R v Duarte

[2024] NSWDC 145

District Court

New South Wales

Medium Neutral Citation:

R v Duarte [2024] NSWDC 145

Hearing dates:

21 March 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 2 years and 2 months with a non-parole period of 1 year and 3 months

Catchwords:

CRIME — Domestic violence — “Domestic violence offence” — Breach of Apprehended Domestic Violence Order

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Violent offences — Common assault

SENTENCING — Penalties — Imprisonment — Intensive Correction Order not appropriate

SENTENCING — Aggravating factors — Presence of child — Home of victim — Record of previous convictions

SENTENCING — Relevant factors on sentence — Sentence after jury trial — Objective seriousness — Totality — Lack of understanding of harm caused to the victim

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

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

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

R v Dunn [2004] NSWCCA 346

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

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

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

Texts Cited:

Criminal Justice Reform Initiative, “Jailing Is Failing”

20 March 2024

Category:

Sentence

Parties:

Adelino Duarte (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
J Hibbard (for the offender)

Solicitors:
T George solicitor advocate for Public Prosecutions (NSW) (Crown)
Russoniello Lawyers (for the offender)

File Number(s):

2023/23606

JUDGMENT – ex tempore revised

1. On 12 February 2024, after a short trial, a jury of 12 found Adelino Duarte guilty of a charge that he, in January 2023, Entered the Home of the Complainant Intending to Intimidate her, in the Circumstance of Aggravation, that he Knew Someone was Inside the Premises: Crimes Act 1900 (NSW), s 111 (1)(2). The jury acquitted Duarte of four other counts. He must have the full benefit of his acquittals.

2. Following the jury verdicts, Duarte pleaded guilty to two related offences – Breaching an Apprehended Domestic Violence Order by sending the letters which had founded counts for which he was acquitted.  He must have some reduction of the indicated sentence for those matters to recognise that the matter did not go to hearing, but that reduction, given the circumstances, cannot be quantified.

3. He did, in the Local Court, offer to plead to a Common Assault, a backup or related offence to Count 3, for which I convicted him.  Count 3 had been a charge of Assault Occasioning Actual Bodily Harm.  I accepted the evidence of the complainant that he had head-butted her, but gave him the benefit of the jury's doubt, expressed in their not guilty verdict.  The nature of the injury, or pain suffered, accordingly must be taken as transient.

4. The acquittals indicate the jury had doubts about critical elements of the prosecution's case, and that they may have given less weight to the evidence of the complainant and more weight to what was said by Duarte in evidence at trial.  When convicting Duarte of the related or backup offences, I indicated that I did not share that opinion.  In my view, the complainant could be accepted as a witness of truth. I did not accept Duarte's inconsistent and illogical version of events.

5. That conclusion is open to me, but I have to be particularly careful.  Duarte is to be sentenced today for the summary offence of assault, his two breaches of the Apprehended Domestic Violence Order, and the alternative indictable offence – Count 2, to which I have referred.  He is not to be sentenced for any of the other matters. He must have, as I have already indicated, the full benefit of his acquittals.

Facts for sentence

6. The offences occurred in the context of what both the complainant and Duarte describe as a “simple relationship between two neighbours” that some months earlier had resulted in the birth of a child to them.  The complainant cared for and exercised parental responsibility over their child and her two older children.  Duarte provided some material support to them. He was a regular presence in their home, and at family‑related social activities, but they maintained separate households.

7. The night before the incident leading to the charges, Duarte and the complainant had been drinking at her apartment.  He started an argument about her social media posts.  He did not approve of them or the friends she posted them to.  He was asked to leave. He left the complainant's apartment angry.  The complainant shut the rear door and went to bed.

8. She awoke as Duarte came in through that rear door.  He came into her room and continued the argument from the previous evening.  His continuing of the argument from the previous evening indicated and proved his intention to intimidate her.  That intention was made obvious by his tipping a bottle of water over her and throwing and spraying some of the contents of a can of alcohol over the wall and the bed where she and their child were lying.

9. As she got up from the bed there was, I find, a deliberate clash of heads. To remain consistent with the jury verdict, nothing other than transient pain was suffered.  What occurred after that did Duarte no credit, but while a number of criminal charges resulted, he must, have the full benefit of those acquittals. 

10. Despite an Apprehend Domestic Violence Order and bail conditions being placed upon him, he breached the no contact orders by sending two letters to the complainant while he was in custody on remand.

11. Consistent with the jury's acquittal, it is important to note that those letters were apologetic, and conciliatory, and contained no threats.  But they were not wanted, and they were in breach of the order.

Objective seriousness

12. An assessment of objective seriousness, or gravity, of each offence is critical.  It is a critical component of the sentencing process.  While there are no prescribed set of descriptors that must accompany such assessment, I trust the matters critical to that assessment are readily apparent from these sentencing remarks. 

13. Duarte chose to enter the complainant's home, intending to continue the earlier argument.  He thus intended to cause her to fear for her safety or have a reasonable apprehension of injury being caused to herself.

14. His lack of respect for her, the mother of his child, was evident by his carrying out the intended intimidation and the assault.  He showed no concern for the presence of his child, who thankfully, was too young to have been aware of what was occurring.  He showed no concern for the victim's two other children, who he knew would have been present in that flat that morning.

15. Given the nature of the relationship and his regular and common access to the home, to give effect to the acquittals, I must find that although all such offences are serious, because of the nature of entry and the common access to the home, it falls towards the lower end of seriousness for such matters.  That is not, in any way, to diminish the intent with which he entered.  I cannot find that there was anything in his manner to indicate one other intention in entering the house; that is concern for his child.  I reject his evidence to that effect.

16. Any breach of an Apprehended Domestic Violence Order is serious. Respect must be shown for court orders, and the person in need of protection. Sometimes, it is appropriate where contact breaches occur for there to be non‑custodial sentence. This is consistent with the purposes set out in s 9 (3)(g) Crimes (Domestic and Personal Violence) Act 2007 (NSW). At other times, custodial sentences are appropriate to reflect the seriousness of what occurred, and the nature of the breach. Here, the contact was unwanted, in clear breach of specific orders placed upon Duarte. And given other matters to which I will soon refer, only custodial sentences could meet the purposes of sentencing.

Maximum standard non-parole period

17. The s 111(2) offence carries a maximum penalty of 14 years' imprisonment. The summary matters, each carry penalties of 2 years' imprisonment. Careful attention to maximums is required. They provide sentencing measures to be balanced with all other relevant factors.

Criminal history

18. I have Duarte's criminal history before me.  His Children's Court matters are of no relevance, and I put them aside.

19. He first came before the Local Court in 2002.  He has had regular court appearances since then for driving, drug, and violence offences.  There are domestic violence offence matters on his record from 2005, 2007, 2012, 2014, 2018, and most recently 2023:  see Exhibit B.  Those from 2007 and 2014 and 2018 resulted in custodial sentences.  I sentenced him on 16 December 2015 to 4 years for the 2014 offence:  see MFI 2.

20. He was last admitted to parole in 2020, after I varied an arson sentence on appeal to allow for more time on supervision in the community.  He completed his parole on that occasion without breach. 

21. Duarte was in custody from his arrest on 23 January 2023 until he was granted bail on 8 May 2023 – 107 days.  His bail was revoked by me on 9 November 2023, because of a breach of the Apprehended Domestic Violence Order. It was dealt with this week in the Local Court by a fixed term sentence of 3 months, to date from 3 November 2023: see Exhibit C.

22. The offender's criminal history is relevant to determining the proper sentence.  It indicates that this offence is not an uncharacteristic aberration.  It demonstrates his continuing disobedience to the law, and his continuing commission of offences against female partners.  While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence, here a more severe penalty is warranted, with additional focus on retribution, deterrence, and the protection of society: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477].

23. I note that there is no Victim Impact Statement before the Court.  I had the opportunity, however, of seeing the complainant give evidence. It was obvious this matter had an impact on her. Although again, care must be taken, because she also gave evidence of the other (acquittal) matters, and I cannot not parse her distress to this one count and the summary matters.  The absence of a Victim Impact Statement does not give rise to an inference that an offence had little or no impact on the victim:   Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(5).

Subjective case

24. Born in Portugal, Duarte came to Australia with his family when he was young.  His parents died when he was young.  He has a teenager daughter with whom he still has contact.  He has qualifications as a diesel mechanic.  His employer speaks highly of him, although I note that his serious criminal history is more than "some personal problems", nor can I accept the employer's statement, "He is a good person who has made some bad decisions".  He has committed serious criminal offences.

25. He has completed remand intervention programs and obtained gaol certificates.  As his counsel Mr Hibbard reminded me, I should not underestimate the lived experience of gaols and how difficult it is for a person on remand to get into such programs.  It shows a level of initiative which many remand prisoners do not show. 

26. He has a job available on release.  He still presently has a Department of Housing tenancy.  I am aware there is a practice to hold such tenancies for up to six months if a person is in custody.  Having housing is an important consideration.  When a person is released from custody, the more stability they have, by work and housing, the greater their prospects of leading a normal community life.  If he loses his housing, he will have to reapply, or join the private rental market; and as this is 2024, I recognise that entering the private rental market from gaol is, at the very least, problematic.

27. If he loses his tenancy, he will require housing assistance. It was reported only yesterday, in a considered report from the Criminal Justice Reform Initiative, the amount of money put into housing prisoners who come out of custody compared to the costs of housing them in gaol is staggeringly different: Criminal Justice Reform Initiative, “Jailing Is Failing” accessed 20 March 2024. But as the Crown point out, that one factor should not of itself, determine the appropriate penalty.

28. The non‑parole period of any sentence must properly reflect the purposes of sentencing, including the objective seriousness of what occurred.

29. I have the benefit of a sentence assessment report dated 11 March 2024.  It indicates that Duarte shows little insight or capacity to reflect on his own behaviour, putting the offence down to a misunderstanding, saying he was sorry, and it should never have got physical.  The author, as am I, was most concerned that he appears to pose immediate risk towards this ex‑partner as their ongoing disputes are linked to the care of their child. This could further exacerbate his post‑release living arrangements.

30. I note that the ex-partner is no longer living in the State, but there may, in the future, be family or Children's Court proceedings in relation to access to his child. 

31. Duarte was assessed as a medium risk of re‑offending.  On release, a supervision plan can be put in place.  There was no acceptance of responsibility here.  The pleas to domestic violence matters followed his own admissions. He does not understand their potential impact on the complainant.

Submissions

32. Mr George, the solicitor for the Director, who appeared at trial and today, noted concerns about; Duarte’s criminal history, his lack of remorse, and real risk of re‑offending.  He submits that a fulltime custodial sentence is the only option.  Mr Hibbard, who appeared for Mr Duarte today and at trial, submitted that a relatively short fulltime custody sentence could be imposed, and that the purposes of sentencing could be met by lengthy Community Corrections Orders for the breach matters.

Special circumstances

33. A submission was made that there be a finding of special circumstances.  While I remain sceptical of Duarte's chances of rehabilitation, given his history, the offender's need to be monitored and supervised for as long as possible, all provide a basis for a finding of special circumstances.  He will need assistance in adjusting to normal community life.  He will, given the sentence I impose, need help finding fresh accommodation.

34. He will need help getting into work, and while there are matters in terms of substance abuse in his history, that – given the alcohol consumed on the night before may well have been a factor in that matter – he may need drug and alcohol treatment.  In making that finding, I am also mindful of the requirement, the minimum period for which he should be imprisoned must properly reflect the gravity and his offending and the purposes of sentencing:  R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Totality

35. I have to evaluate, in a broad sense, the overall criminality involved in all the offences, and then determine what, if any, downward adjustment is necessary in those sentences indicated to come to an aggregate sentence that achieves appropriate relativity between the totality of the criminality and the totality of the sentence:  R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).

36. I note that he pleaded not guilty at trial.  That is his right.  Similarly, he is not to be punished for indicating pleas of not guilty to the assault matter, but he does not get the benefit that an early plea would have given him.

37. As to the summary matters, where he offered to plead to assault, well, that has to be factored in.  But his version of the facts was so diametrically opposed to what I found that I cannot take that matter into account to any significant degree. So far as the domestic violence matters are concerned, I will take the guilty plea into account, but as the indicated sentences indicate, these were not the most significant portions of the sentence, and there will be some considerable concurrence between them.

Instinctive synthesis

38. The courts recognise that domestic violence offences have special dynamics.  Domestic violence offences involving entry to premises and the offence of intimidation are quite separate and distinct from other types of s 112(2) matters, which often involve people entering premises to steal property.  Here, the aggravating circumstance, knowing the person was home, has a different complexion than an entry intending to steal offence.

39. Here, one purpose of the entry was because he knew someone was there, and the purpose of entry knowing that person was there was to intimidate that person directly.  This is an example of the victim of domestic violence being personally targeted by the offender, and it can be assumed, given the nature of the offence, that the offence was part of a larger picture of violence.  It was an exercise of power and control.

40. As a consequence, crimes such as this are treated with real seriousness.  Domestic violence in all its forms is unacceptable behaviour.  Proper recognition must be given to the real harm crimes such as this do their victims, the children of victims, and the community in general: Munda v Western Australia [2013] HCA 38.

41. It is commonly the case, and material here indicates that, the offender can believe in a real sense what they did was somehow justified, or that they might be the true victim. Continued estrangement, sending of letters, even if they appear benign, involve a continued threat.  A victim never truly feels safe as they have been targeted and may be targeted again in the future: R v Dunn [2004] NSWCCA 346.

42. I am conscious, and this case, Duarte's case, is an illustration of it, that gaols are not necessarily the best way of dealing with this problem.  He has been to gaol more than once, and twice for lengthy periods, for serious offences against former partners. 

43. Gaols can break pro‑social bonds.  They encourage links with other criminals.  They are intrinsically violent environments, and rather than discouraging violent crime, can have a crime‑producing effect. Duarte has been in prison before.  His attitude and behaviour do not appear to have changed. 

44. He has completed courses.  I hope that they have an impact.  He must be imprisoned again.  I have no confidence he will not re‑offend.  His sense of entitlement and lack of concern for the harm he inflicted does him no credit. But sentences must be proportionate to the offending, and I cannot increase his sentence because of personal distaste, nor can I increase his sentence because of perceived risk – beyond what it is necessary as governed by the objective seriousness of the offence.

45. The community and future partners can be protected while he is locked away, but he must be released into the community.  Hopefully, the proposed supervision plan can bring about change.  Hopefully, this employer and others can provide him with assistance in the community to re‑establish himself.  Hopefully, if he ever forms a relationship again, what he has learned from his time in custody and while on parole, can protect that person from him.

Intensive Correction Order not appropriate

46. Where an aggregate sentence of less than 3 years is contemplated, it is open to a Court to direct that the sentence be served subject to intensive correction in the community.  Here a supervision plan is available, and community service would be possible.  While no submission was made to this effect, I could have imposed a sentence with significant conditions to allow it to be served in the community.

46. While the purposes of sentencing always apply to such a consideration , the paramount consideration when it comes to deciding whether to allow for an Intensive Correction Order, is community safety. 

47. Here, the Sentence Assessment Report indicates that the offender, consistent with his pleas of not guilty, has no insight or understanding of his obligations to the complainant, or his partners.

48. While he may gain that insight in the future, it is necessary, in my view, for community protection, that he be removed from the community for a period, and the only way I can do that is imposing a fulltime custodial sentence. He is serving the minimum I believe the law requires.  It may, during his time in gaol, cause him to reflect on his behaviour, not just to this complainant but to others. This sentence may give him greater incentive, given the collateral loss of his tenancy, and incapacity to work and gain employment, to think long and hard about how he relates to others in the community in the future. For that reason, and because no submission was made asking for it, I did not contemplate an Intensive Correction Order as an appropriate option.

Orders

50. Synthesising all those matters, I make the following orders.  The sentence will date from 24 August 2023.  Starting the sentence calculation on the 107 day, for a reduction from 9 December 2023 to allow for one month for the Local Court matter, he gets the benefit of partial concurrence with the other two months of that sentence.

51. For the indictable matter, I indicate a sentence of 2 years' imprisonment.  For the Common Assault, I indicate a sentence of 2 months' imprisonment.  For each domestic violence matter, I indicate a sentence of 1 month imprisonment.  There will be an aggregate sentence of 2 years and 2 months' imprisonment.  To give effect to my finding of special circumstances, there will be a non‑parole period of 1 year and 3 months.

52. That sentence will date from 24 August 2023 and expire on 23 November 2024, on which date Duarte will be released to parole, subject to supervision.  There will be a parole period of 11 months from that date.  This total sentence will expire on 23 October 2025.

53. To repeat – 2 years, 2 months; 1 year, 3 months non‑parole period commenced 24 August 2023; released to parole 23 November 2024; 11 months parole period supervised; 23 October 2025, being the expiry of the total sentence.

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Decision last updated: 01 May 2024