R v Garrath Mark Turnbull

Case •

[2018] NSWDC 142

•

08 June 2018

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Garrath Mark Turnbull [2018] NSWDC 142
Hearing dates: 11 May 2018
Date of orders: 08 June 2018
Decision date: 08 June 2018
Jurisdiction:Criminal
Before: Mahony SC DCJ
Decision:

Full-time custodial sentence. For orders see [92]

Catchwords: Using carriage service to threaten to kill; multiple domestic violence offences; both Commonwealth and State offences; aggregate sentences.
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986
Cases Cited: Berryman v R [2017] NSWCCA 297
DPP & DPP Commonwealth v Swingler [2017] VSCA 305
JM v R [2014] NSWCCA 297
Munda v Western Australia (2013) 249 CLR 600
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Hamid [2006] 164 ACrimR 179
R v Killick [2016] 91 ALJR 131
R v Van Ryn [2016] NSWCCA 1
Category:Sentence
Parties: Director of Public Prosecutions (Crown)
Garrath Mark Turnbull (Offender)
Representation: Solicitors:
D Mansour (Crown)
D Cohen (Offender)
File Number(s): 17/9642
Publication restriction: Nil

REMARKS ON SENTENCE

  1. The offender, who was born on 24 September 1980, is to be sentenced in respect of the following offences:

  1. H63430121/2 - Use carriage service to threaten to kill pursuant to s 474.15 (1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”).

The maximum penalty for this offence is 10 years imprisonment. There is no Standard Non-Parole Period.

  1. H63430121/4 - Break and enter with intent to commit serious indictable offence (stalking/intimidation) pursuant to s 113(1) of the Crimes Act 1900.

The maximum penalty for this offence is 10 years imprisonment. There is no Standard Non-Parole Period.

  1. H63430121/12 – Use carriage service to threaten to kill pursuant to s 474.15(1) of the Criminal Code.

The maximum penalty for this offence is 10 years imprisonment. There is no Standard Non-Parole Period.

  1. The offender has asked to be taken into account on a Form 1, in relation to sequence 4, the following offence:

H63430121/3 - Intimidate with intention of causing fear of harm (domestic) pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007.

The maximum penalty for this offence is 5 years imprisonment and/or 50 penalty units. The offender admitted his guilt in respect of this offence.

  1. The following related offences are specified in a Certificate pursuant to s 166 of the Criminal Procedure Act 1986:

  1. H63430121/5 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

  2. H63430121/7 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

  3. H63430121/9 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

  4. H63430121/010 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007

Each of the four offences carry a maximum penalty of 2 years imprisonment and/or 50 penalty units.

  1. Also contained in Ex A is a Certificate pursuant to s 16BA of the Crimes Act 1914 (Cth) in respect to sequence 12, namely, H63430121/11 – Use carriage service to menace/harass/offend pursuant to s 474.17(1) of the Criminal Code.

The maximum penalty for that offence is 3 years imprisonment. The offender also admitted his guilt in respect of this offence.

The sentence hearing

  1. The sentence hearing took place on 11 May 2018. The offender adhered to the pleas of guilty he had entered in the Local Court at the earliest possible opportunity. The subject offences occurred during the period 4 September 2016 to 19 December 2016. The offender was arrested on 11 January 2017 and has been in custody since that time.

  2. Exhibit A contained an Agreed Statement of Facts which may be summarised as follows. The offender and the victim had been in a de-facto relationship for eight years. They had two children, being sons aged seven and six. The relationship ended in October 2014.

  3. From around 2010, the offender had become increasingly physically, emotionally and verbally violent towards the victim. He was using prohibited drugs, methamphetamine and cannabis, increasingly often at that time. On 14 November 2014, the victim was granted an AVO after the offender had threatened her by saying:

“I'm going to come down there and ram the garage, gut you like a pig and take the kids from you, you cunt.”

  1. In January 2015, this AVO was dismissed as the complainant told police she did not have fears.

  2. Subsequently, in March 2015, the offender was charged with multiple domestic violence offences, including an offence of possession of a sawn off shotgun and possessing ammunition. On 1 June 2015, he was convicted and sentenced to a full-time custodial sentence of 18 months imprisonment with a non-parole period of 12 months commencing on 18 March 2015 and terminating on 17 March 2016. The offender was subsequently released to parole in March 2016.

  3. The offender was subject to an AVO enforceable until 31 May 2017. The victim and her two children were protected by that order. It included a condition that the offender could not contact the victim.

  4. On 4 September 2016, the victim had received 24 missed telephone calls from the offender, and numerous text and voicemail messages. Police attended her premises, and whilst there, they recorded a partial conversation with the offender, who was identified as the caller, and his phone number was displayed on the victim's mobile phone. During that call the offender said:

“You've taken my fucken kids, you do that to a man’s fucking sons and you will get buried.”

This is the conduct in respect of sequence 2, an offence pursuant to s 474.15(1) of the Criminal Code.

  1. He further stated:

“You're the lame ass mother fucker who doesn't let their kids see their father on Father's Day.”

  1. The victim had not reported constant breaches of the AVO as she was too scared due to the threats made by the offender. The victim also believed that the offender could be in possession of a gun and that her life was at risk.

  2. On 5 September 2016, the offender called the victim over 660 times, leaving several voicemail messages and some text messages. In those messages, the offender had threatened to destroy the victim's life, and threatened every member of her family.

  3. The calls and messages from the offender continued on 6 September 2016. In one voicemail message left on the victim's mobile phone, the offender said:

“You are going to die because of it, whether it be from my and/or your own. … they’ll never catch me but I'll catch you.”

  1. Later that night the offender left a voicemail message saying,

I’ll keep ringing every night, I’ll keep coming to find you.”

  1. Between 4 September and 14 September the victim received a total of 204 missed calls from the offender. This is the conduct in respect of sequence 5 on the s 166 Certificate, and sequence 3 on the Form 1.

  2. Sequence 7 on the s 166 Certificate occurred on Monday, 3 October 2016, when the accused stated that he was inside the victim's home in Sydney whilst she was away. The offender sent the victim a photograph of the wardrobe inside her bedroom as confirmation of his presence there. The offender did not have keys to the premises, nor did he have permission to be at those premises. He continued to call and text message the victim further terrorising her.

  3. On 4 October 2016, the victim's mother received a number of text messages from the offender. The offender used a phone found by him when he broke into the victim's home to send the messages. At around the same time, the offender's sister-in-law received a call from him. The offender spoke to her and told her he was “going to wait for them to come home” and that “he was in the house when the police came”. He also called his stepmother and also indicated he was “In Dani's mum’s house”.

  4. The conduct relating to sequence 11 on the s 16BA Certificate was constituted by the offender sending four picture messages to the victim's mother's phone of the interior of the victim's home. On Friday, 7 October 2016, police attended the residence and seized a note written by him on an A4 piece of blue writing paper, which was secured with a small screwdriver into a rockmelon on the kitchen bench. The police also seized a phone from the victim's residence which contained numerous threats of violence as well as a message written to police stating that he “will not be caught”. From that time, the victim and her children did not return home because they were in fear of the offender and had to make alternative accommodation arrangements.

  5. The conduct in sequence 9 on the s 166 Certificate occurred on Saturday, 29 October 2016. The offender contacted the victim leaving several threatening voicemail messages and approximately 10 missed phone calls.

  6. The conduct in sequence 12, use carriage service to threaten to kill, occurred on 22 November 2016. At approximately 9:15am that day, the offender called his father and said the following words:

“It all ends today dad. I’ve bought a new gun and I'm going to kill the kids and strangle every last breath out of Danielle.”

  1. The conversation was for approximately 40 minutes with repeated statements that the offender was going to kill Danielle, the children and himself. When it ended his father contacted the police.

  2. Up until 2 November 2016, the offender had actively evaded police for about two months. He was arrested on 2 November 2016, and served an outstanding period of parole until 11 January 2017.

  3. Upon her return home on 3 November 2016, the victim found a small white note and photo of her two children secured to the cornice of her children's bedroom ceiling. The note had been put there by the offender when he broke into the house.

  4. Sequence 10 on the s 166 Certificate, contravene AVO, occurred on 19 December 2016 whilst the offender was in custody. The victim received three Christmas cards from the offender and one five-page letter. The cards were addressed to the victim and her children.

  5. On 11 January 2017, police attended Long Bay Correctional Centre and the offender was arrested in respect of the current matters.

  6. Exhibit A contained the offender's criminal antecedents. They commenced in January 2000 when he was convicted of a high range PCA offence. He was sentenced to a Recognisance pursuant to s 558 for a period of 3 years. In 2001, he was sentenced for breach of that Recognisance by way of a Community Service Order, and in 2002, a warrant was issued for his arrest for failing to appear for the Community Service Order matter. In 2004, he was convicted of resist officer in execution of duty, and assault occasioning actual bodily harm, in respect of which, for each offence he received fines.

  7. On 1 June 2015, the offender was convicted of the numerous domestic violence offences referred to above. They included the offences of possess unauthorised firearm, possess ammunition without license, numerous stalk/intimidate intend physical harm, numerous common assault, resist officer in execution of duty, and assault officer in execution of duty offences, destroy or damage property and not keep firearms safely. In all, the offender was convicted of 24 separate offences and in respect of all but three of those offences, he was sentenced to terms of imprisonment between 6 months and 18 months commencing on 18 March 2015, all of which were to be served concurrently. The facts in relation to those offences are set out in Ex A. There is no need to rehearse those facts for the purpose of sentencing, however, it is clear that they involved numerous acts of violence towards the same victim.

  8. Exhibit A also included the Victim Impact Statement of Daniela Scala, which was read to the court by Ms T Proctor. I refer to the Victim Impact Statement in more detail below, however, it set out in very clear terms the devastating effect that the offender's criminal behaviour had on his former partner and their two children. It was a poignant exposition of the fear instilled in the victim and her children, as victims of domestic violence in our community.

The offender's evidence

  1. The offender tendered a report from Ms M Hedington, psychologist, dated 3 May 2018. That report was based on an interview with the offender which included the administration of a psychometric test. Under the heading “Presentation”, the author noted that the offender engaged well with the interview process, however, his speech became pressured at times when talking about his ex-partner. He became upset when discussing his relationship with his father and agitated when discussing his ex-partner.

  2. The offender had met the victim, when he was 27 years old. In 2009 they were engaged and he purchased a family home with money he had inherited. Their first child was born, and following the birth of their second child in 2010, the victim began to spend more time with her mother in Sydney with the children. He reported to the author that their relationship began to break down in 2013. The offender reported the victim to be drinking excessively and she was hospitalised for an alcohol problem in 2013.

  3. The offender reported that he had first used cannabis when he was 12 years old, but by 15, he was smoking it regularly. He first used amphetamines at age 19 and that escalated to intravenous use. At 28 years of age he first smoked methylamphetamine and he began using it heavily in 2014.

  4. The offender reported that he had been abstinent from cannabis since he was incarcerated in October 2016 and, except for one lapse, he had been abstinent from methylamphetamine use since the same time. The author's opinion was that he met the criteria for a Substance Abuse Disorder as per DSM-V.

  5. In respect of his criminal offending, the offender reported that the previous convictions for domestic violence in 2015 had, in the majority, occurred as a result of one event.

  6. The psychologist noted that the offender struggled to explore how his actions may have impacted upon his ex-partner and their children. He continued to blame his ex-partner for what transpired, however, he took some responsibility for his actions. The offender did not accept that he had made threats of harm towards his children at any stage. Rather, he loved his children and “would never hurt them”. He stated he had no intention to harm his children and if they were afraid of him he would feel terrible. He also was adamant that his father had misinterpreted what he had said to him on the phone and whilst maintaining that he did make threats to harm the victim, stated that he did not make threats to harm his children.

  7. The author was of the opinion that the offender showed no insight into the impact of his criminal behaviour on his relationship with his children.

  8. The results of the psychometric testing indicated that the offender had symptoms consistent with Depressive, Dependent and Masochistic (self‑defeating) personality traits. This profile also indicated the presence of symptoms consistent with Anxiety, Dysthymia, Drug Dependence and Major Depression, which was consistent with the client’s clinical presentation and self-report.

  9. The author noted that the offender was adamant that although he made threats of harm to the victim, he would not have carried out those threats. He struggled to relate to the possibility that the victim may have feared for her safety. The author's opinion was that his denial and lack of insight regarding his index offending, present as an ongoing risk of reoffending. That risk could be lowered if he addressed his symptoms of depression, anxiety, his substance abuse disorders and his unhelpful personality construct.

  10. The author noted the offender was interested in completing a residential rehabilitation program such as that offered at the Dooralong Transformation Centre, but was of the opinion that for the offender to successfully maintain abstinence from drug abuse, it was imperative that he received appropriate therapy to address his depression, anxiety, low self-esteem, and his dependent personality. It will also be necessary for him to establish effective coping skills. He would require a mental health care plan upon his release from custody.

  11. Exhibit 2 was a character reference from Mr J Sultana dated 5 May 2018, stating that the offender's behaviour was very uncharacteristic of the person known to the author as a trusted friend for a period of over 20 years. Mr Sultana stated that the offender had communicated to him that he accepted his past mistakes and was remorseful, and was now committed to getting his life in order. He was described as “a very loyal, caring and supporting close friend”. Mr Sultana undertook to help, guide and assist the offender to re‑establish himself in the community.

  12. Exhibit 3 was two letters of attendance from Remand Addictions, recording that between 1 June 2017 and 19 April 2018 the offender had attended on seven occasions, sessions regarding Remand Addictions at Corryong Correctional Centre.

  13. Mr Ian Murray was called to give character evidence on behalf of the offender. He had known the offender since Year 7 in high school and therefore had known him for over 24 years.

  14. Mr Murray had been a police officer between 2001 and 2011. He was fully aware of the offences to which the offender had pleaded guilty. He now ran his own business and he was a married man with five children. He had visited the offender in jail and knew that he had been in protective custody for the last 15 months. He had regular telephone contact with the offender.

  15. Mr Murray gave evidence that he had observed changes in the offender. The offender had come to a realisation of what he had done was wrong. Mr Murray was aware that the offender had an ice problem and they had discussed him attending rehabilitation upon his release from custody.

  16. Mr Murray gave further evidence that the offender could live at his address upon his release from custody and that he would ensure that he would attend courses in rehabilitation and attend other appointments. The offender had expressed remorse to him, and he now believed the relationship with the victim was irretrievably broken down. Mr Murray also gave evidence that the offender understood the damage caused to his children by his criminal conduct.

  17. In cross-examination, Mr Murray was questioned about the offender’s insight into his criminal conduct. He gave evidence that the offender had indicated to him that he understood what he did was wrong, and that he never intended to go through with the threats made to his partner and children. Mr Murray was aware of the previous custodial sentence served by the offender following offences for domestic violence. He did not visit him in jail on that occasion. Mr Murray was aware that in 2015, when those offences took place, the offender was abusing drugs. There have been previous stints when he was not using drugs, however, the offender would now like to attend rehabilitation.

  18. Mr Murray agreed that the offender had blamed the victim for her problems with alcohol. He also blamed his father for misunderstanding the things that he had said. Mr Murray confirmed that the offender had told him he would not carry the threats out. Mr Murray confirmed that he had met the victim through the offender, however, he had not heard her side of the story, or her version of the effect the offender's conduct had on the children.

The offender’s submissions

  1. The offender submitted that his sole excuse for the offending criminal conduct was that he was under the influence of drugs. That was confirmed by the psychologist’s report. This was the first time that he had made a commitment to rehabilitation, which he should have done sooner.

  2. The offender submitted he was entitled to a 25% discount in respect of his early plea of guilty. It was also submitted that he had expressed contrition and remorse. He now had reasonable prospects of rehabilitation if he was able to attend residential rehabilitation such as Dooralong. He also had the offer of Mr Murray as a place of residence upon his release and would require proper supervision and referral to appropriate counselling for coping mechanisms, and a mental health plan.

  1. It was submitted that the offender had expressed remorse for his criminal conduct. The report of the psychologist had borne that out, and it was a matter for the court as to what weight was placed on that evidence. The offender now accepted that the relationship with the victim had ended and submitted that a finding of special circumstances should be made pursuant to s 44, given his drug dependency and need for rehabilitation.

The Crown submissions

  1. The Crown relied on a thorough written outline of submissions setting out the charges, maximum penalties and general sentencing principles, both in relation to Commonwealth offences and State offences. The Crown agreed that a utilitarian discount of 25% applied to all of the offences and that aggregate sentences pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) was available for Commonwealth offences. However, it is a matter for the court as to whether aggregate sentences or separate sentences are imposed, and a single non-parole period could not be fixed in relation to both State and Commonwealth offences, relying on s 19AJ of the Crimes Act 1914 (Cth). The court was required to take into account the matter on the Form 1 and the s 16BA offences by increasing the penalty that would otherwise be appropriate for the substantive charges those matters related to.

  2. The Crown submitted that all of the offences were domestic violence offences, and a just sentence must give due recognition to the “human dignity of the victim of domestic violence”, referring to Munda v Western Australia (2013) 249 CLR 600 at [55]. In R v Killick [2016] 91 ALJR 131 at [21], the High Court had noted that sentencing practices for offences involving domestic violence had changed due to changes in societal attitudes to domestic relations. Domestic violence was an aggravating factor in the circumstances of its significance. The High Court had referred to “the abuse of a relationship of trust which such an offence necessarily entails and which … must be deterred”.

  3. The Crown submitted that all the objective seriousness of all of the offences fell within the mid-range of objective seriousness for such offending. However, different principles applied to State and Commonwealth offences. The following factors were relevant to the assessment of the objective seriousness of the State offences:

  1. Multiple victims of the substantive offence

Whilst the offender was within the victim's home, he made calls and sent texts to a number of different people and left behind a note, which may have been found by any person including his children.

  1. Further Acts of the offender during the substantive offence

The offender used the mobile phone of the victim to enable him to contact others without them realising that it was going to be the offender, depriving them of the opportunity of choosing whether to accept contact from the offender.

  1. Serious example of intimidation

The victim was in such fear, due to the offender breaking into her house, and his actions, that she and her children did not return to the home due to the offences.

  1. Contraventions of AVO’s

There were multiple offences, and although there was a significant overlap in the offending, the contravention of the AVO does involve separate criminality to the other offences. There was a series of acts comprising the contravention, including several voicemail messages and numerous missed calls. There were also multiple victims, namely, the victim and her two children.

  1. The Crown relied on the following aggravating factors pursuant to s 21A(2) of the CSPA:

  1. Section 21A(2)(d) – record of previous convictions. The offender had a record of domestic violence offences involving the same victim, and had a record of breaching court orders back to 2000. The offender had further convictions for assaulting and resisting police.

  2. Section 21A(2)(eb) - offence committed in the victim's home. This circumstance of aggravation applies specifically to the substantive offence and the contravention of the AVO committed at the same time.

  3. Section 21A(2)(j) - the offences committed while the offender was on conditional liberty in relation to an offence. The offender was on parole at the time of the commission of these offences.

  4. Section 21A(2)(k) – the offender abused a position of trust and authority in relation to the victim. By virtue of the offender being the estranged partner of the victim, and the father of the two children, he was in a position of trust. He abused that position of trust by gaining access to the premises and by contacting the victim and those known or close to her.

  5. Section 21A(2)(m) – the offence involved multiple victims or a series of criminal acts. There were multiple victims of the substantive events, and in relation to the contravention on 29 October, there were a series of acts.

  1. The Crown submitted that in assessing the Commonwealth offences, by reference to s 16A(2) of the Crimes Act 1914 (Cth), the following are relevant matters:

  1. Nature and circumstances of the offence as domestic violence offences committed following a breakdown of a relationship. Threats to kill were repeated in circumstances where the offender had previously been physically violent and also had been in possession of a firearm.

  2. There is another offence to be taken into account pursuant to section 16AB.

  3. The offences form part of a course of conduct spanning several months. The first substantive events involved numerous threats. The second involved a threat to all three family members and was made to yet another person.

  4. The personal circumstances of the victim meant that the victim did not return to her home following the offending.

  5. The victim had suffered harm as a result of the offending as evidenced by her Victim Impact Statement.

  6. The offender has demonstrated little or no contrition or insight into the offences and their impact on the victims.

  1. In respect of the psychologist’s report (Ex 1), the Crown submitted that the prospects of rehabilitation of the offender cannot be assessed as being good. The psychologist had assessed the offender's risk as being “ongoing”. He lacked insight into his offending, especially with respect to the impact on his children. He continued to blame the victim and it appeared to be too emotionally difficult for the offender to accept that his children were scared of him.

  2. The Crown submitted that there was some similarity between the purposes of sentencing pursuant to s 3A of the CSPA and the matters to be taken into account pursuant to s 16A of the Crimes Act 1914 (Cth). Denunciation, punishment, protection of the community and recognition of the harm done to the victim of a domestic violence offence were relevant to the sentencing here. The Crown submitted that no sentence other than imprisonment was appropriate. In further oral submissions, the Crown referred to the psychologist’s report (Exhibit 1), and her remarks as to the offender's lack of insight, which did not fit with the submissions made on the offender's behalf as to his remorse. During the psychologist’s interview, the offender had displayed difficulty remaining calm when discussing the victim and their children. It was submitted that it would be difficult to draw any conclusion re the prospects of the offender reoffending if off drugs. There had been no remorse in fact demonstrated by the offender, and the court would have difficulty in determining whether there were prospects of him reoffending or being rehabilitated.

  3. Further, the offender had a history of repeatedly breaching court orders. On this occasion he breached both his parole and the outstanding AVO orders. Further, his drug use was a problem at the time of the offences in 2015, he was on drugs, and the court would find that there was little or no prospect of him successfully rehabilitating himself given that history.

  4. The Crown submitted that the offender had a tendency to shift blame to the victim, to his friends, or his father, and was unable to identify his responsibility for his offending behaviour.

  5. The court was referred to a decision of the Court of Appeal of Victoria in DPP & DPP Commonwealth v Swingler [2017] VSCA 305, for principles that apply when sentencing both in relation to Commonwealth and State offences. If the court was to aggregate the sentences, it was not permissible to impose one aggregate sentence for all offences. Proper sentencing principles meant that the court must impose one aggregate sentence for State offences, and one for Commonwealth offences. If the length of sentence for the Commonwealth offences was 3 years or less, the court was required to make a recognisance release order.

Determination

  1. In respect of New South Wales State offences, section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

  1. In assessing the objective seriousness of sequence 4, the offence of break and enter with intent to commit serious indictable offence (stalking/intimidation) pursuant to s 113(1) the Crimes Act 1900, I accept the factors relied on by the Crown set out in [55] above as being relevant to the assessment, namely, that there were multiple victims of the substantive offence, that further acts of the offender relating to other persons occurred during the substantive events, that the offending constituted a serious example of intimidation, and was carried out in contravention of the AVO applicable at the time.

  2. Further, I accept the following aggravating factors pursuant to s 21A(2) of the CSPA, as relied on by the Crown, namely:

  1. The offenders record of previous convictions pursuant to s 21A(2)(d);

  2. The offence was committed in the victim's home pursuant to s 21A(2)(eb);

  3. The offences were committed whilst the offender was on conditional liberty, namely parole, pursuant to s 21A(2)(j);

  4. The offender abused a position of trust and authority in relation to the victims pursuant to s 21A(2)(k); and

  5. The offence involved multiple victims in a series of criminal acts pursuant to s 21A(2)(m).

  1. I accept the Crown's submission that the objective seriousness of the offending in sequence 4 was within the mid-range of objective seriousness of an offence pursuant to s 113 (1) of the Crimes Act 1900, break and enter with intent to commit serious indictable offence (stalking/intimidation). Having regard to all of the circumstances here, and in particular the fact that it occurred whilst the offender was on parole in respect of multiple domestic violence offences concerning the same victim, it was towards the higher end of the mid-range for an offence of this type.

  2. I further accept the Crown’s submission that both of the substantive Commonwealth offences, namely sequence 2 and sequence 12, fell within the mid-range of objective seriousness for the offence of use carriage service to threaten to kill, pursuant to section 474.15(1) of the Criminal Code.

  3. Section 16A (2) of the Crimes Act 1914 (Cth) sets out a number of factors which I am required to take into account, insofar as they are relevant, in determining the appropriate sentence for a Commonwealth offence. I address each of those matters as follows.

The nature and circumstances of the offence (s 16A(2)(a))

  1. The threats to kill in both sequence 2 and 12 were made in circumstances of domestic violence following the breakdown of a relationship with the victim. The offender had previously been physically violent towards the victim and had, on a previous occasion, been in possession of a firearm and had been sentenced to a term of full-time custody in respect of domestic violence offences towards the victim.

  2. There is another offence be taken into account pursuant to section 16AB, namely, sequence 11, use carriage service to menace/harass/offend pursuant to s 474.17(1) of the Criminal Code.

  3. The offences formed part of a course of conduct. The series of criminal acts occurred over several months. The first substantive events involved numerous threats. The second involved a threat all three family members and was made to another person.

  4. The personal circumstances of the victim were such that the victim and her children could not return to her home following the offending.

  5. The damage suffered by the victim as set out in her Victim Impact Statement which is referred to below.

  6. The offender has expressed little or no contrition or insight into the offences and their impact on the victim.

  7. The offender has pleaded guilty to the charges at the earliest opportunity.

  8. The deterrent effect of any sentence on the offender and generally. Both general deterrence and specific deterrence are important in the sentencing process for domestic violence related offences are set out below.

  9. The need to ensure the person is adequately punished for the offence. Any sentence for multiple offences must be just and appropriate to the totality of the criminality involved.

  10. The antecedents of the offender. In this case he is not entitled to any leniency. His past offences, included offences of violence, and domestic violence against the same victim, for which he was sentenced to a term of imprisonment. This history demonstrates that the offender has manifested by his criminal conduct a continuing attitude of disobedience to the law.

  11. The prospect of rehabilitation of the offender. This is somewhat questionable, as set out below.

  1. Both general deterrence and specific deterrence are important in the sentencing process here. In R v Hamid [2006] 164 ACrimR 179 at [86], the New South Wales Court of Criminal Appeal stated:

“In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.”

  1. In respect of general deterrence, the High Court in Munda v Western Australia, supra, at [54], said in respect of general deterrence:

“The long-standing obligation of the State is to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence.”

  1. I have taken into account the maximum penalties applicable to each offence, namely, in respect of sequence 2 and sequence 12, use carriage service to threaten to kill, pursuant to s 474.15(1) of the Criminal Code, the maximum penalty is 10 years imprisonment. In respect of sequence 4, break and enter with intent to commit serious indictable offence (stalking/intimidation), pursuant to section 113(1) of the Crimes Act 1900, the maximum penalty is 10 years imprisonment. The maximum penalties are guideposts in the sentencing process.

  2. I have also taken into account in respect of sequence 4, that the offender has asked to be taken into account on a Form 1, sequence 3, intimidate with intention of causing fear of harm (domestic), pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The objective seriousness of the offending in respect of sequence 3 was within the mid-range of objective seriousness for an offence pursuant to s 13(1) of that Act. The maximum penalty for this offence is 5 years imprisonment and/or 50 penalty units. In taking this matter into account, it must result in some accumulation on sentence in respect of sequence 4.

  3. Similarly, I have taken into account the matter on the Certificate pursuant to section 16BA of the Crimes Act 1914 (Cth) in respect of sequence 12, namely, sequence 11, use carriage service to menace/harass/offend, pursuant to s 474.17(1) of the Criminal Code. Again, this must lead to some accumulation of sentence in respect of sequence 12.

  4. The offender is entitled to a 25% utilitarian discount on sentence in respect of the State offence sequence 4, pursuant to s 113(1) of the Crimes Act 1900. Having regard to his early plea of guilty, he will also be given the same utilitarian discount on sentence in respect of the two Commonwealth offences, namely, sequence 2 and sequence 12.

  5. The related offences on the s 166 Certificate, namely, four offences in contravention of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007, arise out of the same course of criminal conduct. I have had regard to the maximum penalty of 2 years imprisonment and/or 50 penalty units in respect of each offence.

  6. The offender did not give evidence at the sentence hearing and inevitably limited weight can be given to matters of hearsay contained in the psychologist's report. However, in that report, the author noted the qualifications placed by the offender on his taking responsibility for his criminal conduct. He blamed the victim, and showed little insight into the impact of his criminal conduct on his children. This gives the court little reassurance that he will not reoffend, and speaks little for any remorse or contrition outlined by the psychologist.

  7. The court will not accept the offender's statement to the psychologist that although he made threats of harm to the victim, he would not have carried out those threats. Whilst his conduct may have been the result of a Substance Abuse Disorder, and his symptoms of anxiety and depression, the facts speak for themselves in demonstrating that the offender intended to commit the offences with which he is charged. He is not being sentenced in relation to any more serious charge which may have occurred if he had carried out his threats, however, his lack of insight and denials of harm mean that the court must assess him as being a serious risk of reoffending and as having little remorse for his conduct.

  8. Further, the Victim Impact Statement demonstrates amply the significant impact of the offender's criminal conduct on the victims, his former partner and their children. Whilst there is no medical evidence against which to assess the Victim Impact Statement, it is a matter of common sense that the offences have had a substantial emotional impact on both the offender's former partner and their children. I have therefore taken the Victims Impact Statement into account. I reject the offender’s claim that he never intended to harm his children. The Courts have long recognised that young children cannot protect themselves from the domestic acts of violence of adults, and that they may suffer significant psychological trauma as a result of such violence, or the threat of such violence.

  9. In so saying, I have not ignored the evidence of Mr Murray, who was an impressive witness called on behalf of the offender. He had been a police officer for approximately 10 years, and had known the offender for many years. However, Mr Murray acknowledged in cross-examination, that the offender had blamed the victim for her problems with alcohol, and also his father for misunderstanding the things that he had said that are now the subject of this sentence.

  10. I propose to sentence the offender by way of aggregate sentences pursuant to section 53A of the CSPA. I intend to first aggregate the State offences, namely, sequence 4, taking into account the matter on the Form 1, namely, sequence 3, which I have certified, together with the related offences on the s 166 Certificate. I then intend to impose a separate aggregate sentence in respect of the Commonwealth offences, sequences 2 and 12, taking into account sequence 11 on s 16BA of the Crimes Act 1914 (Cth), which I have also certified.

  1. Before doing so however, I am required to set out the indicative sentences in respect of each offence as a matter of transparency in the sentencing process. In setting out the indicative sentences, I have taken into account the findings I have set out above as to the objective seriousness of the offending, the fact that the offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty, and representing some remorse, the fact that the offences were committed while he was on parole, and the further aggravating factors set out above.

  2. The indicative sentences therefore are as follows:

  1. Sequence 4 - break and enter with intent to commit serious indictable offence (stalking/intimidation) pursuant to s 113(1) of the Crimes Act 1900 - 3 years imprisonment.

  2. Sequence 5 - contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 - 9 months imprisonment.

  3. Sequence 7 - contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 – 9 months imprisonment.

  4. Sequence 9 - contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 – 9 months imprisonment.

  5. Sequence 10 - contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 – 9 months imprisonment.

  1. For the Commonwealth offences, I set out the following indicative sentences:

  1. Sequence 2 - use carriage service to threaten to kill pursuant to s 474.15(1) of the Criminal Code 1995 (Cth) - 3 years imprisonment.

  2. Sequence 12 - use carriage service to threaten to kill pursuant to s 474.15(1) of the Criminal Code 1995 (Cth) - 3 years and 6 months imprisonment.

  1. In this case, I am not prepared to find special circumstances pursuant to s 44 of the CSPA. Whilst the psychologist’s report opines to a Substance Abuse Disorder, together with symptoms of anxiety, depression and personality disorders, the length of the sentence here will mandate that the offender has sufficient time under supervision before his return to the community to be rehabilitated in respect of those disorders. His offending was not borne of those deficits, rather, his emotional reaction to a failed relationship and the gross abuse of trust that arose from that relationship.

  2. I therefore intend to impose an aggregate sentence in respect of sequence 4 and the other state offences of 4 years imprisonment.

  3. In respect of the Commonwealth offences, sequences 2 and 4, I intend to impose an aggregate sentence of 4 years imprisonment.

  4. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

  1. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. 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 reflect the criminality of both.”

  1. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

  2. In arriving at the aggregate sentence here, I have taken into account the aggravating and subjective matters set out above, the offender's acknowledgement of guilt in respect of the offence on the Form 1, and the offence on the s 16BA Certificate. Clearly the threshold contained in s 5 of the CSPA has been crossed in respect of sequence 4, and I am satisfied that there is no alternative to imposing a sentence of imprisonment in this matter. Similarly, in respect of the Commonwealth offences, sequence 2 and 12, I am satisfied that pursuant to s 17A of the Crimes Act 1914 (Cth), no other sentence other than a term of imprisonment is appropriate in all the circumstances here.

  3. As the offending arises out of the same course of conduct, there is a strong argument for concurrency of sentences here. However, the offending was carried out over a number of months, whilst the offender was on parole, and in breach of his parole which was subsequently revoked. In those circumstances there must be some accumulation of the two aggregate sentences. What I propose to do is to sentence the offender to a term of 4 years imprisonment in respect of sequence 4 and the other state offences, commencing on 11 January 2017, with a 3 year non-parole period terminating on 10 January 2020.

  4. In respect of the Commonwealth offences, sequences 2 and 12, I intend to sentence you to 4 years imprisonment commencing on 11 January 2018 , with a non-parole period of 2 years and 6 months, terminating on 10 July 2020. The balance of term will be 1 year and 6 months.

Conclusions and orders

  1. I therefore made the following orders:

  1. You are hereby convicted of the following offences:

  1. H63430121/2 - use carriage service to threaten to kill pursuant to section 474.15(2) of the Criminal Code Act 1995 (Cth).

  2. H63430121/4 - break and enter with intent to commit serious indictable offence (stalking/intimidation) pursuant to s 113(1) of the Crimes Act 1900.

  3. H63430121/12 - use carriage service to threaten to kill pursuant to s 474.15(1) Criminal Code Act 1995 (Cth).

  1. You are convicted of the following related offences specified in the s 166 Certificate, namely:

  1. H63430121/5

  2. H63430121/7

  3. H63430121/9

  4. H63430121/10

Being offences in contravention of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

  1. In respect to sequence 4 and the offences pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007, referred to in [2] above, you are sentenced to a non-parole period of 3 years commencing on 11 January 2017 and terminating on 10 January 2020.

  2. The balance of sentence will be a term of 1 year commencing on 11 January 2020 and terminating on 10 January 2021.

  3. In respect of the Commonwealth offences, sequences 2 and 12, I sentence you to a term of imprisonment of 4 years, commencing on 11 January 2018.

  4. I fix a non-parole period of 2 years and 6 months commencing on 11 January 2018 and terminating on 10 July 2020.

  5. The balance of term will be 1 year and 6 months commencing on 11 July 2020 and terminating on 10 January 2022.

  1. The effect of the sentencing orders I have made is that you will serve a non‑parole period of not less than three years and 6 months from 11 January 2017 and terminating on 10 July 2020. Your release to parole will not be automatic, but will be subject to a decision to be made by the Parole Board. Upon your release to parole you will be required to abide by conditions fixed by the Parole Authority. It is in your interest to abide by those conditions, for if you do not, you may be liable to serve the balance of the term of the sentence, a period of 1 year and 6 months imprisonment.

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Decision last updated: 08 June 2018

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Turnbull v R [2019] NSWCCA 97
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