R v Es

[2019] NSWDC 921

District Court

New South Wales

Medium Neutral Citation:	R v ES [2019] NSWDC 921
Date of orders:	01 October 2019
Decision date:	02 October 2019
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Aggregate sentence of three years, with a non-parole period of 20 months
Catchwords:	SENTENCING – aggravated enter dwelling-house – assault occasioning actual bodily harm – domestic violence offences
Legislation Cited:	Crimes Act 1900, ss 59(1), 111(2)
Category:	Sentence
Parties:	Regina (Crown) ES (Offender)
Representation:	Counsel: P Swaine (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2018/96306

Judgment

1. ES comes before the Court in respect of two offences. The first offence is contrary to s 111(2) of the Crimes Act 1900: on 25 February 2018, at Parkes in the State of New South Wales, did enter the dwelling house of BR situate at [address omitted], with intent to commit a serious indictable offence, namely to intimidate BR with the intention of causing BR to fear physical harm, in circumstances of aggravation namely, knowing that there were persons in the place where the offence was committed. The maximum penalty for the offence is imprisonment for 14 years. There is no standard non-parole period.

2. Count 2, on 25 February 2018, at Parkes in the State of New South Wales, did assault BR occasioning actual bodily harm to BR. This offence is contrary to s 59(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for 5 years.

3. In addition, the offender asked me to take into account an offence on a Form document. That will be taken into account in respect of count 1. It is an offence contrary to s 59(1) of the Crimes Act. It also was committed on 25 February 2018, assault occasioning actual bodily harm upon BR (hands around throat).

4. There was also an offence on a s 166 certificate. That offence is one of contravening an apprehended domestic violence order at Parkes, again on 25 February 2018.

5. He accepted his guilt in relation to that and he pleaded guilty in relation to both of the offences on the indictment and asked to have the offence on the Form taken into account. The reduction for utilitarian considerations only is 15 percent in respect of the two offences on the indictment. In relation to the s 166 certificate, again 15 percent.

6. It should be said at this point that these remarks are being given after the sentence has been announced. That was because of the time frame yesterday that counsel had travel arrangements and there was no objection from the Crown that this be undertaken. Unfortunately today the offender has absented himself voluntarily from the Court, being in the AVL area at Wellington gaol, and neither side of the bar table has any problem with me continuing with the matter.

7. The factual circumstances of the offending are found in an agreed facts document:

1. The offender, born 1990, and the victim, born 1993, were in a domestic relationship for about four and a half years prior to 25 February 2018. They have two children together, then aged two and five, as a result of their relationship.

Section 166: Contravene AVO

2. On 2 May 2016, an apprehended domestic violence order was made by the Parkes Local Court to protect the victim from the offender. On 6 November 2017, the order was varied to the conditions in force at the time of the offence. The order is due to expire 10 March 2022.

3. About 11.00am on 25 February 2018, the offender attended the home address of the victim and her children and knocked on the door. The victim let the offender into the house and they had a verbal argument. The victim asked the offender to leave but he refused. The victim called her mother, RR, to come and help. The victim’s mother arrived and a short time later the witness, RL, arrived and took the offender home. The victim was upset and crying.

4. The victim’s mother took the older child to her home to stay the night. The victim and the youngest child stayed [at their home].

Count 1: Enter with intent

5. About 11.00pm that evening, the offender attended the victim’s mother’s house. He stayed outside the house yelling for the victim, saying, ‘Where are you, you cunt, come out here’. The offender’s son came out and told him that ‘Mum’s home’. RR called the police.

6. A few minutes later, the offender attended the victim’s home, about 1.6 kilometres away. He walked around the back and smashed a window with a stick. He walked through an open laundry door and entered the house.

7. The offender walked into the victim’s bedroom. He was angry and was shouting at the victim, who was in her bed with the two year old child.

8. The offender yelled, ‘Call the cops or I won’t leave’.

Count 2: AOABH

9. The victim walked into the lounge room and the offender followed. The victim’s child followed them into the lounge room. The victim moved towards the front door but the offender grabbed her and dragged her back into the lounge room.

10. The offender punched the victim to the side of the head, causing pain, swelling and bruising to her face and bleeding to the nose. She fell to the ground.

Form 1: AOABH

11. The offender pushed her onto a lounge chair and put both hands around the victim’s neck and squeezed for a second or two. This caused redness and bruising to the victim’s neck.

12. The offender stood over the victim. At this time a police car pulled up at the front of the house. The offender looked through the blind and said, ‘The police are here. Bye.’ The offender fled out the back door.

13. The two year old child was present and observed the entire incident. He pointed to his mother whilst police were talking to her and said, ‘Hurt’. Police spoke with the victim and documented the crime scene.

14. The victim did not seek medical treatment.

Arrest

15. On 31 March 2018, the offender was arrested at Coffs Harbour. He was charged and refused bail.

8. The Court, it should be said at this time, had the benefit of a sentencing assessment report and a psycho-legal assessment report dated 22 September 2019. The Crown also had the benefit of written submissions from the defence and also from the Crown.

9. I convict the offender of each of the offences on the indictment.

Objective Seriousness

10. In respect of objective seriousness, defence counsel submitted the serious indictable offence of intimidation carries a maximum penalty of five years. Whilst that is not the only factor that must be borne in mind, this reflects an offence which is at the lower end of the range, as serious indictable offences extend up to a maximum penalty of imprisonment for life. The submission was it was below the middle of the notional scale of seriousness. The Crown said it was below mid-range but not significantly. I am of the view it is below mid-range but not significantly, which is not really very different to the defence submission.

11. Turning then to the s 59 offence, again the defence said it falls below the middle of the notional scale of seriousness and the Crown again submitted below mid-range but not significantly below. I accept the Crown’s submission, below mid-range but not significantly so.

12. His previous record disentitles him to leniency but I am not of the view that it aggravates the offence. Those two offences were committed in the presence of a child under 18 years. It was committed in the home of the victim. The offence was committed whilst he was on conditional liberty. As a result of the offence being committed on conditional liberty, his parole was revoked and he had to serve a period of eight months and 14 days, 31 March 2018 to 14 December 2018.

13. He was also then sentenced in respect of another matter for which he got one year with a non-parole period of eight months. So effectively the custody in terms of that total period expired in March this year and the other eight months for the balance of parole, 14 December 2018. That offence was one of police pursuit, not stop, driving dangerously for which he got the 12 months with the eight months.

14. The Crown said there was some element of planning and there was but I do not elevate this to a feature of aggravation.

15. In relation to the psychological report, the Crown pointed out of course it came from him and he did not give sworn evidence and I bear this in mind.

16. He is 29 years of age, a man of Aboriginal and Torres Strait Islander heritage. He is the fourth of seven children in his parent’s union. His two children were the victim of the index offences, a six year old and a three year old.

17. Unfortunately both his parents served time in custody when he was a child and he witnessed violence between his parents, but only when they consumed alcohol excessively. There are Bugmy principles in this case.

18. In my view there are clearly special circumstances in this case, they being the risk of institutionalisation, the requirement he has for rehabilitation and assistance with his drug addictions and the principle of totality.

19. Unfortunately it should be said as a child of 14 he had a serious accident through no fault of his and that has been a continuing difficulty for him with his leg.

20. General deterrence must be a significant feature of this sentencing exercise. There is the matter of the domestic violence context and that is a matter that the Court of Criminal Appeal has repeatedly said requires general deterrence.

Sentence

21. The sentences, as I have said, were imposed yesterday and they will be confirmed again today. The offender was convicted yesterday. An aggregate sentence was imposed in this case. I gave consideration to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999. I stated the following indicative sentences for each offence:

Count 1, attaching the offence on the Form, three years, reduced by 15 percent is two years six months 18 days, rounded to two years six months.

Count 2, one year three months, reduced by 15 percent is one year 23 days, rounded to one year.

Sequence 2 on the s 166 certificate, one year, reduced by 15 percent is 10 months six days, reduced to 10 months.

22. I imposed an aggregate sentence of three years commencing on 1 August 2018, expiring on 31 July 2021. The aggregate non-parole period is 20 months commencing on 1 August 2018 and expiring on 31 March 2020.

23. Special circumstances found.

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Decision last updated: 06 July 2020