R v Reynolds

[2024] NSWDC 425

District Court

New South Wales

Medium Neutral Citation:

R v Reynolds [2024] NSWDC 425

Hearing dates:

23 August 2024

Date of orders:

12 September 2024

Decision date:

12 September 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Wade Reynolds is convicted.

2   I impose an aggregate term of imprisonment of 4 years with a non-parole period of 2 years and 3 months to date from 6 November 2022. The non-parole period will expire on 5 February 2025 and the head sentence will expire on 5 November 2026.

3   The offender will be eligible to be released on parole on 5 February 2025

Catchwords:

CRIME — Violent offences — Choking, suffocation or strangulation

CRIME — Violent offences — Assault occasioning actual bodily harm

CRIME — Violent offences — Armed robbery — Offensive weapon

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

Muldrock v R (2011) 244 CLR 120

Palijan v R [2010] NSWCCA 142

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Wade Reynolds (Offender)

Representation:

Counsel:
M Gleeson (Crown)
C McGorey (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid New South Wales (Offender)

File Number(s):

2022/331700

Publication restriction:

None

JUDGMENT

1. Wade Reynolds (the offender) appears for sentence after pleading guilty in the District Court to the following offences:

Count	Offence	Maximum penalty
2	Intentionally choke, suffocate or strangle a person without consent contrary to s 37(1A) Crimes Act 1900	5 years imprisonment
3	Use offensive weapon with intent to commit indictable offence of intimidation contrary to s 33B(1)(a) Crimes Act 1900	12 years imprisonment
5	Assault occasioning actual bodily harm contrary to s 59(1) Crimes Act 1900	5 years imprisonment
6	Sexually touch another person without consent contrary to s 61KC(a) Crimes Act 1900	5 years imprisonment
Seq - 8 s 166	Assault contrary to s 61 Crimes Act 1900	2 years imprisonment and/or a fine of $5,500

2. The offender also asks the Court to take into account the following offences on a Form 1:

1. Assault contrary to s 61 Crimes Act 1900 (sequence 1 on a s 166 certificate) when dealing with Count 2.

2. Intentionally choke, suffocate or strangle a person without consent contrary to s 37(1A) Crimes Act 1900 (Count 1) when dealing with Count 2.

3. Assault occasioning actual bodily harm contrary to s 59(1) Crimes Act 1900 (Count 4) when dealing with Count 3.

4. Sexually touch another person without consent contrary to s 61KC(a) Crimes Act 1900 (Count 7) when dealing with Count 6.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the District Court and is entitled to a discount on sentence of 10%: s 25D(2)(b)(ii) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Background

8. The offender and victim were in an on and off again relationship for three years. At the time of the offending, they were in a domestic relationship. They share a 19-month-old daughter. The victim has two children from an earlier relationship aged 15 years and 6 years respectively.

9. At the time of the offending, the victim was 11 weeks pregnant, with a due date of 25 May 2023.

10. On Thursday 27 October 2022, the offender, victim and the three children travelled from Dubbo to Sydney as the victim’s eldest child was scheduled for surgery. The family stayed at a hotel in Bondi Junction, close to the hospital. A family friend, Levi Hayden accompanied the family on the trip.

The offending

Sunday 30 October 2022

11. At approximately 3:30pm on 30 October 2022, they travelled to a beach near Coogee Bay. The offender smacked the victim’s younger child, and the victim told him not to touch her child and that their relationship was over. They did not speak during the car trip back to the hotel.

Sequence 1 s 166 Common Assault Form 1

12. At about 6:00pm, the offender argued with the victim while she was preparing dinner. He threw a sock and an unknown object which hit the victim in the back and caused her to experience pain, but no bruising.

13. The victim went to the smoking area on the bedroom balcony, and the offender followed her, yelling, “you’re a slut and a whore”, accusing the victim of contacting a previous sexual partner.

Count 1 Intentional choking (Form 1)

14. While still on the balcony, the offender grabbed the victim’s throat hard enough that she could not breathe or talk. Whilst choking the victim, the offender continued yelling that she was a “slut and a whore”.

Sequence 8 Assault s 166

15. The offender then dragged her inside the bedroom, slamming her head into the bedroom door. The victim lost her footing and tripped at the bedroom door frame. The offender then stood over her, lifted her head and slammed it back down into the floor. She sustained a bump on the back of her head which was sore to touch.

Count 2 Intentional choking

16. He started to choke the victim with both hands while calling her a “fucking slut”. The victim was screaming, choking and struggling to breathe. Upon entering the bedroom, Mr Hayden pulled the offender off the victim.

Count 3 Use offensive weapon to intimidate and Count 4 Assault occasioning actual bodily harm (Form 1)

17. While the victim was cutting food to prepare dinner, the victim caused a minor cut to the offender’s hand. The offender grabbed a pair of scissors that were nearby and held the blade of the scissors to the victim’s neck. He said how easy it would be to cut her throat and pressed the scissors into her neck causing a large graze. Mr Hayden pulled the offender away from the victim. The victim continued to cook dinner for her children.

18. The victim left shortly afterwards to pick up her eldest child from the hospital. She spent the night at the hospital as her son had not been discharged and asked Mr Hayden to look after the other children.

Monday 31 October 2022

19. The victim returned to the hotel at approximately 10:00am on Monday 31 October 2022.

Count 5 Assault occasioning actual bodily harm

20. The victim wanted to leave the hotel. After asking “what are you not taking me home?” and the victim replying “no”, the offender refused to give the victim her mobile phone and son’s bag. He struck her to the face, causing a red mark.

21. The victim went out onto the balcony. While saying “I’ll throw you off the balcony”, the offender grabbed the victim by her right shoulder and left hip. He dragged her towards the balcony windows, forced her head into the window and jammed her shoulders into the glass while she struggled to remain inside. The offender said, “I should fucking kill you”.

22. The offender struck the victim to the face.

23. Mr Hayden left the children in the bedroom and went back to the offender and victim.

Count 6 Sexual touching without consent

24. The offender followed the victim into the bathroom and pushed her over the banister. He said, “I know you like it rough” and “I’m going to give it to you rough”. He lifted up her dress, and whilst positioned behind her, forced his hand down the back of her underwear, touching the exterior of her genitals. The victim clenched her legs shut.

Count 7 Sexual touching without consent (Form 1)

25. The offender grabbed the victim’s exposed breast, squeezed and pulled it, causing a bruise. The offender then pushed her and left the bathroom.

26. The victim tried to call the police, but the offender took her phone away.

27. The offender eventually left the hotel room leaving for Newcastle.

28. The victim, Mr Hayden and the children travelled back to Dubbo.

29. At approximately 6:20pm the victim and Mr Hayden attended Dubbo Police Station and reported the incident.

Electronic Recorded Interview Procedure with the offender

30. On 5 November 2022, the offender attended Raymond Terrace Police Station, where he was arrested for the offences. He participated in an ERISP and said the following:

1. he admitted to calling the victim a “slut” and a “whore” and accusing her of being unfaithful to him;

2. he recalled asking the victim on the balcony about a suspected relationship with a former sexual partner. When the victim admitted she had contacted him, the offender asked her to “block him” and asked why her social media was passcode protected. The victim responded, “you don’t need to know”;

3. he admitted to holding the scissors to the victim’s neck. In relation to this offending, he said a statement to the effect, “I was like, what the fuck? Wade. Dropped the scissors. Grabbed me stuff and walked out”.

The Offender’s Case on Sentence

31. The offender tendered the following documents:

1. psychological report of Kris North, Forensic Psychologist, dated 19 August 2024;

2. Dubbo Base Hospital, Discharge document dated 16 March 2020;

3. Mental Health Referral Form dated 22 September 2020;

4. medico-legal report of Psychologist, Dr John McMahon, dated 30 October 2020;

5. Letter of attendance, Remand Domestic Violence dated 15 April 2024;

6. Certificate of attendance, Remand Equips Addiction dated 19 April 2024;

7. Certificate of attendance, Remand Equips Addiction dated 14 March 2024;

8. letter of the offender dated 21 August 2024;

9. letter of Annea-Maree Copeland dated 2 July 2024;

10. letter of Robyn France dated 14 July 2024;

11. letter of Ashleigh Stevens undated;

12. letter of McClay Scotson dated 22 June 2024; and

13. Justice Health record dated 10 May 2024.

32. I have taken into account the entirety of that material. What follows is a precis of the evidence relied upon by the offender.

33. The offender was born in Lismore and grew up in Dubbo. He is the only child born to his parents’ union and his parents separated when he was a baby. The offender resided with his mother and stepfather, whom he believed to be his biological father until he was 17 years of age. He met his biological father in his early twenties.

34. The offender reported to the psychologist that he was subjected to harsh punishment by his stepfather throughout his youth and witnessed domestic violence towards his mother. He described having been physically abused by his stepfather when he intervened to protect his mother and four younger half-siblings. His stepfather abused alcohol which led to his violent episodes.

35. The offender shares a close relationship with his mother. He speaks to her every second day and she visits him fortnightly. His mother has left his stepfather since he went into custody. In her letter to the Court, the offender’s mother, expressed her continued support for the offender and his rehabilitation, including offering to provide him with a place to live upon his release from custody.

36. The offender attended primary school and high school in Dubbo and was a below average student. He reported to the psychologist that he had been diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) when in primary school in relation to hyperactive behaviours, impulsivity and attentional issues. At the time of the assessment, the psychologist stated that it was unclear as to whether the offender continued to experience symptoms of ADHD and that such symptoms could alternatively be attributed to his early exposure to family violence.

37. The offender attributed his poor impulse control and hyperactivity to him being in trouble throughout school, resulting in his expulsion in Year 11. He described to the psychologist being involved in fights, noting that he would respond aggressively when teased or bullied by his peers.

38. The offender had worked as a cleaner in horse stables for up to five years after being expelled from school at age 17. He subsequently worked for Coca-Cola until his mid-twenties and then in warehouses, as a car detailer, in tyre fitting, landscaping and as a labourer. He also reported having been trained as a shearer prior to entering custody. Upon his release from custody, the offender hopes to start his own lawn mowing business.

39. The offender used cannabis recreationally from the age of 16 with his drug use escalating from the age of 26 after he was struggling with pain as a result of a motor vehicle accident.

40. He drank alcohol socially from the age of 15 years and described to the psychologist that he consumed alcohol two days per week in his twenties. He denied any issues relating to alcohol dependence.

41. The offender was in a motor vehicle accident in 2020 resulting in him suffering injuries to his knee, back and neck including nerve damage. He reported to the psychologist that he had to wait two years to have surgery on his knee during which time he was on pain medication. He was required to work while waiting for his surgery due to financial difficulties.

42. The offender was assessed by psychologist, Dr John McMahon, in October 2021, shortly after the motor vehicle accident. The offender reported to Dr McMahon that he was exposed to physical harm and consequently developed reactive anxiety, however without any avoidance or efforts to avoid external reminders. Dr McMahon opined that at this time the offender did not meet the diagnostic criteria for posttraumatic stress disorder (PTSD) but had a sub-set of symptoms which met the criteria for an adjustment disorder with anxiety.

43. The offender also described having experienced heart issues since 2017, but that he had not had surgery on his heart and was not prescribed medications. He had also suffered from gout and was on preventative medication.

44. The offender was stabbed whilst in custody. He sustained nerve damage to his eye during the stabbing incident for which he was assessed by an optometrist. He has been in protective custody since this time and reported to the psychologist that the assailant had made threats to his family.

45. The offender reported that he had been in four serious relationships since his adolescence. His most recent relationship was with the victim with whom he had an on and off again relationship for approximately three years. He had a daughter to this relationship and the victim also had a son while the offender has been in custody. The offender questioned the paternity of this child during the assessment with the psychologist.

46. The offender identified issues in this relationship relating to trust and infidelity. He reported that the victim had gone away for a weekend with friends approximately two months prior to the offences during which time he had difficulties contacting her and had a dream she was unfaithful. He confronted her on the day of the offending and reported to the psychologist that she had admitted to sleeping with her former partner on the weekend away. The offender stated this disclosure triggered his offending behaviours.

47. The offender reported to the psychologist having been charged with domestic-violence related offences in 2021 whilst in a relationship with the victim related to him “smashing her phone”. He was charged with destroy or damage property (DV) in relation to this incident. He further disclosed a prior incident of violence, related to him hitting a male who was sleeping with his partner in 2015.

48. The offender has also previously been charged with contravene ADVOs and other driving related offences. He had never received a custodial sentence for his prior offending.

49. The offender disclosed having experienced suicidal ideation in custody, including engaging in self-harming behaviours when he first entered remand. He also disclosed a history of suicide attempts in 2013 and 2021 both of which were triggered by relationship stressors.

50. The offender had attended six Remand Domestic Violence sessions as at 15 April 2024, and has actively participated in the Remand Equips Addiction program while being in custody. The offender reported to the psychologist that he has come to understand the seriousness of his offending subsequent to engaging in these courses.

51. The offender has entered pleas of guilty, accepted responsibility for his behaviour and expressed remorse for his offending to the psychologist and in his letter to the Court.

52. The offender’s character referees describe him as a boisterous and energetic person who is warm, kind-hearted and always there to offer assistance in times of need. They each offer their support to the offender upon his release from custody.

53. The psychologist opined that the offender’s early experiences of domestic violence during his childhood led to the offender being generally hypervigilant and more reactive towards sources of potential threat in addition to difficulties regulating his emotions. Such exposure to domestic violence, in the opinion of the psychologist, also led to the offender viewing domestic violence as “normal”. The psychologist noted in his report that the offender thought it was acceptable that his mother stayed in an abusive relationship and he had not appreciated the seriousness of his offences prior to engaging in domestic violence treatment in custody. The offender also described symptoms of posttraumatic stress subsequent to the motor vehicle accident in 2020, including having experienced nightmares, increased anxiety, heightened startle reflex and avoidance behaviours. The psychologist opined that the offender’s early experiences of childhood trauma may have predisposed him to developing symptoms of PTSD, however it was unclear whether the offender satisfied the full criteria for diagnosis of PTSD at the time of the assessment.

54. The offender also presented to the psychologist with symptoms of anxiety and depression. He reported difficulties sleeping, lethargy, increased appetite, agitation and irritability, all of which have escalated since he has been in custody. The psychologist further opined that a provisional diagnosis of an adjustment disorder with mixed anxiety and depressed mood was appropriate pending further assessment to assess the impact of past trauma on the offender’s psychological function.

55. Although there was insufficient information to complete a comprehensive assessment of the offender’s likelihood of reoffending, the psychologist identified the following risk factors to be present:

1. intimidation, threats, physical harm and severe and escalating intimate partner violence, as identified by his offending conduct;

2. history of trauma, general anti-social conduct, relating to his offending history; and

3. distorted thinking about intimate partner violence, relating to his early exposure to domestic violence within his childhood home.

56. The psychologist recommends that the offender engage in further offence-specific treatment to address his risk of reoffending, irrespective of whether he is to remain in custody or be released into the community. It is recommended that treatment also address the offender’s history of trust issues within his relationships, having been a trigger in both the offending and past instances of domestic violence.

57. The offender, in his letter to the Court, expressed a desire to continue counselling once he is released from custody.

Consideration

Objective seriousness

58. Sequence 8 involved the offender dragging the victim into the bedroom, slamming her head into the bedroom door and standing over after she fell, lifting her head and slamming it back down into the floor. Count 2 involved the second intentional choking of the victim for the afternoon. While the victim was on the floor and defenceless, the offender has crouched over her and held her throat with both hands, while verbally abusing her. The offender had to be pulled off the victim.

59. Count 3 involved holding a pair of scissors to the victim’s throat at the time of saying how easy it would be to cut her throat. Count 4 involved the pressing of the blade of the scissors against the victim’s throat and causing a graze of about 4-5cm in length.

60. Count 5 involved the offender threatening to throw the victim off the balcony of the hotel room, dragging her towards the balcony and forcing her head and shoulders into the glass of the windows. At the time, the offender said “I should fucking kill you”. The offender also struck the victim in the face.

61. Count 6 involved pushing the victim against a banister, lifting up her dress and forcing his hand into her underwear and touching the exterior of her genitals.

62. The victim and the offender had been in an intimate domestic relationship for an extended time. The offences represent the abuse of a relationship of trust. The offender exploited a difference in physical strength over the victim. The victim was pregnant, and the offender’s actions posed a significant risk of harm her unborn child. The offences were not planned or premeditated.

63. The offences occurred over two days and involved a pattern of aggressive and abusive behaviour over that period. The victim would have been terrified. The threats to kill her were accompanied by actions that made those threats credible. On occasions, Mr Hayden was required to intervene. The degree of violence used was significant.

64. The victim sustained minor physical injures but she has suffered psychologically and emotionally. She has experienced a significant loss of dignity and has been left in fear for her safety.

65. The offender had a difficult upbringing marred by his own experience of domestic violence. He has a history of hypervigilance, emotional dysregulation and poor impulse control over many years, probably as a result of his childhood experiences. He continued to suffer psychological symptoms until he was involved in a serious motor vehicle accident. After which he has suffered from the symptoms of PTSD as well as anxiety and depression. In all of the circumstances, I am satisfied that his moral culpability for the offences is reduced.

66. I have taken into account the maximum penalties for the offences.

Deterrence

67. General deterrence is of significance to the offences before the Court. Domestic violence is prevalent in the community. The penalty imposed must signal to others intending to commit similar crimes that they will be met with significant punishment.

68. General deterrence may be afforded less weight where an offender suffers from a mental condition because the offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53] – [54]. The extent of any reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27]. It is appropriate for there to be some reduction in the weight to be given to general deterrence in this case.

69. There is a significant need for specific deterrence in this case. The offender had a limited criminal history, however it demonstrates that he has a problem with maintaining healthy domestic relationships. He poses a danger to future domestic partners unless and until he has his emotions and impulsivity under control. The offender has undertaken some domestic violence related courses in custody and that is to his credit. He will require further supervision and interventions to rehabilitate himself.

Aggravating factors

70. There are no relevant aggravating factors.

Mitigating factors

71. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated that he is prepared to accept interventions and to undertake relevant domestic violence courses. He has the ongoing support of his mother who is going to give him a place to live on his release from custody.

72. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to the psychologist and in his letter to the Court. His plea also indicates remorse. He has accepted responsibility for his actions and acknowledged the seriousness of his offending after participating in the Remand Domestic Violence Course while in custody. I am satisfied that he is genuinely contrite.

73. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions may continue to be imposed for some time into the future. The offender has been in protective custody since he was assaulted in prison. I accept that the COVID-19 restrictions, his protective custody status and his mental health conditions have made his time in custody more onerous.

74. The offender has been in custody since the date of his arrest on 6 November 2022. I will backdate his sentence to that date to account for his pre-sentence custody.

Penalty

75. Wade Reynolds is convicted.

76. I have had regard to the Victim Impact Statement prepared by the victim and read aloud by her in Court.

77. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

78. I make a finding of special circumstances. This is the offender’s first time in custody. He requires treatment for his mental health and domestic violence specific treatment to reduce his risk of reoffending. These factors in combination justify a longer period of time of supervision on parole.

79. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

• Count 2 – taking into account the matters on the Form 1 – 18 months.

• Count 3 – taking into account the matter on the Form 1 – 2 years.

• Count 5 – 18 months.

• Count 6 – taking into account the matter on the Form 1 – 18 months.

• Sequence 8 (s 166) – 6 months.

80. I impose an aggregate term of imprisonment of 4 years with a non-parole period of 2 years and 3 months to date from 6 November 2022. The non-parole period will expire on 5 February 2025 and the head sentence will expire on 5 November 2026.

81. The offender will be eligible to be released on parole on 5 February 2025.

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Decision last updated: 16 September 2024