R v Reid, John David

[2020] NSWDC 946

District Court

New South Wales

Medium Neutral Citation:

R v Reid, John David [2020] NSWDC 946

Hearing dates:

2 April 2020

Date of orders:

2 April 2020

Decision date:

02 April 2020

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

I impose an aggregate sentence of imprisonment of 2 years and 6 months, to commence on 23 July 2019 and expiring on 22 January 2022.

I impose a non-parole period of 18 months, expiring on 22 January 2021.

The indicative sentences are:

a.   Count 1 – 16 months of imprisonment.

b.   Count 2 – taking into account Form 1, 2 years of imprisonment.

c. With respect to the contravene apprehended violence order offence dealt with by way of s.166 Criminal Procedure Act 1986 - 12-month Community Correction Order.

Catchwords:

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Subjective considerations on sentence — Drug addiction

CRIME — Domestic violence — “Domestic violence offence”

CRIME — Apprehended violence orders — Contravene apprehended violence order

Legislation Cited:

Crimes Act 1900, s 59

Crimes (Sentencing Procedure) Act 1999, s 3A, s 5

Cases Cited:

Cherry v R [2017] NSWCCA 150

McLaughlin v R [2013] NSWCCA 152

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Category:

Sentence

Parties:

Regina
John David Reid (Offender)

Representation:

Counsel:
Ms L Davids (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Regina)
Legal Aid NSW (Offender)

File Number(s):

2018/00374422

Publication restriction:

None

Judgment

1. John David Reid pleaded guilty to two counts of assaulting Giada Nixon, ^[1] thereby occasioning to her actual bodily harm, offences under s 59(1) of the Crimes Act 1900, which carry maximum penalties of five years’ imprisonment.

   1. This is a pseudonym.

2. I am to take into account an offence of common assault on the Form 1, and also sentence Mr Reid in respect of a contravention of an apprehended violence order.

3. Mr Reid pleaded guilty to the offences. At the time of the offences, an apprehended violence order was in place prohibiting Mr Reid from having any contact with Ms Nixon.

4. The agreed facts reveal the following matters.

Count 1

5. On Saturday, 1 December 2018, Mr Reid attended premises in Surry Hills, where he shared a rented studio/bedroom with Ms Nixon. The following morning, a domestic dispute followed Ms Nixon seeing a Facebook message on Mr Reid’s phone. Mr Reid hit the victim, which caused significant bruising to Ms Nixon’s right eye. This blow is the essential element of count 1. Another resident came to the door and took Mr Reid down stairs. He then apologised to Ms Nixon and returned. A friend then brought Mr Reid and Ms Nixon some Ice, a form of methamphetamine, and an argument developed over whether there was enough Ice.

Count 2

6. Later that evening or during the night, Mr Reid again said sorry to Ms Nixon. He told her he loved her and requested she join him on the bed. Ms Nixon said she would prefer to stay on the lounge. Mr Reid then pulled her by her hair and she joined him on the bed.

7. During the night, Mr Reid held her by the hair, hit her with both an open hand and a closed fist, spat in her face, told her to shut up, jumped on her while she was on the bed with sufficient force to break the bed, and pulled her hair. These incidents constituted Count 2.

8. Ms Nixon sustained a scratch to her neck and an injury to her ear. The neck scratch was clearly visible in a later photograph.

9. At a medical centre the next day, Ms Nixon presented with tender facial bones and a haematoma to her right earlobe.

The Form 1 – Common assault

10. That next day, Monday, 3 December at 10.00am, Ms Nixon left the house saying she was going to get some smokes, but instead went to her sister’s and to the medical centre. At 2.05pm, Mr Reid messaged her to say he was sorry and that he loved her. He subsequently called her and later Ms Nixon returned to the house where the apologetic Mr Reid gave her chocolates.

11. The next day, Tuesday, 4 December, Ms Nixon proposed to get some food given out by a church and said she would return “this afternoon”. That appeared to have caused Mr Reid to again hold Ms Nixon by the hair and repeatedly hit her. When the other resident again came to the door, Ms Nixon ran out of the house. Mr Reid chased her up the road, grabbed her hair and hit her again with an open hand on the side of the head. A witness said she was punched multiple times. Mr Reid took Ms Nixon’s bag and sunglasses and then returned them and subsequently left when Ms Nixon moved towards the witness.

12. Mr Reid grabbing Ms Nixon’s hair, and hitting her inside the room and on the street, constituted the common assault charge.

13. Ms Nixon was conveyed to hospital and received treatment. Mr Reid subsequently sent apologetic messages to Ms Nixon as well as photos of her injecting herself.

14. As a result of the event, Ms Nixon had bruising to the right eye, bruising, abrasions and swelling to the left nose and right ear, multiple abrasions to her left cheek, forehead and lip, tenderness to her chin and the back of her scalp, an abrasion to the back of her neck and burning to her arms, chest and thighs. The bruising to her right eye and arms, and the abrasions to the back of her neck and face are plainly visible in the photographs.

15. In the subsequent interview with the police, Mr Reid accepted the contravention of the apprehended violence order, but initially denied the assaults. He subsequently pleaded guilty to the charges.

Analysis

16. Both legal representatives for the prosecution and Mr Reid agreed and submitted that count 1, in terms of its objective seriousness, was between the lower range and midrange, that count 2 was towards the middle of the range, that the contravention of the apprehended violence order, because it was consensual, was at the lower end of the range, and that the common assault approached the middle of the range. The offences were domestic violence offences since Mr Reid and Ms Nixon were living together. The offences continued over three days and while Mr Reid expressed remorse at various times, he, nevertheless, continued thereafter to assault Ms Nixon. The common assault was continued brazenly in public.

17. In the circumstances, I think the events constituting the common assault fall in the middle of the range. I otherwise accept the characterisation of objective seriousness urged upon me by the prosecution and the defence. I note that actual bodily harm involves hurt or injury, not fleeting or trivial, but need not be permanent.

18. Mr Reid is 38 years old. The parties accepted that he was using methamphetamine, which played a role in the offending. It is not a mitigating factor.

19. Mr Reid has previous convictions for domestic violence, including stalking, damage to property, and assault occasioning bodily harm in the few years before these offences. His conduct shortly before the offences involved repeated contraventions of apprehended violence orders. He has not been in prison since 2006, when he was sentenced, oddly, to a term of imprisonment for three years and nine months to commence on 6 January 2006 and conclude 16 June 2007 with a brief two-and-a-half-month non-parole period that concluded on the day prior to his sentence for an aggravated break and enter with intent to commit a serious indictable offence.

20. As these offences were offences of domestic violence, they are to be recorded as such on Mr Reid’s criminal record.

21. I have reviewed the statistics for these offences, although the wide variety of gravity for these offences limits the value of those statistics.

22. I have considered the principles in Cherry v R,^[2] which deals with assault offences, although the circumstances in that case appear somewhat more serious.

    2. [2017] NSWCCA 150.

23. Section 3A of the Crimes (Sentencing Procedure) Act 1999 indicates the purposes of sentencing. Mr Reid must be appropriately punished. The sentence should have a deterrent effect on both him and generally in the community. Protection of the community of victims like Ms Nixon is especially important in offences of domestic violence. The words of Button J in McLaughlin v R are apposite:

“It is enough to say that, if an offender sees fit repeatedly to visit violence upon a woman in breach of a bond and an apprehended violence order imposed months before with regard to the same behaviour and the same victim, he should expect to be imprisoned, and not for an insubstantial period.”^[3]

3. [2013] NSWCCA 152 at [49].

24. The harm done to the victim is an important consideration here, where she has been placed in fear of the offender by his repeated assaults inflicting violence upon her. His prior convictions indicate that the offences were not an uncharacteristic aberration.

25. Another sentencing purpose is rehabilitation. It is plain that Mr Reid has some way to go before he is rehabilitated. His domestic violence is connected in some measure to his methamphetamine habit. He has attended programs twice, although he is yet to complete a program.

26. Mr Reid has manifested some remorse by his pleas of guilty. His remorse expressed at the time of the offences, whether sincere or not, did not operate to stop him continuing the offences. The prospects of rehabilitation for Mr Reid, in my view, remain guarded.

27. It is important that the Court’s punishment express the community’s high level of disapproval of domestic violence. As said by the High Court in Munda v Western Australia:

“A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner.”^[4]

4. (2013) 249 CLR 600 at [55]; [2013] HCA 38.

28. Here, the offence was drug fuelled. It is not “destruction” and the term “brutal” may cover a range of conduct. But the sentence here must denounce the conduct and the harm to the community and the victim.

29. I am satisfied that having considered all the alternatives; a sentence of imprisonment is the only appropriate penalty in accordance with s 5 of the Crimes (Sentencing Procedure) Act.

30. I take into account that were the matter prosecuted in the Local Court, the maximum sentence would be two years’ imprisonment for each of the two counts. I also accept that the offence did not involve any real planning, but it was an offence involving violence in the home and involved, at least in count 2, a series of acts.

31. There was some contest about the reduction in sentence Mr Reid should receive for his plea of guilty on count 2 since it was late, but not long after a plea became available for the particular charge. The alternative charge not pursued was a more serious one with a substantially greater maximum penalty, and in those circumstances, I accept, and the Crown did not strongly resist, that in respect of both counts a reduction of 25% is appropriate for the plea.

32. Mr Reid has served already 6 months and 13 days in custody, and attended a residential rehabilitation program for a total of 3 months and 21 days. The Crown submitted that Mr Reid should be given credit for half this time and this apportionment was not challenged.

33. I accept that Mr Reid should then receive, in addition to the time in custody, credit for a further period of 1 month and 26 days, being approximately half of the 3 months and 21 days in which he was engaged in the rehabilitation program. This amounts to a total pre-sentence period in custody for which he is to be given credit of eight months and nine days.

34. I take into account the effect of the current Coronavirus, which may create a greater risk for persons in custody, who cannot effectively self-isolate and be a greater concern for themselves and for their friends and family.

35. I propose to impose an aggregate sentence and indicate the sentences that I would impose in respect of the offences.

36. In respect of the contravention of the apprehended violence order, I would impose a 12-month Community Corrections Order.

37. Absent the plea, I would, in respect of count 1, indicate a sentence of 1 year and 10 months’ imprisonment, and for count 2, taking into account the common assault on the Form 1, I indicate a sentence of 2 years and 8 months’ imprisonment.

38. In respect of the offences, I would impose an aggregate sentence of three years and four months’ imprisonment. I reduce this by 25%, by ten months, by reason of the guilty plea to two years and six months.

39. The indicative sentences, bearing in mind the plea, should be, in respect of count 1, 16 months’ imprisonment, and in respect of count 2, two years’ imprisonment.

40. I find special circumstances, bearing in mind a need for rehabilitation and the circumstance that this is the first period of imprisonment for 15 years. I would impose a non-parole period of 18 months, commencing 8 months and 9 days ago.

Sentence

41. So Mr Reid, bearing these matters in mind, I sentence you to an aggregate period of imprisonment of 2 years and 6 months with a non-parole period of 18 months, both commencing on 23 July 2019, the non-parole period expiring on 22 January 2021, and the principal sentence will conclude on 22 January 2022.

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Endnotes

Decision last updated: 21 October 2022