R v Duff (a pseudonym) - [2021] NSWDC 146

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Duff (a pseudonym) [2021] NSWDC 146
Hearing dates: 4 December 2020; 25 January 2021; and 29 March 2021
Decision date: 30 April 2021
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 14 years with a non parole period of 9 years 9 months.

Catchwords:
CRIME - SENTENCE - assault occasioning actual bodily harm - intentionally choke etc person with recklessness - sexual intercourse without consent (DV) - reckless wounding (DV) - attempt sexual intercourse without consent (DV).

Legislation Cited:
Crimes Act 1900 (NSW): ss59(1), 37(1), 61I, and 35(4).

Category: Sentence
Parties:
Regina (Crown)
Mr Duff (a pseudonym) (The offender)
Representation:
Mr Valerio (ODPP Campbelltown)
Mr Schaudin (Counsel for the offender)

File Number(s): 2019/68097; 2019/105445
Publication restriction: Suppression order of the name of offender; and non publication order of the name of the victim - and any other information which might, directly or indirectly, identify either of them.

Judgment

Mr Duff (a pseudonym) you appear for sentence today in relation to seven principal offences to which you pleaded guilty when arraigned on an amended indictment on 8 October 2020.
First, two offences of assault occasioning actual bodily harm (Counts 1 and 7 / sequences 4 and 27). These offences involve contraventions of s59(1) of the Crimes Act. The maximum penalty for each offence is 5 years imprisonment. There is no standard non-parole period.
Secondly, two offences of intentionally choking a person with recklessness (Counts 2 and 3 / sequences 11 and 14). These offences involve contraventions of s37(1) of the Crimes Act. The maximum penalty for each offence is 10 years imprisonment. There is no standard non-parole period.
Thirdly, one offence of sexual intercourse without consent (Count 4 / sequence 15). This involves a contravention of s61I of the Crimes Act. The maximum penalty for this offence is 14 years imprisonment. There is a standard non-parole period of 7 years imprisonment.
Fourthly, one offence of reckless wounding (Count 5 / sequence 007 of case number ending 097 - misdescribed as sequence 22 in the Agreed Statement of Facts). This involves a contravention of s35(4) of the Crimes Act. The maximum for this offence is 7 years imprisonment. There is a standard non-parole period of 3 years imprisonment.
Finally, one offence of attempted sexual intercourse without consent (Count 6 / sequence 7 of case number 445). This also involves a contravention of s61I of the Crimes Act. Again, the maximum penalty for this offence is 14 years imprisonment. However, because it is an attempt offence, there is no standard non-parole period.
In relation to four of the principal offences to which I have just referred, various matters on a relevant Form 1, each of which I have certified, are to be taken into account. There are six such matters.
Attached to Count 2 is one matter of common assault (sequence 1); and one matter of assault occasioning actual bodily harm (sequence 9).
Attached to Count 4 is one matter of assault occasioning actual bodily harm (sequence 8); and one matter of common assault (sequence 3).
Attached to Count 5 is one matter of assault occasioning actual bodily harm (sequence 18).
Attached to Count 6 is one matter of assault occasioning actual bodily harm (sequence 25).
The facts surrounding the principal offences and the matters on the relevant Form 1's are contained in an Agreed Statement of Facts which, slightly recast by me as to style but not substance, are as follows.
In April 2018, you first met the victim of your subsequent offending conduct. You and she were both 21 years old. Within a matter of weeks, the victim moved into your home unit in the Sydney suburb of Liverpool. Your grandmother lived in the garage of that home unit and occasionally used its kitchen and bathroom facilities.
At the commencement of your relationship with the victim, you and she got along well.
However, after she moved into your home unit, your attitude towards her soon changed substantially and you became increasingly controlling and violent.
You began referring to her as your "slave" and you prevented her from leaving the home unit without your permission.
Amongst other things, this caused the victim to lose her job because you refused her to leave the home unit to go to work.
You often expressed yourself in terms of violence - for example, you told her that if she left the home unit that you would "take out her legs", which she understood to be a reference to the times that you had kicked or hit her legs with various items such as hammers or bolt-cutters, or when you would whip her with a phone cord.
Your controlling influence extended to you demanding that she provide you with the passwords to all of her social media accounts, including Facebook, Instagram and Snapchat. You would go through all her private messages, which resulted in her deleting all of these accounts to prevent arguments.
The victim was of Croatian descent and she was accustomed to speaking with her mother in Croatian instead of English. You would get angry if she did so.
Another, and quite bizarre, aspect of your controlling behaviour was that you would get angry if she wore clothes when she was in the unit.
In June 2018, you told her that you wanted her to make you ejaculate multiple times a day and that, if she didn't meet your needs, you would punish her in different ways which included verbal threats and physical assaults.
On the afternoon of 8 June 2018, you and the victim were watching a movie. During the course of it, you turned to her and said, "I don't turn you on enough for you to jump me?" to which she replied, "Sorry?" You then told her not to say "sorry" like that. She replied that she was just watching a movie. You said, "Things distracting you from me? I'm your priority". You then put your hand on her neck and said, "You know what you are supposed to do" and you slapped her across the left cheek causing her pain.
This is the matter of common assault (sequence 1) which is to be taken into account in relation to the principal offence, being Count 2. By having regard to the nature of that matter, it will result in a slight increase in the sentence for the principal offence.
After you had slapped the victim, she was scared and she was afraid that you would hit her again, so she stood up and took her clothes off. As she walked towards you, you pushed her and called her a "slut". She tried to please you by touching your penis and telling you that you were handsome. You then went to the bathroom to have a cigarette whilst the victim lay naked on the bed.
After dinner on a night in mid-June 2018, you told the victim to go upstairs and sit at the end of the bed. You then entered the bedroom. You were holding a knife. You sat down on the bed, hugged the victim with your right arm around her waist, and put the blade of that knife on her stomach under her left ribs. You then said to her, "You didn't make me cum", and you started cutting into the victim's skin with the blade of the knife causing a 3cm laceration. The victim started crying, and you said, "I could stab this right through you now because you didn't do what I asked." You then directed the victim not to clean the cut and you left the room. Later that night, you and the victim had sexual intercourse, after which you said, "You're lucky I didn't kill you tonight, only because I love you."
This is the first principal offence of assault occasioning actual bodily harm (Count 1).
In terms of its objective seriousness for an offence of its kind, it is well above the mid-range.
It is additionally aggravated because it occurred in the home of the victim. I shouldn't have to say this but apparently it is necessary: I have said "additionally" here and later in these remarks to indicate that the factor of aggravation was not taken into account in my assessment of the objective seriousness of the (relevant) offences.
Following this incident, instances of abuse continued. They included, on one occasion, you grabbing a handful of the victim's hair, pulling it out, and slapping her face, accompanied by the threat: "Are you going to start fucking working?" This is an uncharged act. There are numerous uncharged acts referred to in the Agreed Statement of Facts. They have been included in that statement in order to provide context for the specific offences and the matters on the relevant Form 1.
On an occasion about a week after the first principal offence, you said to the victim, "You didn't make me cum", to which she replied, "I'm sorry, I will do something about that now." You told her it was "too late" and ordered her to get on her knees in the bedroom, which the victim did. You then whipped her back with a dog lead several times, causing her to cry from the pain. She begged you to stop, but you told her to stay where she was. You left the room and returned holding a cigarette lighter with the flame visible. You sat on the victim's back and said, "You betting start working now", and placed the hot metal head of the lighter on her left thigh. She screamed in pain and you told her to shut up.
You then left the room and the victim tried to follow, but you told her to go back and get on her knees.
When you returned to the bedroom, you grabbed her by the neck and sat on her back again. You asked her if she was going to work now, and she said, "Yes". You then said, "Are you going to get rid of your Yugoslavian traits, you Yugoslavian dog?" to which the victim agreed. You then pressed the hot metal head of the cigarette lighter on the victim's right buttocks for a few seconds, causing her to scream in pain again. You then threw that lighter away, leant over, and bit her on the left buttock's cheek leaving a bite mark. She asked you if she could clean the burns, to which you replied, "No". The victim went to bed but couldn't fall asleep due to the pain.
It is these facts which constitute the matter of assault occasioning actual bodily harm (sequence 9) which is the second matter on the Form 1 to be taken into account in relation to the principal offence, being Count 2. By having regard to the nature of that matter, it will result in a significant and meaningful increase in the sentence for the relevant principal offence.
Following this incident, you would demand that you and the victim have sex because she had not made you cum enough times during any particular day. You would threaten her with "punishment". On one occasion you threatened to cut her vagina with a knife. As you held it near her vagina you said, "You're lucky I wouldn't do this because I love you". This incident is not the subject of any particular charge but is another example of context.
On an afternoon in late July 2018, you and the victim were in the bathroom. You were sitting on the side of the bathtub and she was sitting in the bathtub with her legs hanging over the side. As you were talking, the victim said something that you didn't like, and you pulled her legs and cranked them against the side of the bathtub causing her pain. At one point, the victim felt a loud pop and crack in her left leg causing her to scream. This is another uncharged act.
The victim tried to get out of the bathtub but you grabbed her arm and put her back in. She begged you to stop, and you put your arm around her neck in a choke hold, causing her pain and difficulty with breathing. You continued choking her until she became dizzy and she had blurred vision before she blacked out.
This is the second principal offence of intentionally choking a person with recklessness (Count 2).
In terms of its objective seriousness for an offence of its kind, it is well above the mid-range.
It is additionally aggravated because it occurred in the home of the victim.
The victim woke up lying on the floor and you said to her, "Don't get up. Roll over onto your stomach". The victim complied with your direction, and you bent over her left leg towards her back and placed the hot metal head of a cigarette lighter on the bottom of her left foot causing a burn. You said, "You better be quiet, if my grandmother yells out, you're going back in the bathtub". The victim suffered significant pain. Eventually, you let her leave the room. Later that night, the victim performed oral sex on you in an effort to try to please you.
Following this incident, you would remind the victim that you wanted to ejaculate three times a day or you wouldn't be happy. You continued to threaten to punish her. On one evening, you punched her to the vagina and she begged you for your forgiveness.
Again, the various matters to which I have just referred are before the Court as context material.
On a Friday afternoon towards the end of August 2018, you and your grandmother had an argument in the Spanish language - a language the victim did not speak.
After the argument, you said to the victim, "You could have defended me," to which she replied, "I didn't know what you were saying".
You told the victim to go upstairs. As she was going up the stairs, you kicked the back of her knees, causing her to fall over on the stairs. You then said to her, "You didn't make me cum today". You grabbed the victim's arm and pulled her into the spare room. You picked up a sheet of glass with handles and pushed it onto the victim's chest which caused her to fall onto the ground. You hit her arm several times with the sheet of glass, causing a cut. She was crying and begging you to stop.
You then put the sheet of glass down and picked up one of your sports medallions. You hit the victim on her leg and the right side of her body with the medallion about seven times, causing bruises. You got behind the victim and put the medallion ribbon around her neck and choked her. Her vision became blurry - she had trouble breathing and comprehending what was happening. You then let go after a few seconds and said, "You better make me cum 10 times today to make me not do this to you again later tonight".
It is these various facts which constitute the matter of assault occasioning actual bodily harm (sequence 8) which is one of the two matters to be taken into account in relation to the principal offence, being Count 4. By having regard to the nature of that matter, it will result in a significant and meaningful increase in the sentence for the principal offence.
On an evening in mid-September 2018, you and the victim were in bed watching a movie. You said, "You know you didn't do anything to me today", to which the victim replied, "I know". You then slapped her face, pulled her hair and spat on her several times. These uncharged acts are placed before the Court for context.
You then said, "You shouldn't wait for me to get angry, for you to do something". You then let go of her hair and put both of your hands around her neck and squeezed. The victim's vision went blurry and she couldn't breathe - she blacked out.
This is the third principal offence of intentionally choking a person with recklessness (Count 3).
In terms of its objective seriousness for an offence of its kind, it is well above the mid-range.
It is additionally aggravated because it occurred in the home of the victim.
After the victim recovered consciousness, she shook violently. You told her to "stop faking it", and the next day she still felt nauseous, dizzy, and had a headache.
On a night in early October 2018, you and the victim were in the bathroom and you were drinking alcohol (I pause to observe that this is the first reference in this chronology of offending of you drinking alcohol at, or around the time of, a particular offence). You became angry because the victim hadn't "pleased" you that day. You told her to put out her tongue, which she did. You then extinguished your lit cigarette on her tongue and told her not to rinse it out, just to swallow it. You then said, "This is what you get for not doing anything. You better make this night amazing".
These are the facts for the matter of common assault (sequence 3) which is on the Form 1 attaching to Count 4. By having regard to the nature of that matter, it will result in a significant and meaningful increase in the sentence for the principal offence.
Later that night, the victim performed oral sex on you.
At about midday on a day in early October 2018, you and the victim were asleep in bed when she got up and went to the bathroom. You yelled at her, "You got out of bed without doing something, go and get me the knitting needle". The victim returned with a 30cm long knitting needle. You said to her, "Come here and put it [the knitting needle] in your arse, this is your punishment". The victim was scared that you would hit her so she put about 1cm of the tip of that knitting needle into her anus. You told her to put it all the way in, but she refused to do so.
You angrily told the victim to give you the knitting needle, to turn around and bend over. And that is what she did. You then inserted the knitting needle into the victim's anus. The victim pleaded with you to stop but you continued to insert it until the entirety of the 30cm knitting needle was inside her anus. You held onto the knitting needle and her wrists so she could not move for about 1 minute. You sat on the side of the bed and said, "You can't leave this room without making me cum, you can't do anything until I am pleased". You slowly removed the knitting needle and said, "You better make this day change from this point on".
The victim felt pain and discomfort as a result of what you had done. The risk of very serious injury is obvious.
This conduct is the principal offence of sexual intercourse without consent (Count 4).
In terms of its objective seriousness for an offence of its kind, it is well above the mid-range and into the upper range.
It is additionally aggravated because it occurred in the home of the victim.
Soon after this incident, the victim was again threatened by you for not doing her "job" that day - i.e. for not causing you to ejaculate. She was in the bathroom and attempted to fight back on this occasion by saying to you, "You're annoying me". You responded by grabbing and squeezing her neck and punching her in the stomach. That evening, you were drunk and became even more aggressive. You said to her that she was a "…slut Yugoslavian dog, you should be my prostitute, you should be working to live here". Disturbingly, the victim apologised to you again. These uncharged acts are placed before the Court for context.
At about 10:30pm on 1 December 2018, you and the victim were in the bathroom and you were drinking wine. You were sad and said to her, "I love you, I don't want to hurt you anymore, I want to hurt myself from now on". The victim told you that you didn't need to hurt anyone. She left the room to get a blanket as she was cold.
When she returned to the bathroom, you were carving "LV+TG 09-04-2018" into your right leg with a Stanley knife. This process took about 30 minutes, during which the victim continually told you to stop.
About two weeks later, at about 9:30pm on a day between 15 and 22 December 2018, you and the victim were again in the bathroom, and again you were drinking wine. You asked her why she hadn't carved your initials on her body because you had cut her initials onto yourself. She replied, "I didn't say for you to do that, I tried to stop you from doing it".
You then left the room and returned with the Stanley knife and told the victim you were going to carve your initials into her. She started crying and said, "I don't want to". You told her that you were going to carve it into her left hip and then you said, "No one else can have you, you're mine, you can't leave me". The victim was scared that you would stab or cut her if she didn't comply, so she pulled her clothing above her waist. You told her not to scream and then you carved your initials, "TG", into her left hip, going over the cuts several times, causing her a lot of pain.

This is the matter of assault occasioning actual bodily harm (sequence 18) which is the matter on the Form 1 attaching to Count 5. By having regard to the nature of the matter, it will result in a significant and meaningful increase in the sentence for the principal offence.
Following this incident, there were further occasions when you and the victim were in the bathroom and you were drinking wine. You would hit her in the face, or stand on her feet for "not doing her job" - which clearly meant providing you with sexual gratification.
You and the victim had an argument on an occasion as to whether she had been previously engaged. You called her mother, brother and sister to try and get an answer, but they all told you that she had not previously been engaged. You yelled at her and said that she was lying. You punched her in the stomach and on the legs. These uncharged acts are placed before the Court for context.
At about midday on 23 December 2018, the victim's mother dropped in to visit her daughter and to discuss the phone calls concerning whether or not she had been previously engaged. The victim told her mother to leave or she (the victim) would call the police (as this is what you had told the victim to say). The victim's mother told the victim to call the police so the victim could explain to them why the victim had a black eye. You licked your finger, rubbed it across the victim's eye and said, "It's not a black eye, it's makeup". The victim's mother left.
On a day between 27 and 29 December 2018, again, you and the victim were in the bathroom and, again, you were drinking alcohol. The victim was talking to you in an effort to avoid you getting angry. You looked at her and said, "I don't get it, why haven't we had sex yet, why haven't you made me come yet?" She said, "I was trying to, I was begging for you", to which you said, "I will show you what begging looks like". You then walked towards her, slapped her on the head and punched her in the stomach. She was crying and begged you to stop. These uncharged acts are placed before the Court for context.
You then told the victim to get up and get into the room.
The victim ran to the bedroom, and you told her to sit on the end of the bed. As she did so, you reached under the bed and picked up a large pair of bolt cutters about 60cm in length, and said, "You know you deserve this, you didn't do what I said". You then hit her with the bolt cutters on her right arm, left arm, left thigh, right thigh, and the top of her feet at least twice before you stomped on her feet three times. The victim was crying from the pain and begged you stop. You then yelled, "You ever going to let this happen again? Next time will be ten times worse, I expect dumb people to learn but clearly you don't, you're meant to be my prostitute, you're meant to work for living here". You then raised the bolt cutters above your head and said, "You better fucking change or I will kill you" before hitting the victim on top of the head causing a 3cm wound.
It is these acts which constitute the principal offence of reckless wounding (Count 5).
In terms of its objective seriousness for an offence of its kind, it is well above the mid-range and into the upper range.
It is additionally aggravated because it occurred in the home of the victim.
When you saw the blood which your blow to the victim's head resulted in, you walked her to the bathroom and put her under the shower. She held her t-shirt to her head to apply pressure to the wound.
You then called a hotline and spoke to a lady who told you to put pressure on it and not to go to sleep in case the victim suffered concussion. You and the victim sat down to watch television and the victim continued to apply pressure to her injury. You again called the hotline and told the victim that you and she were going to the hospital. You gave the victim a pair of thick socks to wear to cover the bruising and the swelling on her feet which you had inflicted on her.
You and the victim then walked to the Liverpool Hospital. You directed the victim to walk "normally", to which the victim replied that she couldn't because her feet hurt too much. It's not clear how close you got to the Liverpool Hospital, but you turned her around and you walked back home.
At some point not revealed in the Agreed Statement of Facts you did call 000. However, you told the victim to tell the paramedics that she had slipped in the shower and hit her head on the soap holder.
When the paramedics arrived, that is what she told them. The victim was taken to Liverpool Hospital where she was examined and treated for a 3cm wound to the head with four stitches.
At about 8:00pm on a day in early January 2019, you yelled at the victim for not causing you to ejaculate that day. You took her upstairs, got on the bed, and hung her feet off the end of the bed. You said to her, "You are meant to be my prostitute making me cum many times a day, you only had one thing to do today and you didn't even do it". You then started to hit the top of the victim's feet with a wooden hammer which had a rusty top. She lifted her legs to her chest to protect her feet. As a result, you hit other parts of her body with the hammer. The victim begged you to stop but you kept hitting her feet with the hammer a total of approximately 10 times.
These acts are part of the matter of assault occasioning actual bodily harm (sequence 25) which is to be taken into account in relation to the principal offence of attempt sexual intercourse without consent (Count 6).
You then pushed the victim's legs apart, lifted one leg and used the other hand to attempt to insert the wooden handle of the hammer into her vagina, causing the victim pain. As you were doing this, the handle of the hammer went close to the victim's anus causing her to fear that you would insert it in there. The victim was begging you to stop and screaming.
It is these facts which constitute the principal offence of attempt sexual intercourse without consent (Count 6).
In terms of its objective seriousness for an offence of its kind, it is well above the mid-range and into the upper range.
It is additionally aggravated because it occurred in the home of the victim.
The victim's screaming came to the attention of your grandmother who called out to you, "What's happening?" Before you went to speak to your grandmother, you said to the victim, "Look what you've fucking done now, when I come back you better be ready for more". You then went and spoke with your grandmother and returned to the bedroom, directing the victim to get to the end of the bed.
You then hit the victim's big toe about 5 times which lifted the toenail and caused heavy bleeding. You pulled the toenail off and threw it into the bin. You then said to the victim, "When I come back you better make me cum". You left the room to get a cigarette. The victim cleaned up the blood on the carpet. This assault lasted 30 minutes.
These facts also form part of the matter of assault occasioning actual bodily harm (sequence 25) which is to be taken into account in relation to the principal offence, being Count 6.
The assaults on the victim continued after this occasion. On one occasion, you were watching an Australian tennis tournament on television. You went to the kitchen and made a meat pie and left it on the kitchen table to cool. You walked into the kitchen, grabbed the victim's head and slammed it into the hot meat pie, and then you went back to watch television. This is another uncharged act which is provided to the Court for context.
On about 9:00pm on a day in late January 2019, you yelled at the victim for not doing anything sexual with you that day. The victim was naked. You told her to turn around, and you then whipped her with a charging cable five times on the back of her legs and three times on her back, leaving red marks. You said, "You better be a good slave tonight, you bitch. You're my prostitute, you have to pay to live here and this is how you pay", and then you left the room.
This is the principal offence of assault occasioning actual bodily harm (Count 7).
In terms of its objective seriousness for an offence of its kind, it is above a mid-range offence.
It is additionally aggravated because it occurred in the home of the victim.
I pause to observe that, only in relation to some of the offences, matters on a Form 1, and context material, is there any express reference to you being affected or consuming alcohol at the time of the relevant event.
The Agreed Statement of Facts was apparently carefully drafted and, in the absence of any direct evidence from you to the contrary, or any agreement between you and the Crown, the only rational inference is that, in relation to the other incidents, alcohol was not a relevant factor. I make this observation because of the contents of Exhibit 1 to which I shall return later in these remarks on sentence.
I now return to the narrative.
On the evening of 8 February 2019, you and the victim had an argument again about her not satisfying your sexual needs. You told her that she would get into trouble for this.
Shortly thereafter, the victim's mother and her sister collected you and her from the Liverpool home unit and drove to Liverpool Plaza.
As the group walked into a café, the victim's mother said to you, "This is what's going to happen. The girls will sit on one table and try to repair their relationship, and you and I will sit on another table and talk". You agreed with this and sat with the victim's mother while the victim and her sister sat at another table.
Whilst the victim was talking to her sister, she began to disclose some of the disgraceful conduct that you had been engaging in.
Later that evening the four of you left the café. As the group was walking towards the victim's mother's car, you said to the victim, "You better fucking tell me what you said about me because, if you don't, I'm going to fucking butcher you like a pig. Promise me you will never see your family after this day". This is another uncharged act which is provided to the Court for context.
The victim's mother drove the group to the Liverpool home unit. As you got out of the car, the victim said, "I just need to say one thing to mumma and Mia [her sister] before we go". You then said goodbye and, as soon as you got out of the car, the victim's sister drove away with the victim and her mother in the car.
The victim's sister took her to the Liverpool Police Station where a statement was made.
The next day, 9 February 2019, the victim went to Campbelltown Hospital where the examining doctor observed the following injuries:

healed scalp scar 2.5cm in length in upper posterior area;

mild tenderness in lower neck;

4cm diameter bruise on the back of the chest upright shoulder blade area;

Two round shaped healed scar marks with a diameter of 1-1.5cm in lumbar area of right lower back;

Horizontal healed scar line about 5-6cm on the abdominal wall;

Bruise on the left arm;

Mild swelling in middle of upper arm;

Scars appearing to be three English letters on lateral side of left upper thigh left buttock below the left hip;

Both thighs with bruising and swelling in the middle of the thighs on the lateral aspect; and

Swelling of feet including all toes and multiple bruises.

The victim was then conveyed to Liverpool Hospital to undergo sexual assault examination. The doctor observed that the victim had evidence of multiple injuries of different varieties (incision wounds; bruises; abrasions; swellings) occurring in different planes and involving various body parts. The doctor was of the opinion that multiple physical assaults were a likely explanation of the injuries noted.
You were first arrested on 9 February 2019. During the interview which followed, you told lies to the police about how the victim became injured, and also lies about her mental condition. Accordingly, you were initially released from custody without charge.
However, you were re-arrested on 1 March 2019.
The victim provided three additional statements to police on 25 March, 1 April, and 16 May 2019 in relation to incidents over the course of her relationship with you.
On 4 May 2019, a search warrant was executed at your home unit after which you were again arrested. In the interview that then followed, you again untruthfully denied all allegations.
You have been in custody continuously since your arrest on 4 May 2019, solely referrable to the matters to which I have already referred to.
The victim of your offending has provided the Court with a victim impact statement. Although the document was brief, its brevity does not detract from the powerful nature of the statements it contains. Clearly, the young lady concerned has been highly traumatised and very seriously physically and mentally damaged by your criminal misconduct towards her.
You did not give evidence in the sentence hearing.
Rather, your subjective circumstances were advanced through a sentencing assessment report and three experts' reports.
At the sentence hearing on 25 January 2021, a report by Dr Sharma (psychiatrist) dated 16 November 2020 was tendered (Exhibit 1). I expressed some concern about aspects of that report (and the sentencing assessment report) and, accordingly, your counsel sought and obtained an adjournment in order that further expert material might be obtained on your behalf.
I pause to observe that the report of Dr Sharma appears to assume that excessive alcohol consumption by you accompanied all of the principal offences and the matters on the various Form 1s; but, as I have already indicated, that assumption by the author of that report is not how the Agreed Statement of Facts was drafted - and, in any event, there is no apparent causal connection between excessive alcohol consumption per se and the prolonged sadistic brutality that you inflicted on the victim.
On the resumed sentence hearing on 29 March 2021, a report by Dr Furst (psychiatrist) dated 20 March 2021 and a report by Ms North (psychologist) dated 19 March 2021 were both tendered in your case (respectively Exhibits 4 and 5). The report of Dr Furst was prepared after he conducted an interview with you on 2 March 2021. The report of Ms North was prepared after she conducted an interview with you on 1 March 2021 (i.e. the day before you had the interview with Dr Furst) and 16 March 2021. I must say that I was, and remain, perplexed as to why both of those reports were tendered given that each expert came to significantly different conclusions as to their respective diagnoses; and the reports contained some differences in the histories obtained, although each expert concluded that you were above the average risk of reoffending.
In fact, there were notable differences in the histories you gave, not only to Dr Furst and Ms North, but also to Dr Sharma and the author of the sentencing assessment report - some of the differences were subtle; others less so.
Those differences concern the following five topics.
First, the circumstances in which you were born and brought up.
In the sentencing assessment report, it states that you were brought up by your mother and grandmother; and that your father left the household when you were a young child. There is no mention of you meeting your father as an adult.
In the report of Dr Sharma, it states that your mother was 16 at the time of your birth; and that you met your father only once - as an adult. It states that you were raised almost entirely by your grandmother so as to allow your young mother to work.
In the report of Dr Furst, it states that your mother was 16 at the time of your birth; and that you met your father only once - as an adult. The report states that you had no substantial relationship with your mother whom you only saw intermittently as a child and that you were raised by your grandmother.
In the report of Ms North, it states that your mother was 20 at the time of your birth and that you grew up in the care of your mother and maternal grandmother. The report states that your grandmother was actively involved in your care since you were born and that you have a particularly close relationship with her.
Secondly, the emotional and physical abuse of you as a child by your grandmother.
In the sentencing assessment report, there is no reference to your grandmother having a problem with alcohol or being physically or emotionally violent towards you.
In the report of Dr Sharma, it states that your grandmother physically hit you when she was intoxicated and that she had serious long-standing alcohol and anger problems.
In the report of Dr Furst, it states that your grandmother was an alcoholic who was frequently verbally and emotionally abusive towards you; and that she also hit you.
In the report of Ms North, there is no reference to verbal, emotional or physical abuse of you by your grandmother towards you (either in the section entitled "Trauma History" or elsewhere). There is no reference to your grandmother having anger problems or problems with alcohol.
Thirdly, sexual abuse of you as a child by your "grandfather".
The sentencing assessment report makes no reference to you sustaining sexual abuse as a child by your grandmother's partner.
In the report of Dr Sharma, it states that you were inappropriately touched by your grandfather in a sexual manner on several occasions when your grandmother was not around.
In the report of Dr Furst, it states that you were sexually abused by your grandmother's partner from 7 or 8 years of age and that that continued until you were around 9 or 10 years of age.
In the report of Ms North, it states that you were molested by your grandfather on two or three occasions when you were aged 7 and 8 years of age.
Fourthly, the extent of your alcohol problem.
In the sentencing assessment report, it states that, at the time of your offending, you were drinking a cask of (unspecified) alcohol a day.
In the report of Dr Sharma, it states that your alcohol use increased in 2017/18 to 2 to 3 litres of white wine daily.
In the report of Dr Furst, it states that you began drinking at age 18 and that at 2018 you were drinking 2 to 3 litres of wine daily.
In the report of Ms North, it states that you were abusing alcohol for the seven months before the offences and that you were drinking 2 to 4 litres of wine per day.
Finally, your use of pornography.
Neither the sentencing assessment report nor the report of Dr Sharma addresses whether or not you used or abused pornography.
In the report of Dr Furst, it states that you denied having any interest in pornography.
In the report of Ms North, it states that you used online pornography since you were 14 years old and had irregularly used pornography ever since.
Perhaps these various inconsistencies could have been explained if you had been called to give oral evidence in the sentencing hearing. But, as I have already noted, you were not called to give any such evidence. As you were represented by experienced counsel and solicitors, this can only have been a considered forensic decision.
Based upon the material with which he was provided, the author of the sentencing assessment report concluded that you were at a medium to low risk of reoffending.
Based upon the material with which she was provided, Dr Sharma noted:

that there were historical risk factors for violence;

that "…[you] had no violent attitudes, no histories suggestive of conduct disorder, or personality disorder, no history of serious mental illness…";

there were no significant clinical risk factors for violence;

and, provided you addressed your alcohol and drug problems, your future "risks" were "low".

Based on the material with which he was provided, Dr Furst diagnosed you with the following mental disorders:

obsessive compulsive disorder;

substance use disorder;

paraphilic disorder; and

concluded that you were above average risk of reoffending.

Dr Furst concluded that your psychological and psychiatric factors and your offending behaviour and related attitudes would require long-term psychological therapy and psychiatric treatment.
Based on the material with which she was supplied, Ms North diagnosed you with:

bipolar II disorder; and

alcohol use disorder.

Ms North recommended that you be considered for individualised treatment with a specialised psychologist and concluded that you posed an above average level IV risk for sexual recidivism.
None of the three experts expressly stated how much of her or his diagnosis was dependent upon the accuracy of the histories given by you although, on a fair reading of each report, it would seem that the histories were of considerable significance. For example, at page 9 of his report, Dr Furst wrote:

"…I am of the opinion that Mr Duff's history of childhood sexual abuse, coupled with other forms of abuse in his childhood, including physical and emotional abuse, were substantially causative in relation to subsequent psychopathology, including his obsessive-compulsive disorder, depressive tendency and his alcohol/substance use disorder.
Causation in relation to paraphilias is still not very well understood; however, a much higher rate of sexual offending, approximately 8-times the rate, is evidence in long term studies of men who have been the victims of childhood sexual abuse, as compared to men who have not been victimised in this manner".

Furthermore, none of the differing histories were apparently brought to the attention of, or considered by, any of the authors of the experts' reports tendered on your behalf.
Clearly, you are (at best) a most unreliable historian.
You bear the onus of proving facts in mitigation on the balance of probabilities. I am not satisfied to that standard in relation to any of the five topics I have specifically referred to; and I am not satisfied to that standard as to the accuracy or reliability of the differing diagnoses of any of the three experts retained on your behalf. This is not said critically of any of those experts but, to a very significant degree, is reflective of your unreliability (if not dishonesty) as a historian. What I am satisfied about, beyond reasonable doubt, is that you are a manipulative, sadistic and dangerous young man.
You are now 24 years of age. Ordinarily, considerable leniency is extended to an offender of your age. However, whilst this consideration applies to you to an extent, its significance is substantially reduced because your offending was no momentary error in judgment caused by immaturity, but rather was sustained and brutal domestic abuse over many months.
You have limited educational qualifications or work skills.
Before you commenced offending against this victim, you had committed no prior criminal offences.
You have purported to express remorse to the authors of the various reports to which I have referred. However, you did not give sworn evidence to that effect. By having regard to the absence of such sworn evidence and the problematic nature of the histories which you have given to the various report writers, I am not persuaded, on the balance of probabilities, that you are in fact genuinely remorseful for your criminal conduct against the victim.
In the absence of any proven relevant mental health condition, general and specific deterrence in your case are fully engaged. And in relation to general deterrence, given the widespread and devastating nature of domestic violence offences in this country, the Courts have an obligation to impose stern sentences on offenders such as you to seek to discourage others from doing what you have done.
Even if a relevant mental health issue had been proven and, consequently, general and specific deterrence were somewhat reduced as relevant sentencing considerations, the need to protect the community from someone such as you would have been considerably elevated.
It is difficult to form a clear picture of your prospects of rehabilitation because of the inconsistent histories given to the various report writers, and the conflicting diagnoses which the medical experts have arrived at - however, the report of Dr Sharma, in my view, carries little weight. The reports which are of more relevance are those of Dr Furst and Ms North. Neither of those experts, however, expressed a view as to what effect the (differing) proposed interventions would have for your prospects of rehabilitation.
It is said in some of the reports that you have now re-established a positive relationship with your mother and that this could be a positive factor in your rehabilitation. However, you are the only source of that information and, as I have already said, you are not a reliable historian; and there is nothing before the Court directly from your mother.
In all of the circumstances, I regard your prospects for rehabilitation as being very guarded, if not poor.
Your pleas of guilty were entered late.
Pursuant to s25D(2)(b) of the Crimes (Sentencing Procedure) Act, you are entitled to a discount of 10 per cent for those pleas. Because I intend imposing an aggregate sentence, the discount will be applied to the indicative sentences.
No sentence other than a sentence of full-time imprisonment is appropriate for any of the seven principal offences and the contrary was not submitted by your counsel.
You were arrested in relation to these matters on 4 April 2019. You have been in custody continuously since that date referable to these matters only and, accordingly, the sentence will be backdated to start on that date.
Because of your age, and because this is your first time in custody, I shall make a finding of special circumstances to vary the ratio of the sentence to the non-parole period. However, the departure from the statutory ratio will only be very modest in light of: the very seriousness of the offending; what I regard as significantly problematic aspects concerning your prospects of rehabilitation; and the lengthy period on parole to which you (in any event) will be subject.
It is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence.
In relation to Count 1, except for your plea of guilty, the indicative sentence would have been imprisonment for 3 years 6 months; after the discount of 10 per cent, the indicative sentence is imprisonment for 3 years 1 month.
In relation to Count 2 (and taking into account sequences 1 and 9), except for your plea of guilty, the indicative sentence would have been imprisonment for 8 years 6 months; after the discount of 10 per cent, the indicative sentence is imprisonment for 7 years 7 months.
In relation to Count 3, except for your plea of guilty, the indicative sentence would have been imprisonment for 6 years. After the discount of 10 per cent, the indicative sentence is imprisonment for 5 years 4 months.
In relation to Count 4 (and taking into account sequences 8 and 3), except for your plea of guilty, the indicative sentence would have been imprisonment for 9 years 6 months; after the discount of 10 per cent, the indicative sentence is imprisonment for 8 years 6 months. The indicative non-parole period is 5 years 6 months.
In relation to Count 5 (and taking into account sequence 18), except for your plea of guilty, the indicative sentence would have been imprisonment for 7 years; after the discount of 10 per cent, the indicative sentence is imprisonment for 6 years 3 months. The indicative non-parole period is 4 years 4 months.
In relation to Count 6 (and taking into account sequence 25), except for your plea of guilty, the indicative sentence would have been imprisonment for 9 years; after the discount of 10 per cent, the indicative sentence is imprisonment for 8 years 1 month.
In relation to Count 7, except for your plea of guilty, the indicative sentence would have been imprisonment for 3 years 6 months; after the discount of 10 per cent, the indicative sentence is imprisonment for 3 years 1 month.
I have taken totality into account in determining the aggregate term of imprisonment.
Mr Duff, for the seven principal offences to which I have earlier referred, I sentence you to an aggregate term of imprisonment of 14 years.
I fix a non-parole period of 9 years 9 months to date from 4 April 2019 and which will expire on 3 January 2029.
I fix a balance of 4 years 3 months to date from 4 January 2029 and which will expire on 3 April 2033.
I direct that Exhibits 4 and 5 go with the warrant.

Amendments

30 April 2021 - Offender’s name removed at paragraphs [154] and [181] and replaced with pseudonym "Duff".

Decision last updated: 30 April 2021

Medium Neutral Citation:	R v Duff (a pseudonym) [2021] NSWDC 146
Hearing dates:	4 December 2020; 25 January 2021; and 29 March 2021
Decision date:	30 April 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 14 years with a non parole period of 9 years 9 months.
Catchwords:	CRIME - SENTENCE - assault occasioning actual bodily harm - intentionally choke etc person with recklessness - sexual intercourse without consent (DV) - reckless wounding (DV) - attempt sexual intercourse without consent (DV).
Legislation Cited:	Crimes Act 1900 (NSW): ss59(1), 37(1), 61I, and 35(4).
Category:	Sentence
Parties:	Regina (Crown) Mr Duff (a pseudonym) (The offender)
Representation:	Mr Valerio (ODPP Campbelltown) Mr Schaudin (Counsel for the offender)
File Number(s):	2019/68097; 2019/105445
Publication restriction:	Suppression order of the name of offender; and non publication order of the name of the victim - and any other information which might, directly or indirectly, identify either of them.