Mr Knight did not, in terms, identify a causal connection between this alcohol use disorder and the offending conduct.

9. Nevertheless, Counsel for the offender submitted that I should find that the offender suffers from an alcohol use disorder. Where a causal connection is established between an addiction, or disorder, of this kind and the offence, it can (amongst other things) serve to reduce the objective seriousness of the offending conduct. She submitted that Mr Knight’s evidence established that, but for some relatively brief periods in his life, the offender has been a continuous and chronic alcoholic. She submitted further that it is apparent from some of the Agreed Facts that I have identified that he was heavily intoxicated at the time of the offending (see, in particular Agreed Facts 11, 26 and 28 in the document).

10. The Crown disputed a connection between the offender’s alcohol disorder and the subject offending. Mr Crown submitted that the offender, aged in his mid-50s had gotten by, for most of his life, without any incident of violence notwithstanding his condition. He was prepared to accept that although alcoholism may have, to some degree, weakened his ability to perceive what he saw in its reasonable or proper context (i.e. Ms Jagessar’s perceived infidelity towards him), thereby rendering him more susceptible to feeling provoked, the offender retained the capacity to falsely represent to the 000 how she was injured (Agreed Fact number 24). That indicated, he submitted, at least a reasonable level of functioning.

11. In my opinion, the Crown’s acknowledgement that the offender’s alcoholism impaired his perspective, and led him to misperceive the dealings between the two victims, establishes that a causal connection did in fact exist between the offender’s alcohol disorder and the subject offending. Further, the Agreed Facts convey that as the effects of alcohol wore off as the morning progressed, the offender appeared completely ignorant of the damage to his wife (for example, Agreed Facts 30-31). There were other manifest indications of his being drunk (Agreed Facts 26 & 28). That mitigates to some degree the level of the objective seriousness of the offending. The alcoholism also has implications for the offender’s prospects of rehabilitation, and the sentencing principles of general and subjective deterrence to which I will return later in these remarks.

The Detain Offences

General Considerations

12. In R v Newell [2004] NSWCCA 183, the Court of Criminal Appeal identified as relevant circumstances to the adjudication of the gravity of this category of offence as including: (i) the period of detention, (ii) the circumstances of detention (including actual violence and the presence of a weapon); (iii) the person detained (and the relationship of the person to the offender); and (iv) the purpose of detention.

13. The seriousness of this category of offence is shaped by the seriousness of the wounding and, further, the nature of the attack and surrounding circumstances (McCullough v R (2009) 194 A Crim R 439 at [37]).

Common features

14. The Crown submitted that there were common features in the two detain offences, as between the two victims: the duration of the detention was for a period of 3 hours. The purpose of the detention was, in each case, to assert psychological control.

15. Counsel for the offender also identified certain common features bearing on the gravity of the offending conduct. In each case, there was no premeditation or planning. Indeed, earlier in the evening, both victims and the offender had been socialising. Counsel for the offender submitted that the offender misinterpreted the behaviour of Ms Jagessar and Mr Wallace as indicative of infidelity. I consider below, in the section concerning the offender’s culpability, the offender’s reliance upon the concept of ‘perceived provocation’. The ‘control’ was exerted, she submitted, to prevent the two victims engaging in unfaithful activities.

Differences between the detain offences

16. But the Crown also submitted that there were some material differences, as between the two detain offences. In the case of Ms Jagessar, the offender held a knife towards her during the period of detention and thereafter used it to cut both of her legs (with the victim receiving a superficial laceration to her left leg). He also repeatedly pushed her into walls and furniture; resulting in a shallow subdural haematoma, bruising under the right eye, a fracture of her left rib and a long superficial laceration to her right leg. He also threatened to “cut her head off”.

17. In relation to Ms Jagessar, Counsel for the offender submitted that the wounds to her right leg were already to be factored into the reckless wounding offence, so that to take them into account in relation to the detain offence would involve double counting.

18. Counsel submitted that the Court could, on the other hand, take into account the injuries to the extent that they were confined to the shallow haematoma, bruising under the right eye, abrasions and bruising and a displaced fracture.

19. In the case of Mr Wallace, the Crown noted that he received death threats through the period of detention with the threat being augmented by the offender holding a knife towards him. Mr Wallace suffered an open laceration to his finger and a superficial laceration across his throat.

16. Counsel for the offender accepted that the Court could take into account those injuries and the threats of violence.

17. In relation to Ms Jagessar, I accept the offender’s submissions about disregarding the wounding to her right leg. These are to be taken into account on the reckless wounding offence. I also accept that the circumstance that the offence occurred in connection with domestic violence is not only more properly treated as an aggravating factor, but is at any rate, dealt with in the related charge. I find that the period of detention was relatively short and that the purpose of the detention was to exert psychological control. A threat to kill was made at a point where the offender was unstable; and his actions therefore unpredictable. In this last respect, I reject as too narrow the purpose identified by the offender. The offender was exerting, or trying to exert emotional ascendency. More generally, care must also be taken not to elevate the significance of the actual injury, since actual bodily harm is already taken into account for this offence; making it an aggravated form of the basic offence of kidnapping. Use of the knife is also an aggravating factor later to be taken into account. In the circumstances, I regard this offence as falling at the mid-range of objective seriousness for an offence of this character.

18. In relation to Mr Wallace, there were multiple threats to kill. Otherwise, essentially the same features relevant to objective gravity as I have found them in relation to the detain offence involving Ms Jagessar also apply in relation to this offence, although I note that there was distinct injuries. I regard the offence as falling at the mid-range of objective seriousness for an offence of this kind.

Reckless Wounding Offence

23. The Crown noted that Ms Jagessar suffered three wounds to her right leg. The most serious of those was a 10 cm wound extending through the dermis into the muscle compartment. Another (15cm long) penetrated the dermis. Emphasis was placed upon the circumstance that the injuries were inflicted by the offender cutting in a sawing motion, during the course of detention and in the context of threats to the complainant.

24. Counsel for the offender accepted the correctness of these matters. Counsel baulked however when, during the sentencing hearing, the Crown submitted that the Court could infer that the infliction of the injury by cutting in a sawing motion had to contend with resistance by the victim. She submitted, also, that there was no premeditation with this conduct, that it was also caused by the offender’s intoxication and was emotionally motivated; which I understood to be another way of saying that the offender had perceived provocation.

25. I agree with Counsel for the offender that it goes beyond the scope of the Agreed Facts to infer any struggle between the victim and the offender, or resistance from the former, at the point where the knife wounds were inflicted on the right leg. As I read Agreed Fact 13, it appears that the inference may be unsound, at any rate, because the victim was feeling the effects of being pushed around against the walls and furniture. It appears that she was conscious at the time when the knife wounds were inflicted but there is no indication as to her capacity to resist.

26. Having regard to the nature of the injuries and the manner in which they were inflicted, to the extent that this is indicated by the evidence, and the context in which they were inflicted – during a period of detention – I classify the offending conduct as being above the mid-range for offences of this character.

AGGRAVATING CIRCUMSTANCES

27. In relation to the detain offences, it is common ground that the circumstance that a victim had the protective benefit of an Apprehended Violence Order, which was breached by the offender, is an aggravating circumstance (s 21A(2)(j) of the Crimes (Sentencing and Procedure) Act 1999 (NSW)). In this case, however, the offender’s Counsel submitted that this was only made on a ‘without admissions’ basis, so should not deprive the offender of leniency. It was also submitted that care should be taken to avoid double counting, given that the related charge relied upon by the Crown involves the contravention of an AVO. In my view, the circumstance that an AVO may have been consented to without admissions does not make it any less an aggravating factor.

28. The offender concedes that the circumstances of the detention involved the presence of a weapon, being the knife (s 21A(2)(c)), is an aggravating factor.

29. Further, the offending conduct occurred in the home of one of the two victims, Mr Wallace (s 21A(eb)).

THE OFFENDER’S SUBJECTIVE CIRCUMSTANCES

30. In addition to Mr Knight’s report, the offender put before the Court the following material in the sentencing hearing:

1. an affidavit sworn by him on 4 May 2020; and

2. an affidavit of Alan Mosedale, a friend of the offender, sworn on 5 May 2020.

31. The offender also placed before the Court a good deal of information concerning the COVID-19 pandemic.

Culpability

Alcoholism

32. The offender reported to Mr Knight that over the course of three days prior to the offending conduct, he had consumed large quantities of alcohol. He reported that his wife had been visiting him at his caravan. Although he acknowledged that he and his wife had previously had sex with other partners, even in each other’s company, he apparently became incensed with what he thought was his wife’s flirting with Mr Wallace. He speculated that he may have thought that Mr Wallace was taking advantage of his wife; though he did not explain the basis for this belief.

33. I accept that there was a causal connection between the offender’s alcoholism and his offending conduct. But in weighing the significance of that with reference to the offender’s culpability, there is force in the Crown’s submission that until that conduct had occurred, he had not engaged in conduct amounting to violent offences. Further, there were indications in Mr Knight’s report that although he was receiving treatment, of sorts, to help him manage his alcoholism, the last efforts ceased about 6 years ago. I am mindful of the vicious grip that alcohol can take hold over an offender – especially one who had commenced consuming alcohol when as young as this offender – but the circumstances suggest that the offender had previously had it within his capacity to mitigate his condition in the past. There was really no information before the Court as to what had gone wrong in the offender’s life over the last 6 years explaining his relapse into alcoholism.

Perceived Provocation

34. Counsel for the offender submitted that there was a subjective and wholly erroneous misinterpretation of conduct that led to the offender perceiving that he was provoked.

35. As to the last submission, Mr Crown submitted that I should reject, as a suggested point of mitigation, any perception of provocation. I understood him to submit that actual, or perhaps objectively-based provocation was necessary to enliven the mitigating circumstance in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.

36. On this point, I accept the offender’s submission that perceived provocation may be relevant in the sentencing context. In Carrollv The Queen (2009) 254 ALR 379; [2009] HCA 13, the High Court determined at [19] that the “subjective reason (the offender) reacted to events as he did was not irrelevant” (emphasis supplied). Mr Odgers has also suggested that (though without reference to additional authority) it is relevant that an offender mistakenly believes that there has been provocation [1] .

    1. Odgers, Sentence (4th ed, 2018) [4.49].

37. However, the nature of the provocation was, put at its highest for the offender, flirtation. There were no obvious signs of preparatory activity before sexual relations between the two victims which appear in the Agreed Facts. I also note that in the past, it appeared that the offender had known about and tolerated Ms Jagessar and himself mutually having sexual relations with other partners – to such degree of engaging in that activity in each other’s presence.

38. In other words, the likely explanation for the offender’s conduct – a combination of intoxication and sexual jealousy – were conditions which he was well aware about, and had previously managed (at least to some extent in relation to the alcoholism), prior to engaging in that conduct. That being so, I do not consider that the offender’s culpability is reduced to any substantial degree on account of either condition. Both matters are, however, relevant to the principle of subjective deterrence to be considered later in these remarks.

Guilty Plea

39. The Crown accepted that the offender is entitled to the 25% discount for the utilitarian value of his pleas.

Antecedents

40. The offender submitted that he has no prior record of violence-related offences, or any other offence. The Crown accepts that he has no significant record of prior convictions, but points out that there was one charge of common assault on his record from 2014; which had been dealt with by way of non-conviction.

The Offender’s Background

41. The offender is currently aged 56 and was 55 at the time of the offending.

42. He was born in England. He was reared in a supportive and happy home environment. His primary schooling was uneventful, but in the early years of senior schooling, his academic struggles became more pronounced. He engaged in acts of truancy at school and started ‘working’, apparently doing odd jobs. For much of his later teenage years, he travelled overseas. He presently has difficulties spelling and with mathematics.

43. The offender was married in England when he was young (aged only 18) and had two sons in the relationship, but the marriage broke down. Those sons are now in middle-age. The offender has not had contact with them for 8 years.

44. He met his second wife, Ms Jagessar, in England when he was aged about 30 and they migrated to Australia in 1996. They had a son together, Leeris, now aged 22, who the offender has seen twice since his incarceration.

45. It appears that he had a son from another relationship with a different partner. The nature of that relationship was determined in part by the prevailing relations which he had with his wife.

46. The offender has been a trained nurse, including in particular working as a dementia nurse. He has also worked as a cook over the years.

Prior Good Character

47. Mr Mosedale has known the offender for 18 years. He, and his wife, have been friends with the offender and his late wife.

48. Mr Mosedale noted that the offender and his wife had appeared to be very happy. He never had any inkling of any violence towards each other. Once he is released from custody, he said he would be happy to have the offender stay with him.

49. I interpret this evidence as grounding a submission that the offender’s conduct was out of character. As I have noted, however, the offender had been the subject of an order for no conviction on a charge of common assault.

Remorse

50. The offender composed a long hand-written letter which was presented to the Court by way of affidavit. The letter manifests some of the offender’s reputed spelling difficulties. As to its substance, the letter frankly acknowledged his responsibility for his offending conduct and made no excuse for that conduct. He expressed his sense of shame and guilt.

51. In the letter he noted his alcoholism and depression for many years.

52. The letter evinced a clear sense of regret and guilt when learning that his wife, one of the victims of the detain offences, died of liver and kidney failure in February 2020. He was only advised of this by his son; not having been able to attend her funeral. Mr Mosedale also confirmed his observation of the offender being grief-stricken about his wife’s death.

53. I accept that the offender is sincerely remorseful for his conduct. I consider that the reliance of the offender’s grief is of more significance to his prospects of rehabilitation.

Time in Custody

54. Since being in custody, the offender has completed a Remand Domestic Abuse Program (in September and October 2019). He has used the time constructively to also plan how he may deal with his conditions after his period of incarceration is completed.

55. He has received a glowing testimonial from one of the chaplains in his correctional centre; noting his willingness to engage in hard work and helping custodial and other personnel.

56. It was submitted that the offender has behaved in an exemplary fashion whilst in custody.

57. The offender’s period of incarceration will be backdated to the date when he was remanded in custody.

Rehabilitation Prospects – Likelihood of Re-offending

58. In his report, Mr Knight suggested several treatment plans for alcohol and drugs and the assistance of a mental health professional that would assist the offender after his release from custody. In light of his attitude in custody, the circumstance that he is a first-time offender, and his evident remorse, I accept the probability that the offender would try to avail himself of these forms of treatment once he is released.

59. Against this, the Crown urges the Court to be cautious in assessing whether attempts at rehabilitation can be sustained outside of the controlled environment of custody. I was reminded that the offender had previously tried to manage his alcoholism prior to his offending conduct, but this could not be sustained.

60. Further, the conditions which might lead to alcoholism – such as unemployment and social isolation – may be problematic for this offender. Other than his son, and his friend Alan Mosedale, there is very little evidence of community connection and nothing was indicated to the Court about the likelihood of his obtaining employment upon release. Given the nature of his offences, and his age, it may be that those prospects are bleak. Counsel for the offender, quite fairly, recognised that an alcoholism condition for a man in his mid-50s going back to drinking from the age of 9 will take a formidable determination to tackle.

61. On the other hand, I consider that it would be too simplistic to fail to recognise that it was not only the alcoholism that contributed to the offending conduct. It was the combination of that condition with the emotional instability and turmoil of the relationship with his now deceased partner which contributed as well. The offender may well feel a strong sense of isolation whenever he is released, but it must be doubtful whether, when that release occurs, he will endure the same degree of emotional instability stemming from an intimate relationship with a future partner or partners which so inflamed him in connection with the offending conduct in this case.

62. I consider that his prospects of rehabilitation are reasonable to good.

CONSIDERATION

63. The offender concedes that the s 5 threshold under the Crimes (Sentencing Procedure) Act is passed, such that a term of full-time imprisonment should be imposed. I consider that concession is properly made.

Sentencing Principles

64. I take into account the general sentencing principles in s 3A of Crimes (Sentencing Procedure) Act.

65. In Patsan v R [2018] NSWCCA 129, the Court of Criminal Appeal (at [41]) emphasised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to general deterrence, specific deterrence, denunciation and community protection. To the last two considerations, I am also influenced by the consideration adverted to by the High Court in Munda v Western Australia (2003) 249 CLR 600; [2013] HCA 38 at [54] regarding the importance of vindicating the dignity of victims of domestic violence. It might be said also that the other side of that coin is ensuring that the offender is properly made accountable for his violent conduct in this context.

66. For reasons indicated earlier in my remarks, I consider that there should be some moderation of the principle of general deterrence on the ground that the offending conduct was caused by the offender’s alcoholism; and, subjective deterrence is also moderated, to a small degree, because of that circumstance and the mistaken sense of provocation he held. On the other hand, I accept that subjective deterrence is somewhat elevated because of the aggravating circumstances referred to, including the breach of the apprehended violence order. That last matter is most pertinent to the related charge.

67. I am mindful of the offender’s strong subjective case: his plea; his remorse; his first-time offending and his progress in managing his alcoholism well in custody.

The significance of the COVID-19 pandemic

68. Counsel for the offender also submitted that the current pandemic make the conditions of custody more onerous and impeded the offender’s rehabilitation. The restrictions designed to facilitate social distancing (including, without limitation, the reduction of visits[2] ) effectively limited or reduced the effectiveness of interventions intended to help the offender deal with his alcoholism and pre-existing anxiety disorder. The recent death of Ms Jagessar has caused grief which could precipitate depression or at least accentuate the offender’s anxiety. Increased isolation is itself likely to be accentuating the offender’s anxiety.

    2. Scott v R [2020] NSWCCA 81.

69. The Crown responded in several ways to those submissions. First, incarceration for offenders is inherently isolating. Secondly, the offender’s reporting to Mr Knight suggested that the submission concerning the offender being deprived of visits was exaggerated – he had children overseas with whom he had no contact at all and the one son of his who had visited him had only done so twice since he went into remand over a year ago. Thirdly, the Crown submitted that the incidence and effects of the pandemic were simply too uncertain to be given significant weight. Reference was made at the time of the sentence hearing to a statement of the Prime Minister on 5 May 2020 signifying the prospects of an imminent easing of restrictions on movement in the community. This was, so it was submitted, likely to portend a corresponding easing of restrictions in correctional centres; although no indication was given as to what that might practically mean.

70. On balance, I accept that, at least in the short term, the offender is likely to find custody generally more onerous to some degree as a result of the general restrictions imposed because of the pandemic, even if there was something of an absence of specific evidence of restrictions imposed upon the offender. In particular, I accept that, given his mental health condition prior to the offending, his anxiety may be exacerbated to some degree; in the sense that he, like other inmates, is likely to be concerned about the risk of his contracting the virus, that he and others are at the mercy of others when it comes to protective steps to limit the risk of their becoming infected and these circumstances may also generally heighten a general sense of alienation.

71. However, I note that, to his credit, the offender did not report to Dr Knight any grave fears or anxiety about the pandemic: because he currently works as a sweeper (an activity which he said he enjoyed), he has access to gloves and hand sanitiser whilst working in that capacity. At any rate, the reality is that because of the objective gravity of his conduct, he will receive a very substantial period of incarceration. I think it is both realistic and not unfair to say that the incidence and effect of the pandemic may be more keenly felt for an offender who has a short non-parole period to serve in comparison to someone who will receive a significant head sentence. As I raised with Mr Crown during argument, one cannot foretell how long this pandemic, and its effects, will last: perhaps restrictions might be eased very shortly in the community generally and correctional centres in particular; but there is an obvious risk of future waves of the pandemic arising once restrictions are eased in the absence of discovery of a vaccine. It is therefore speculative for the Court to predict for how long conditions of custody are made more onerous for inmates. I also consider that, in this context, courts should not be too ready, in the absence of express legislative action, to be unduly influenced by the pandemic when weighting its significance in the sentencing exercise. Overall, then, whilst I acknowledge some short term general detriment to the offender in terms of exacerbating a pre-existing sense of anxiety, I am unable to ascribe significant weight to the incidence and effects of the pandemic upon this offender so as to have any substantial bearing upon the head sentence or the period of parole.

Totality

72. It is common ground that an aggregate sentence should be appropriate. It is also common ground that some accumulation should be applied to the two detain offences. The point of difference was the degree of accumulation. The offender submits that accumulation should be modest, measured by only a few months in recognition of the circumstance that there were two victims. The Crown submitted that the level of accumulation should not only recognise that there were two victims, but also some unique circumstances augmenting the criminality in the two detain offences. For example, Mr Wallace suffered threats to kill and injuries that were distinct from the offensive conduct against Ms Jagessar.

73. In my opinion, the circumstances of multiple victims, and the differing threats and injuries justify a level of accumulation; to reflect the overall criminality of the conduct.

74. The offender submitted that there should be concurrency between the detain offences and the reckless wounding offence. The Crown did not make any submission to the contrary.

75. The related charge is to be served concurrently with the aggregate sentence.

76. I acknowledge that, insofar as the sequence 6 offence is concerned, there is a standard non-parole period for the aggregate sentence. I take that, and the maximum penalties for each offence, as relevant guideposts in determining the length of imprisonment for that offence. The maximum penalties are also guidelines for the detain offences and related charge.

Special Circumstances

77. I accept the submissions on the offender’s behalf that special circumstances are made out which warrant variation of the non-parole period. Most significantly, the interest of protecting the community is enhanced by the offender’s rehabilitation and transitioning out of custody. The circumstance that this is a first time offender, and his encouraging behaviour whilst in custody, are also significant.

SENTENCE

78. Mr Barnett, please stand.

79. You are convicted of the offences being sequences 3, 4 and 6; as well as the offence on the s 166 certificate.

80. In respect to sequences 3, 4 and 6 you are sentenced to an aggregate period of imprisonment of 7 years, 6 months with an aggregate non-parole period of 4 years and 6 months. This period of imprisonment commences on 16 April 2019 and expires on 15 October 2026. You will first be eligible for release on parole on 15 October 2023.

81. The sentence on the related charge is to be served concurrently with the aggregate sentence.

82. The indicative sentences (taking into account the guilty pleas) are as follows:

Sequence 3:   6 years’ imprisonment

Sequence 4:   6 years’ imprisonment

Sequence 6:   3 years & 4 months’ imprisonment (non-parole period of 2 years)

Section 166 offence: 9 months’ imprisonment

83. The Crown has also requested, and the offender’s counsel consents to, the Court recording sequences 3 & 4, respectively, as “domestic violence offences” on the offender’s record, in accordance with s 12 of the Crimes (Domestic and Personal Violence)Act 2007 (NSW). It is so ordered.

84. Notifying the Crown’s concession, the two back-up offences are withdrawn.

**********

Endnotes