R v Douglas (a pseudonym)

[2025] NSWDC 126

District Court

New South Wales

Medium Neutral Citation:

R v Douglas (a pseudonym) [2025] NSWDC 126

Hearing dates:

06 December 2024

Date of orders:

06 March 2025

Decision date:

06 March 2025

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Aggregate sentence of 16 years with a non-parole period of 12 years, at [335].

Catchwords:

SENTENCING — Sentencing procedure — Findings of fact after jury trial — Offender convicted of 17 of the 29 counts at trial.

CRIME — 17 counts of domestic violence offences — Sexual assault — Common assault — Assault occasioning —Intimidation.

SENTENCING — Sentencing procedure — Continued denial of all offending — No remorse — Cannot find good prospects of rehabilitation.

SENTENCING — Sentencing procedure — Impact of totality when offending occurred over a period of 20 years across two relationships.

SENTENCING — Standard non-parole period for aggravated sexual assault applicable for mid-range offending.

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Abbas v R [2024] NSWCCA 228

Ali v R [2010] NSWCCA 35

Alseedi v R [2009] NSWCCA 185

Armstrong v R [2017] NSWCCA 323

Attorney-General for Tasmania v O [2004] TASSC 53

Baker v R [2022] NSWCCA 195

BP v R [2010] NSWCCA 159; 201 A Crim R 379

Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Doolan v R [2006] NSWCCA 29; (2006) 160 A Crim R 54

Gallegos v R [1999] WASCA 191

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

Parker v The Queen (Tasmanian Court of Criminal Appeal, 21 July 1994, BC9400423)

Patsan v R [2018] NSWCCA 129

R v Berry [2000] NSWCCA 451

R v Brown (1992) 73 CCC (3d) 242

R v Chehab [2015] NSWCCA 44

R v Cortese [2013] NSWCCA 148

R v Devine (Tasmanian Supreme Court, 5 July 1993, unreported)

R v DN [2023] NSWCCA 39

R v Dunn (2004) 144 A Crim R 180

R v Egge [2020] NSWDC 277

R v Fahda [1999] NSWCCA 267

R v Fernando (1992) 76 A Crim R 58

R v Glen (Court of Criminal Appeal, 19 December 1994, BC9403423)

R v Greene [2001] NSWCCA 258

R v Hamid [2006] NSWCCA 302; 164 A Crim R 179

R v Hendricks [2011] NSWCCA 203

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v Lardner (Court of Criminal Appeal, 10 September 1998, unreported)

R v MAK [2006] NSWCCA 381; 167 A Crim R 159

R v Matthews [2023] NSWDC 611

R v Ross (Court of Criminal Appeal, 20 November 1996, unreported)

R v Rowe (1996) 89 A Crim R 467

R v Saleh [2023] NSWDC 444

R v Stephens [2024] NSWCCA 170

R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740

R v Todd [1982] 2 NSWLR 517

R v Tuala [2015] NSWCCA 8

R v Way [2004] NSWCCA 131; 60 NSWLR 168

R v Wheeler [2000] NSWCCA 34

R v Yaukhana [2004] NSWCCA 412

R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551

Simpson v R [2014] NSWCCA 14

The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131; (2016) 259 CLR 256

Tsaccounis v R [2016] NSWCCA 163

Turnbull v The Queen [2019] NSWCCA 97

Ugle v R [2001] WASCA 268

Van Ryn v R [2016] NSWCCA 1

Yaman v R [2020] NSWCCA 239

Category:

Sentence

Parties:

Rex (Crown)
Paul Douglas (a pseudonym) (Offender)

Representation:

Counsel:

A Hughes (Crown)
G Hoare at trial (Offender)
M Pickin on Sentence (Offender)

Solicitors:

Office of the Director of Public Prosecutions (NSW) (Crown)
Hammond Solicitors (Offender)

File Number(s):

2022/00070631; 2022/00070649

Publication restriction:

There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 578A of the Crimes Act 1900.

JUDGMENT

1. There is a statutory prohibition against the publication of any of the names of the victims or of material tending to identify them pursuant to s 578A of the Crimes Act 1900. Accordingly, these published Remarks on Sentence will use pseudonyms and will include redactions where necessary. References in this judgment to victim or complainant are used interchangeably.

2. Paul Douglas (a pseudonym) appears for sentence in relation to 17 counts of sexual and domestic violence offences committed against two complainants during a period of 21 years.

3. The offender pleaded Not Guilty to 29 counts on indictment, all of which related to a variety of alleged sexual and domestic violence offences against his ex-wife, the first complainant, and a subsequent partner, the second complainant.

4. The offender stood trial before a jury following presentation of the indictment on 30 August 2024. The trial continued until 26 September 2024 when the jury returned verdicts of Guilty to 17 of the 29 counts.

5. 22 counts related to allegations brought by the first complainant with respect to sexual assaults, physical assaults and acts of intimidation which had occurred during the period of their marriage on identified dates and periods commencing in 2000 and occurring episodically until 2019.

6. Notwithstanding that the Crown case with respect to these 22 counts relied principally upon an acceptance of the credibility and reliability of the complainant, the jury returned Guilty verdicts with respect to 10 of the counts in the indictment and Not Guilty verdicts with respect to 11 counts. One count had been pleaded as an alternative and following a verdict of Guilty with respect to the primary allegation, that particular count (Count 13) did not require a verdict to be returned.

7. The remaining seven counts in the indictment related to sexual and physical acts of violence and intimidation against a subsequent partner, the second complainant during the period between June 2020 and October 2021.

8. Notwithstanding sworn evidence by the second complainant at trial that the allegations were false and that she had been induced or coerced into making the original complaint to police, the jury returned verdicts of Guilty with respect to each of the seven counts.

9. The variation in the jury’s verdicts and the protestations of innocence still propounded by the second complainant underscore some of the difficulties in the present sentencing exercise.

10. The Court has received letters sent directly from the offender, from his cousin, and also from the second complainant continuing to protest his innocence. That correspondence has been Marked for Identification and placed with the Court file. Except to the extent that such communications reflect a continuing lack of remorse and absence of contrition, I will, of course, sentence in accordance with the verdicts of the jury and otherwise put the continuing protestations of innocence to one side.

11. I remind myself of the succinct statement of principle by Callinan J in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [169]:

“The principal constraint upon the power and duty of a sentencing judge to find the "sentencing facts" is that the view of the facts taken by the judge cannot be inconsistent with the verdict of the jury. This may mean that the view of the facts which the judge is obliged to take on sentence might be different from the view which the judge would have taken if unconstrained by the verdict. The fact that a judge may not agree with a jury's verdict and may be required to sentence on a basis different from his or her strongly held view of the case simply follows from the division of functions in a trial by jury.”

12. I should make it clear that I read his Honour’s reference to a jury verdict to apply equally to multiple verdicts.

13. It is axiomatic that a sentencing judge is not only bound by the verdicts of the jury but must determine the facts consistent with such verdicts.

14. In circumstances where the jury is confronted with opposing accounts of what did or did not take place on identified occasions, the jury’s lack of satisfaction to the criminal standard of proof may simply mean that a sentencing judge should put the verdicts of Not Guilty to one side and simply focus on the facts giving rise to the Guilty verdicts. In that case, the sentencing exercise is more straightforward than cases in which an alleged course of criminal conduct may give rise to apparent inconsistent verdicts. In such a case, a sentencing judge is faced with the difficult task of determining facts which are both consistent with the Guilty verdicts and not inconsistent with the Not Guilty verdicts (see by way of example R v Egge [2020] NSWDC 277).

15. Against these observations, I turn to a consideration of the factual circumstances relating to the 17 counts which resulted in verdicts of Guilty.

16. However, in the course of outlining the factual background to the Guilty verdicts, I propose to make reference to the events which were alleged and resulted in Not Guilty verdicts.

17. The factual circumstances required to be determined by the jury were, on one view, complicated by a Statement of Agreed Facts (Exhibit #1 at trial). Whilst I will refer to the detail of the contents of those Agreed Facts in due course, the Agreed Facts disclosed that in the course of the offender’s relationship with his wife, the first complainant, he had made previous admissions with respect to assaulting her. Apprehended Domestic Violence Orders had been made against the offender in protection of the complainant. The Agreed Facts further admitted subsequent physical assaults in breach of the Apprehended Domestic Violence Order (ADVO) and also the content of abusive threats made verbally by the offender. The original Apprehended Domestic Violence Order had been made in 2007 and contraventions occurred during 2008. A further ADVO was made against the offender in 2013. The Agreed Facts identified numerous breaches of the terms of that ADVO by repeated telephone contact in breach of the terms of the order. A further ADVO was made in 2014 and subsequently in 2019 and 2021.

18. With respect to the second complainant, the Agreed Facts set out factual circumstances in which the offender admitted damaging property and furniture belonging to the second complainant and the detail of physical assaults which he also admitted. The Agreed Facts also outlined an ADVO made in the Local Court for the protection of the second complainant and the detail of subsequent breaches of the terms of that order by the offender.

19. The Agreed Facts outlined the circumstances of a further ADVO having been made against the offender for the protection of the second complainant in February 2022.

20. It is appropriate to set out the detail of those Agreed Facts:

The first complainant

1. In 1998, the accused and (the first complainant) commenced an intimate relationship.

2. In 2000, the accused and (the first complainant) moved into a granny flat in (a suburb in Sydney).

3. In 2002, the accused and (the first complainant) moved to (another suburb in Sydney).

4. The accused and (the first complainant) married in 2004, and they had three children together.

5. (Their older son) was born (in) 2002, and twins were born (in) 2006.

6. On 13 November 2007, the accused made admissions to assaulting (the first complainant) whilst they were living at a home in (the other suburb in Sydney). The accused and (the first complainant) were arguing on 26 September 2007, after which the accused kicked the rear entry door of their home, causing the timber to fracture and breaking the glass window in the door. (the first complainant) then went into the main bedroom. The accused followed her, grabbed her by her upper arms and pushed her backwards. This caused (the first complainant) to fall over the bed, and she struck her head on a timber wardrobe, causing immediate pain. (The first complainant) also had marks on her arms caused by the accused grabbing her. An apprehended domestic violence order, ADVO, was made by the court, protecting (the first complainant). The accused was prohibited by the order from assaulting, harassing, threatening or intimidating (the first complainant).

7. In contravention of that AVO, at about 8pm on 26 July 2008, the accused and (the first complainant) had an argument in the kitchen of their home at (the other suburb in Sydney). The next morning, about 6am, the accused woke and realised he was late for work. He walked around the house yelling and smashing items. As he walked to the front door, he said to (the first complainant), “I’ll kill you”, and smashed the glass panel in the front door. He then began crying and apologised to (the first complainant). At about 7:00pm on 17 August 2008, (the first complainant) was packing items and intending to leave the family home. The accused asked her to stay and when she refused, the accused said, “Well, don’t worry. I’ve got something arranged for you. The only way you’ll be leaving is in a body bag”. Later that day, the accused said to his six-year-old son, in (the first complainant’s) presence, “Your mum is a slut. You’re going to have a new daddy. Your mum’s a slut like Angie, and you’re going to have a coppy as a daddy. Your mum’s breaking the family up”.

8. On 2 May 2013, a further ADVO was made by the Court and served on the accused. Again, (the first complainant) was the person protected by the order. The order was in the same terms as the 2008 order, but also prohibited the accused from approaching or contacting (the first complainant) by any means except through a legal representative.

9. On 16 May 2013, the accused, using a mobile telephone number subscribed to him, repeatedly telephoned (the first complainant) on the landline telephone at her home. Police obtained Vodafone records and identified 17 occasions on that date the accused had telephoned (the first complainant).

10. On 29 July 2014, another ADVO was made by Penrith Local Court protecting (the first complainant) from the accused. The ADVO prohibited the accused from stalking, assaulting, molesting, harassing, threatening or otherwise interfering with (the first complainant). The accused was prohibited from engaging in any other conduct that intimidated (the first complainant). The order also prohibited the accused from approaching or contacting (the first complainant) by any means whatsoever except through a legal representative as agreed in writing or as permitted by an order or direction by the Family Court relating to counselling, conciliation or mediation.

11. In 2015, (the first complainant) and their daughter moved to (the Central Coast).

12. In 2016, the accused and (the first complainant) reconciled and bought a house in (another suburb on the Central Coast).

13. On 11 April 2019, a further ADVO was made by Wyong Local Court protecting (the first complainant) from the accused. The ADVO prohibited the accused from stalking, assaulting, threatening, harassing, intimidating, intentionally or recklessly destroying or damaging any property belonging to (the first complainant). The order also prohibited the accused from going within 50 metres of any place where (the first complainant) lived or worked.

14. On 4 November 2021, another ADVO was made by Wyong Local Court, protecting (the first complainant) and their daughter from the accused. The ADVO prohibited the accused from assaulting, threatening, stalking, harassing, intimidating, intentionally or recklessly destroying or damaging any property belonging to (the first complainant) or their daughter. The order prohibited the accused from approaching the school their daughter might go for study. The order further prevented the accused from trying to find (the first complainant) or their daughter except as ordered by the Court. The order prohibited the accused from approaching or contacting (the first complainant) by any means whatsoever except through a legal representative as agreed in writing or as permitted by an order or direction by the family court relating to counselling, conciliation or mediation. The order further prohibited the accused from going within 100 metres of any place where (the first complainant) or their daughter lived or worked.

The second complainant

1. In mid-2019, the accused and (the second complainant) commenced an intimate relationship.

2. In 2020, (the second complainant) moved in with the accused at his house (on the Central Coast).

3. In May 2021, the accused and (the second complainant) moved to (the Lake Macquarie area).

4. At about 5.30pm on 15 October 2021, after the accused finished work, he returned to (their home in the Lake Macquarie area). The accused became angry because he believed that (the second complainant) had been drinking. (The second complainant) denied having consumed any alcohol. This angered the accused further. The accused, in a rage, flipped over a lounge suite and caused a number of sentimental ornaments and perfumes belonging to (the second complainant) to smash. The accused grabbed (the second complainant’s) legs and dragged her along the floor back to the bedroom. (The second complainant) stood and ran to the bathroom where she attempted to climb out of the window. The accused grabbed (the second complainant) by her arms, causing bruises. He then placed his hands around her head, forcing a finger into her left eye. This caused immediate pain and swelling. (The second complainant) kicked out at the accused and hit him in an attempt to escape the bathroom. She was able to get out of the bathroom, but couldn’t see out of her left eye. After the accused had settled down, he drove (the second complainant) to Wyong Hospital where she received treatment. She told the triage nurse about the incident and police were notified.

5. On 22 October 2021, the accused was served with an ADVO made by the Toronto Local Court protecting (the second complainant). It prohibited the accused from stalking, assaulting, threatening, harassing, or intimidating (the second complainant), intentionally or recklessly destroying any property belonging to her or contacting her in any way unless the contact was through a lawyer.

6. On 3 November 2021, (the second complainant) received a number of text messages from the accused. On 8 November 2021, the accused sent (the second complainant) further text messages and telephoned her seven times at 9.46am and, again, one time at 9.47am. At 12.27pm the accused again telephoned (the second complainant), this was followed by a number of further calls.

7. On 8 November 2021, the accused made admissions to police that he’d contacted (the second complainant) at the time stated by her, and he knew his conduct contravened the terms of the ADVO.

8. On 22 February 2022, a further ADVO was made by the Wyong Local Court protecting (the second complainant) from the accused. The order prohibited the accused from stalking, assaulting, threatening, harassing or intimidating (the second complainant), intentionally or recklessly destroying or damaging any property belonging to her, or contacting her in any way unless the contact was through a lawyer.

FACTUAL BACKGROUND; MAXIMUM PENALTIES; STANDARD NON-PAROLE PERIODS (WHERE APPLICABLE)

21. Given the number and variety of offences, I propose to identify the applicable maximum penalty with respect to each offence of which the offender has been convicted in the course of setting out the facts upon which I will pass sentence. I will also identify those offences in which a standard non-parole period has been prescribed by Parliament.

22. The respective maximum penalties and standard non-parole periods operate to provide a legislative guidepost for a sentencing judge in the determination of an appropriate sentence.

23. As I have already indicated, the first complainant was married to the offender. They had three children, an older son and then twins, respectively a boy and a girl. The complainant had originally known the offender while they were both at school. In approximately 1998, they had commenced a relationship. The complainant was 18 years of age. In the year 2000, they moved in together. At that time, they resided in a granny flat at the back of the complainant’s aunt’s residence.

24. In relation to the counts in respect of which Guilty verdicts were returned, I am satisfied beyond reasonable doubt of the facts as asserted by the complainant and which the jury must have accepted. I propose to also set out the brief facts of the sequential allegations in respect of which the jury returned verdicts of Not Guilty.

Count 1: Common assault (Not Guilty)

25. Count 1 in the indictment related to an alleged physical assault in the year 2000. The assault was said to have occurred in the course of the complainant and the offender leaving a function at Penrith Leagues Club. Three witnesses gave evidence with respect to this incident. The complainant gave an account consistent with the allegation in the indictment of common assault. A different version was given by the offender in the course of his evidence in the trial and an account corroborating the version by the accused was given by a female witness, Ms Cook, called in the Crown case.

26. It would appear clear that the jury either rejected the account given by the complainant regarding this incident or, at least, were not satisfied beyond reasonable doubt, particularly in light of the evidence given by Ms Cook which contradicted the account of the complainant. The jury returned a verdict of Not Guilty.

Count 2: Common assault; s.61 Crimes Act 1900 (NSW); max. 2 years (Guilty)

27. The offender and the first complainant were living in the granny flat at the back of the complainant’s aunt's house when the offence occurred sometime between 1 January and 31 December 2000.

28. During a verbal argument, the offender grabbed the first complainant by the top half of her arms and dragged her from the granny flat out into the backyard.

29. The first complainant was standing as she was dragged. The offender then put his hands around her throat. The first complainant tried to push him off but could not.

30. The first complainant says the offender told her: “Calm down. You’re causing a scene. I don’t know why you do this to yourself.”

31. The first complainant’s aunt and uncle were said to be nearby at the back of the house but did not intervene. The account by the complainant implied that her aunt and uncle saw the physical struggle which she had described. The complainant’s evidence referred to her uncle standing up and she said she thought he was going to come and help. She said that her aunt stopped him from coming to help and she heard her aunt say: “It’s not our business.”

32. The complainant’s aunt was called in the Crown case. She gave evidence of hearing yelling by both the complainant and the offender on occasions while they were living in the granny flat. However, she gave evidence that she did not see anything physical in relation to the yelling and arguments on any occasion.

33. I am satisfied that the jury accepted the account by the first complainant as to the physical nature of the assault which she had described, notwithstanding the absence of corroboration as to her aunt witnessing the event and allegedly commenting on it. The apparent contradiction or possible exaggeration by the complainant in that respect did not cause the jury to entertain a reasonable doubt about the fundamental physical allegation. I am obliged to accept the account as to the physical interaction as described by the complainant.

Count 3: Common assault (Not Guilty)

34. Notwithstanding the Agreed Facts (Exhibit #1) describing the complainant and offender having moved to (a suburb in Sydney) in 2002, the first complainant gave evidence that whilst she was pregnant with their first child in mid-2002 they had moved to (a different suburb in Sydney). She described an incident which was said to have occurred when she was about 8 months pregnant and prior to the birth of their son who was born in October 2002. The complainant described a verbal argument in which the offender had said that he wanted a paternity test and accused the complainant of cheating on him. She attributed a conversation to the accused in which he swore at her and said the child was not his. In the course of the interaction between them, she described having been slapped to the face. This alleged assault constituted Count 3 in the indictment. The jury returned a verdict of Not Guilty.

Count 4: Common assault (Not Guilty)

35. The complainant then described running down the side of the house in which they were living, after she had been slapped, but being unable to leave through the gate because of a padlock which had been placed on it by the offender. She described him pursuing her as she attempted to leave and putting his hands around her throat and choking her. This act was relied upon by the Crown to support an allegation of a further common assault which was Count 4 in the indictment. The jury again returned a verdict of Not Guilty.

Count 5: Intimidate with intention of causing fear (Not Guilty)

36. In the course of squeezing the complainant’s throat, her evidence was that the accused said: “You’re not getting out. You’re never fucking getting out. I will kill you and I will kill the baby.” The Crown relied upon those statements as constituting an act of intimidation in conjunction with the squeezing of her throat. This alleged act of intimidation was Count 5.

37. The defence case was that the incidents as described never occurred.

38. The jury clearly entertained a reasonable doubt regarding the credibility and reliability of the account given by the complainant. They returned verdicts of Not Guilty with respect to each of these three counts, Counts 3, 4 and 5.

Count 6: Assault occasioning actual bodily harm (Not Guilty)

39. Count 6 was an allegation of assault occasioning actual bodily harm.

40. Count 6 related to an alleged incident when the complainant was holding her child who had been born in October 2002 and was about 8 months old at the time of the described incident. On the account given regarding this particular incident by the complainant, she said they had had an argument and while she was holding their son, the offender picked up a plank of wood which she thought was a piece of paling from a fence and hit her on the side of the head. She described falling as a consequence of the blow and stumbling towards the ground while endeavouring to keep their 8-month-old son safe. She said that she had bruising and bleeding as a consequence of the assault.

41. The accused gave evidence at trial that no such incident ever occurred. His evidence was that they had a metal fence at these premises, not a paling fence.

42. The jury clearly entertained a reservation in accepting the account by the complainant and returned a verdict of Not Guilty.

Count 7: Common assault (Not Guilty)

43. The first complainant gave evidence that she gave birth to the twins in May 2006. At that time they were still living in (the different suburb in Sydney). Shortly afterwards, she said that they moved to premises in (a suburb in Sydney). At some stage in 2007, an argument developed between her and the offender. The complainant said she had been getting ready to go on a girl’s night out. She was in the bathroom putting her makeup on when the offender came into the bathroom and said words to the effect of: “You’re a fucking slut, you just want to go out and fuck other guys, I know what you and your friends get up to.”

44. A short while later, the offender was said to have grabbed her by her hair and arm and dragged her into the kitchen. That alleged act gave rise to Count 7 in the indictment, namely a further charge of assault. The jury returned a verdict of Not Guilty.

Count 8: Use offensive weapon with intent to commit indictable offence of intimidation (Not Guilty)

45. The complainant said that having been dragged into the kitchen, the offender produced a handgun and held it to her head. The complainant told the offender that she would not go out and that she would stay at home. The offender then stopped threatening her with the gun and let go of her hair. He left the kitchen, taking her phone with him. This act related to Count 8, namely, using an offensive weapon with intent to commit the indictable offence of intimidation.

46. According to the complainant, she subsequently had a landline installed, so that she would be able to call the police in the event that he assaulted her and took her phone in the future.

47. According to the complainant, this event involving production of the handgun, occurred in the presence of their older son, who had just turned 4 years of age. When called in the trial, her son, now an adult, had no recollection of seeing such an event when he was 4.

48. These two offences were substantially dependent upon an acceptance by the jury of the credibility and reliability of the complainant. They returned verdicts of Not Guilty with respect to both Counts 7 and 8.

49. Before moving to the next charged offence, I should note that the offender had made admissions in the Agreed Facts that he had assaulted the complainant during the time they were living in the home at (a suburb in Sydney). The admission related to an incident said to have occurred in September 2007 during which he had kicked in the rear entry door, fracturing the timber and breaking the glass window. He made admissions that he had followed her up to the main bedroom, where he had grabbed her upper arms and pushed her backwards, causing her to fall over and strike her head.

50. He was charged and convicted in the Local Court with respect to this incident.

51. The assault also resulted in an Apprehended Domestic Violence Order. The Order was subsequently contravened by the offender in July and August 2008, the details of which are set out in the Agreed Facts (Exhibit #1 at trial).

Count 9: Common assault (Not Guilty)

52. Count 9 related to a further allegation of assault in the premises at (a suburb in Sydney) in April 2011. They had been attending a birthday party for a friend of the offender. The complainant described the offender having been drinking at the party and falling asleep. She described the circumstances when he woke up and came outside where she was sitting with a male and a female. In her account, the offender accused the male and screamed at him saying: “You’re trying to fuck my missus.” The offender grabbed her by the hair and arm and dragged her to their vehicle. Count 9 in the indictment alleged a common assault with respect to this incident.

53. No other witnesses who had been at the party were called, and in particular, neither of the possible corroborative witnesses with whom the complainant was said to have been sitting, were called. No explanation for their absence was adduced. The jury returned verdicts of Not Guilty with respect to this count.

Count 10: Common assault; s.61 Crimes Act 1900 (NSW); max. 2 years (Guilty)

54. Following the circumstances described in Count 9, the complainant said that when they returned home that night, the offender demanded sex, but she refused. She said that the offender deadbolted the front door and took her phone and keys from her.

55. The offender then came into the bedroom and said to the first complainant: "I want sex now…You're gonna give me sex now". He blocked her so she could not leave the bedroom when the first complainant refused to have sex with him.

56. The first complainant jumped over the bed to create distance between them and the offender launched into her, pushing her from her side into the glass mirrored doors of her wardrobe. She bounced off the doors and they shattered.

57. The first complainant got up and ran into the lounge room. The offender came behind her, lifted her into the air in a bear hug, and body-slammed her side into the tiles of the floor.

58. Notwithstanding their non-acceptance to the requisite standard of the account in relation to what occurred at the party, the jury returned a verdict of Guilty with respect to this count.

Count 11: Attempt to choke with intent to commit the indictable offence of sexual intercourse without consent; s.37 Crimes Act 1900 (NSW); max. 25 years (Guilty)

59. After the assault the subject of Count 10, while the complainant was on the floor, she said she: “may have blacked out for a minute. He - when I’d come to, he was on top of me.” While on top of her, the offender choked her with his hands, causing her to start losing consciousness.

60. The jury clearly accepted the account by the complainant beyond reasonable doubt and returned a verdict of Guilty.

Count 12: Aggravated sexual assault with deprivation of liberty for the period before non-consensual sexual intercourse; s.61J(1) Crimes Act 1900 (NSW); max. 20 years (SNPP 10 years) (Guilty)

61. The Crown case at trial was that the choking formed part of the offender’s actions which were intended to force her to have sex with him. The complainant described having been grabbed by her arm and dragged into the kitchen, where she saw a nail gun and duct tape.

62. The complainant said that the offender then said: “You’re going to give me sex now.” She said that she told him to “Fuck off” and he responded: “You’re going to regret that”.

63. The complainant said that the offender then went to their older son’s bedroom and brought him back to the kitchen. He was 8 years of age at the time. The offender said: "Your mother's being a cunt, a whore. She's the root of all our problems."

64. The offender asked the child to go to the garage and get some rope. Upon his hesitation, the offender said to him: "Your mother lives or dies tonight. Go and get the rope." The 8-year-old then left the kitchen, retrieved the rope from the garage and gave it to the offender before going back to bed.

65. The offender again demanded sex from the complainant. She said: "I'm not going to fight", to which he replied: "I know you're not".

66. The offender tied the rope around the complainant’s wrists so her hands were out in front of her and tied duct tape around the upper part of her body five or six times. The offender then used planks of wood and a nail gun to block the door and a few windows.

67. The offender then dragged the complainant to the bedroom. The accused removed her underwear and he had penile/vaginal intercourse with her. She did not resist him. The accused ejaculated. He said to the complainant: “aren’t you lucky you wore me out”.

68. After having sex with the complainant, the offender went to sleep on the bed, leaving the complainant tied up on the bed.

69. The complainant’s evidence was as set out above.

70. The offender gave evidence that this event had never occurred.

71. Their son was called in the defence case in the trial. He gave evidence in terms that he had no memory of any such event occurring. He denied there ever having been an occasion of being asked to go and get rope from the garage so that his mother could be tied up. He similarly denied seeing his father using duct tape to wrap around his mother. He also denied that he had to cut the duct tape off her. He responded: “No, I would remember if this ever happened.” With respect to the proposition that his father had boarded up the doors and one of the windows with timber and a nail gun, he said that had never happened. Asked whether he was required to help his father take the boards off the doors and the window the following day, he replied: “Definitely not, no.”

72. The jury clearly rejected the evidence by the offender and also by the son, and were satisfied, beyond reasonable doubt, of the version of events given by the complainant. They returned a verdict of Guilty with respect to Count 12.

Count 13: Detain for advantage (verdict not required)

73. This was an alternative count to Count 12 which alleged a detention for advantage. In light of the verdict of Guilty with respect to Count 12, Count 13 did not require a verdict.

Count 14: Aggravated sexual assault with deprivation of liberty for the period before non-consensual sexual intercourse; s.61J(1) Crimes Act 1900 (NSW); max. 20 years (SNPP 10 years) (Guilty)

74. The following morning, the offender and the first complainant woke up. The first complainant was still tied up at this point.

75. The offender called his employer to inform them that he was not attending work that day and told the first complainant that their older son would not be going to school that day.

76. The offender did not untie the first complainant. He pulled her down the bed and had penile/vaginal sexual intercourse with her again, though in a more forceful and aggressive manner than the night before. The offender put his hands over her mouth during sex and the first complainant had trouble breathing. The intercourse lasted 10 to 15 minutes before the offender ejaculated inside her.

77. After he was done, the offender said to the first complainant, "You're fucking disgusting. Everyone hates you. The neighbours hate you…You're a slut. You're a whore." the first complainant was crying. The jury accepted the account by the complainant beyond reasonable doubt and returned a verdict of Guilty.

Count 15: Intimidation with intent to cause fear of physical or mental harm; s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW); max. 5 years (Guilty)

78. Following the sexual intercourse, the offender left the room and came back when it was lunchtime. The offender said to the first complainant: "Now, you're going to listen to me carefully. (Our older son) might go with you. If you try and run, I'll fucking kill the kids and I'll kill (our older son)." The offender then untied the first complainant before instructing her to go and make lunch for their children.

79. The first complainant wiped herself with a pair of undies and tried to clean herself up before going to the kitchen to make lunch for their children.

80. Meanwhile, the offender was dragging the broken wardrobe out into the hallway and taking off the wood he had nailed to the door and windows. The offender also puttied the nail holes. The first complainant said that her (older son) helped the offender pick up the boards that were nailed to the windows and take them outside.

81. Later that day, the first complainant said that she and the offender were sitting on the lounge:

“So we were just sitting on the lounge and he had said to me - and at this time, I still didn’t have my phone or my keys - he had said to me, “Don’t forget that people are watching you when you leave this house. If you try and leave, or you try and do anything, like report it, or anything like that”, he said, “I’ll know about it and I’ll kill you, and then I’ll kill the” - no, sorry. He said, “I’ll kill the kids, and you’re going to watch me kill them”.”

82. Notwithstanding evidence by the complainant’s son that no such incident had occurred, the jury must have rejected his account beyond reasonable doubt and accepted the evidence by the complainant to that standard. The jury returned a verdict of Guilty.

Count 16: Stalk with intention to cause fear of physical or mental harm (Not Guilty)

83. The conversation which I have set out in paragraph 81 relating to Count 15 occurred in 2011. The complainant gave evidence that in due course they separated for a period of time in 2014. She described the offender and their older son having come back to the house in (a suburb in Sydney) where physical acts of assault were alleged to have occurred. The complainant described in general terms phone calls prior to that attendance in which the accused was alleged to have threatened her and told her that he had people watching her. The description of these phone calls formed the basis for Count 16 of stalking.

84. The jury returned a verdict of Not Guilty on this count.

Count 17: Common assault (Not Guilty)

85. The complainant gave evidence of a physical assault in the presence of their older son in 2014. He would have been 11 or 12 years of age at the time. The complainant described being grabbed by her hair and around her throat and physically lifted up off the ground.

86. Both the accused and the son denied that this incident had occurred. The jury clearly either accepted the account of the accused and his son or entertained a reasonable possibility that their account and the denial was possibly true. The jury must have entertained a reasonable doubt about the complainant’s account and hence returned a verdict of Not Guilty.

Count 18: Common assault (Not Guilty)

87. The complainant then gave evidence that after the assault in which she was allegedly lifted off the ground, she had been dragged to her bedroom and the accused had wrapped a telephone cord around her neck and started choking her.

87. The jury did not accept the complainant’s account with respect to this described act and returned a verdict of Not Guilty.

Count 19: Assault occasioning actual bodily harm; s.59(1) Crimes Act 1900 (NSW); max. 5 years (Guilty)

89. In late February 2019, the first complainant woke the offender up to confront him about upsetting information she found on his phone. She agreed in cross-examination that it was evidence that the offender may have been involved with another woman.

90. The first complainant then went out to the kitchen, and the offender became angry. The offender then grabbed the first complainant in a bear hug from behind and squeezed tight. The first complainant says the offender was squeezing and then letting go. The first complainant screamed to be let go when he was squeezing as she was having trouble breathing.

91. The first complainant slipped from the offender's grip and ran around the kitchen table. The offender leaned over the table, grabbed her by her shirt and pulled her over the kitchen table.

92. The offender then grabbed her, threw her against the wall, and choked her with both his hands around her neck. The first complainant wet herself while he was choking her.

93. Their son, who was aged 17 at the time, then came out into the kitchen area and stood in between the offender and the first complainant.

94. As a result of the assault, the first complainant claimed to have suffered bruising on her left arm and lower back.

95. Evidence given by the son at trial described an incident which he did witness in which the offender had grabbed the first complainant in a bear hug whilst the son was also in the kitchen. However, his account was that the bear hug occurred in circumstances where the offender was being abused by the first complainant and he grabbed her in a bear hug to prevent her from hitting him.

96. The jury must have accepted the account given by the complainant beyond reasonable doubt and they returned a verdict of Guilty to this count.

Count 20: Intimidation with intent to cause fear of physical or mental harm; s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW); max. 5 years (Guilty)

97. During the same incident, the offender then said to the first complainant: "If you walk out that door, I will fucking kill you."

98. The offender then told the first complainant that she looked disgusting and told her to clean herself up.

99. The first complainant said that she slept in her daughter’s room that night.

100. The jury accepted the intimidation pursuant to the verbal threats and returned a verdict of Guilty.

Count 21: Intimidation with intent to cause fear of physical or mental harm; s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW); max. 5 years (Guilty)

101. After the incident in count 20, the offender moved out of the first complainant’s premises.

102. Sometime in February 2019, after the offender had moved out, the first complainant heard knocking at the door, and heard that their older son was there. Upon opening the door, the offender came from around the corner and barged into the house. The offender then called the twins into the lounge room.

103. The offender yelled at both twins asking them why they had not answered his phone calls. The younger son indicated to the offender that their mother made them do it.

104. The offender said to the first complainant: "You're fucking keeping the kids away from me. I'm going to kill you. You'll never leave with me. You're never getting out. You're going to die, slut."

105. The offender then went to their daughter and asked her if she loved him. The first complainant intervened and stood over their daughter to protect her from the offender.

106. The offender then grabbed the first complainant and raised his arm, about to hit her, but their older son stopped him and allegedly said to the offender: “You know not to leave bruises”.

107. The offender himself then called the police who attended and took a statement from the first complainant. This statement was in the form of a DVEC that was tendered in the trial. It was recorded on 27 February 2019.

108. The older son gave evidence at trial and denied in terms ever saying “You know not to leave bruises” to his father.

109. The jury’s verdict can only be consistent with their rejection of the son’s evidence as a reasonable possibility and an acceptance of the account given by the first complainant. They returned a verdict of Guilty.

Count 22: Intimidation with intent to cause fear of physical or mental harm; s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW); max. 5 years (Guilty)

110. Days after count 21, in late February 2019, the first complainant was out the front of her home packing bags into her car in preparation to leave for a domestic violence shelter. As she was packing the car, she saw the offender in his car driving down their cul-de-sac and into her driveway. The first complainant and their daughter immediately ran into their house and locked the door, before calling the police.

111. The offender jumped over the fence of their home and started banging on the windows of the house.

112. The offender then took all of the bags containing clothes that were packed to take to the shelter out of the back of the first complainant’s vehicle and unhooked the battery of the car.

113. The offender admitted the physical acts which were described and having removed the bags and unhooked the battery of the car so that the first complainant would not leave with their daughter. However, he denied that these were acts of intimidation with intent to cause fear.

114. The jury accepted the account and evidence by the first complainant and returned a verdict of Guilty.

115. Later in 2019, the offender and the second complainant, came into contact with each other through the social medium, Facebook. In due course, they agreed to meet up, and in due course a relationship commenced.

Count 23: Assault occasioning actual bodily harm; s.59(1) Crimes Act 1900 (NSW); max. 5 years (Guilty)

116. In around June 2020, the offender was discharged from hospital for treatment of injuries he sustained in a motorcycle accident, after which he visited the second complainant at her house (on the Central Coast).

117. The second complainant confronted the offender about other women he had been seeing and said that they were “done”. In response, the offender grabbed her by the arms and said: "No, the relationship is not over, we are not breaking up. No one else will want you, your family doesn't like you, no one else loves you except me. I will have you kicked out of this house because I know the owner. You'll have nowhere to go."

118. The offender then grabbed her in a bear hug and pushed her with force off a 1.2 m high veranda where they were standing. The second complainant fell flat on her back on top of boxes with the offender on top of her, causing pain and bruises on her hip and back. According to the second complainant’s son this offence also resulted in the second complainant's long-term hip problems.

119. At trial, the second complainant said that the offender was Not Guilty. She claimed to have been coerced or induced into making police statements, both by the police and her case worker, who she claimed was also the case worker for the first complainant. The Crown cross-examined the account she gave to police into evidence pursuant to leave which was granted under s 38 of the Evidence Act 1995. The jury returned verdicts of Guilty with respect to each of the allegations relating to conduct against the second complainant.

Count 24: Assault occasioning actual bodily harm; s.59(1) Crimes Act 1900 (NSW); max. 5 years (Guilty)

120. The offender and the second complainant were at home on 9 January 2021 when the offender grabbed her, put her on the bed, and got on top of her. The offender then hit the second complainant on the face and grabbed her neck with his hands while she tried to struggle against him from underneath. The second complainant had difficulty breathing and was about to pass out before the offender got off her.

121. The offender then got a glass of water for the second complainant to calm her down, but when she was saying “I can’t breathe” and was crying and panicking, he threw the glass of water into the second complainant's face. The second complainant then ran into the yard. The offender chased her and told her she could not escape.

122. The second complainant then ran out the front door and hid in the bushes. She said she could see the offender outside the house looking up and down the street, before he got into his car and drove off. A neighbour came and took photos of the second complainant’s injuries to her face and neck. These photos were tendered in the trial as Exhibit #4.

123. The neighbour contacted the second complainant's father through Facebook, and he came to the neighbour’s home and escorted the second complainant to the hospital. Hospital records were Marked for Identification #E in the trial and show that doctors observed mild tenderness around the right posterior of the second complainant’s temporal parietal region, scratch marks on her neck, and abnormal redness on the left side of her face, under her bra line and midline.

124. The jury was satisfied beyond reasonable doubt that this assault occurred consistent with the statement provided to police. They returned a verdict of Guilty.

Count 25: Intimidation with intent to cause fear of physical or mental harm; s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW); max. 5 years (Guilty)

125. On 21 February 2021, the second complainant was having an argument in proximity to a neighbour’s house. The neighbour, [redacted], could hear them fighting out the front quite loudly and gave evidence that it sounded “a bit distressing”. The neighbour went out to the front of her house to see what was going on and the second complainant walked over to her and asked if she could come inside. The neighbour let the second complainant inside and locked the doors. They went outside to the neighbour’s backyard to sit and talk.

126. Within minutes the offender started bashing on the neighbour’s front door, demanding that the second complainant come out. Video footage from the neighbour’s front door security camera was tendered in the trial as Exhibit #11 and shows the offender yelling: "Hey (second complainant), fucking come home. (Second complainant), (second complainant), (second complainant). Tell her to fucking get home. She's fucking pissing me off, man."

127. The second complainant then came out of the house and left with the offender.

128. The jury was satisfied that the actions and words of the offender as evidenced by the video footage amounted to intimidation with intent to cause fear of harm. They returned a verdict of Guilty.

Count 26: Common assault; s.61 Crimes Act 1900 (NSW); max. 2 years (Guilty)

129. In September 2021, the second complainant's friend passed away and she became upset at the offender for not letting her see her friend while she was dying.

130. One night after her friend had passed away, the second complainant went for a walk by the lake. The offender drove down the road in her car, pulled up next to her, and said: "What the fuck are you doing here? Get in the car."

131. The second complainant attempted to calm the offender down, and he reached over and grabbed her arm and tried to pull her into the car. The second complainant then got into the front passenger seat.

132. The jury clearly accepted the version that the complainant had initially given to police and returned a verdict of Guilty.

Count 27: Intimidation with intent to cause fear of physical or mental harm; s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW); max. 5 years (Guilty)

133. Once the second complainant was in the passenger seat of the car, the offender started speeding and swerving. The second complainant begged for the offender to stop. The offender said he was going to run them into a pole and that they would die together.

134. Soon after, the offender pulled over and told the second complainant to get out of the car. However, he then got her to get back into the car when he saw a woman come running out of her house to see what the commotion was.

135. The offender then continued to speed away around a bend and swerved towards a telegraph pole saying he was going to drive them into it, causing fear of harm in the second complainant.

136. Again, the jury did not accept her evidence at trial and returned a verdict of Guilty consistent with her police statement.

Count 28: Intentionally suffocate without consent; s.37(1A) Crimes (Domestic and Personal Violence) Act 2007 (NSW); max. 5 years (Guilty)

137. On 15 October 2021, a violent argument between the offender and the second complainant ensued when the offender came home from work, because he believed the second complainant had been drinking. Various elements of this argument were the subject of the Agreed Facts in the trial which I have set out above. The conduct that forms Count 28 is as follows.

138. In the midst of this argument, the second complainant found herself lying on her back on her bed with the offender on top of her. The offender lay on her with his full body weight, so as to restrict the second complainant’s breathing. The offender said that he would not use his hands because they left bruises.

139. The second complainant started losing consciousness and could not breathe. The offender then started slapped her around the face to bring her back to full consciousness and said: "See, I can end it any time I want."

140. The jury again were satisfied beyond reasonable doubt of the police statement of the second complainant and returned a verdict of Guilty.

Count 29: Sexual intercourse without consent; s.61I Crimes Act 1900 (NSW); max. 14 years (SNPP 7 years) (Guilty)

141. On 16 October 2021, after the above incident and presumably in the early hours of the morning, the second complainant was lying in bed. Her eye was injured from their argument and her neck and back were in pain.

142. The offender came and laid next to her on the bed. He started touching her, and the second complainant said: “I don’t want to. No.” The offender kept touching her and was running his hands around her legs and was trying to tug her pants down. She had her back to him and said: “No.” She was trying to hold her pants up, and the offender was laughing and kept pulling them down. The second complainant was in a lot of pain from the earlier assault, and she kept saying “No” to him. She was lying on her stomach, and the offender got her pants down, and she stopped fighting it. She was scared he would assault her further, so she laid still and put her face in the pillow. The offender then inserted his penis into her vagina from behind her. The second complainant had said “No” several times but was scared to physically fight him over it. She said she knew she would be further injured if she resisted it.

143. The second complainant gave evidence at trial that she had never been “raped” by the offender. She has maintained that stance in her written communications sent to the Court.

144. The jury clearly accepted the truth of her assertions recorded in her police statement and returned a verdict of Guilty. The offender must be sentenced on the basis of the jury’s acceptance of those earlier accounts.

RELEVANT SENTENCING PRINCIPLES

Domestic violence offences

145. The Court of Criminal Appeal has repeatedly emphasised that in cases involving domestic violence, specific and general deterrence are both of great importance, as are denunciation and the protection of the community: see for example, the judgment of Hoeben CJ at CL in Simpson v R [2014] NSWCCA 14 at [35] and [41].

146. The significance of the context in which domestic violence occurred was also the subject of specific observation by the Court of Criminal Appeal in Patsan v R [2018] NSWCCA 129. In that matter, the offending had occurred in the context of an intimate relationship which had become antagonistic. The victim had sustained severe facial injuries after being punched in the face by her erstwhile partner. The objective seriousness was assessed as being “just below the middle of the range of objective seriousness.” On appeal, the sentence was argued to be manifestly excessive in circumstances where there had been a 25% discount for the plea of Guilty. It was submitted on appeal that the applicant had been punished by the sentencing judge “for male violence on women generally.” Adamson J, with whom Bathurst CJ and Leeming JA agreed, stated at [39] - [42]:

"[39] I reject Mr Skinner's further submission that the sentencing judge had, in effect, used the applicant as a scapegoat for the prevalence of domestic violence offences. While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them. The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant's conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths.

[40] In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]:

"[V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."

[41] The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to:

"the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community."

[42] Recently the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that:

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

147. The general principles applicable to domestic violence offences had earlier been dealt with in detail by Johnson J, Hunt AJA and Latham J agreeing, in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179. His Honour said at [65] - [70]:

“[65] In approaching the resolution of the present appeal, it is appropriate to refer to statements of this Court with respect to sentencing for domestic violence offences. At the outset, it must be observed that these statements have been made in the context of cases involving a single victim and, usually, a single serious offence. The present case involves three separate victims against whom the Respondent committed serious offences of violence in the course of relationships over an eight-year period between 1996 and 2004. Before and during this period, the Respondent was appearing before Courts and being dealt with for a range of offences of violence, including breaches of apprehended violence orders.

[66] This case brings into sharp focus the challenges facing a sentencing court where an offender has committed repeated serious offences of violence against different domestic partners over an extended period of time.

[67] In R v Glen (Court of Criminal Appeal, 19 December 1994, BC9403423), Simpson J stressed the importance of general deterrence in cases of domestic violence. Her Honour stated that victims of domestic violence will “receive the full protection of the law, insofar as the courts are able to afford it to them”.

[68] Since Glen, this Court has emphasised repeatedly the importance of general deterrence in domestic violence cases, given the prevalence of violence by men against women in domestic relationships: R v Rowe (1996) 89 A Crim R 467 at 472-3; R v Berry [2000] NSWCCA 451 at paragraph 32; R v Greene [2001] NSWCCA 258 at paragraph 16.

[69] In R v Ross (Court of Criminal Appeal, 20 November 1996, unreported), Adams AJ (Newman J agreeing) observed, in the context of a sentence appeal concerning an offence of assault occasioning actual bodily harm committed upon a domestic partner:

“This was an act of frightening violence meted out to a woman [who] was entitled to the protection of the law. Until men such as the applicant understand that the law will treat with real seriousness cases which hitherto have been dismissed as having ‘domestic’ significance, this appalling series of violent acts meted out continuously to women in this community by men who suppose they have the right to do so will not stop.”

[70] In R v Fahda [1999] NSWCCA 267, Simpson J (Studdert J agreeing) said at paragraph 26:

“Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished.”

148. His Honour then referred to R v Edigarov which is already quoted above in the extract from Patsan v R.

149. Johnson J then said, at [72] - [75]:

[72] In R v Dunn (2004) 144 A Crim R 180, Adams J (Ipp JA and Sully J agreeing) said at 195 [47]:

“Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.”

[73] Unsurprisingly, similar views have been expressed in other jurisdictions with respect to sentencing of domestic violence offenders.

[74] In R v Devine (Tasmanian Supreme Court, 5 July 1993, unreported), Underwood J (as Underwood CJ then was) said, in the course of sentencing an offender who had assaulted his estranged wife, in the presence of small children, causing multiple bruising to her face and body and threatened her with a knife:

“Domestic violence is a profound problem and it is the duty of the courts to denounce offences such as these and attempt to deter its recurrence by you and other men. The relationship of husband and wife, albeit estranged, is an aggravating factor for violence of this kind constitutes a breach of trust. It is also an abuse of power and control on one who, in the circumstances, was in a position of vulnerability.”

[75] In Parker v The Queen (Tasmanian Court of Criminal Appeal, 21 July 1994, BC9400423), Underwood J at page 11 said:

“In my opinion sentencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:

‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape’."

See also Gallegos v R [1999] WASCA 191 at paragraphs 11, 28; Ugle v R [2001] WASCA 268 at paragraph 37; Attorney-General for Tasmania v O [2004] TASSC 53 at paragraph 18; Warner, “Sentencing in Tasmania” , 2002, 2nd edn, paragraph 11.325.

150. I will refer to the detail of the successful Crown appeal against the inadequacy of the sentence imposed at first instance in Hamid when I deal with comparative cases.

151. In the Crown’s submissions in the present matter, reference has also been made to the observations of Wilson J, Fullerton and Ierace JJ agreeing, in Yaman v R [2020] NSWCCA 239 where her Honour said at [131] and [135]:

“[131] General deterrence had a significant role to play. Offences committed by (mostly) men who, like the applicant, refuse to accept that a partner or former partner is entitled to a life of her own choosing, must be dealt with sternly by the courts, to mark society’s strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner. Offences involving domestic violence are frequently committed, and the criminal justice system must play a part in protecting those who have been or may be victims of it.”

…

“[135] The right of all women to determine their own path in life must be protected and upheld by the Courts. Where a woman’s right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary.”

Sexual assault

152. The Crown has submitted that generally, penile penetration of the vagina is considered a more serious type of sexual intercourse when compared to other acts falling within the definition of sexual intercourse. The Crown further submits that when considering the objective seriousness of a sexual assault, the Court must consider the type of sexual intercourse, the degree of violence, the physical hurt inflicted, the circumstances of humiliation and the duration of the offence.

153. I accept that these general principles are correctly advanced.

Assault occasioning actual bodily harm

154. An assessment of the objective seriousness of an assault occasioning actual bodily harm requires consideration of the extent and nature of injury, the degree of violence and the intention with which the harm has been inflicted.

Common assault

155. In the Crown submission, an offence of common assault is not mitigated by a lack of injury or by there being minimal violence as these factors are said to hold little weight in dealing with an offence that lacks actual bodily harm (see R v Lardner (Unrep, 10/09/98, NSWCCA)). In the Crown submission, assaults covered by s 61 are limited, meaning that even offences that are seemingly not as grave can still be considered objectively as a serious offence of the kind.

156. While I accept that common assaults cover a range of different physical interactions, the particular circumstances relating to such an offence need to be considered in an assessment of the objective seriousness.

OBJECTIVE SERIOUSNESS OF INDIVIDUAL COUNTS

Count 2 (common assault)

157. This was the common assault in which the offender grabbed the first complainant by the top half of her arms and dragged her from the granny flat at her aunt’s house, out into the backyard. He then put his hands around her throat.

158. The assault occurred in the context of domestic violence and in my assessment, falls generally within a broad mid-range of objective seriousness.

Count 10 (common assault)

159. This was also a common assault against the first complainant. It occurred after events described at a birthday party in April 2011. While not being satisfied beyond reasonable doubt of an assault said to have occurred earlier at the birthday party, Count 9, the jury returned a verdict of Guilty with respect to the description given by the complainant of events after they had returned home. The complainant described having been pushed into the mirrors on a wardrobe with sufficient force to break the glass. She then described having been lifted in a bear hug and being slammed into the tiles on the floor. The Crown submits that this offending falls above the mid-range of objective seriousness. I agree.

Count 11 (attempt choking)

160. Count 11 was an attempt to choke with intent to commit the indictable offence of sexual intercourse without consent. The context in which the common assault had occurred, which was then followed by an attempt to choke her while she was on the floor, formed part of a course of conduct arising from the demands of the offender to have sex. The offence charged was pursuant to s 37 of the Crimes Act 1900 as it was in force in 2011. I should note in passing that s 37 has subsequently been substantially amended. The attempt to choke was of a severity that caused the complainant to struggle to breath. The first complainant said that she was losing consciousness. She thought she “may have blacked out for a minute.”

161. The objective seriousness of this offence falls well within an identifiable mid-range of objective seriousness.

Count 12 (aggravated sexual assault before non-consensual sexual intercourse)

162. Count 12 related to sexual intercourse with the first complainant without her consent in a circumstance of aggravation, namely, having deprived her of her liberty for a period before the commission of the offence. This offending occurred sequentially after the common assault and the attempted choking.

163. The first complainant described having been dragged into the kitchen where she was tied up with rope and also duct tape. The jury were satisfied of the relevant elements of the offence, which was clearly based upon an acceptance, beyond reasonable doubt, of the account by the first complainant. In my assessment, the objective seriousness of this offending falls towards the upper end of the mid-range of objective seriousness for offences of this kind containing the elements which are pleaded.

164. The offending is aggravated by the actual use of violence, the circumstance that it was in the home of the victim, and the fact that it was committed in the presence of a child under 18 years of age. The verdict by the jury implicitly rejected the account given at trial by that son.

Count 14 (aggravated sexual assault before non-consensual sexual intercourse)

165. This offence occurred the following morning while the complainant was still tied up from the night before. A further offence of sexual intercourse without consent was aggravated by the deprivation of liberty for a period before the non-consensual sexual intercourse. The first complainant described the penile/vaginal sexual intercourse as being more forceful and aggressive than the night before. She described the offender putting his hands over her mouth whilst having sex. She said she had trouble breathing.

166. The Crown submits that this offence falls towards the upper end of the range of objective seriousness.

167. I am not of the view that this offence approaches a case warranting the maximum penalty applicable. It does not fall within the criticised description of a “worst category” of offending: see The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131; (2016) 259 CLR 256. I am, however, satisfied that the objective seriousness of this offence falls within the upper mid-range of objective seriousness as outlined in s 54A of the Crimes (Sentencing Procedure) Act 1999.

Count 15 (intimidation)

168. After the intercourse the subject of Count 14, the offender left the first complainant tied up in the bedroom while he left the room. He returned at lunchtime and untied her. He instructed her to make lunch for the children. In the course of conversation he made threats about killing the children and making her watch him kill them. This conduct formed the basis for the allegation of intimidation with intent to cause fear of physical or mental harm. The intimidation formed part of a course of conduct which would fall within the categorisation of coercive control. In the context of the surrounding circumstances, it falls within the mid-range of objective seriousness.

Count 19 (assault occasioning actual bodily harm)

169. This offence was another assault in which actual bodily harm was occasioned. The offence occurred almost 8 years after the previous offending in 2011. I note in passing that the jury had returned verdicts of Not Guilty with respect to alleged offending in 2014 (Counts 16 to 18).

170. The assault in 2019 occurred following an argument about information discovered by the complainant on the offender’s mobile phone. In the course of an argument, the offender grabbed the complainant in a bear hug from behind and squeezed her tightly. She said she had trouble breathing. She then escaped from his grip and ran around a table in the kitchen. She described him having leant across the table and grabbing her before throwing her against the wall and choking her with his hands around her neck. She described having wet herself while she was being choked. She suffered bruising on her left arm and lower back. Their son was said to have been present in the kitchen and having stood in between the offender and his mother. He was 17 years of age at the time.

171. The jury clearly rejected the denial by the son of this occurrence, as they clearly did with respect to the denial by the offender, of such an incident having taken place other than a bear hug to prevent her hitting him. The offender falls to be sentenced on the facts which the jury clearly accepted, namely the account by the complainant.

172. The circumstance of this offending, notwithstanding the domestic situation in which it occurred in her home and in the presence of a child under 18, needs to be viewed in the context of the charge which has been preferred and a consideration of the degree of actual bodily harm which was occasioned.

173. In the Crown’s submission, the objective seriousness falls “well above the mid-range”. In my view, particularly bearing in mind the nature of the assault and the injuries being identified as bruising on the left arm and lower back, it should be viewed as falling within the mid-range of objective seriousness.

Count 20 (intimidation)

174. Count 20 arose during the same incident as Count 19. The offence of intimidation with intent to cause fear of physical or mental harm related to an utterance by the offender to the first complainant: “If you walk out that door, I will fucking kill you.” The offence of intimidation arising from that utterance is submitted by the Crown to fall “around the mid-range”. Confined to the utterance of those words, in my view, a proper assessment of the objective seriousness falls below the mid-range.

Count 21 (intimidation)

175. This offence occurred sometime after the incident in Count 19 and Count 20. The offender had moved out of the premises some time later. The offender returned to the house where they had been living (on the Central Coast) and procured admission to the premises, effectively by a ruse using their oldest son to get his mother to open the door. After the door had been opened, the offender appeared from around the corner of the house and went into the premises. The offender made complaint that the two younger children were not answering his phone calls and one of them indicated that their mother had made them do that. On this occasion, the offender again threatened to kill the first complainant. He said to her: “You’re fucking keeping the kids away from me. I’m gonna kill you.”

176. The first complainant gave an account of the offender raising his arm and threatening to hit her and being told by their eldest son not to. She attributed to their son that he said to the offender: “You know not to leave bruises.” On this occasion, after the offender had left, police were called and they attended and took a statement from the first complainant. The digital video recording taken by police was tendered in the trial.

177. The offence of intimidation with intent to cause fear of physical or mental harm was the subject of Count 21. In my view it falls within the mid-range of objective seriousness.

Count 22 (intimidation)

178. This is another offence of intimidation with intent to cause fear and arose some days after the incident in Count 21. The first complainant had packed her motor vehicle in preparation to leave the house and go with her daughter to a domestic violence shelter. The offender drove his vehicle down the cul-de-sac where the house was located and pulled into the driveway. The first complainant and her daughter ran into the house and locked the door before calling police. The offender started banging on the windows of the house. He then removed the bags containing clothes which had been packed into the first complainant’s car and also unhooked and removed the battery of the vehicle. These acts constituted the offence of intimidation to cause fear.

179. In the Crown’s assessment, this offence falls below the mid-range of objective seriousness. I agree.

Count 23 (assault occasioning actual bodily harm)

180. Count 23 was the first in the series of offences alleged to have been committed against the second complainant. The first count was an offence of assault occasioning actual bodily harm. The offender and the second complainant had been in a relationship for approximately 12 months when an argument arose in the context of an allegation that the offender had been seeing other women. The second complainant threatened to break up with the offender and told him the relationship was over. The offender grabbed the second complainant in a bear hug and pushed her. They both fell off the veranda where they were standing and the second complainant fell flat on her back on top of some boxes, with the offender on top of her. She sustained bruises on her hip and back.

181. The Crown highlighted evidence from the complainant’s son who had expressed the opinion that this injury had been the cause of long-term hip pain and problems of his mother. The Crown relies upon that evidence in support of a submission that the Court would find that the actual bodily harm sustained constituted “substantial physical injury” and hence, be a circumstance of aggravation.

182. The evidence by the complainant’s son was as follows: “I think that’s why her hip is so messed up… She was always complaining about bad hip problems… I think that’s where that came from.” The complainant herself was cross-examined about the account she had given to police. In the absence of any medical opinion or evidence, I am not satisfied of this circumstance of aggravation to the requisite standard.

183. The circumstance of hip pain at the time and some bruising does not warrant the conclusion submitted by the Crown, namely, an assessment in the high range of objective seriousness.

184. In my assessment, the objective seriousness falls towards the lower end of the mid-range.

Count 24 (assault occasioning actual bodily harm)

185. Count 24 was a further assault occasioning actual bodily harm with respect to the second complainant. In January 2021, the offender had grabbed the second complainant and placed her on their bed and got on top of her. He hit her in the face and grabbed her neck while she tried to struggle from underneath him. In due course, she ran away into the yard where she hid in some bushes. After the offender drove away in his vehicle, a neighbour found her and took photographs of the injuries to her face and neck. These photographs were tendered as Exhibit #4. The second complainant was in due course conveyed to hospital where doctors observed mild tenderness around her tempero-parietal region, scratch marks on her neck, abnormal redness on the left side of her face and on her chest.

284. With respect to the aggravated sexual assaults, Judge Payne had sentenced the offender to a term of imprisonment of 8 years and 6 months with a non-parole period of 5 years and 6 months. With respect to the second count of aggravated sexual assault, he had been sentenced to a term of imprisonment of 8 years and 9 months with a non-parole period of 5 years and 9 months. The commencement date of the second term of imprisonment and non-parole period was 5 months after the commencement of the term for the first offence. The total sentence was, accordingly, 9 years and 2 months with a non-parole period of 6 years and 2 months. Leave to appeal against sentence was refused.

Doolan v R [2006] NSWCCA 29

286. Doolan was convicted following a trial before a jury with respect to a number of offences committed against his domestic partner. The offender and his partner had lived together for a period of about 2 years. In October 2003, the complainant had obtained an AVO against the offender. He had subsequently breached that order and had been charged with a number of offences including assault occasioning actual bodily harm. He subsequently was sentenced to a term of imprisonment with respect to that breach and the assault occasioning actual bodily harm.

287. The offences the subject of the separate trial, including offences of sexual intercourse without consent related to occurrences which had occurred whilst the offender was on bail in relation to the assault occasioning offence. On 21 February 2004, whilst on bail with respect to the assault occasioning, the offender approached the victim at a hotel. In the course of a conversation with the complainant, the offender pushed her in the chest and grabbed her by the hair. This incident gave rise to the first charge of assault. They then went to a nearby schoolyard where the offender proceeded to sexually assault the complainant. The first act consisted of penile/vaginal intercourse. The offender then threatened to strike the complainant with a brick while she was still lying on the ground. Immediately after that threat, he digitally penetrated her vagina. This incident gave rise to an offence of aggravated sexual intercourse without consent contrary to s 61J(1). Such an offence carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.

288. Later that evening, the offender committed two further acts of sexual assault upon the complainant. One such act was constituted by digital penetration and the other involved an act of penile/vaginal intercourse. He was charged with three offences of sexual intercourse without consent, contrary to s 61I of the Crimes Act, each of which attracted a maximum penalty of 14 years with a standard non-parole period of 7 years. The sentencing judge, Judge Nield, concluded that during the time that the offender and the complainant had been together, which was “about 7 hours in all, the offender kept the complainant under his control and he subjected her to two physical assaults and four sexual assaults.” With regard to the offender’s motivation, Nield DCJ concluded that: “it was not to obtain sexual gratification, it was to control her and teach her a lesson.”

289. The sentencing judge concluded that viewed objectively, the offences involving sexual intercourse without consent and the offence of aggravated sexual intercourse without consent each fell below the mid-range for offences of those kinds. Accordingly, the sentencing judge determined that he did not need to set the standard non-parole periods for those offences.

290. Nield DCJ sentenced the offender to fixed terms of 4 months imprisonment for the assaults, to be served concurrently with each other and commencing on 22 August 2004. With respect to the three offences of sexual intercourse, he was sentenced to fixed terms of 4 years imprisonment, also commencing on 22 August 2004. In respect of the offence of aggravated sexual assault, the offender was sentenced to 8 years imprisonment with a non-parole period of 5 years, commencing on 22 August 2006. The overall effective sentence was accordingly 10 years with an effective non-parole period of 7 years.

291. The Court of Criminal Appeal per Buddin J, McClellan CJ at CL and James J agreeing, concluded that the sentencing judge had fallen into error in a number of respects in the course of his remarks on sentence. The identified errors included treating the offender’s prior record as an aggravating factor, concluding that the injury, emotional harm, loss and damage caused by the offence was “substantial” and hence a further aggravating factor, and the sentencing judge’s conclusion that by virtue of the nature of the relationship and the circumstances in which the offending occurred, the complainant was “vulnerable” and hence gave rise to a further aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act.

292. However, notwithstanding those identified errors, the Court was not satisfied that any less severe sentence should have been passed. Accordingly, leave to appeal against sentence was granted, but the appeal was dismissed.

R v Matthews [2023] NSWDC 611

293. The offender pleaded Not Guilty to a series of physical and sexual assaults committed on his domestic partner over a period of months. The verdicts of Guilty by the jury related to four counts of assault occasioning actual bodily harm, one count of intentional choking, three counts of sexual intercourse without consent, two of which alleged oral intercourse, and one relying upon digital penetration. The jury also returned a verdict of Guilty relating to an act intending to pervert the course of justice in endeavouring to procure the victim to make a statement retracting the allegations in her earlier police statement. One of the counts of assault occasioning in respect of which a Guilty verdict had been returned, had been charged as an alternative to a more serious offence of recklessly causing grievous bodily harm. The jury returned a verdict of Not Guilty to the principal charge but found him Guilty of the alternative count.

294. His Honour Judge Haesler SC imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 9 years. The indicative sentences were 1 year with respect to two of the assault occasioning charges, and 1 year and 6 months with respect to two of the assault occasioning charges. The intentional choking received an indicative sentence of 2 years and 3 months. The first sexual intercourse without consent was an indicative sentence of 4 ½ years with a non-parole period of 3 years and 4 months. The second count of sexual intercourse without consent was an indicative sentence of 6 years and an indicative non-parole period of 4 years and 6 months. The count of aggravated sexual intercourse was an indicative sentence of 7 years and an indicative non-parole period of 5 years and 3 months. The act intending to pervert the course of justice received an indicative sentence of 3 years. A breach of the ADVO dealt with pursuant to s 166 received an indicative sentence of 12 months.

295. While a Notice of Intention to Appeal was filed in April 2024, the matter does not appear to have subsequently progressed in the Court of Criminal Appeal.

R v DN [2023] NSWCCA 39

296. DN was a successful Crown appeal against the inadequacy of sentence imposed in the District Court in relation to two offences under s 61J(1) of the Crimes Act 1900. The offender had pleaded Guilty with respect to both counts which had been committed on two occasions in July 2020 against a young girl aged 14 years. The victim was the daughter of the offender’s partner and resided in the same house as the offender and her mother. Two additional offences had been placed on a Form 1 with respect to an additional charge of aggravated sexual intercourse without consent and an additional offence of sexually touching a child.

297. At first instance, Judge Coleman SC had imposed an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years.

298. At the hearing of the Crown appeal, the Court was provided by the Crown with five comparative cases which are dealt with in the judgment of Gleeson JA at [46] - [60].

299. In the District Court the indicative sentences, after allowing a 5% discount for a late plea of Guilty, were 4 years 8 months with an indicative non-parole period of 3 years for the first charge, and 6 years 4 months with an indicative non-parole period of 4 years for the second offence.

300. In upholding the Crown’s submission of manifest inadequacy, the Court identified particular features which rendered the offending as constituting serious examples of aggravated sexual assault.

301. The Court of Criminal Appeal ultimately re-sentenced the offender. An indicative sentence of 9 years and 11 months imprisonment with an indicative non-parole period of 6 years and 8 months was specified after the 5% discount relating to a late plea. That offence also took into account the matters on the Form 1. The starting point before discount was 10 years and 6 months. With respect to the second count, the starting point before discount was 11 years, leading to an indicative sentence of 10 years and 5 months with an indicative non-parole period of 7 years. Recognising that there were two separate episodes of serious sexual offending against the same person, and taking into account the principle of totality, the offender was sentenced to an aggregate of 12 years with a non-parole period of 8 years.

Tsaccounis v R [2016] NSWCCA 163

302. The offender was convicted after a trial by jury in relation to nine various acts of violence and sexual assault against his former domestic partner. The offending conduct included an allegation of recklessly causing grievous bodily harm in 2007, an act of sexual intercourse without consent in 2008, and the balance of the offending alleged had occurred during a period of approximately 11 months in 2011. The jury returned a verdict of Not Guilty with respect to the allegation which was said to have occurred in 2008 and two counts alleging assault occasioning said to have occurred respectively in February and July 2011. The offender was also acquitted of an attempt to have sexual intercourse on a date in November 2011.

303. The sentencing judge, Whitford SC DCJ, imposed an aggregate sentence of 9 years and 4 months with a non-parole period of 7 years. Indicative sentences for charges of common assault were respectively 3 months and 12 months. With respect to three offences of assault occasioning actual bodily harm, his Honour gave indicative sentences of 6 months for one count, and 12 months with respect to the other two counts. In relation to a count of recklessly causing grievous bodily harm, the indicative sentence was 3 years with an indicative non-parole period of 2 years and 3 months. Two offences of sexual intercourse without consent received indicative sentences of 6 years with an indicative non-parole period of 4 years for one count, and 2 years and 6 months with an indicative non-parole period of 1 year and 10 months for the second such offence. With respect to an attempted choking with intent to intimidate, the indicative sentence was 8 years. His Honour did not find special circumstances.

304. The Court of Criminal Appeal, after rejecting an appeal against conviction, refused leave to appeal against the sentence which had been imposed at first instance.

Baker v R [2022] NSWCCA 195

305. The offender was convicted by a jury following trial with respect to three counts of aggravated indecent assault of a victim with a cognitive impairment (Crimes Act 1900 (NSW) s 61M(1)) and five counts of aggravated sexual intercourse without consent also with a victim with a cognitive impairment. Judge Shead SC imposed an aggregate sentence of 19 years with a non-parole period of 13 years and 4 months.

306. The indicative sentences for the aggravated indecent assaults were respectively 5 years and 8 months with an indicative non-parole period of 4 years, and 5 years with an indicative non-parole people of 3 years and 6 months. Each of those offences were assessed as falling below the mid-range of objective seriousness. With respect to a third count of aggravated indecent assault in which the victim was forced to touch the offender’s penis, it was assessed as falling at about the mid-range. Against a maximum penalty of 7 years with a standard non-parole period of 5 years, her Honour gave an indicative sentence of 6 years 4 months with an indicative non-parole period of 4 years 6 months.

307. With respect to the first count of aggravated sexual intercourse comprising digital penetration, it was assessed as falling just below the mid-range. Against the statutory maximum of 20 years with a 10 year standard non-parole period, her Honour gave an indicative sentence of 11 years 5 months with an indicative non-parole period of 8 years. With respect to the second count of aggravated sexual intercourse without consent, it was assessed as falling above the mid-range of objective seriousness. The indicative sentence was 13 years 7 months with an indicative non-parole period of 9 years 6 months. The intercourse for that count consisted of forced fellatio. The third count of aggravated sexual intercourse without consent involved penile/vaginal intercourse involving considerable force. It was assessed as falling above the mid-range and the indicative sentence was 15 years 9 months. The indicative non-parole period was 11 years.

308. The fourth similar count involving penile/anal intercourse was assessed as falling well above the mid-range. The indicative sentence was 17 years 2 months with an indicative non-parole period of 12 years. The last count of aggravated sexual intercourse was assessed as falling “about the mid-range” and resulted in an indicative sentence of 10 years 9 months with 7 years 6 months as the indicative non-parole period.

309. The Court of Criminal Appeal, Brereton JA, Adamson and N Adams JJ, dismissed the appeal against the severity of sentence.

R v Stephens [2024] NSWCCA 170

310. This was a Crown appeal against the inadequacy of sentence imposed by Gartelmann SC DCJ following the entry of pleas of Guilty by the offender to 14 domestic violence offences committed against his former de-facto partner over a nearly 2-year period. These included 7 counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; two counts of being armed with intent to commit an indictable offence contrary to s 114(1)(a) of the Crimes Act carrying a maximum penalty of 7 years imprisonment; and five counts of intentionally choking contrary to s 37(1A) of the Crimes Act.

311. At first instance an aggregate sentence of 6 years and 9 months with a non-parole period of 2 years and 3 months had been imposed. Harrison CJ at CL, Chen and Hamill JJ, were unanimous in concluding that the sentence was manifestly inadequate. The Court increased the indicative sentences and imposed an aggregate sentence of 6 years with a non-parole period of 4 years.

R v Saleh [2023] NSWDC 444

312. This offender was found Guilty following a jury trial with respect to 15 counts on indictment arising from a course of physical and sexual offending against a female victim. She was 34 years of age at the time of trial. He was also convicted of five related offences which were before the Court pursuant to a s 166 Certificate. These included offences of threatening to distribute intimate images of the victim, demanding money with menaces, and intimidation. The indictable offences included three offences of common assault, and five offences of assault occasioning actual bodily harm.

313. Two offences of sexual assault were contraventions of s 61I of the Crimes Act 1900 with maximum penalties of 14 years and standard non-parole periods of 7 years. There were five offences of aggravated sexual assault contrary to s 61J of the Crimes Act, attracting a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

314. The victim and her husband had been married pursuant to an arranged contract which had been “facilitated by a Muslim clerk”. After moving to Australia, they married according to Australian law and had a child. By mid-2016, the marriage was effectively over and the victim and her husband slept in separate bedrooms.

315. During 2016, the victim met the offender when she had taken her son to get his hair cut at the offender’s barber shop. In due course following social interaction between the victim and the offender, a relationship of coercive control evolved. I do not propose to go into the considerable detail set out in the remarks on sentence. It suffices to observe that the offender initially had forced sexual intercourse without the consent of the victim and that he used his mobile phone to video and photograph at least part of the sexual assaults. Over the ensuing period, he variously extorted money from her, threatening to publish or broadcast the images which he had taken of her on numerous occasions.

316. During the following several years, he used violence and intimidation, including frequent death threats, as techniques of coercive control in order to exert power over, and instil powerlessness in, his victim. These measures were designed to facilitate the offender’s ongoing sexual abuse of the victim. The aggravated sexual assaults included smashing her head multiple times into tiles, either on a wall or the floor, punching her, and effectively whipping her with an electrical extension cord.

317. He filmed a false confession from her that she had been in an intimate affair with another man and anally raped her. The threats to broadcast or publish such videos to her family and her husband, from whom she was effectively separated, accompanied by threats to cause her son to be removed from her care, caused a continuation of the course of abuse and offending which I have described in general terms.

318. The sentencing judge, his Honour Judge Everson SC, ultimately determined that a number of the sexual assaults including offences committed in company, were of a high level of objective seriousness. His Honour determined that with respect to the offences of aggravated sexual assault contrary to s 61J, that in relation to two of them, they approached, and in one case, warranted the imposition of the maximum penalty. The detailed description of those acts of sexual intercourse without consent involved penile/vaginal intercourse (Count 11) and penetration of her anus until he ejaculated whilst not wearing a condom (Count 12).

319. The sentencing judge found that Count 12 featured “very great heinousness” and was devoid of any facts that mitigated the seriousness of the crime or reduced the moral culpability of the offender. With respect to the penile/vaginal intercourse, the indicative sentence was 18 years with an indicative non-parole period of 13 years and 6 months. With respect to the penile/anal intercourse, the indicative term was 20 years imprisonment with a non-parole period of 15 years. With respect to three earlier aggravated sexual assaults, the indicative sentences were 15 years in each case with an indicative non-parole period of 10 years.

320. The aggregate sentence which was imposed was 26 years with a non-parole period of 18 years. It is understood that a Notice of Intention to Appeal has been lodged with the Court of Criminal Appeal Registry but the matter has not yet progressed to a hearing.

TOTALITY

321. An important principle to be borne in mind by a sentencing judge when confronted with multiple offences requiring sentence requires consideration of what is appropriately referred to as the principle of totality. His Honour Judge Haesler SC in R v Matthews [2023] NSWDC 611 described in what his Honour said were “short and simple terms” the practicality of the problem faced by a judge when dealing with multiple offences. His Honour pointed out at [89]:

“There are some states in the United States of America where judges simply add one count on top of the other, getting to ridiculous periods of custody. That is not our system. This is because the simple arithmetical addition of sentences appropriate for each offence will often result in an ultimate aggregate which exceeds what is required in all of the circumstances: Van Ryn v R [2016] NSWCCA 1 at [228] – [230].”

322. A more detailed description of the “principle of totality” had been set out in the oft-quoted judgment of Sir Laurence Street in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260, the Chief Justice said:

“The learned sentencing judge properly recognised that what has been called the principle of totality necessitated some telescoping of the individual terms. The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order.”

CONSIDERATION

323. I bear in mind the relevant principles in relation to offences of domestic violence which I have set out earlier in these Remarks. I also recognise the serious nature of the sexual offending which has been the subject of the Guilty verdicts. The repetitive nature of the offending and the considerable number of years during which the offending occurred are also factors requiring recognition in the determination of an appropriate sentence as is the fact that there are two separate complainants.

324. As I have indicated earlier, the continued denials of guilt, for the reasons I have referred to, deprive the offender of any mitigatory effect of considerations of remorse and contrition. Notwithstanding his completion of the Remand Domestic Violence Program, the Court is constrained to view his prospects for rehabilitation with considerable reserve. Notwithstanding that observation, it is important to recognise that the “prospects of rehabilitation” are a mandatory relevant consideration to the extent that it is relevant and known to a sentencing Court.

325. In Abbas v R [2024] NSWCCA 228, a description at first instance of the sentencing judge “exercising some degree of reserve regarding the level of his remorse and contrition” was held by the Court of Criminal Appeal to be an inadequate expression of a relevant consideration regarding the prospects of rehabilitation. In contrast to the description of “exercising some degree of reserve”, the Court of Criminal Appeal concluded that the applicant had “moderate prospects” of rehabilitation on the material as considered by them.

326. In the present matter, and for more abundant clarity, while I indicate that I have considerable reservations about the offender having good prospects of rehabilitation, I should state that I am unable to conclude that he is unlikely to reoffend and I similarly conclude that his prospects of rehabilitation, on the material before me, are “moderate” at best.

327. As will become evident, the Court has given particular consideration to the principle of totality.

328. In the ultimate synthesis leading to an appropriate aggregate sentence, the Court must balance competing interests. Public confidence in the administration of criminal justice requires that the community not be left with a perception that a person who commits a deliberate series of offences escapes effective punishment: see R v Wheeler [2000] NSWCCA 34 at [36] - [37].

329. As Justice Sully pointed out in Wheeler, an offender who has committed a series of discrete offences “must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another…”.

330. There is a further matter of significance which the Court should identify with some clarity in relation to the determination of an appropriate sentence. In 2002, the NSW Parliament passed legislation which amended certain provisions in the Crimes (Sentencing Procedure) Act. The amending legislation introduced the concept of a ‘standard non-parole period’ which is said to represent the appropriate non-parole period for an offence in the middle of the range of objective seriousness for offences which are listed in a Table in the division of the Crimes (Sentencing Procedure) Act. The then Attorney-General, Mr Debus, made it clear in the Second Reading Speech that what was being introduced was not mandatory sentencing. It was legislation which was intended to provide guidance and structure to the exercise of judicial discretion.

331. The Court of Criminal Appeal subsequently considered the amending provisions in a number of cases commencing with the judgment in R v Way [2004] NSWCCA 131; 60 NSWLR 168.

332. It is appropriate that those with an interest in the outcome of these proceedings understand that the standard non-parole period provisions apply to an offence which falls within the middle of the range of objective seriousness, or above, where there has been a conviction after trial. There is a discretion to vary from the standard non-parole period by reference to the factors set out by way of aggravation or mitigation in s 21A of the Crimes (Sentencing Procedure) Act. In the circumstances of the present matter, and particularly with respect to the aggravated sexual assaults in Counts 12 and 14, I am not of the view that the aggravating factors which I have identified would warrant an upward departure from the standard non-parole period. However, conversely, I am not of the view that the identified mitigating factors warrant a reduction or departure from that which has been specified by Parliament.

333. In my view, a consideration of what Parliament has set out and the authorities which have reviewed the correct approach to a consideration of s 54A of the Crimes (Sentencing Procedure) Act of necessity, require the imposition of those standard non-parole periods. I will clearly indicate those matters which in my opinion, of necessity, require the imposition of the standard non-parole period which has been specified by Parliament.

334. I propose to proceed by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. Accordingly I am required to provide the indicative sentences applicable to the individual sentences and also indicative non-parole periods in respect of those matters for which a standard non-parole period has been specified. They are as follows:

1. Count 2 (common assault): 6 months

2. Count 10 (common assault): 13 months

3. Count 11 (attempt to choke): 5 years

4. Count 12 (aggravated sexual assault): 13 years, with an indicative non-parole period, 10 years.

5. Count 14 (aggravated sexual assault): 14 years, with an indicative non-parole period, 10 years.

6. Count 15 (intimidation): 12 months

7. Count 19 (assault occasioning actual bodily harm): 15 months

8. Count 20 (intimidation): 9 months

9. Count 21 (intimidation): 12 months

10. Count 22 (intimidation): 6 months

11. Count 23 (assault occasioning actual bodily harm): 13 months

12. Count 24(assault occasioning actual bodily harm): 15 months

13. Count 25 (intimidation): 6 months

14. Count 26 (common assault): 3 months

15. Count 27 (intimidation): 12 months

16. Count 28 (intentionally suffocate): 18 months

17. Count 29 (sexual intercourse without consent): 4 years, indicative non-parole period of 3 years.

335. Having given consideration to the principles of totality, in my view the aggregate sentence should be a period of 16 years. The non-parole period will be 12 years.

336. The offender was arrested for these matters on 11 March 2022 and subsequently was granted bail. He spent one day in custody on 7 June 2024 for a breach of his bail. The offender again breached his bail on 15 July 2024 and has remained in custody since. The sentence and non-parole period will be backdated to 13 July 2024, to account for the 2 days he spent in custody before 15 July 2024. He will accordingly be eligible for release to parole on 12 July 2036. The balance of term will expire on 12 July 2040.

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Decision last updated: 14 April 2025