R v Fing

[2024] NSWDC 66

District Court

New South Wales

Medium Neutral Citation:

R v Fing [2024] NSWDC 66

Hearing dates:

5 March 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [90-91]

Catchwords:

CRIME — Violent offences — Assault occasioning actual bodily harm

CRIME — Sexual offences — Sexual intercourse without consent

CRIME — Violent offences — Take person intend serious indictable offence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Muldrockv R (2011) 244 CLR 120

Veen v The Queen (No2) (1988) 164 CLR 465

R v McNaughton (2006) 66 NSWLR 566

Bugmy v The Queen (2013) 249 CLR 571

R v Millwood [2012] NSWCCA 2

Lloyd v R [2022] NSWCCA 18

DPP v De la Rosa [2010] NSWCCA 194

Harper v R [2022] NSWCCA 211

Chia v R [2023] NSWCCA 63

Hall v The Queen [2021] NSWCCA 220

R v Holder [1983] 3 NSWLR 245

Mill v The Queen [1988] HCA 70

Cahyadi v R [2007] NSWCCA 1

Texts Cited:

NA

Category:

Sentence

Parties:

Rex (The Crown)
Donald Fing (The Offender)

Representation:

Counsel:
Kumarasinhe for the Offender

Solicitors:
Boenisch for the Director of the Office of Public Prosecutions

File Number(s):

2021/00294255

Publication restriction:

NA

JUDGMENT

Introduction

1. The offender Donald Fing appeared for sentence on 5 March 2024 in respect of four matters of which he was found guilty by a jury following a trial and in respect of seven matters of which he was found guilty which proceeded by way of a section 166 certificate, that is they were dealt with summarily and determined by the court. There were two further charges on the indictment of which the offender was found not guilty. There was no submission by the offender that those not guilty verdicts had any impact on the sentences to be imposed in respect of the other matters.

2. The offences to be sentenced, the dates they occurred, their maximum sentences and where applicable standard non-parole periods are as follows:

Matters on indictment

Count	**	Sec	Max	SNPP	Date
1	1	86	14	n/a	4-7.10.21
2	6	59	5	n/a	9.10.21
5	7	61I	14	7	9.10.21
6	10	59	5	n/a	11.10.21
** indicates order in which offences occurred

Section 166 matters (SNPP provisions do not apply)

Seq	**	Sec	Max	Date
17	2	195	5	7.10.21
22	3	61	2	7.10.21
23	4	61	2	8.10.21
24	5	61	2	8.10.21
26	8	61	2	10.10.21
13	9	59	5	10.10.21
16	11	13	5	15.10.21
** indicates order in which offences occurred

3. In relation to the maximum sentences and, in respect of the section 61I offence, the standard non-parole period, those matters are taken into account as legislative guideposts, indicating the legislature’s view of the seriousness of the matters so as to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.

4. The offender was arrested on 18 October 2021 and has remained in custody since that time. At the time of his arrest he was on parole and that parole period expired on 15 May 2022. He has been in custody for these matters only since 16 May 2022. The Crown accepts that there will be some period of backdating of the commencement of the sentence to prior to the expiration of the parole period with the question being the extent to which the commencement of the sentence is backdated between the dates of 18 October 2021 and 15 May 2022. The sentence to which the parole period related was a sentence imposed on 20 August 2020 for the offence of police pursuit. That sentence was two years with a non-parole period of 15 months. At the time that sentence was imposed a number of wholly concurrent terms of imprisonment were imposed in each case for a period of nine months for driving offences, resisting an officer and weapons offences.

5. The offender was born on 24 May 1993 so he is now 30 years of age. The offences were all committed in the period 4 October 2021 to 15 October 2021 so that the offender was at that time 28 years old. The victim was born on 1 February 1988 so that at the time of the offending she was 33 years old.

6. The offending all occurred in a period of less than two weeks. There is set out at the end of these reasons a table showing the offending in chronological order and giving a brief description to identify the conduct in question along with the maximum sentence of the offences and where applicable the standard non-parole period, the court’s assessment of the objective seriousness of each offence and the indicative sentences arrived at having considered all the relevant subjective and objective matters.

7. Setting out the facts of these matters in chronological order rather than dealing with the indictable and summary matters separately assists in appreciating the nature of the offending. In summary there has been a period where the offender detained the victim and in that period committed two summary offences. Thereafter whilst not found to have been detained there were a series of further offences of violence committed by the offender upon the victim.

8. Following the jury verdict there was a further hearing to determine whether or not the summary offences had been established beyond reasonable doubt and it was found that they were. In line with those findings and in line with the jury verdicts the parties have agreed facts on sentence which form part of the Crown bundle and to which no objection had been taken. The agreed facts accord with my own view of the matter. The following summary of the facts is taken from that document.

The facts and objective seriousness

9. The offender and victim met in the Lismore area in about July 2021 and soon commenced an intimate relationship. Not long after it began the relationship deteriorated and the victim tried to return to her home in Queensland but due to Covid difficulties remained in Byron Bay. There the relationship recommenced and on 4 October the offender and victim caught a bus to Ballina and went to the offender’s brothers home unit. From there the offender's mother drove them to 1 Dibb Street Coraki.

10. The victim and offender stayed at the Coraki address from 4 October to 7 October. No one else was there. Both the offender and victim used methamphetamine and the victim also smoked cannabis. The victim tried to leave the house through the front door but was stopped by the offender who stood at the door and pushed her. When she tried to defend herself he told her to fight like a man and dragged her to the bedroom and then locked the door. This is the commencement of the detain the subject of Count 1 on the indictment. In the days that followed he would not let her go to the toilet or if he did would follow her and not let her shut the door. The offender took her phone if she used it. He was verbally abusive. He threatened to chop her up with an axe. She was unable to leave. On 7 October the victim showered while the offender slept. When the offender woke he abused her for showering without him. He again told her to fight like a man. He grabbed her by the hair and dragged her around.

11. Whilst it is not necessary to make an assessment of where in the range of objective seriousness an offence falls when it is not one with a standard non-parole period, carrying out such an assessment does assist in the overall assessment required for the instinctive synthesis approach. The Crown has adopted this approach. The accused’s submissions adopt the approach of arguing whether or not a particular offence has crossed the section 5 threshold, a determination that should be made when all matters are considered, not just objective matters.

12. In respect of Count 1 the Crown submits it is in the mid range of objective seriousness; in rather stark contrast the offender argues it does not cross the section 5 threshold. This is a serious example of this type of offence for the reasons cited by the Crown. Namely, that the detention was for a period of three days and in that time the offender engaged in violent, abusive and degrading conduct towards the victim. Such conduct occurred outside of the two summary offences that occurred in this period, which are not taken into account in assessing the objective seriousness of the detain offence, for to do so would result in double counting. The degrading and abusive conduct extended to threats to kill the victim. The objective seriousness is into the mid range.

13. The next offence was the destroy property charge, the first of the summary matters. This occurred on 7 October. The offender could not get the victim’s phone to work so he threw it on the ground and smashed it so that it no longer functioned.

14. This is a minor offence. In terms of objective seriousness it would have to be considered low. As to whether it crosses the section 5 threshold, something on which the parties disagree, all the facts and circumstances will need to be taken into account.

15. Also on 7 October the first common assault occurred. It is not entirely clear whether this occurred whilst the detaining of count 1 was still occurring as it appears to have occurred as the parties were leaving Coraki. In any event the facts were of the offender coming up to the victim as she was putting a bag in the boot of the offender's mother’s car. He was yelling at her and head-butted her in the back of the head causing her to drop to the ground. The offender then yells at the victim “get the fuck in the car”. From there they drove to Goonellabah, a Lismore suburb.

16. In terms of a common assault this too is a serious matter which I would put into the mid range of objective seriousness for that style of offence. It is a blow to the head from behind.

17. The following day, 8 October 2021, the offender and victim were sitting in the rear of a car driving to Ballina. The offender put a singlet around his knuckles and punched the victim to the head several times calling her a dog.

18. The victim was, on the Crown case, then locked in the car though I am not satisfied beyond reasonable doubt as to that though it would seem likely. It does not form part of the allegation of the assault just mentioned nor of the following assault. That following assault, so the third common assault, occurred in the same manner as the first incident in the car. Namely the offender again wrapped his fist in a singlet and punched the victim repeatedly to the head this time for several minutes whilst the car was being driven to the offender’s brother's place in Ballina.

19. Remembering that these are offences of common assault, in each case there are repeated blows to the head in circumstances where there is no escape for the victim. They are each matters reaching the mid range of objective seriousness.

20. The next offence was count 2 on the indictment of assault occasioning actual bodily harm. The lead up to this event was of the offender threatening to hit the victim with a bottle. It occurred the day following the two earlier assaults just recounted. The offender was yelling and screaming. The offence occurs again in a motor vehicle. The offender struck himself with the bottle which split his own eyebrow and he then threatened that he was going to kill everyone. As the victim was getting out of the car the offender swung the bottle in an underarm motion hitting the victim to the left-hand side of her head, bruising her face and splitting her left ear. The victim walked down the street saying she needed to go to hospital. Her ear was bleeding. The offender drove beside her and told her “get the fuck in the car or I’ll chop you up”. She did so and was taken to the offender’s brother’s unit. After approximately four hours she was then taken to Lismore base hospital curiously not the nearest hospital which would have been Ballina.

21. Apart from the evidence of the ear bleeding and bruising to the victim’s face there is little evidence of the injury suffered. It is plainly sufficient to make out the offence. The manner in which the offending occurs is very concerning. The offender appears to be in some kind of uncontrollable state lashing out for no reason at the victim. Despite the arguably modest nature of the injury I assess this as into the low mid range of objective seriousness given the manner in which it occurred.

22. The next offence also occurred on 9 October 2021 and in the course of events following on from the assault occasioning. Having taken the victim to the hospital the offender then waited for her; he actually provided her with some food from McDonald’s and they got into the rear of a motor vehicle. Whilst the offender and victim were the only people in the motor vehicle the offender put his fingers into the victim’s vagina and then removed them and smelt them. He then said that his fingers smelt like sex and accused her of having sex with someone in the hospital. The seriousness of the offending is added to by reason of the fact that having just been treated for an earlier assault the victim is then met with another, and far more serious, assault upon her person. Consistent with the conduct of the offender over the by then previous five days there is an absolute disregard for the rights of the victim. That of course can be said in all cases of sexual assault however the circumstances in which this occurs exacerbates that disregard. The conduct is degrading of the victim. That it may be motivated by jealousy, and baseless jealousy at that, adds an ugly element of controlling behaviour. The offending did however last only a short time, described in the evidence as “like a minute” and so was brief. I would assess this as in the low mid range of objective seriousness.

23. The following day, 10 October 2021 the victim and the offender, with the victim driving, drove to the offender's mother’s house. On the way there the offender hit the victim to the left ear and her ear started to bleed. This constitutes the fourth and final common assault. This assault was brief and the impact caused bleeding due to the condition of the ear. I would assess this as low in objective seriousness.

24. Also on that day when at the Lismore shopping square the offender punched the victim to the middle of her forehead. This caused a lump to her head and bruising to both of her eyes.

25. There is no rhyme nor reason to this offence. It is a gratuitous attack to the head of another person. Far lesser injuries would make out the elements of this offence. I would assess this as being in the high low range of objective seriousness.

26. The following day there was a further assault occasioning. The offender grabbed the left arm of the victim and put a cigarette out on her forearm causing a burn mark and scarring. There is about this offending, as there is with all of the offending and particularly the sexual assault matter, the head butt and the punching to the head a marked lack of respect amounting to conduct which is simply degrading of the victim. Whilst this injury might be argued to be slight, it is that characterisation of the conduct which in my view makes it more serious than the injury might suggest. The conduct is in the high low range of objective seriousness.

27. The final offence occurs four days later. By this time the victim had managed to separate herself from the offender and had gone to the home of a person named Kelly Watterson. That occurred on 14 October. The following morning on 15 October the victim was walking on Molesworth Street and attended Officeworks in order to buy a phone, remembering the offender had some days earlier destroyed her phone. Having done so and outside Officeworks she saw the offender who said “what are you doing you dog? Where have you been?”. She said she had bought a phone and he said “I will get you dog”. He said he would be back to chop her up. He drove away. She called a friend and was picked up.

28. It was later that day that she reported these events to the police.

29. This last offence of intimidation is also a serious matter. It is a continuation of the degrading conduct towards the victim. It again threatens her great harm. That said, the conduct is entirely verbal. I would assess it as being in the high low range of objective seriousness.

Matters of aggravation

30. The offending is aggravated by the offender having been on parole at the time of the offending. Other possible matters of aggravation such as threatening violence or involving violence either form part of the elements of the offending or have otherwise been taken into account in assessing objective seriousness.

Subjective case

31. The offender relied on a psychologist’s report written by Julie Dombrowski and dated 19 February 2024. It commences by briefly recounting the offences and then briefly notes the offender’s criminal history. That history is in evidence as part of exhibit A. His record plainly disentitles him to leniency. The offender is now 30 years old and has a history dating back to age 15. As noted by the psychologist the offending covers a range of matters including driving, property and drug offences, ADVO contraventions, weapons offences and violence offences. The record shows 5 earlier assault offences, an intentional choking and an affray. There was no submission by the Crown calling in aid the principles of Veen or McNaughton. The offender's record nevertheless is relevant to take into account in considering his prospects of rehabilitation and his likelihood of reoffending. It is also relevant because his custody record shows that he has spent approximately five years of the past 10 years in custody and remembering that he is still only 30 there is a real risk of institutionalisation occurring if indeed it has not already commenced.

32. The history given to the psychologist was of a dysfunctional and disadvantaged childhood. There is no dispute by the Crown that the offender’s background engages the principles referred to in Bugmy. This is because his background is of witnessing his father use alcohol and cannabis heavily and of witnessing his mother physically assault his father. The family regularly relocated causing instability. His mother’s means of discipline included whipping him with a jug cord. The family circumstances were such that he did not always have access to sufficient food and at least on his account commenced offending and accessing Centrelink payments to support himself at age 13. He lived in various boys homes from the age of 12. His first term in a youth justice centre was at age 15. Whilst there at age 16 he was sexually abused. From the age of 16 he lived with an aunt and uncle in Lismore and was first incarcerated at an adult correctional Centre at age 18. His father died from an alcohol-related illness several years ago. He could not attend his grandmother’s funeral because he was incarcerated. His mother presently has cancer and he fears that she will die while he is in prison.

33. His formal education would seem to have ended in year seven and he likely has limited literacy skills if any. That said he did complete year 10 equivalency in institutional care and has completed some vocational courses in prison. He has held some employment at age 17 and also in his early 20s. His substance use and periods of incarceration has disrupted his employment and he has not worked in the last seven years.

34. As a youth he socialised with other at risk or alienated youths and regularly witnessed and experienced violence, criminality and substance use in his community. He maintains that he has always been respectful to his sexual partners but the facts of this case, and his record must bring that into serious doubt. He has five children aged from 8 to 16 years meaning he became a father when aged 14. He does not have regular contact with his children. Despite his view of being respectful to sexual partners he informed the psychologist he had used violence in two of his three prior relationships but attributes that to provocation from his partner. There is in his record convictions for domestic violence related offences.

31. As to substance use he began using methylamphetamine at about age 21. He has injected half a gram up to 4 times daily on most days over the past nine years. He was a heavy user of cannabis from age 12 to 21 and has sporadically used a range of illicit substances including LSD, cocaine, MDMA, opioids and GHB. He states alcohol use is not problematic. Attempts at detoxification had no long-term success. The current period of incarceration of in excess of two years has not led to abstinence with the report stating that he continues to use methylamphetamine and non-prescribed buprenorphine on most days in prison.

32. Based on the offenders self reporting he is said to have been diagnosed in 2021 with PTSD associated with his history of childhood sexual abuse. He also says that in adolescence he was diagnosed with depression and anxiety when in institutional care. At age 17 it is said he sustained a head injury from a dirt bike riding incident where he lost consciousness for up to 60 minutes. Since then he has experienced short-term memory difficulties, headaches and episodes of blurry vision as well as neck and back pain. There was another head injury when he was assaulted in prison in his 20s. He has been prescribed Endone for pain management but is not currently taking any regular medication.

33. A psychometric assessment led to the psychologist considering there was evidence of severe personality pathology including a pattern of erratic and dramatic thoughts and behaviours. People of this personality type often consider themselves inadequate, undesirable and worthless.

34. A risk of sexual recidivism was carried out. On the static testing he was assessed with a risk of recidivism more than 2 ½ times that of the normative group. Dynamic testing was not possible because he maintained he did not commit a sexual offence. Nevertheless based on his history and the proposed facts on sentence referred to above dynamic risk factors are identifiable though no assessment arrived at.

35. As to non-sexual recidivism his own completion of a self appraisal questionnaire placed him at the high moderate risk of committing further offences. Unsurprisingly the testing showed a nexus between substance abuse and offending.

36. As to the offending itself it occurred in circumstances of heavy methamphetamine use. At the time he had only been released from prison for three months and was struggling to establish a routine in the community. He was unemployed and living with antisocial peers. He blamed his offending on his methamphetamine use. The ultimate opinion and recommendations of the psychologist is that the offending is best understood in the context of his developmental history. It is suggested that the stressful and chronic nature of his experiences have likely interfered with normal development of the frontal areas of his brain leading to an unstable personality structure. It is suggested his features are most in keeping with a cluster B (dramatic/erratic) personality type with mixed antisocial features. Such people have emotional intensity and instability and increased risks of engaging in emotionally reactive behaviours and committing offences. The fact of the sexual offence, that is count 5 of sexual intercourse without consent is suggested to be an offence committed in the context of a broader pattern of coercive control in intimate relationships. His poor history of engaging in treatment and his maintenance of his innocence of these charges leads to a view that his prognosis is poor. Recommendations are made for how to address this with a pre-treatment program so as to develop his treatment readiness. It requires targeted psychological treatment and also intensive drug treatment, something offered by corrective services New South Wales. There is also the need for treatment of his PTSD and his unstable personality structure but this can only be successful once the substance use is under control. Treatment addressing his background leading to his offending and promoting prosocial lifestyle are also encouraged. Programs are recommended. Investigation should also be carried out to see if a brain injury has been suffered due to the head injuries. Lastly as he has limited experience living independently assistance in transition into the community is recommended to assist with factors such as housing and vocation.

37. There was no challenge to Ms Dumbrowski’s report, and I accept the history it sets out and the author’s opinions. That report paints a fairly dire picture for this young man. His developmental history and environmental background have ingrained in him attitudes and a personality that are conducive to an antisocial lifestyle. The report demonstrates that there is much that must be done before he would be pro social. It demonstrates that he is a continuing risk to the community. His prospects of rehabilitation are beyond guarded and must be considered bordering on the unlikely. Concomitantly the likelihood of his reoffending would appear almost certain and is only brought back to the more restrained assessment of the psychologist if there can be some success in the recommended treatment.

38. The sentencing assessment report briefly outlines the family and social circumstances of the offender. He grew up initially in the Tamworth area but when eight relocated to Lismore to live with his aunty due to domestic violence in the family home. Somehow whilst incarcerated he has recommenced an intimate relationship with a long-term friend and has her support expected upon his release. The report notes an apparent lack of pro social modelling.

39. It notes his criminal history and says, which I accept, that the current offending is an escalation as it has progressed from domestic violence to sexual assault. The report expresses the view that at some point the offender considers violence is justified which is consistent with the justification he gave for using violence to Ms Dombrowski. Favourably to him the report notes at least in the general sense that he has developed feelings of remorse and is disapproving of his behaviour of using violence in his relationships. I note that does not translate to the present matter because he believes he has been wrongly convicted.

40. The report refers to him using six shots of methamphetamine per day which is an increase of the four shots per day referred to in the Dombrowski report. He recognises the risk of violence increases with his methamphetamine use. It is said the offender demonstrated some capacity to self reflect and explore his behaviour and a men’s behaviour change program was recommended.

41. It was a submission of the offender that the SAR seeks to champion the victims. Having read the report I reject that submission. An example of what the offender seems to be criticising is where it is said in relation to the sexual assault that this was a tool for victim degradation and control. In the circumstances in which that offending occurred that is a very apt description and well describes the essence of the offending overall.

42. The offender was assessed at a high risk of reoffending for non sex offences; the risk of sexual recidivism was the subject of a separate structured case note.

43. A suggested supervision plan upon release sets out five separate programs to address domestic violence, conflict resolution, men's behaviour and alcohol and other drug issues.

44. The structured case note refers to the static 99R assessment and assesses the offender as falling in the well above average risk range relative to other male sexual offenders; the note acknowledges that dynamic variables have not been taken into account. The assessment however does make him eligible for the high intensity sex offenders program but due to his continuing denials he will be eligible for the deniers program. A violent offenders treatment program may also be available.

Submissions

49. It was submitted for the offender that the sentencing assessment report was championing the plight of the victim. I reject that submission. The sentencing assessment report is unfavourable but not to any marked degree less favourable than the report of Ms Dombrowski.

50. It was submitted for the offender that the section 5 threshold had not been crossed in respect of the detain charge. This was based on the fact that the offender had said to the victim “stand up and fight like a man” and had grabbed her by the hair and dragged her around. The submission seems to overlook the fact that the detain was for a period of three days and involved the offender engaging in humiliating conduct including intruding on the offender as to her toileting and showering activities and was verbally abusive.

51. The offenders submissions are a little confused as the assessment of whether the matter crosses the section 5 threshold seems to be made based only on the objective seriousness of the offending. So for count 2 of the indictment which is the assault occasioning actual bodily harm it is said without reference to subjective matters that it does not cross the section 5 threshold.

52. As to count 5 on the indictment of sexual intercourse without consent, reference is made to a part of the transcript of the penetration being “just in and out” but also as enduring for “like a minute”. As already noted I accept that this offence was brief in time and take that into account.

53. As to count 6 being the assault occasioning actual bodily harm by the blow to the face causing two black eyes and a lump the submission is that the court would be cautious in being too damning in the absence of medical evidence. The fact of the injury has been accepted by the jury.

54. At paragraph 39 of the offender’s submissions the primary submission made is identified as being that the offending was highly dysfunctional and drug induced. The submission then follows up by outlining the circumstances in which that substance abuse has emerged namely the dysfunctional and disadvantaged upbringing of the offender and the principles of Bugmy are called in aid.

55. I largely accept that submission. As already discussed, there is no doubt a basis for leniency to be exercised in respect of the offender due to Bugmy principles. The background in which the offender has been brought up and the trauma he suffered in being sexually abused have in broad terms damaged him in the sense that he has become more likely to offend and also more likely to become drug dependent which again in turn heightens his likelihood of offending. The result is that his moral culpability is lessened. At the same time it must be noted that so far as his state of intoxication at the time of the offending is relied upon that cannot by reason of section 21A(5AA) mitigate his sentence. Further, countering the leniency just identified on the facts of this case, the likelihood of the offender becoming drug-free and treated in a way that would see him less likely to offend has to be considered unlikely. That is, his very significant and very long-term abuse of drugs and the personality he has developed mean that he is likely to reoffend and unlikely to rehabilitate and thus poses a serious risk to the community.

56. This is not to say there should not be appropriate regard to promoting his rehabilitation and indeed this case is one where rehabilitation should properly be emphasised.

57. The case is another of the frequently encountered circumstances of the purposes of sentencing pulling the sentence in different directions. Suffice to say, the purpose of protecting the community looms large in this case.

58. The offender called in aid a number of cases including Millwood [2012] NSWCCA 2 and the well-known passage of Justice Simpson at [69] which is consistent with the comments made above. The case of Lloyd v R [2022] NSWCCA 18 was also referred to and the passage at [54] highlighted where it was said:

That risk and the chronicity of his cycle of addiction and offending indicate that rehabilitation should be a high priority for this offender. Once it is recognised that his moral culpability is reduced if the promotion of rehabilitation is not given substantial weight we risk punishing him for having a dysfunctional childhood”.

59. Those words are very apt here. The way for this to be addressed in my view is for there to be a significant finding of special circumstances. This is to allow an extended period of supervision to allow assistance in engaging with a range of treatments identified by Ms Dombrowski. This also assists in reducing the onset of, or furtherance of, institutionalisation.

60. The offender makes the fair point that this offending includes for the first time sexual offending. On one hand that may indicate that the offending at least in terms of the sexual intercourse without consent count is an aberration; on the other hand, and what I consider the more logical and likely explanation, is that his offending is escalating. He has a history of abuse of women and of violence and this has now become sexual violence.

61. The offender submits that there are good prospects of rehabilitation as a mitigating feature. The evidential basis for that is not identified and in my view that submission should be rejected. It is also said the offence was not part of a planned or organised criminal activity. I accept that but do not consider that, given the extent offending extended over a period of some 12 days that it results in much benefit to the offender. I nevertheless take it into account favourably to him though in a modest way.

62. It was also said the offender was not fully aware of the consequences of his actions because of his disability, a submission said to be based on paragraphs 23-27 of the Dombrowski report but not paragraph 26. With respect those paragraphs do not found that submission but rather amount to saying that the antisocial behaviour of the offender can be explained by his developmental history which has increased his risk of engaging in antisocial behaviour; it does not amount to saying he is unaware of the consequences of his actions.

63. The offender then relies on the principles set out in the DPP v De la Rosa [2010] NSWCCA 194. It is not necessary that there be a series of diagnosed mental illnesses in order for the principles of that case to have application. In this case the psychological state of the accused has arisen largely due to his developmental history, though the sex abuse likely caused PTSD, and query as to whether the head injuries have had an ongoing effect. On the facts of this case, a submission based on Bugmy and Millwood covers the aspects of the offender’s psychology that are addressed by De la Rosa; that is, the benefit to the offender in terms of leniency based on De la Rosa has been achieved by reference to Bugmy principles. I do not find that his psychological state makes his time in custody more onerous, other than its contribution to his behaviour that has seen him subject to penalty in custody. As recognised in De la Rosa and generally, the protection of the public is a relevant consideration.

64. The submission is made for a finding of special circumstances which I accept. This is a particularly severe case of developmental disadvantage and dysfunction. The consequence is a case where the need for rehabilitation is heightened albeit that the likelihood of that occurring at present is considered worse than guarded. A submission is also made, which I accept, that the sentence should be structured to aid against institutionalisation.

65. The ultimate submission for the offender commencing at paragraph 65 of the submissions is somewhat confused but seems to accept or concede only that count 5, the sexual assault crosses the section 5 threshold.

66. As to a start date a backdate is sought. The principle of totality is also appropriately referred to.

67. As to the summary matters it is submitted that the sentences should run concurrently with the four offences charged by indictment.

68. The offender provided the court with the cases of Harper v R [2022] NSWCCA 211 and Chia v R [2023] NSWCCA 63. The first of these cases involved an offender of previous good character; the second concerned principles relevant to re sentencing an offender following a retrial after a successful appeal. They are both quite distinguishable from the present matter.

69. The Crown provided an assessment of objective seriousness of the matters on the indictment. It was submitted that count 1 was mid range and so too was count 2. Count 5 is submitted to be below the mid range and count 6 mid range.

70. As to the section 166 matters they are submitted to be further examples of degrading and reprehensible domestic violence and that the section 5 threshold is crossed in respect of each of them including the destroying property charge and that there should be short fixed or indicative terms for each matter.

71. The Crown submits that the submission of the offender not being aware of the consequences of his actions should be rejected and I agree with the Crown in that regard; understanding consequences is different to having insight as to the behaviour. There is no evidence to support this submission.

72. The recency of his release on parole is noted. His past history of domestic violence is also noted as is his reference to using violence in his relationships. That the offender says he has respect for his partners is totally against the evidence and I find is a basis for considering he has little insight into his wrongdoing.

73. Of greater concern is the Crown submission that there is resistance to engagement in interventions and I would infer the flow on from that is the decreased likelihood of rehabilitation and the continuation of risk factors leading to offending. The ongoing denial of the offences for which he was convicted shows a distinct lack of remorse. That attitude will harm his prospects of successfully engaging with treatment.

74. The major point for the Crown is that whilst there might be basis for leniency due to the developmental history of the offender there is recognised by numerous authorities an increased need as a result of his background to protect the community. The Crown also refers to purposes of sentencing such as punishment and deterrence as well as promoting rehabilitation. Here in my view the offender is not an ideal or indeed appropriate vehicle for general deterrence given his chronic background of disadvantage but there is nevertheless some need to seek to specifically deter him but in a way that also promotes rehabilitation. I accept the Crown submission that there is a need in this case to ensure appropriate weight is given to protection of the community.

75. The submission of the Crown that the offender’s risk of reoffending outweighs the favourable use of the subjective features of the developmental background and psychological condition is one with some force and has been touched on above. These competing factors tending in different directions are all to be taken into account in arriving at the sentence.

76. The Crown notes that the offender displays little insight into his offending which is an irresistible submission in light of the maintenance of innocence. The offender’s continued misbehaving in prison and his continued use of both methamphetamine and buprenorphine whilst incarcerated are also noted.

77. Lastly the submission is made that the principle of proportionality needs to be recognised and that the conduct be denounced.

Consideration

78. The purposes of sentencing are as follows:

1. To ensure the offender is adequately punished.

2. To prevent crime by deterring the offender and others from committing similar offenses.

3. To protect the community from the offender.

4. To promote the rehabilitation of the offender.

5. To make the offender accountable for his actions.

6. To denounce the conduct of the offender.

7. To recognise the harm done to the victim of the crime in the community.

79. Various arguments concerning these purposes have been addressed above. The above discussion has also indicated the approach the court will take. I accept the Crown submission of the need to emphasise the protection of the community and the denunciation of this degrading and reprehensible behaviour. I also accept the Crown submission that there is a need for deterrence. At the same time I accept the offender’s Bugmy submission. I am of the view that the weight to be given general deterrence should be less due to the lesser moral culpability of the offender so that he is not a good vehicle for general deterrence.

79. The subjective findings otherwise do not assist the offender. He has shown no remorse, he has little insight, there is little if any evidence that demonstrates a genuine willingness to rehabilitate in the now more than two years of being in custody and he has a history which suggests that the difficulties he faces in being pro social are deeply ingrained into his belief systems or psychological make up.

80. I accept the opinions expressed in both the psychologist’s report and the SAR, though I note they differ in their assessment of the risk of reoffending, being high moderate and high respectively for non sexual offending. It is important to note that the mental health findings are of PTSD (and depression, though that appears to have been historic, not current), severe personality pathology including erratic thoughts and behaviours, and low self esteem, and that the offender has an unstable personality structure as a result of his background and experiences. Ms Dombrowski’s view, which I accept, is that the offending is best understood in the context of his developmental history, that is, arising in the context of his disadvantaged background. The offender’s personality type, cluster B, means he is more likely to commit offences. There is no suggestion that his PTSD was in any way causative of the offending, though it could sensibly be said on a broad view the development of his personality type, shaped by his disadvantaged background, has made his offending more likely. Nevertheless, I accept the Crown submission that the offender’s submission places too much emphasis on the mental health of the offender. At the same time, the accepted facts of his disadvantaged background and the applicability of Bugmy principles has the effect in some ways similar to the application of the principles laid out in De La Rosa. That is, the offender is not a good vehicle for general deterrence, but that is not to say the sentence should not reflect general deterrence to some degree, it is just that it is given less weight than it would otherwise have. There is a need for specific deterrence, but it is also tempered by the offender’s background. I accept the Crown’s submission that the lenience arising from the offender’s disadvantaged background is counterbalanced if not outweighed, by the need to denounce this behaviour and to protect the community, and I would add, to recognise the harm done to the victim.

81. That does not mean that there is not a great need to promote rehabilitation. Indeed, in my view the offender is still quite young, adding weight to the need to promote rehabilitation.

82. The court is considering the appropriate sentence for a series of 11 offences occurring in a 12 day period. Four of those 11 offences are common assault, a fifth offence is of damaging a telephone and a sixth offence is verbal threats being the intimidation charge. Looked at in isolation, each of these matters could be argued to be minor. That leaves the four matters on indictment and the assault occasioning charge to be dealt with summarily. Of those five matters three of them are assault occasioning charges being a blow with a bottle, a punch to the head and a cigarette burn. By far the most significant offending is the section 86 detain charge and the sexual assault. Breaking the offending down in this way bears out that whilst on any view the offending is serious the number of the offences may be deceptive in that individually the result would not be but for the detain and the sexual assault a significant term of imprisonment. On the other hand the nature of the other nine offences is still significant and is carried out in what is obviously a course of conduct over a period of 12 days and is a very serious example of unlawful behaviour which is degrading and tending to dehumanise the victim. It is also carried out by the offender who is plainly the party in the position of power and strength so the conduct is cowardly and also unprovoked.

83. The sentence imposed will be an aggregate sentence. Ultimately in coming to consider the appropriate sentences there should be an indicative sentence for each of the offences dealing with that offence separately taking into account all the above considerations, and necessarily including an assessment of all the circumstances in which the offending occurred. On that basis, each of the offenses passes the section 5 threshold.

84. When determining the aggregate sentence it is of course necessary to apply the principle of totality. Hulme J in Hall v The Queen [2021] NSWCCA 220 reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plan that what is required for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

85. Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one can comprehend the criminality of another:

"This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."

87. The conclusion I have reached is that each of the 11 offences does, when all is considered, cross the s5 threshold. The indicative sentences, taking into account all of the objective and subjective factors, are set out in the table at the end of these reasons. The indicative non parole period for the s61I offence is 2 years, which is less than the standard non parole period due to the offending being below the middle of the range of seriousness as that term is used in s54A, and for the reasons allowing for the finding of special circumstances; this ratio approximates the ratio of the balance of term to the non parole period of the aggregate sentence arrived at. There is of course no discount given the guilty verdicts were reached after trial by a jury, and by findings made by the court. I would also note that the indicative sentences must be within the range consistent with the proportionality principle. This indeed may be the most favourable aspect of the sentencing process for the offender as the majority of the offending is assessed as being below the middle of the range of objective seriousness. Given the poor subjective case however the indicative sentences and therefore the aggregate sentence will be towards the higher end of that permissible range. The non parole period will reflect a finding of special circumstances for the reasons given above.

88. I consider it would be appropriate that there be some backdating of the sentence so that it commences prior to the expiration of the parole period. The offender has been in custody since 18 October 2021 and his parole period expired on 15 May 2022, so there is a period of almost 7 months of custody attributable to both this offending and the earlier sentence. There is no dispute that the sentence be backdated prior to 15 May and the issue is to what extent. The date of commencement will be 18 January 2022. This recognises the punishment for the earlier offence, but also that the reason he went back to custody was due to the offending now being sentenced.

89. The indicative sentences are indicated in the below table. The aggregate sentence bearing in mind the principles of totality and proportionality will be a term of imprisonment to date from 18 January 2022 with a non parole period of 4 years and 9 months, and a balance of term of 3 years and 3 months, expiring on 17 January 2030. The offender will first be eligible for parole on 17 October 2026.

Orders:

90. The offender is convicted of counts 1, 2, 5 and 6 on the indictment and of the 7 offences on the appropriate s166 certificate.

91. The offender is sentenced to an aggregate term of imprisonment with a non parole period of 4 years and 9 months to date from 18 January 2022 and a balance of term of 3 years and 3 months expiring on 18 January 2030. The offender will first be eligible for release on 17 October 2026.

Table

**	Count/ seq	Sec	Max	SNPP	Date	Brief partics	Objective seriousness	Indicative
1	1 #	86	14	n/a	4-7.10.21	Detain at Coraki house	Into mid	3y 6m
2	17	195	5	n/a	7.10.21	Smashing phone on ground	Low	3m
3	22	61	2	n/a	7.10.21	Head butt from behind	Mid	6m
4	23	61	2	n/a	8.10.21	Punches to head in car	Mid	6m
5	24	61	2	n/a	8.10.21	Punches to head in car	Mid	6m
6	2 #	59	5	n/a	9.10.21	Bruising to face and split ear from bottle	Low mid	1y
7	5 #	61I	14	7	9.10.21	Digital vaginal penetration	Low mid	3 ½ y
8	26	61	2	n/a	10.10.21	Hits ear in car causing bleeding	Low	4m
9	13	59	5	n/a	10.10.21	Punch to head; lump and black eyes	High Low	9m
10	6 #	59	5	n/a	11.10.21	Cigarette burn to arm	High Low	9m
11	16	13	5	n/a	15.10.21	Threats outside Officeworks	High Low	9m
** indicates order in which offences occurred; # indicates matter on indictment

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Decision last updated: 04 April 2024