R v Holman (No 2)

[2024] NSWDC 325

District Court

New South Wales

Medium Neutral Citation:

R v Holman (No 2) [2024] NSWDC 325

Hearing dates:

27 June 2024

Date of orders:

18 July 2024

Decision date:

18 July 2024

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Aggregate sentence of 4 years with non-parole period of 2 years and 6 months, at [92] to [95].

Catchwords:

SENTENCING — Relevant factors on sentence — Bugmy considerations — Deterrence — Principles relating to domestic violence — Special circumstances found due to risk of institutionalisation and need for ongoing supervision given offender’s past criminal history.

CRIME — Domestic violence — Stalking or intimidation, use offensive weapon with intent to commit serious offence, common assault.

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kennedy v R [2022] NSWCCA 215
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Patsan v R [2018] NSWCCA 129
Quarta v R [2023] NSWCCA 173
R v Bartolic-Arnaez [2022] NSWDC 280
R v Holman (No 1) [2024] NSWDC 267
R v Tisserand [2021] NSWDC 543
R v Wilson (No.3) [2021] NSWDC 174
Shavali v R [2022] NSWCCA 178
Yaman v R [2020] NSWCCA 239
Zerafa v R [2023] NSWCCA 109

Texts Cited:

Nil

Category:

Sentence

Parties:

Rex (Crown)
Jeremy Holman (Offender)

Representation:

Counsel:
B Queenan (Crown)
P Cranney (Offender)

Solicitors:

Director of Public Prosecutions (NSW) (Crown)
Tony Cox Lawyers & Conveyancers (Offender)

File Number(s):

2022/00080854

Publication restriction:

Nil

JUDGMENT

1. On 19 February 2024 Jeremy Holman pleaded Not Guilty on his arraignment in Taree District Court with respect to an indictment which contained six counts relating to allegations of threatening or violent behaviour towards his former partner, Brearn Morris.

2. The matter proceeded as a judge-alone trial for some seven days between 19 February 2024 and 27 February 2024. Given the volume of work in the Taree Sittings, judgment following the trial was reserved.

3. On 15 March 2024 the verdict judgment was delivered in Sydney. Guilty verdicts were returned with respect to 5 out of the 6 counts in the indictment. A verdict of Not Guilty was returned with respect to one count, Count 5.

4. The Guilty verdicts related to the following offences:

1. One count of using an offensive weapon with intent to commit an indictable offence, namely, common assault. This is an offence against section 33B(1) (a) of the Crimes Act 1900 and carries a maximum penalty of 12 years imprisonment;

2. One count of common assault contrary to section 61 of the Crimes Act 1900, carrying a maximum penalty of two years imprisonment; and

3. Three counts of intimidation contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. Each of these offences carries a maximum penalty of five years imprisonment.

FACTUAL BACKGROUND

5. The detail of the facts adduced in evidence during the trial and the factual findings giving rise to the verdicts of Guilty are to be found in the verdict judgment of 15 March 2024: R v Holman (No 1) [2024] NSWDC 267.

6. In brief overview, however, the offender and Ms Brearn Morris were in a relationship during December 2021 and January 2022. Ms Morris had known the offender most of her life as he had been friends with her two older brothers. She said that the nature of their relationship changed around the time of her birthday in 2021. She was living in a granny flat which was downstairs in premises at Wingham. The owner of the premises, a Mrs Chapman, lived upstairs together with her own mother. Mrs Chapman’s son, Cody Chapman, also lived on the ground floor in one of two bedrooms which were on the ground floor in addition to the granny flat.

7. The offender had been in custody for some period of time in 2021 before he was ultimately released in October 2021 following the charges against him being dismissed. Ms Morris said that she gave Jeremy Holman a place to stay with her because she believed he didn’t have anywhere else to stay after his release from custody. They had commenced being intimate shortly after he moved in with her in the granny flat. She described the intimate relationship lasting for roughly 2 to 3 months, and said that it did not last because the offender became very aggressive and controlling towards her.

8. The first two counts in respect of which he has been found guilty occurred early one morning sometime before New Years Eve. Ms Morris woke up to hear a clicking sound and saw the offender standing beside the bed with the barrel of a gun held towards her head. The clicking sound was him pulling the trigger of the gun. She said that she had seen the firearm once before and that she had told the offender to get rid of it. Ms Morris said the offender accused her of cheating because she had messaged someone in a group chat. He wondered aloud where the bullets for the gun were and tried to find them. Ms Morris told him he had to leave and to pack up his stuff. Count 1 was the use of an offensive weapon with intent to commit the indictable offence of assault. Count 2 was the actual intimidation which coincided with the presentation of the gun towards her and endeavouring to locate the bullets.

9. Counts 3 and 4 in respect of which guilty verdicts were similarly returned arose in the context of Mr Holman driving through the Yarratt Forest which is some distance to the north of Taree. The detailed circumstances are set out in the verdict judgment. In circumstances where there was a disagreement between Ms Morris and the offender, the car was stopped in the forest and Ms Morris got out of the vehicle. Prior to her getting out of the vehicle, he had driven the vehicle in an intimidatory fashion, giving rise to Count 3 in the indictment. She was walking away from the vehicle when the offender screamed at her to get back in the car and started chasing her. He caught up with her and physically took hold of her. That act constitutes the offence of common assault in respect of which a guilty verdict has been returned to Count 4.

10. Counts 5 and 6 in the indictment relate to Ms Morris and the offender being present in Taree on 18 January 2022. They were initially located in a motel room occupied by a man named Andrew Cadogan. Count 5 related to an allegation of assault occasioning actual bodily harm and relied upon what might be described as a choking incident, notwithstanding that the relevant choking and strangulation provisions of the Crimes Act were not relied upon. For the reasons set out in the verdict judgment, I was not satisfied beyond reasonable doubt that the actual assault as described by Ms Morris took place. A verdict of Not Guilty was returned on Count 5.

11. Notwithstanding my reservations with respect to what was alleged to have occurred in the motel room, I did accept Ms Morris’ account that she effectively fled from the motel with fears and concern for her safety. An analysis of where she went in the vicinity of the Taree Rowing Club and the appearance on a number of occasions of the offender’s Mustang while he drove around trying to find her, led to a finding of guilt regarding that act of intimidation in Count 6.

OBJECTIVE SERIOUSNESS

12. It cannot be gainsaid that the pointing of a weapon, whether loaded or not, towards a person is both an act of intimidation and an act which is inherently serious and likely to invoke a high degree of fear and apprehension in the victim. The presentation of the rifle towards Ms Morris when she awoke in the morning would undoubtedly have been terrifying for her. Viewed against the surrounding context of the presence of the weapon in the house and the fact that the clicking sound appears to be what awoke her, when contrasted with offending in other cases where the same offence has been charged, I assess the objective seriousness of this particular occurrence as being towards the lower end of the mid-range.

13. The act of intimidation effectively coincided with the presentation of the rifle. To the extent that the act of intimidation continued with the offender seeking to find the bullets, as an objective act of intimidation it falls below the mid-range for such offending.

14. The two incidents relied upon as occurring in the forest whilst serious as acts of domestic violence, fall to the lower end of objective seriousness for such act of intimidation and a common assault constituted by effectively a bear hug and putting the victim back into the car.

15. The final act of intimidation where the offender drove his vehicle through the car park adjacent to the Taree Rowing Club trying to find the victim while she was hiding with her friend, Mr Debreceny, similarly falls below the mid-range of objective seriousness for such an act of intimidation.

SUBJECTIVE CIRCUMSTANCES

16. The offender did not give evidence either during the trial or on the sentence proceedings. Subjective material regarding his background is to be gleaned from his criminal history and from a psychological report from Mr Andrew Wong, clinical psychologist dated 13 June 2024. The court has also received an affidavit from the offender himself in which he confirms the truth of various matters which he told the psychologist. There is also an affidavit from Ms Karen Knight, who is the offender's aunt and the older sister of his late mother. A further affidavit has been tendered from Mr Sean Sadler, a 32 year old friend of the offender who has known him since childhood. An affidavit has also been received from the offender's older sister, Ms Sarah Nagy.

17. The psychological report records that the offender was born in Katoomba and raised in Taree and Sydney. He was born on 2 March 1993 and is currently 31 years of age (I note in passing that his NSW Police Criminal History and also his NSW Corrective Services records have 2 March 1993 as his date of birth, while the psychological report records his date of birth as 2 May 1993).

18. He grew up with two older sisters and his mother, together with his mother's partner. The offender described his mother as a heavy drug user who abused speed and heroin. He recalled having seen his mother and her partner lying on the floor sleeping or using drugs all day. He described the home never having a fridge and that his mother and her partner often stole food and clothes from local shops to support the children because they had spent all of their money on drugs. The offender said that that when he reached late childhood he started helping his mother to steal food and clothes for the family. He said that his mother constantly moved around to avoid his father.

19. The offender described his father as a pro-social person who continuously attempted to take the children away from his mother. He described having witnessed his mother convincing another man to hold a shotgun at his father's head to stop his father from trying to take them away.

20. His mother's first partner was described as a very heavy drug user who was very violent against women. The offender witnessed that partner routinely displaying violence and aggression towards his mother.

21. A subsequent partner was similarly a user of drugs who physically abused her. He described the detail of witnessing his mother being severely bashed.

22. The affidavits from the offender's aunt and also from Mr Sadler and his sister Ms Nagy corroborate the nature of the relationships involving the offender's mother and also the general state of deprivation in his upbringing.

23. The circumstances of there often being strange men frequenting their home and, inferentially, the home being a location for the distribution of drugs, was recounted by the offender to the psychologist. These unfortunate circumstances are corroborated in the various affidavits which have been tendered.

24. Mr Holman described to the psychologist having been sexually abused twice when he was aged 7 by one of the men that frequented the home. He deposed to the truth of that account in his affidavit which was received without challenge.

25. Mr Sadler deposes in his affidavit about the circumstances in which his family would regularly provide food to Mr Holman. Mr Sadler was a schoolfriend of the offender. Mr Holman would often be fed at the Sadler household before returning to his own home.

26. By the time he reached 13 years of age, the offender was using drugs himself. He had a poor school attendance and was frequently suspended.

27. It is unnecessary to recount the full detail of the severe deprivation suffered by the offender during his childhood. The Crown recognises in its written submissions that the offender has a compelling subjective case and that his deprived background would mean that his moral culpability is lessened to some degree in accordance with the principles articulated in Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571.

28. By the age of 13, the offender told the psychologist that he began leaving home to avoid his home environment. He described periods of time where he slept on the streets or remained awake all night intoxicated with drugs.

29. He described a history of poor school attendance and constant suspensions for truancy and disruptive behaviour. He described a history of poor literacy where he was barely able to read at the time of the psychological assessment. He reported that he was expelled from school in Year 10.

30. At the age of 15, he said that he worked as a trolley collector for 3 to 4 weeks. After arguing with his employer, he had resigned. He described having worked at an abattoir for a short period when he was about 17 years of age.

31. He had commenced drinking alcohol at the age of 12 and by 14 was drinking substantial quantities of alcohol daily, to the point of losing consciousness. He had commenced smoking cannabis with a girlfriend at the age of 13 and was involved in criminal conduct. His record in Taree Children’s Court corroborates his account to the psychologist. He was subject to control orders at the age of 17 for receiving or disposing of stolen property, although the length of such order was varied in the District Court.

32. At the age of 18 he was imprisoned for driving whilst unlicensed and driving a vehicle recklessly or furiously at speed or in a dangerous manner. A term of imprisonment of 15 months with 9 months non-parole was varied in the District Court and he ultimately served 4 and a half months before being released to parole. He was back in custody in July 2013 for a further offence of driving whilst disqualified. He was imprisoned for 8 months with a 6 month non-parole period in the Local Court and an appeal to the District Court was unsuccessful.

33. He was released in January 2014 before again being arrested for driving whilst disqualified. In August 2014, he was sentenced to 12 months with a 9 months non-parole period. He went into custody in September 2014 and in October 2014 the District Court reduced his non-parole period to 6 months. He was released at the end of March 2015. In September 2015 he went back into custody, charged with assault occasioning actual bodily harm. In December 2015, he was sentenced to 12 months with a 6 month non-parole period. He was subsequently charged with possession of a prohibited drug for which he appears to have been sentenced to a term of 4 months. He was also sentenced in 2016 with an offence of stalk or intimidate for which he received a term of 6 months. A more substantial supply of a prohibited drug not being cannabis resulted in a term of 2 years and 9 months with a non-parole period of 1 year and 8 months. The cumulative effect of these various sentences was that he remained in custody between September 2015 and January 2018.

34. In August 2018, he was arrested and charged with an offence of assault occasioning actual bodily harm. He was also charged with an aggravated break and enter and driving a motor vehicle whilst disqualified. He remained in custody until sentenced in the District Court in May 2019. He was sentenced to an aggregate term of 3 years with a non-parole period of 13 months. The sentence was backdated and he was released to parole in November 2019. Up to this point in time, there were numerous infractions charged by Corrective Services including assaults and intimidation, damaging or destroying property, failing a prescribed drug test, and stealing.

35. His period on parole only lasted approximately 2 and a half months. In January 2020, he was arrested and charged with a common assault at Batemans Bay. He was also charged with larceny and entering a building with intent to commit an indictable offence. In March 2020, he was sentenced to 18 months with a non-parole period of 6 months for the larceny and entering of the building. That sentence was to date from his arrest in January 2020. The common assault was dealt with in July 2020 and resulted in a 2 months term of imprisonment to commence at the expiry of the non-parole period for the larceny matter. During that period in custody he was charged with assaults and possession of a drug implement in custody. He was not granted parole until January 2021 after having served approximately 12 months.

36. On this occasion he remained at liberty for approximately 4 months. In March 2021 he was again arrested and returned to custody. In October 2021, those charges, whatever they may have been, were dismissed. He was released in October 2021.

37. Following his release from custody in October 2021, he entered into the relationship with Breanne Morris, the victim of the offences for which he now appears for sentence. As indicated in my earlier judgment, the offending occurred in December 2021 and January 2022.

38. Subsequent to the commission of the offences for which he now appears for sentence, he was again arrested and charged following a police pursuit including reckless driving and driving while suspended, and driving a conveyance taken without the consent of the owner. That offending took place on 18 March 2022 and it would appear that he was charged with the offences on 4 April 2022. He was returned to custody on 7 May 2022, which I presume may have been as a result of a revocation of parole, although that is not clear on the material before me. He was ultimately sentenced at Port Macquarie Local Court in December 2022 to an aggregate term of 3 years 4 months with a non-parole period of 2 years 6 months, backdated to the date of his return to custody on 7 May 2022. An appeal to the District Court in Port Macquarie led to a not insubstantial variation of the Local Court orders. The aggregate sentence was reduced to 14 months with a non-parole period of 10 months, backdated to 7 May 2022. He was eligible for release to parole on 6 March 2023. The balance of parole from the reduced sentence in the District Court expired on 6 July 2023.

39. The offender was charged and bail refused with respect to the matters for which he now appears for sentence on 7 May 2022. His custody since 7 July 2023 to date relates solely to the present matters.

PRINCIPLES RELATING TO DOMESTIC VIOLENCE

40. The Court was reminded by the Crown in submissions of the statements of principle found in Patsan v R [2018] NSWCCA 129. Patsan was an appeal against the severity of a sentence imposed by Judge Bright for recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW) to which the appellant had pleaded guilty. A further charge of assault occasioning actual bodily harm had been taken into account on a Form 1. The maximum penalty was 10 years imprisonment and there was a standard non-parole period of 4 years. Judge Bright had imposed a sentence of 2 years and 3 months with a non-parole period of 1 year and 4 months.

41. The offending had occurred in the context of an intimate relationship which had become antagonistic. The victim had sustained severe facial injuries after being punched in the face by her erstwhile partner. The objective seriousness was assessed as being “just below the middle of the range of objective seriousness.” On appeal, the sentence was argued to be manifestly excessive in circumstances where there had been a 25% discount for the plea of guilty. It was submitted on appeal that the applicant had been punished by the sentencing judge “for male violence on women generally.” Adamson J, with whom Bathurst CJ and Leeming JA agreed, stated at [39] to [42]:

I reject Mr Skinner's further submission that the sentencing judge had, in effect, used the applicant as a scapegoat for the prevalence of domestic violence offences. While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them. The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant's conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths.

In R v Edigarov [2001] NCWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]:

"[V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."

The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to:

"the long-standing obligation of the state 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. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community."

Recently the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that:

"current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence."

42. The Court of Criminal Appeal in Patsan was not persuaded that the sentence imposed was in any way unreasonable or plainly unjust and leave to appeal against sentence was refused.

43. In Yaman v R [2020] NSWCCA 239, the offender sought leave to appeal against the sentences imposed with respect to offences committed against his former girlfriend. Acting Judge Frearson SC had imposed a sentence of 6 years and 10 months with a non-parole period of 4 years and 6 months for the offence of aggravated break and enter and commit a serious indictable offence. The serious indictable offence was assault occasioning actual bodily harm. The offender had broken into premises knowing that there was a person inside, in breach of an existing Apprehended Domestic Violence Order, and assaulted his former girlfriend. The domestic relationship had ended 3 years prior to the sentence hearing due to ongoing domestic violence. The ADVO had been in place for approximately 2 months.

44. Acting Judge Frearson imposed a 7-month term for the contravention of the ADVO which was to be served wholly concurrently. Wilson J, with whom Fullerton and Ierace JJ agreed, said at [131]:

“General deterrence had a significant role to play. Offences committed by (mostly) men who, like the applicant, refuse to accept that a partner or former partner is entitled to a life of her own choosing, must be dealt with sternly by the courts, to mark society’s strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner. Offences involving domestic violence are frequently committed, and the criminal justice system must play a part in protecting those who have been or may be victims of it.”

45. Wilson J then made reference to the observations of the High Court in Munda v Western Australia which I have already adverted to in the extract from Patsan and her Honour then went on to say at [134] to [136]:

“134. The point was given emphasis in Cherry v R [2017] NSWCCA 150, where Johnson J said at [78], (Macfarlane JA and Harrison J agreeing):

“It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.”

135. The right of all women to determine their own path in life must be protected and upheld by the courts. Where a woman’s right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary.

136. The applicant had failed to accept that his former partner had chosen a life that did not include him and, by the commission of a violent crime against her, he sought to force her to resume a relationship with him. His act had to be denounced; stern punishment had to be imposed, and the applicant and others deterred from future conduct of that nature.”

46. The Crown also made reference to Kennedy v R [2022] NSWCCA 215 which in the Crown’s submission was a matter not dissimilar to the present.

47. Kennedy had been convicted at trial by Judge Williams, sitting as a judge-alone, of a single count of detaining a person without consent with intent to obtain advantage and an offence of occasioning actual bodily harm. Williams DCJ had sentenced the offender to a term of imprisonment of 7 years with a non-parole period of 3 years and 8 months. The offender and the victim had been in an intimate relationship for a period of approximately 14 years. There was an Apprehended Domestic Violence Order in favour of the victim. In February 2019 the victim and the offender were at his father’s unit where he was living at the time. After demanding access to the victim’s phone, he hit her on the jaw and then punched her in the head and threatened to burn her eyes with a lit cigarette. Later that day, he punched her right arm repeatedly. He forced her into a motor vehicle and drove her to an area where he demanded that she tell him “the truth”. He pulled her out of the vehicle and kicked her, breaking two of her ribs. He threatened to kill her. He found a length of timber and used it to strike the victim on her head. He held her up by the neck and threatened to kill her.

48. The detaining offence carried a maximum penalty of 20 years imprisonment. The sentencing judge had assessed the objective seriousness as “being at the upper end of the mid-range.” Of relevance to the present matter, not withstanding the dissimilarity in the actual offending and the level of actual violence, Adamson J, with whom Garling and N Adams JJ agreeing, said at [42] – [43]:

“42. The sentencing judge’s reference to Munda was sufficient to explain why although, in some cases, Bugmy factors may lessen the significance of general deterrence, they did not have that effect in the present case. I consider that her Honour’s reasons, when read fairly as a whole, indicate that her Honour took into account the applicant’s childhood deprivation in a number of respects: in the finding that it contributed to the offending conduct and when addressing general deterrence, specific deterrence, the need for rehabilitation, the risk of re-offending and special circumstances. Indeed, the remarks are redolent with references to the applicant’s childhood deprivation and the problems it has caused him in adult life.

43. It is implicit in the applicant’s submission that, had Bugmy factors been taken into account on, say, general deterrence, the sentencing judge would have regarded general deterrence as of lesser weight. However, this proposition cannot be made out. Although childhood deprivation may lead to a reduction in moral culpability and may make the offender an unsuitable vehicle for general deterrence, it will not necessarily do so. As is apparent from Munda, it is important that Bugmy factors do not mitigate a sentence such that victims of domestic violence at the hands of offenders who themselves have suffered from childhood deprivation are treated as less worthy of protection or that crimes against them warrant less denunciation. General deterrence is not merely aimed at signalling to potential offenders that if they commit the crime, they will suffer the penalty imposed on the index offender, with a view to deterring such offences (a potentially dubious proposition for so-called crimes of passion, as addressed in the passage extracted below from Munda at [54]). It has another dimension – to maintain public confidence in the administration of justice: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [82] (McHugh J).”

49. Leave to appeal against severity was refused. However, a ground of appeal that concerned an error of calculation in that the commencement date of the term of imprisonment did not give credit for an additional 4 days of custody meant that leave to appeal on that basis was granted, and the commencement date was adjusted. The length of the sentence was not interfered with.

COMPARATIVE CASES

50. Reference to so-called comparative cases can often be misleading. Cases turn on their individual facts. However, reference to similar comparative cases can provide an appropriate measure of comparison in determining a proper sentence. The court has had regard to the following comparative cases.

51. In R v Wilson (No.3) [2021] NSWDC 174, Abadee DCJ sentenced an offender with respect to a number of offences that occurred in the context of threatening behaviour towards a victim with the intention of recovering property in the possession of the victim which allegedly belonged to someone else. The offender had gone to the victim's premises in an attempt to force the return of the property. He brandished a pistol at the window of the premises and threatened to use it if the property was not returned. That act constituted an offence under section 33B(1)(a) of the Crimes Act 1900.

52. When the victim refused to open the door the offender obtained a jerry can full of petrol and began to splash or pour the petrol in the vicinity of the timber front door of the property. This offence of threatening damage to the property was separately charged.

53. The pistol was subsequently discarded and not recovered by police. A charge of possession of the pistol contrary to the relevant provisions of the Firearms Act was defended. The offender was convicted following a judge-alone trial.

54. There were some Bugmy factors which had limited application and there was a 25% discount with respect to the principal offences.

55. Judge Abadee passed indicative sentences of 3 years with respect to the use of an offensive weapon, namely the pistol (after allowing a 25% discount for the plea); 1 year and 6 months (without discount) for possession of the pistol; and 1 year for threatening damage to the property with the petrol.

56. An aggregate sentence was imposed of 3 years and 6 months with a non-parole period of 2 years and 1 month.

57. R v Tisserand [2021] NSWDC 543 was a sentence imposed for an offence under section 33B (1)(a) of the Crimes Act 1900 relating to the use of an offensive instrument, namely petrol, with intent to commit the indictable offence of intimidation. The actions of the offender were in contravention of an apprehended domestic violence order (ADVO) which was in place for the protection of the victim following earlier assaults, in respect of which he was already subject to an Intensive Corrections Order. The ICO had been revoked and he had been in custody at the time of sentence for approaching 2 years. The breach of the ADVO was a second substantive offence in the sentence proceedings.

58. At the time of the offending conduct for which he was to be sentenced, he had also committed a serious assault occasioning actual bodily harm to his victim. That separate offence had been placed on a Form 1 to be taken into account on the principal offence relating to the petrol.

59. The offender had splashed petrol on the bathrobe is being worn by his victim and threatened to set it alight with a cigarette lighter. Shortly before he had physically assaulted her resulting in the charge of actual bodily harm.

60. Judge Bennett SC found that a variety of subjective factors, including a disadvantaged upbringing and mental issues, reduced the moral culpability of the offender to some extent.

61. His Honour determined that the use of the petrol and threatening to ignite it fell at about the mid-range of objective seriousness, or perhaps a little below it. He held that the assault occasioning actual bodily harm was above mid-range and would impact on the sentence which he intended for the principal offence.

62. After an allowance of 10% following a late plea of guilty, a sentence of 4 years was indicated for the use of the offensive weapon, namely the petrol.

63. Allowing a 25% discount with respect to the contravention of the ADVO, an indicative sentence of 1 year was nominated.

64. The aggregate sentence imposed was 4 years and 3 months with a non-parole period of 2 years.

65. R v Bartolic-Arnaez [2022] NSWDC 280 was a sentence in the District Court following pleas of guilty by the offender to a number of separate offences arising out of his use of an authorised firearm. The offender had intervened in a dispute between two other male residents of a caravan park by going to the caravan of one of the protagonists in the early hours of the morning and presenting a shortened firearm to the head of the victim. The first Count to which he pleaded guilty was an offence in contravention of section 33B (1)(a) of the Crimes Act 1900, namely using an offensive weapon with intent to commit the indictable offence of intimidation. The possession of two unauthorised firearms were each separately charged and placed on a Form 1 with respect to this first Count.

66. After presenting the shortened firearm at the head of the victim, the offender fired it at the caravan while the weapon was still close to the victim's ear. The act of firing the weapon in a manner likely to endanger the safety of another person or property was separately charged as an offence against s 93G (1)(c) of the Crimes Act 1900.

67. A further substantive offence of actual intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act was also charged.

68. The sentencing judge, Judge Colefax SC, after allowance for a 25% discount, passed an indicative sentence on the first Count of using an offensive weapon, taking into account the two matters on the Form 1, of 3 years and 4 months.

69. With respect to the actual discharge of the weapon the indicative sentence was 2 years and 6 months. The separately charged act of intimidation received an indicative sentence of 1 year and 10 months.

70. There was clearly a high degree of concurrency necessary, and the aggregate sentence imposed was 4 years and 3 months with a non-parole period of 2 years and 3 months.

71. In Shavali v R [2022] NSWCCA 178 the Court of Criminal Appeal was required to deal with an appeal which had little, if any, utility. The facts giving rise to 2 offences contrary to s 33B(1)(a) of the Crimes Act 1900 related to threatening conduct with a knife in the context of the breakup of a domestic relationship. The act of intimidation was separately charged and placed on a Form 1.

72. The sentencing judge, Acting Judge Craigie SC, had imposed an aggregate sentence of 3 years which to was to be served as an Intensive Correction Order. There had been an error in the imposition of sentence in the sentencing judge having failed to take into account a period of pre-sentence custody. The indicative sentences for using an offensive weapon with intent were respectively 2 years 6 months imprisonment and 2 years 9 months imprisonment.

73. By the time of the appeal being dealt with, the period of supervision under the Intensive Correction Order had been completed. Cavanagh J said that it was difficult to understand the point of the appeal. The Court did not consider that the aggregate sentence, or the indicative sentences were excessive.

74. Zerafa v R [2023] NSWCCA 109 was an appeal against the severity of an aggregate sentence imposed by Colefax DCJ with respect to three offences arising from threatening conduct with a firearm. The offending conduct involved the brandishing of a gel blaster pistol and threatening to shoot or kill a number of victims. While endeavouring to gain entry to the premises which he had attended, the offender broke some wooden panels which were boarding up the lounge room window. He then reached through the window and pointed the pistol of the victims for about 30 seconds, threatening to kill them.

75. The three offences to which he pleaded guilty were possession of an unauthorised firearm contrary to the provisions of the Firearms Act; threatening to use an offensive weapon with intent to commit the serious indictable offence of intimidation contrary to section 33B (1)(a) of the Crimes Act 1900; and an offence of specially aggravated break and enter and commit serious indictable offence, namely intimidation.

76. The offender had a not insubstantial criminal history and expressed his remorse and contrition in an affidavit provided to the court. He had a substantial history of drug abuse from the age of 14. He was 26 at the time of the offending. He had a profoundly dysfunctional upbringing and Bugmy considerations, including having been sexually abused as a child, were required to be taken into account. He was suffering from a number of very significant clinical mental disorders. He was assessed as having a high risk of re-offending.

77. The indicative sentences were respectively 3 years with a non-parole period of 1 year and 9 months for the unauthorised possession; 5 years and 3 months for the threatening use of an offensive weapon; and 4 years and 6 months with a non-parole period of 2 years and 8 months with respect to the aggravated break and enter.

78. Again, there was clearly a high degree of concurrency required. The aggregate sentence, taking into account the 25% discount for the utilitarian value of the pleas, was 7 years imprisonment with a non-parole period of 4 years.

79. The Court of Criminal Appeal (Beech-Jones CJ at CL, Adamson JA and Price J agreeing) dismissed the appeal against severity. Although an appeal against severity ultimately requires consideration of the aggregate sentence imposed, rather than the individual indicative sentences, the indicative sentences "may be a guide" as to whether error can be established: see JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].

80. With respect to the indicative sentence for the offence of threatening to use an offensive weapon, Price J, with whom Beech-Jones CJ at CL (as his Honour then was) and Adamson JA agreed, said:

The applicant referred to the indicative sentence for sequence 10 as being "very high". The undiscounted starting point of that indicative sentence is 7 years imprisonment. The maximum penalty for the offence is 12 years imprisonment. There is no standard non-parole period. His Honour assessed the offence to be in the mid-range but also found the offence to be additionally aggravated as it involved multiple victims.

During the commission of the offence, the applicant pointed a pistol in the direction of victims 1, 3, and 4. When victim 2 asked "What are you doing? I've got a baby here" from a bedroom window, the applicant pointed the pistol at her saying "I don't give a fuck. I'll shoot you and the baby."

It is a very serious matter to point a pistol at a person, accompanied by a threat to kill. None of the victims knew that the pistol's capability may have been confined to firing gel ball pellets. In my opinion, this in no way diminishes the seriousness of the offence. As the judge found, all the victims were likely to have believed the pistol to be capable of firing bullets and would have been terrified.

In my view, the facts reveal serious offending by the applicant and the indicative sentence of 5 years 3 months (after application of the 25% discount) is not manifestly excessive.

81. In Quarta v R [2023] 173 the Court of Criminal Appeal dismissed appeals against conviction and sentence arising out of an incident where a shotgun was fired at the occupants of another vehicle in an act of intimidation. The offence contrary to s 33B(1)(a) of the Crimes Act 1900 received an indicative sentence of 5 years and 9 months. There was a 5% discount for the utilitarian value of the plea. Driving offences contributed to an additional 12 months in an aggregate sentence of 6 years and 9 months with a non-parole period of 4 years and 6 months.

82. A number of factors gave rise to the indicative sentences. The sentence was after trial and there was, accordingly, no utilitarian discount. It involved the actual discharge of the shotgun towards the occupants of the other vehicle and was fired in a public street. An aggravating factor was that two shots were fired at a time when residents in the street would be waking and leaving for work, giving rise to a real risk of injury and possibly death to innocent people. The offender also had a previous conviction for a similar shooting at the occupants of a vehicle some years earlier. In fact, he was on parole at the time for the previous shooting offence of an almost identical nature, for which he had been convicted and sentenced by Judge Ingram SC some years earlier.

83. As I have already indicated, the appeal against the severity of sentence was dismissed.

84. In addition to specific cases referred to for comparative purposes, the court has had regard to the “blunt instrument” which is reflected in the Judicial Commission Statistics. The range of head sentences with respect to offences arising under s 33B(1)(a) reveal a range between 18 months and 9 years. That range reflects 66 cases under that section. Almost 60% of the cases received head sentences of between 30 months and 48 months. The non-parole periods ranged between 12 months and up to 5 years. Within that range, approximately 70% of cases resulted in non-parole periods between 18 months and 30 months.

85. With respect to offences under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, approximately 55% resulted in terms of imprisonment. Of that percentage, approximately 11% received the benefit of spending the term of imprisonment by way of an Intensive Correction Order, and approximately 44% resulted in full-time custody. Where sentences of full-time custody were imposed, approximately 65%, or almost two thirds, resulted in terms of imprisonment between 6 months and up to 2 years. A figure approaching 80% of all cases resulted in non-parole periods of 18 months or less.

CONSIDERATION

86. As would be apparent, Counts 1 and 2 are the most serious of the offences committed by Mr Holman. Whilst all offences of domestic violence committed in that context are serious, in my view it is beyond argument that those two counts are elevated in criminality by comparison to the later offending.

87. The offender pleaded Not Guilty and was convicted after trial. Accordingly, there is no relevant statutory discount.

88. There is little in the way of remorse or contrition.

89. Whilst I recognise his deprived background as relevantly reducing his criminal culpability to some degree, the importance of general deterrence in matters of domestic violence cannot be understated.

90. His criminal history clearly indicates the need for appropriate consideration being given to specific deterrence.

91. While there is no victim impact statement, the objective facts bespeak of what must have been a terrifying experience, particularly involving the use of the weapon.

92. In all of the circumstances I propose to proceed by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. The indicative sentences will be as follows:

1. Count 1, use of an offensive weapon: 3 years.

2. Count 2, intimidation: 2 years.

3. Count 3, intimidation: 12 months.

4. Count 4, common assault: 12 months.

5. Count 6, intimidation: 12 months.

93. There will be an aggregate sentence of 4 years. I bear in mind the increasing risk of institutionalisation and the need for a deal of ongoing supervision given the offender’s past criminal history. Accordingly, I find special circumstances. There will be a non-parole period of 2 years and 6 months.

94. He was bail refused in relation to the present matters and also with respect to the charges following the police pursuit and driving a stolen vehicle which had occurred on 18 March 2022. The sentence which was ultimately imposed for those matters was backdated to 7 May 2022. The non-parole period expired after 2 years and 6 months, on 6 March 2023. Thereafter, he was serving the balance of parole until 6 July 2023.

95. I have given consideration to the principle of totality and propose that an allowance of approximately 50% of the balance of parole should be served concurrently with the sentence which I am imposing. The aggregate sentence and non-parole period will be backdated to commence on 7 January 2023. He will accordingly be eligible for release to parole on 6 July 2025. The additional term will expire on 6 January 2027.

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Decision last updated: 06 August 2024