R v Dates

[2024] NSWDC 628

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Dates [2024] NSWDC 628

Hearing dates:

20/12/24

Date of orders:

20/12/24

Decision date:

20 December 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 3 years 6 months with a NPP of 2 years 6 months (13/12/23-12/6/26).

I find special circumstances.

The indicatives sentences are (taking into account a 25 percent discount):

Seq 7 Intimidate – 1 month

Seq 4 Assault – 2 months

Seq 16 Wounding – 2 years 10 months with NPP 2 years

Seq 14 Breach of AVO – 1 year 2 months.

I recommend that the offender be referred to the Intensive Drug and Alcohol Treatment Program (IDATP) for assessment.

Catchwords:

Crime – Sentence – Common assault – Intimidation – Reckless wounding – Contravene AVO

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen [2013] 249 CLR 571

Cherry v R [2017] NSWCCA 150

Hoskins v R [2021] NSWCCA 169

R v Hamid [2006] 164 A Crim R 179

Category:

Sentence

Parties:

NSW DPP – Crown
Offender – Kelvin Dates

Representation:

Ms Atkinson for Crown
Ms Suters for Offender

File Number(s):

23/452225

Publication restriction:

Names anonymised pursuant to s.45 of the Crimes (Domestic and Personal Violence) Act 2007

remarks on sentence

1. Mr Kelvin Dates is for sentence in relation to a number of offences, to which he has pleaded guilty, those offences being as follows. Firstly, the sequence 4 offence of common assault under s 61 of the Crimes Act 1900, maximum penalty for which is two years imprisonment. Secondly, an offence of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 for which the maximum penalty of five years imprisonment. Thirdly, an offence of reckless wounding under s 35(4) of the Crimes Act 1900, which is the sequence 16 offence and carries a maximum penalty of seven years and has a standard non-parole period of three years specified, and fourthly an offence which is the sequence 14 matter, which is to be dealt with on a s 166 certificate, of contravening an Apprehended Domestic Violence Order. The maximum penalty for that offence is two years imprisonment, and of course, in that matter I am subject to the jurisdictional limit that applies in the Local Court.

2. The maximum penalties and where applicable, standard non-parole period, are important guideposts and I have had regard to those in the sentencing exercise as being important yardsticks.

Plea of guilty

3. The offender pleaded guilty at the earliest opportunity and will be given a 25% discount by reason of the utilitarian value of those pleas of guilty.

Facts

4. The facts are agreed and in summary are as follows. The offender was born in 1982 and was aged 41 at the time of the offending, while the primary victim LH was born in 2004 and was 19 at the time of the offences.

5. They had been in a relationship for a period of about 13 months, and at the time of the offending, the victim was four weeks pregnant with the offender’s child. On 26 September 2023, an Apprehended Domestic Violence Order with the standard conditions was imposed, naming the victim as the person in need of protection and the offender as the defendant.

6. On 17 November 2023, the offender and the victim moved into some accommodation at the Currency Lass Hotel in Maitland. On 13 December 2023, which is the day of the offences, the offender and the victim were at the Currency Lass Hotel. Also at the hotel was a Ms ES, who was also residing there. She was staying in room one.

7. At some stage that day, the victim, LH, got out of bed and went into ES’s room. They were both sitting on the bed. The offender then came into ES’s room and told the victim to get up. The victim responded by telling him that she would do so shortly. ES then told the offender to “stop” because she thought he was scaring the victim, however, the offender replied, “I don’t care, she has to listen to me and do as she’s told.” It is agreed that those actions and those words are the facts which support the sequence 7 intimidation offence.

8. The offender then jumped onto the bed, aiming for the victim. ES used herself as a shield and moved in front of the victim to protect her. The offender continued to try to get at the victim, however, and in the course of trying to do that, ES was punched on her leg and pushed off the bed, causing her to land on the ground. ES suffered some bruising to her leg as a result of the assault. It is agreed, or was agreed in the sentence hearing today that that bruising was not of a substantial nature such as to amount to actual bodily harm. Those are the facts that relate to the sequence 4 assault offence.

9. The offender then grabbed the victim, that is, LH, by the shoulders and pushed her head into the metal bed frame face down. The victim yelled out, “Get off me, get off me,” however the offender picked up a 20 centimetre piece of metal TV antenna and then repeatedly punched the victim in the head and shoulders whilst holding onto the metal antenna.

10. The victim felt the metal antenna going into her neck and she yelled out, “Stop, stop, stop,” and the offender replied, “I’ll kill you.”

11. ES then began recording the assault using her phone. The offender, however, continued punching the victim and pushing her head into the bed. The victim yelled, “I’m pregnant, I can’t breathe,” however the offender yelled out, “Shut up, cunt,” and punched her in the head and got off her. ES stopped recording because she thought at that stage that the offender had seen her doing that.

12. The victim, that is, LH, sustained multiple lacerations to her neck as a result of the assault, and these are shown in photographs in the agreed facts.

13. The victim then ran down the stairs with the offender chasing after her. She ran out of the building onto the street, attempting to get away from the offender. Around this time, a man and his wife were driving along the street and saw a female that “looked like she had been bashed and was being dragged by a bloke against her will.” They noticed that the female was crying, had blood on her mouth and was being dragged by her hair. The man called Triple-0 and police were dispatched to the location.

14. Police arrived about 3 or 4 minutes later. When one of the police saw the offender and the victim sitting on the side of the footpath, the victim was covering her face with her hands and refused to move them. The victim and the offender told police nothing had happened between them. The victim became verbally aggressive towards police, yelling, “Stop fucking putting it on him, I don’t give a fuck, he didn’t do anything to me, fuck off. You’re saying my partner attacked me when he didn’t, fuck off.”

15. Police were, understandably, concerned for the victim’s welfare, but she was unwilling at that stage to speak with them. No doubt because the offender was present.

16. Police left the scene and the offender and the victim then walked away towards High Street, Maitland. About an hour or so later, one of the police received a phone call from the victim’s mother who said that the friend, ES, had just called her and told her that the offender had assaulted the victim. The police officer then called ES back to confirm what had been said, and ES confirmed that the offender had assaulted the victim but that the situation had, by then, calmed down.

17. About 15 minutes later, police attended the Currency Lass Hotel and arrested the offender. He was then escorted to Maitland Police Station and declined to be interviewed. The police noticed that the victim had bruising and swelling to her face and cuts on her neck, of which police took photographs. Those in summary, are the relevant facts.

Objective seriousness

18. I turn then to make an assessment of the objective seriousness of the offences before the Court.

19. Firstly, I note that each of them carry sentences of imprisonment and that the reckless wounding offence attracts a standard non-parole period. Clearly, then, the offences must all be regarded as potentially very serious.

20. Secondly, each of the offences were committed in the context of a domestic relationship between the offender and the victim. The courts of this State have made it plain for some time that offences involving domestic violence must be treated with the utmost seriousness, see for instance Cherry v R [2017] NSWCCA 150.

21. In R v Hamid [2006] 164 A Crim R 179, it was said that:

“In sentencing a domestic violence offender, and in particular, a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.”

22. Also, there has been for some time now a great deal of public outrage at the prevalence of domestic violence in our society. Practically all of this domestic violence is carried out by cowardly and often drug and alcohol affected men who intimidate and assault women simply because their greater physical strength allows them to. It is for these reasons that very great weight must ordinarily be placed on the importance of general deterrence when sentencing for such offences.

23. Thirdly, however, it is important that I have regard to the particular facts of the offences before the Court and make an assessment of their relative seriousness in an objective sense.

24. The sequence 7 intimidation offence involved the offender entering the hotel room where the victim was sitting with her friend ES, telling her to “get up” and declaring that she had to “do as she was told.” I assess this offence as being at the low end of objective seriousness.

25. The sequence 4 assault offence relates to the offender’s actions around the same time as those that I have just set out, in punching ES and pushing her from the bed. The assault was completely without justification or provocation because ES was simply trying to protect the primary victim from the offender’s controlling and cowardly actions. I assess this offence as being below the mid-range of objective seriousness but not in the low range.

26. The sequence 16 reckless wounding offence is clearly the most serious offence before the Court. It involved the offender in a wild and childish rage, first grabbing the victim and pushing her head face first into the metal bed frame. It involved a sustained attack with the offender repeatedly punching the victim to the head and shoulders while holding a 20 centimetre metal TV aerial which was being used as a makeshift weapon. Although the victim kept screaming at the offender to stop, and although ES had the good sense to film some of this, the offender did not stop but continued punching the victim saying “I’ll kill you,” and, “Shut up, cunt.” When the victim said, “I’m pregnant, I can’t breathe,” the offender eventually got off the victim, at which time she tried to escape. However it is clear the offender did not voluntarily bring himself under control or try to assist the victim with her wounds because the statement of facts records that he chased her down the street, leading bystanders to call Triple-0.

27. As a result of the attack, the victim suffered multiple lacerations of some significance to her neck, which are depicted in photographs in the statement of facts.

28. I have no doubt that it would have been a terrifying experience for the victim with the episode being made more concerning by reason that she was pregnant.

29. While the wounds were substantial, they were in the less severe range for wounding type offences, and there is no evidence that they are likely to have had long lasting substantial effects. I assess this offence as being slightly below the mid-range of objective seriousness.

30. The sequence 14 offence is one of breaching an Apprehended Domestic Violence Order which prohibited the offender from intimidating, threatening, harassing or assaulting the victim. Clearly the actions I have just described in considering the sequence 7 and sequence 16 offences involved a very serious breach of that ADVO. I assess the objective seriousness of this offence as being well within the mid-range.

31. In assessing the objective seriousness of each of the offences, I have taken into account the fact that each of them were committed in a place which was a home where the victims were entitled to have felt safe.

Subjective matters

32. Turning then to subjective matters relating to this offender himself. The offender is now aged 42 and was 41 at the time of the offences. The offender has a significant history of criminal offences, many of them being domestic violence related. This history is a matter that disentitles the offender to leniency and places emphasis on the importance of personal deterrence, and subject to what I will say later in these remarks, general deterrence.

33. He is of Australian Aboriginal heritage and grew up in the Newcastle area. He is the second of four children from his parents’ marriage. His parents, who are now both deceased, separated when the offender was aged about 5. They both abused alcohol and this had an adverse impact on the offender’s upbringing.

34. The offender told a psychologist, Ms Durkin, that his mother was frequently intoxicated and/or psychologically unstable, such that he received little or no nurturing or guidance from her. There was often no food in the house and at times, they had no accommodation.

35. On the occasions when he stayed with his father, it was an unsafe environment, with drunken people around, chaotic housing conditions, and little supervision. The offender’s home environment also involved exposure to significant violence. Although this was not visited directly on the offender, he was witness to people being injured and plates and other items, and housing fixtures being smashed. The offender also suffered the experience of finding a man who had suicided hanging in a public toilet, which understandably, seriously affected the offender for some time.

36. Not surprisingly, with all this background, the offender struggled at school which he left in year 10. He has never had regular work. He did, for a time, focus on becoming a professional footballer, but this plan fell apart due to his abuse of alcohol.

37. Although the offender started abusing alcohol from a young age, he ceased using alcohol around age 30 due to recurring pancreatitis. Since then, however, he has continued to be a regular user of other drugs, including methamphetamine, which he claims helps him to block out bad memories from his younger years. He told the psychologist that in the period leading up to these offences, he felt that he was experiencing an “ice psychosis”.

38. The offender has had five significant relationships with women and he has eight children to four different mothers. He has not, however, had any consistent role in the lives of those children. He told the psychologist that most of his relationships have been marred by domestic violence. Domestic violence, I have no doubt, carried out by the offender.

39. The psychologist notes that the offender could not identify his reasons for acting in a domestically violent way, but she expressed the view that the offender likely has a sense of entitlement, and an expectation that his wishes and desires must be met unquestionably by his female partners.

40. While the psychologist noted that the offender has little insight into the range of conduct which might amount to intimate partner violence, he did accept that he alone is responsible for his violence and did not offer any excuses. He also described his actions as “ugly, putrid,” and “no way to treat a lady.”

Bugmy principles

41. This is clearly a case which engages the principles discussed in a number of cases including Bugmy v The Queen [2013] 249 CLR 571. That line of cases establishes the important principle that where an offender’s upbringing has involved profound deprivation or abuse, this may impact on that person’s capacity to make appropriate decisions, and on their capacity to control impulses. There is of course no “magic” in the words “profound” before the principle can be engaged: Hoskins v R [2021] NSWCCA 169.

42. Nonetheless, and as I said, I accept that the Bugmy principle is engaged in this case, and that the offender’s moral culpability is reduced to a significant degree. That is because of the fact that he was exposed to violence and deprivation as a child and has not had good role models to assist him in developing the capacity to have empathy and patience and control his moods and avoid using violence to solve his problems.

43. However, although the offender’s moral culpability is reduced by reason of his impaired capacity for controlling his emotions and making wise choices, that same impaired capacity must be taken into account when I am considering the importance of personal deterrence and protecting the community from the risk that the offender will act in a similar way in the future. And, as I will discuss in just a moment, that risk is, in my view, a significant one.

44. In summary, the offender’s impaired capacity to control himself and avoid stupid and dangerous decisions, pulls in two different directions. One which tends towards reducing the appropriate sentence, and the other which tends towards increasing it. I must balance these considerations in performing the instinctive synthesis that this sentencing exercise involves.

Remorse

45. There is some remorse of a genuine nature in this case, given the offender’s comments made to the psychologist about his “putrid and ugly” behaviour.

Prospects and future risk

46. While there have been some expressions of remorse by the offender, there is little by way of insight as to how he can bring his bullying and violent nature towards women under control. This is an obvious problem, and combined with the offender’s untreated tendency to abuse drugs, and his history of similar domestic violence type offending, it is a problem that points strongly to the offender remaining a significant risk of similar offending in the future. As counsel for the offender submitted,

“The offender’s prospects of rehabilitation are tied to two things. Firstly, his ability to remain abstinent from drugs and alcohol and to engage in offence specific treatment.”

47. In this regard it is positive that, in the hearing today, the offender displayed a certificate issued to him by Serco after his engagement in a remand domestic violence program. It is also positive that he has an offer of accommodation with an aunt upon his release. The offender also told the psychologist, Ms Durkin, that he wants to engage in appropriate treatment and that too is positive.

48. However, it would be unrealistic to think that the offender will be able to address his various problems anytime soon and it would be even more unrealistic to think that he will, in the future, be able to consistently stay out of trouble. As Ms Durkin puts it, the offender’s path to stability is likely to be challenging and subject to reversals.

49. Although I sincerely hope I am ultimately proved wrong, regrettably, at present, I am not able to form a positive view of his prospects of rehabilitation.

Determination

50. In determining the appropriate sentence in this matter I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, all of which are of importance in this case. However, and for reasons I have already set out, it seems to me that the importance of general deterrence is reduced to some degree by reason of the offender’s diminished moral culpability to which I have earlier made reference. I do not intend to set out all of the purposes set out in s 3A. Suffice to say that I have had regard to them, including to the importance, to the extent that any sentence that I impose can do so, of promoting the rehabilitation of the offender.

50. I am satisfied that each of the offences have passed a threshold referred to in s 5 of that same Act and that a sentence of imprisonment is the only appropriate penalty in each case. While the sequence 7, intimidation offence standing on its own, would perhaps not meet that threshold, I consider it appropriate to impose a sentence of imprisonment for that matter also, given that I will be imposing an aggregate sentence encompassing all of the offences.

Totality

52. In determining the overall aggregate sentence, I have had regard to totality principles. This is especially important in this case given that all of the offences were committed around the same time and essentially in the course of a single incident. It is relevant, however that I have regard to the fact that there were two victims. Also, it is relevant that the reckless wounding involved a significant and vicious escalation of the confrontation that had started with the intimidation of the victim and the assault of ES. It is necessary therefore, in my opinion, for there to be some degree of notional accumulation. I record the fact, however, that in relation to the contravene ADVO offence, which I regard as a serious breach, I have remained mindful that there is a significant degree of overlap arising with this offence given that it relies upon the intimidation and reckless wounding of the person for whose protection the ADVO was in place.

53. I intend to make a slight adjustment of the statutory ratio of non-parole period to head sentence by reason of a finding of special circumstances. I make that finding on the basis that there is a need for the offender to receive a significant or reasonable period of supervision on parole in order to facilitate the need for treatment, and also based upon the risk of institutionalisation given the amount of time that the offender has spent in custody in recent years.

54. Because I am imposing an aggregate sentence it is necessary for me to set out the indicative sentences that otherwise would have been imposed and I will do that now. All of these indicative sentences are after the application of the 25% discount.

55. The indicative terms are as follows;

56. For the sequence 7, intimidation offence, imprisonment of one month.

57. For the sequence 4, assault of ES offence, imprisonment of two months.

58. For the sequence 16, reckless wounding offence, imprisonment of two years, 10 months and I nominate a non-parole period of two years.

59. For the sequence 14, contravene ADVO offence, imprisonment of one year, two months.

60. Instead of those, I impose an aggregate head sentence of three years, six months.

61. I impose a non-parole period of two years, six months which is the minimum period which, in my view, should actually be served for these offences. The sentence will date from 13 December 2023. The head sentence therefore will expire on 12 June 2027, and the non-parole period will expire on 12 June 2026.

62. I make a recommendation that the offender be referred for assessment for admission to the Intensive Drug and Alcohol Treatment Program operated by Corrective Services.

63. Is there anything of a factual nature or anything about those dates that needs to be raised?

64. SUTERS: Not from my point of view, your Honour.

65. ATKINSON: No, thank you, your Honour.

66. HIS HONOUR: All right, thank you. Court will adjourn.

**********

Amendments

30 January 2025 - Typo in paragraph 57.

30 January 2025 - Offender's date of birth removed.

Decision last updated: 30 January 2025