R v Eslick

[2022] NSWDC 422

District Court

New South Wales

Medium Neutral Citation:

R v Eslick [2022] NSWDC 422

Hearing dates:

21 September 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 44 – 45

Catchwords:

CRIMINAL LAW – severity appeal from Local Court – domestic violence offences

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 11, 14(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, 4A, 4B, 21A

Category:

Principal judgment

Parties:

Mr C Eslick (appellant)
ODPP

Representation:

Solicitors:
Dib & Associates for the appellant
ODPP

File Number(s):

2022/00185893
2022/00176793
2022/00183366

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Wyong Local Court

Jurisdiction:

Local Court of NSW

Date of Decision:

4 July 2022

Before:

Magistrate E Ellis

File Number(s):

2022/00185893
2022/00176793
2022/00183366

EX TEMPORE REASONS FOR JUDGMENT       

1. On 4 July 2022 the appellant received an aggregate sentence in the Wyong Local Court of 12 months’ imprisonment, with a non-parole period of 8 months (reflecting a finding of special circumstances), arising from 3 offences. He now appeals against the severity of that sentence.

2. For two offences, the appellant had been the subject of community corrections orders, but because of his non-compliance with them, these were revoked on 4 July 2022. Indicative sentences were given in relation to those two offences. Details of the indicative sentences for these two offences are as follows:

Sequence/Section	Offence	Maximum Penalty	Initial Sentence Received	Indicative sentence after revocation of CCO
H 89787974/1 s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)	Contravene prohibition or restriction in an apprehended domestic violence order	Imprisonment for 2 years or 50 penalty units ($5,500), or both	Community Corrections Order (imposed on 24 June 2022) for 12 months (revoked)	4 months
H89362234/1 s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)	Contravene prohibition or restriction in an apprehended domestic violence order	Imprisonment for 2 years or 50 penalty units ($5,500), or both	Community Corrections Order (imposed on 24 June 2022) for 12 months (revoked)	6 months

3. Also on 4 July 2022 the appellant received an indicative sentence to an offence for which he had pleaded guilty to:

Sequence/Section	Offence	Maximum Penalty	Indicative Sentence
H 161500802/1 s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)	Contravene prohibition or restriction in an apprehended domestic violence order	Imprisonment for 2 years or 50 penalty units ($5,500), or both	8 months

4. The appellant has spent a total of 1 month and 17 days in custody.

Circumstances of Offending

5. The Local Court sentenced the appellant on the basis of the facts outlined in the Police Facts Sheet. They indicated the following.

H 89787974/1 (17 June 2022)

6. The appellant and the victim were in an ‘on again-off again’ relationship for approximately 4 years, however, they are now separated. The appellant and the victim have a two-year-old son.

7. As at 17 June 2022, there was an extant Apprehended Domestic Violence Order (ADVO) applicable to the appellant for the protection of the victim. It sets out a range of conditions. One condition was that he not stalk, harass or intimidate the victim. Another condition that he have no contact with the victim otherwise than through a lawyer.

8. On 17 June 2022 the appellant sent the victim numerous messages. Subsequently, the victim spoke to her Legal Aid representative who suggested that she send a text to the appellant stating that he should cease all contact with her, otherwise she would report it to police.

9. In reply to sending the advised text message, the victim received no less than 56 text messages and over 100 phone calls from the appellant. The text messages consisted of, though were not limited to:

“You fucken bitch u just can’t make up the rules”

“U all talk u where never gonna go too the cops idk why u think it would scare me u saying that”

“Fuck your legal aid”

10. At or around 8:40pm on that same day, the victim attended Wyong Police Station to report the matter. The victim supplied police with a Domestic Violence Evidence in Chief Recording.

11. On 18 June 2022, the appellant was arrested by police. Although the appellant declined to participate in an electronic interview, the appellant did say that he had contacted the victim due to wanting to see their son.

H89362234/1 (23 June 2022)

12. Only 6 days after the previous offence, being 23 June 2022, from 7:30am to 5:00pm, the appellant sent the victim multiple text messages, attempted to call her and messaged her on Instagram. These messages came from different and unknown phone numbers; however, they all contained the same abusive language where the appellant was seeking to see his son and became more aggressive towards the victim when she did not respond. The victim did not reply to any of the messages and did not return any of the calls.

13. At 3:50pm on the same day, the appellant also sent the victim a thread of messages from an Instagram account by the name ‘Cody Eslick’ which contained further conversation about seeing his son and being verbally aggressive towards the victim. It read the following:

“Oi u fuckwit grow the fuck up and let me see my son just cose your all down about your life I promise you when I get [redacted] u will not be seeing him again you’re a fucken gronk. I’ve never hated someone so much in my life I feel sorry for [redacted] he deserves better who the fuck takes there son away from there father”

“Ur an utter peace of shit you talk all that bullshit about going too the cops all the time and I never do who even knows if that legal aid email is true so when [redacted] goes too school I’ll be picking him up and don’t doubt me for a second cose I’ll have my back by then”

14. At 4:50pm on the same day, the victim attended the Wyong Police Station to report the contact to police. The victim expressed her fear that the appellant had a complete disregard for the ADVO and that he would continue to try to message her until she responded. During the course of police obtaining information, they became witness to additional messages being sent from an unknown number. Police formed the view that the texts messages seemed to be a continual attempt for the appellant to reach out aggressively to the victim until she responded.

15. The victim had withdrawn their son from childcare out of fear that the appellant would act on his threats to take the child and disappear with him.

16. At 7:40pm on 23 June 2022, police attended the appellant’s residence and advised him of the allegation before him to which he replied: “Yeah I know what I did. I knew it would be only a matter of time before she reported it. I just want to see my son.” The appellant was compliant with police.

17. This contravention of the ADVO was more serious than the earlier contravention on 17 June.

H 161500802/1 (26 June 2022)

18. On 26 June 2022, still subject to the ADVO, from 9:00am to 5:30pm, the appellant had sent the victim multiple text messages, calls, Facebook and Instagram messages and emails. Each of these messages came from the appellant and unknown mobile numbers, however, all contained the same abusive content where the appellant was asking to see his son and becoming more aggressive towards the victim when she did not respond. The victim did not reply to the messages and did not return any of the calls.

19. At or around 10:20am the appellant messaged the victim stating: “Answer the fucken phone I know u see my messages I want my son if I don’t get him today then I will be taking him from school that’s not a threat that’s a promise.” The victim did not reply and after continual calls and further messages, the appellant said the following:

“Think of [redacted] u selfish cunt”

Fucken answer me cunt”

I’m about to loose my fucken shit answer me now”

20. Out of fear that the appellant would make contact with their son without her knowledge, the victim withdrew her son from childcare. She also moved out of her usual residence, in fear that the appellant knew where she lived.

21. The appellant’s behaviour constituted a breach of conditions (1) and (2) of the ADVO. On 27 June 2022, police placed the appellant under arrest for breach of his ADVO with the victim. The appellant stated that he had contacted the victim via text about custody of their son.

22. In respect to the offences on 23 June and 26 June, the texts contained threats to the victim that he would take their son. Technically, that may not amount to an aggravating factor under s 21A(2)(b), (c) and (ca) (not falling within the scope of the threats identified in these provisions), but the threat is relevant to the objective gravity of the offending in that instilled fear and apprehension in the victim. Generally, as may be inferred from the indicative sentences imposed by the learned Magistrate, I agree that the pattern of offending, overall, represented an escalation of a menacing attitude towards the victim, with each offence being more serious than the last. The appellant’s legal representative acknowledged that the offending fell between the mid and high range for offending of this kind.

Aggravating circumstances

23. At the time that the offence was committed on 26 June 2022, the appellant was already subject to two CCOs imposed by the Magistrate on 24 June, in relation to his offences on 17 June and 23 June, respectively.

The appellant’s SUBJECTIVE CASE

24. The appellant was 22 years old at the date of the offending.

Prior Criminal History

25. The appellant had previously committed a domestic violence offence on 5 October 2021. Generally though, his history is limited.

Guilty Pleas

26. The appellant is entitled to receive a 25% discount for his guilty pleas to each offence.

Sentencing Assessment Report

27. A Sentencing Assessment Report (SAR) was prepared on 4 July 2022 by the Wyong Community Corrections Office and was before the learned Magistrate. The report set out the appellant’s recent circumstances.

28. The appellant resides alone in a rental property. He is currently employed as a concreter for a construction company, and he benefits from the support of his mother who lives close to him. It was made apparent that the appellant has limited social pursuits and has a high-level work ethic.

29. The appellant indicated to the community corrections officer that he had regular contact with his son which he described as being every other weekend and every Tuesday and Thursday night.

30. The appellant acknowledged that he had issues with controlling his temper and has benefited from treatment and counselling in the past. The appellant expressed a willingness to seek support and treatment again.

Contrition and Remorse

31. Other than the guilty pleas, there was no evidence presented before the Court that the appellant is contrite or remorseful for the subject offending. This is not to be taken as a matter that aggravates the offending.

Rehabilitation Prospects

32. There was no direct evidence of the appellant’s rehabilitation prospects before the Court. Given the non-compliance with the CCOs made for his benefit, the absence of remorse and the absence of any evidence to indicate any further attempts at rehabilitation since the offending, I am unable to find that his rehabilitation prospects are anything but poor.

INSTINCTIVE SYNTHESIS

33. I take into account the maximum penalty for the offending for the subject offence.

34. I take into account the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Prominent in consideration is general deterrence and specific deterrence, but for the subject offences, protection of the community, making the offender accountable and recognising the harm to the victim are also weighty matters.

35. In this Court, the appellant’s legal representation conceded that the s 5 threshold was crossed, but said that imprisonment could served by a term of imprisonment by ICO. He had spent a month in custody and had been subject to bail. This reduced the need for specific deterrence.

36. The Crown submitted that service of a term of imprisonment by ICO was not appropriate. Ms Crown emphasised the nature of the offending and indicated the appellant’s defiance of the law. She stated that the Court could have no confidence that the conditions of an ICO could be complied with.

37. I have considered the indicative sentences of the learned Magistrate. I agree with them. I am required to apply the principle of totality. Here, although the conduct was much the same for all three offences, which imports a measure of concurrency, the offending occurred on three separate occasions, which imports a measure of accumulation; lest the offender, and the community generally, form the misconceived notion that an offender can get a benefit despite engaging in multiple offences.

38. I also agree with the Magistrate that the s 5 threshold is crossed. I also agree with the length of the term imposed by the Magistrate.

39. The offences fall within the concept of ‘domestic violence offences’ (per s 11(1)(c) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). As such the Court is required to take into account ss 4A and 4B of the CSP Act. In particular, the Court is constrained from ordering that a sentence of imprisonment be served by intensive correction, unless satisfied that the victim will be adequately protected. Given the nature of the offending, and the materials before the Court, I am not so satisfied. A full-time custodial term should be imposed. I also agree with the Crown, that the Court could have no confidence that the conditions of an ICO would be complied with. I am also concerned about the protection of the victim specifically.

40. I take into account the period of prior custody, estimated to be 47 days.

41. In the circumstances, I will vary the starting date for the sentence.

42. As with the Magistrate, given that this is the offender’s first time in custody, I find that special circumstances apply and I propose to make the same adjustment of the length of the non-parole period as the Magistrate did.

Orders

43. Mr Eslick, please stand.

44. The starting date for your sentence is varied so that it is backdated to commence on 7 August 2022. Otherwise the sentence imposed by the Magistrate is confirmed: you are sentenced to an aggregate term of 12 months imprisonment, expiring on 6 August 2023, with a non-parole period of 8 months expiring on 6 April 2023 after which you will be eligible for release on parole.

45. Other than the variation to the commencement date for sentence, the severity appeal is dismissed.

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Decision last updated: 21 September 2022