R v RX

[2008] NSWDC 356

CITATION:	R v RX; MX [2008] NSWDC 356
JUDGMENT DATE:	19 December 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	In respect of RX - for the offence of aggravated break and enter and commit serious indictable offence a non-parole period of 6 years and balance of term of 6 years, for the offence of kidnapping a non-parole period of 4 years and balance of term of 3 years, for the offence of assault occasioning actual bodily harm a non-parole period of 2 years and balance of term of 1 year. In respect of MX - for the offence of break and enter and commit serious indictable offence a non-parole period of 5 years and balance of term of 4 years, for the offence of kidnapping a fixed period of 4 and 1/2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - domestic violence - credibility of offender (MX) - premeditation or planning of offence - psychological and psychiatric condition of offender (RX) - emotional harm caused by offence
LEGISLATION CITED:	Crimes Act 1900 s 112(2) Crimes (Domestic and Personal Violence) Act 2007 s 39 Crimes (Sentencing Procedure) Act 1999 s 21A
CASES CITED:	Regina v Dunn (2004) 144 A Crim R 180 Regina v Edigarov (2001) 125 A Crim R 551 Regina v Fahda [1999] NSWCCA 267 Regina v Glenn (CCA, unreported 19 December 1994) Regina v Hamid [2006] NSWCCA 302 Regina v O'Donoghue [2005] 151 A Crim R 597
PARTIES:	Regina RX MX
FILE NUMBER(S):	2006/11973001-3; 2006/13135001-3
COUNSEL:	Ms S Herbert (for DPP) Mr Brady (for RX) Ms Macdougall (for MX)

JUDGMENT

1. Mrs RX’s marriage to her husband RX had come under significant strain. In fact she had moved out of home and into a unit. Not only was it under strain but her husband RX had been violent to her a couple of times. She became quite scared and although she had returned to the family home for a meeting she went back to the unit which she was renting in North Parramatta. She felt scared but was, I expect, somewhat reassured by the fact that she was secured in her unit by two doors and three locks.

2. At 7am in the morning on 12 November 2005 RX and his brother MX turned up to her unit. They had a sledge hammer. They beat down both doors. Mrs RX was dragged down the stairs of the block of flats by her husband RX and bundled into MX’s car. MX drove the car to the brothers’ parents place in nearby Guildford. At Guildford, Mrs RX spent the next six or seven hours being kept in detention by her husband RX.

3. Arising from those events RX was charged with the offence of breaking and entering a dwelling house and committing a serious indictable offence whilst in company, the offence being taking Mrs RX without her consent and with intent to obtain a psychological advantage. Put in plain terms, that offence is breaking and entering and kidnapping someone whilst the offender was with somebody else helping them. MX was charged with the same offence. Both brothers were also charged with, whilst being in company with each other, detaining Mrs RX without her consent with intent to obtain a psychological advantage. In plain terms that offence is kidnapping. Whilst Mrs RX was being held at Guildford by RX he assaulted her. As a result of that assault he was charged with assault occasioning actual bodily harm.

4. Both men defended these charges and went to trial. On 19 November 2007 a jury found both men guilty of the offences that they were charged with and it is now for me to sentence them.

5. Apart from the usual matters that a judge needs to pay attention to when sentencing offenders there are some particular issues in this case which have arisen and which I will need to make some findings about. One is the psychiatric condition of RX. A second issue is the credibility of MX as a witness including what his role was in the crimes that he was charged with. A third issue is the extent to which the crimes were premeditated or planned. In addition to those three specific issues an important issue in this case - which any judge has to deal with in sentencing - is where the offences lie in the range of objective seriousness. In plain terms that means just how bad these crimes are compared with other crimes of a similar type.

6. It is important to note the penalties which attach to these crimes. The first thing that I should do is to convict both MX and RX of the offence of aggravated break and enter and commit a serious indictable offence. That offence is created by s 112(2) of the Crimes Act 1900 and carries a maximum of twenty years imprisonment. In addition to that, Parliament regards the offence as so serious that it has attached a standard non-parole period of five years to that offence.

7. Moving to the kidnapping offence, I formally convict MX and RX of the offence of aggravated detention of Mrs RX without her consent with intent to obtain psychological advantage, in other words the kidnapping offence. Parliament has fixed a maximum penalty to that as well of twenty years imprisonment.

8. Finally I formally convict RX of the assault occasioning actual bodily harm to Mrs RX. Parliament has fixed a maximum of five years imprisonment for that offence.

9. I propose to make my finding regarding the credibility of MX first because that will affect findings which I make on some of the other issues. The Crown Prosecutor, Ms Herbert, who appeared for the prosecution both at the trial and on sentence, argues that I should reject MX as a witness of truth. She points to the contradiction between MX’s evidence concerning phone calls during the night and the record of phone calls which comprise exhibit T and to the conflict between MX’s account of his involvement in the events and accounts given by witnesses called at the trial. Mr Korn, who appeared in the sentence proceedings for MX but not at the trial, argued that when the evidence of the eye witnesses was compared to his client’s evidence there was not much difference between them. He also argued that the evidence of the telephone calls was consistent with his client’s account.

10. I find that MX is not telling he truth so far as his account of what happened may clash with the account given by other witnesses or documents. In particular I find that, because his evidence before me in the sentence proceedings was that he could not recall most of the telephone calls which are recorded in exhibit T. Exhibit T records communication between a phone possessed by RX and a phone possessed by MX. It picks up communication between those two phones between about 11.45pm the night before the offence and 6.47am on the morning of the offence, about ten minutes before it occurred. After a call of under thirty seconds duration at 11.45pm there was a call at 1.15am of some four minutes. That is followed by calls from MX’s phone to his brother’s phone at various times during the night, namely 3.36am, 3.52am, 4.13am, 4.19am and 4.24am. There follow other calls before 5am from RX’s phone and other calls after 5am and between 7am between the two brothers.

11. MX has no explanation for those calls. He said in fact in answer to a question by me on 31 October 2008 “I don’t recall talking to my brother this many times.” He made it clear that he did not deny it but he said that he simply did not recall speaking to him that many times. In my opinion the evidence is clear from exhibit T that the brothers were in regular communication with each other during the night and up until the time that they attended Mrs RX’s unit. I do not believe that MX cannot remember any of those calls on that night.

12. Insofar as his account of what happened at the scene of the unit and outside the block of units is concerned MX was cross-examined by the Crown Prosecutor on the evidence which was given by other witnesses. He said for example on 31 October 2008 that he did not touch the door of the unit. The account given by a neighbour, W1, that she saw one man banging on the door and the other trying to push the door down, was responded to by MX by saying that he did not hit any door or break any door. When it was specifically put to her that W1 was wrong when she described the two men doing things to the door to be able to open the door, he said “Absolutely”. The witness also described the two men as entering the unit. MX has responded by saying he did not step a foot into that unit. That was in contrast to the evidence of Mrs RX and of W1.

13. The witness also described Mrs RX as being dragged down the stairs. MX said the holding of Mrs RX by her husband RX was more like a hug. One witness said that the men were telling Mrs RX to shut up and be quiet. MX said that he was “absolutely not” saying those words. One witness said that she heard a person who is clearly MX saying to Mrs RX as she was being put into the car “That will fucking teach you”. He denied that.

14. MX in addition has admitted to lying to the police. He was interviewed by the police not long after Mrs RX and her husband were delivered to the house in Guildford. He did not give them any information about what had happened. In fact he lied to the police and admitted that in evidence on 31 October 2008.

15. I repeat, where there is any conflict between evidence given by MX and other witnesses including Mrs RX I do not accept him as a witness of truth.

16. I now need to describe briefly the evidence about what occurred that morning. I rely upon the accounts of the eye witnesses including Mrs RX. As I said, she had been separated from her husband. RX had spent time overseas; he was in Lebanon building a house. On two occasions a few days before these offences Mrs RX was physically assaulted by her husband. She had, as I said, made arrangements to rent a unit. Whilst she was in the unit a day or two before these events she said that her husband had buzzed on the intercom at 6am in the morning and was screaming at her. She was so concerned that she went to the police; she was obviously concerned for her safety. Because of the assaults which had been inflicted upon her and because of his approaches to her in her unit it is not surprising that the unit was secured by two doors and three locks.

17. Her account of what happened on the morning of Saturday 12 November 2005 is that she heard a big noise. She was screaming “Help, help”. RX and MX came inside her unit. She saw her screen door was missing. She said there were three locks on the door. She said RX pulled her by the hair and dragged her down the stairs; she was on her knees. MX opened the back door of the car so that they could sit inside. MX, I add here, denies that but I accept Mrs RX’s account which is corroborated by other witnesses. MX said to her that “we can do whatever we like and no one would know and no one would find us”. RX said that he was not scared of the police.

18. She was driven to Guildford; she knew the place because it belonged to her parents-in-law. MX opened the door and she was taken inside by RX. RX had his hand over her mouth. MX left soon afterwards. She sat in the corner and RX started to kick her; he hit her with his open hand. He was smacking her on the face and pulling her hair. He found an aluminium mop and broke the handle off and hit her over the head. She was feeling a lot of pain; she could not walk or move. He kicked her on the left side around the hip area. She said he broke her ribs; a broken rib was in fact diagnosed by a doctor. She said she still has broken ribs. I make it clear that the diagnosis was one rib, not more than one.

19. She said that when she was being taken from the unit RX said that he wanted to kill her and put her somewhere where no one would know. After MX left he returned and RX asked him to bring food. He returned later with food. There is some question about whether or not MX saw Mrs RX in the condition which resulted from RX assaulting her. I am not satisfied beyond reasonable doubt that he was aware of the extent of the injuries inflicted upon her by her husband at the house in Guildford.

20. W1 lived in the same block of units as Mrs RX. She woke up to loud banging; she looked through the peep hole and she saw two men, one with an axe. He was banging on the door. She phoned triple 0. She kept looking through the peep hole and of the two men one was banging on the door and the other was trying to push the door down. It took a few hits and then she said they went in. It was quiet for a while. They had run inside, then they came out holding the lady, as she said, dragging her. One was holding the axe and the other was carrying her. I am not satisfied beyond reasonable doubt - in accepting Mr Korn’s submission - that MX inflicted any physical violence or physical contact on Mrs RX. W1 described – and what I find was - RX with his hand around his wife pulling her down, dragging her down the stairs and out the front. The witness could hear her screaming and the man telling her to shut up. In fact she, when questioned specifically, said both men were using the words “shut up”. Her evidence is graphically and chillingly corroborated by a recording which was admitted into evidence in the trial of the triple 0 call which she made to the police. In the background of the conversation between her and the operator are the distressed screams of a woman.

21. Another witness was W2. She lived in a nearby block of units directly next door to Mrs RX’s block of units. W2’s bedroom and back balcony face the entrance of Mrs RX’s unit. The first thing she recalled was hearing a large banging which woke her up, she thought it was someone doing some renovations; it was 7am. The banging continued for a while and then she heard a woman screaming and she got out of the bed and went onto the balcony to see what was going on. She saw the woman being carried down, the woman was kicking and screaming and trying to get away from the men. One man was carrying the sledgehammer and the other was carrying the woman around the middle and around her neck. I am satisfied that it was MX carrying the sledgehammer and RX carrying Mrs RX. She was kicking and screaming and trying to get away.

22. The man with the sledgehammer, namely MX, opened the back door of the car; they pushed the woman in. RX got in after her. MX walked around and got into the driver’s seat throwing the sledgehammer onto the passenger seat. It is this witness that says that she heard the guy with the sledgehammer - who I am satisfied is MX - when he closed the car door saying “That will fucking teach you”. The witness remembered that specifically because it made her think maybe there was some infidelity on the part of the woman which had provoked this extreme reaction; that was what she said. She described the tone of the voice as sounding pretty aggressive.

23. Another witness, W3, saw the woman being brought from the units and bundled into the car and driven off. She said the woman was screaming at the top of her voice, really high. She also confirmed that one of the men opened the door and the other man pushed the woman into the back seat and I am satisfied that it was MX who opened the door. He denies that and that is another reason for not accepting him. The woman was fighting and trying to get away and the man was trying to cover her mouth with his hand.

24. I have already described Mrs RX’s account of what happened at the unit, in the car and at Guildford. The events concluded because at some time after three in the afternoon at Guildford RX had fallen asleep and Mrs RX took the opportunity to leave the house and alert a neighbour who called the police. The police attended half an hour or so later and RX was arrested. He said that he was due to meet his brother back at the Guildford house at about six that evening. MX turned up around about that time and he was arrested as well.

25. I turn now to two of the issues which I mentioned at the commencement. The first can be dealt with fairly quickly and that is the premeditation or planning. I am satisfied beyond reasonable doubt that this crime, committed by both the brothers, was attended by a degree of premeditation. I reject the account given by MX that all he was doing was meeting his brother at his sister-in-law’s unit so that he could give him a lift home. In my opinion, the evidence of the telephone correspondence between them overnight clearly suggests that both men turning up at Mrs RX’s unit at 7am in the morning, armed with a sledgehammer, was the result of whatever was discussed in those phone calls. I accept that RX was obviously the initiator of the crimes but there was some degree of premeditation and planning extending to some hours before it occurred.

26. The second issue which I mentioned at the commencement of these reasons was RX’s psychiatric condition. This is a matter of some controversy. Mr Brady who appears for RX in the sentence proceedings, but not in the trial, urges me to find that he was affected by a psychiatric condition at the time of the offences and remains so.

27. There is a good deal of psychiatric and psychological evidence about RX. Part of the reason is that he was examined for the purposes of assessing whether he was fit for trial. In 2010 (as said) he was assessed for that purpose by Dr Westmore and Dr Nielssen, both experienced forensic psychiatrists. Dr Westmore was not able to reach a definite conclusion. He said it was unclear whether the way that RX presented was affected by psychological or psychiatric factors or by cultural factors. Dr Nielssen’s conservative approach was that he said he could not diagnose any psychiatric disorder without a proper and extensive history.

28. A psychologist, Professor Stephen Woods, provided a report dated 29 July 2008. Professor Woods concluded that RX was very probably suffering from a mental illness. He offered a preliminary diagnosis of delusional disorder of the persecutory type. However, he immediately qualified his opinions, referring to it as a preliminary diagnosis. He drew the attention of any reader of his report to the fact that he had seen RX on only one occasion in less than ideal conditions and had limited background documentation to assist with his assessment.

29. The only other medical documentation was a report by Dr Allnutt that at 12 December 2007, he did not have access to Dr Westmore’s report. Dr Allnutt’s report was in fact in evidence before me and Dr Allnutt was unable to provide a firm conclusion about RX.

30. The medical professional who has had most to do with RX is Dr Sinclair, a psychiatrist employed by Justice Health. She examined RX whilst he was in custody after being bail refused following his conviction. Her first examination was 15 August 2008. She reported a few days later, on 22 August 2008, and expressed the opinion that “RX is suffering from a delusional disorder or paranoid schizophrenia. However, the possibility of a paranoid personality disorder on the background of a previous psychotic episode also exists.”

31. Dr Sinclair organised a transfer of RX to the Mental Health Screening Unit in the corrective system. She did that because she had “concerns that he definitely needs a more comprehensive, intensive assessment and ongoing mental state examinations because of the nature of his presenting symptoms.” She thought that assessment at the MHSU would clarify the diagnoses because he had various diagnoses.

32. Dr Sinclair produced a further report, dated 30 October 2008. That report followed RX’s time in the Mental Health Screening Unit. Dr Sinclair concluded in that report as follows:

“ In summary, after extensive review, by multiple consultant psychiatrists and a clinical psychologist, re-review and in-patient comprehensive screening assessment at the Mental Health Screening Unit, I am of the opinion that RX does not suffer from a major mental illness. There is no evidence now to suggest that he has a paranoid schizophrenia, a delusional disorder, or an ongoing psychotic process. I do believe, however, that he has strong narcissistic traits.”

She expressed confidence that he did not require ongoing medication. Asked about his condition at the time of the offences she said that “with regard to the alleged offences there is no evidence to suggest RX was psychotic or suffering from any other major mental illness at that time. His actions may be related to his narcissism and cultural background.”

33. When that report was received and went into evidence understandably Mr Brady wanted to cross-examine Dr Sinclair about what Mr Brady described as a “180 degree turn” in her opinion. She was examined and cross-examined before me on 12 December 2008. She had produced a further report the previous day. She said in that report that since her last report in October she requested a subsequent independent forensic psychiatric assessment by a senior forensic psychiatrist. That apparently occurred under the Senior Forensic Psychiatrist and Community Correctional Mental Health Services and Projects Manager on 20 November 2008. Dr Sinclair concluded in that report as follows:

“Cultural issues, personality factors and marital conflict appear to underlie the events, which led to these charges. Apparently, there is no overt evidence of mental illness and certainly fitness does not appear to be in question .”

She expressed the overall opinion that RX “displays paranoid personality traits and exaggerated cultural factors.”

34. In examination-in-chief on 12 December 2008, Dr Sinclair said that the time in the Mental Health Screening Unit provided an opportunity for what she described as a longitudinal assessment. In other words, RX was seen on a day to day basis, being observed whilst he slept and ate, as well as being observed during daily interactions. Asked about her description of him displaying paranoid personality traits and exaggerated cultural factors she said that they were descriptions of his personality and not a diagnosis of psychiatric pathology.

35. Mr Brady suggested to her that a limited number of people in the community have such traits. Dr Sinclair acknowledged that she was not familiar with the epidemiology of these particular features but said that he had those features a little more intensely than a majority of people in the community. She confirmed that he was not delusional. She acknowledged that his condition affects how he perceives things but confirmed that it was not a psychiatric diagnosis. She agreed that he had the personality structure which she described at the time of the offences. She was challenged about some behaviours which led to her previous diagnosis of psychiatric pathology. Examples were Mr RX thinking that there were people behind the walls in the court room and an ability to heal pathology in his own body. Dr Sinclair said that during the long assessment in the MHSU there was no evidence of any delusional behaviour. When asked whether there must have been some delusional aspects about his behaviour she said that he has a tendency to say outrageous things and is quite engaging and entitled and says what she described as random things. She said that if the kinds of beliefs, drawn to her attention, were fixed and persisting then they may have been delusional but that there was no evidence in the time in the MHSU of such persistence. There was, she repeated, no evidence of any delusional or thought disorder when he was examined. She said he was aggrieved but not delusional. A delusion she said is something which is usually false and fixed and pervasive. It occupies people’s lives and they spend a lot of time expressing it.

36. As I said, Mr Brady in his submissions focused on the turn around in Dr Sinclair’s opinion. He focused on an argument that there was insufficient evidence of a change in the behaviours upon which that diagnosis was based. I do not accept his arguments. I can understand Dr Sinclair’s position. As I said, RX has had a good deal of contact with the medical profession and psychiatrists. Diagnoses were historically unclear or hesitant. Dr Sinclair has had the most experience with RX. In addition, she has arranged for an intensive examination of him over a period of time in the Mental Health Screening Unit. She has reviewed earlier psychiatric reports and has reviewed the information available from the assessment unit. It was, I find, a most comprehensive assessment. For those reasons, I place a good deal of weight on Dr Sinclair’s opinions and I accept her conclusions which I have already referred to.

37. I turn now to the findings which I need to make regarding the objective seriousness of these offences. I deal first with the offence of breaking and entering and committing the serious indictable offence, committed by both men. The following I find are aggravating features of that crime which increases its objective seriousness.

38. Primarily, the crime was committed when one of the men was armed with an offensive weapon. That weapon was used with shocking violence and significant force. The weapon was used to get access to the unit through two doors and three locks. There is no evidence that weapon was used to threaten Mrs RX, nor is there evidence that the weapon was taken inside the house but this is not a case where somebody has opened a closed door or even forced a lock or even shouldered a door or broken glass to get in through a window.

39. The evidence from the eye witnesses who heard the banging clearly demonstrates the force that was being used on the door with the sledge hammer. The evidence of the triple 0 call graphically illustrates the terror which Mrs RX must have been experiencing.

40. I do not regard it as particularly important which man was using the sledge hammer. Both men were there at the door and I accept the eye witness that one man was using the sledge hammer and the other forcing the door. They were clearly both intent on getting into the unit, both doing their own part to achieve that purpose.

41. Secondly, I accept that there was a degree of premeditation or planning to the extent that I have already described.

42. Insofar as the offence is already an aggravated offence, the aggravation which is pleaded is the fact that the two men were in company with each other. I do not take that into account as a separate aggravating feature because it is part of the crime. But it is important to observe that the circumstance was that there were two men and one woman and that the men were related to the woman, one married to her and the other a brother-in-law. They were men who were part of the victim’s family and whom she might have thought she could trust.

43. Next, RX used corporal violence on Mrs RX. He dragged her down the stairs on her knees by her hair. The corporal violence was brutal. MX was not directly responsible for that, nevertheless he was present whilst it was occurring. But he was not the initiator or the perpetrator.

44. Next the crime was attended by the infliction of actual bodily harm on Mrs RX. Once again that was inflicted by RX and not by MX.

45. I do not take into account that the offence was aggravated by the knowledge that a person was in the unit because clearly that was an element of the offence since the intention in going into the unit was to kidnap Mrs RX. The authority of Regina v O’Donoghue [2005] 151 A Crim R 597 does not assist me in taking it into account as an additional aggravating feature because that applies to a criminal trial rather than sentencing proceedings.

46. Next, the serious indictable offence committed by the two men was itself relatively serious. It was of course not the most serious kind of offence which might have been committed inside but it was significantly more serious than an offence of, for example, stealing which would be at the bottom of the range of the kinds of offences which can be a component of this crime. The definition of a serious indictable offence requires it to have a penalty of at least five years. This crime had twenty years attached to it. As I said, I regard RX as the initiator of this crime and the person more culpable than his brother. Nevertheless, his brother was not only present at the crime but actively assisting both physically in getting into the unit and driving the car and opening and closing the door of the car and in the aggressive words which he used. He was very much a participant in this crime.

47. I have no doubt and I am comfortably satisfied that this crime falls in the middle of the range of objective seriousness for offences of this kind. Indeed it is towards the upper end of that middle range.

48 [I also take into account the injury -? sic] In assessing the consequence of that finding so far as the standard non-parole period is concerned I turn to s 21A of the Crimes (Sentencing Procedure) Act 1999 and refer to any matters which I have not yet touched upon. I do not take into account as an aggravating feature s 21A(2)(eb) that the offence was committed in the home of the victim because that provision was not in existence at the time of the trial or of the offence, I should say.

49. However, I am of the opinion that the emotional harm caused by the offence was substantial. I am of that opinion based upon the victim impact statement of Mrs RX which has been tendered in evidence. Amongst the things which she says in an extensive victim impact statement which has been appropriately edited, are that she thought she was safe with the security locks and screen door and was so shocked when the men entered. She thought she was going to die. She thought her husband was going to kill her and that she would not see her children again. She feels as though she is a prisoner in her own home due to the effects of this violent crime. She says she has long lasting effects from the kidnapping and the act of violence. She has extreme fear of RX, frequent nightmares, frequent flashbacks, insomnia for two years, recurring thoughts about violence and avoidance of places where RX and his family might be. She has very high levels of stress, panic attacks, agitation, exaggerated startle response, depression and grief and loss about her children. She is seeing a psychologist. She is always looking over her family. She said that she is living in dreadful fear on a daily basis and that everyday is an effort to live her life and she is in a constant nightmare.

50. None of this is surprising. Obviously some of those reactions are specifically to the violence of the events of the men entering her unit and others might be more closely connected with the kidnapping or the detention or the violence inflicted by RX at the Guildford house but I am satisfied in relation to the primary crime of breaking and entering and committing a serious indictable offence that the victim Mrs MX has suffered substantial emotional harm.

51. I turn to any mitigating factors which might bring this crime - so far as either offender is concerned - away from attracting the standard non-parole period.

52. Neither man has any significant record of previous convictions. That is a factor to which there should be some weight given. MX has a reasonable a number of convictions but they are mostly related to traffic.

53. I take into account that both men are highly regarded within their families and within their community and as working men. These point to men who are entitled to rely to some extent or to the full extent on their good character.

54. I think MX is unlikely to re-offend. I am not so confident about RX because of the descriptions given about him by the medical practitioners.

55. Neither man has a strong claim to remorse. RX continues to deny the offences. MX denied any involvement at the trial but admitted his involvement in the sentence proceedings. But his admissions were in a way which minimised his own involvement. I do not find that he has significant remorse about this offence.

56. So far as MX is concerned, there are issues concerning the fact that he is looking after his elderly parents as well as having a role in minding his own children as well as the children of his brother, RX. His absence from that family situation will obviously cause some degree of hardship, perhaps significant on all of those people. I have considered the evidence which has been led in that regard. He obviously does play an important role in the lives of these people. However, both brothers come from a large family. Some of the children are in their late teens and early adulthood. The authorities make it clear that hardship is brought about not by the sentence imposed by the judge but by the choice which the offender made in committing the crimes. It is only in the most exceptional cases that hardship on persons other than the offender might result in a reduction in the sentence. Those extraordinary circumstances in my opinion do not exist in this case.

57. There is some suggestion that MX was under the influence of his older brother. MX is the youngest of eight children. RX is the middle child. I do not place any weight on that. MX has turned thirty this year. He has been an adult for over twelve years. It is no excuse for him that his role in this serious crime was in some way influenced by his older brother. It may well have been influenced, but his status as an adult and his maturity and role as a husband and father himself clearly put him in a position where he could choose not to participate or to stop his brother from doing it.

58. So far as the good character of RX is concerned, I must take into account that he had committed acts of domestic violence upon his wife in the few days before the offence. I accept Mr Brady’s submission that up until then, his good character was significant.

59. Because this crime is as objectively serious as it is and because it has the number of aggravating features that it does, I am not convinced that the standard non-parole period should not apply. In the words of s 54B “the court is to set the standard non-parole period unless I determine that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.” This is clearly an offence which is, as I say, in the upper echelons of the middle of the range of objective seriousness and it is so serious that none of the factors in s 21A (3) which I have referred to result, in my opinion, in the standard non-parole period not applying and that applies in respect of both offenders.

60. Insofar as count two is concerned, the kidnapping lasted some eight hours from about seven in the morning until after three in the afternoon. I take into account that it was not a period of days or which some kidnapping crimes can involve. Nevertheless, it was not temporary for half an hour or so. It involved a journey in the car and detention in the house as well. RX was primarily responsible for this detention and was the person who was present all the time. Nevertheless, MX failed to take the opportunity to alert the police to the fact that his sister-in-law had been kidnapped by his brother. But his role in the detention of Mrs RX was less serious than his brothers.

61. The offence in my opinion - so far as RX was concerned - was in the lower end of the middle of the range of objective seriousness and - so far as MX was concerned - was at the lower end of the range of objective seriousness.

62. As for the offence of inflicting actual bodily harm committed by RX on his wife, this was aggravated, I accept, by the use of the mop handle. The injuries were serious and the bruises were extensive and it involved a broken rib.

63. All of these crimes - I need to bear in mind as an important sentencing principle - were committed in the context of domestic violence. I accept that it was RX who is the husband of the victim and the person primarily responsible for the domestic violence. It was also he who had the history of some domestic violence with his wife, although short.

64. The Court of Criminal Appeal in this State has made clear what its attitude is to sentencing offenders in respect of crimes involving domestic violence. In Regina v Hamid [2006] NSWCCA 302, the court referred to a previous decision of the court in Regina v Glenn (CCA, unreported 19 December 1994) and quoted Simpson J as saying that the victims of domestic violence will “receive the full protection of the law, insofar as the courts are able to afford it to them.” Hamid also referred to a judgment in Regina v Fahda [1999] NSWCCA 267 in which, once again, Simpson J said:

“ Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished.”

In Hamid, the court also referred to the judgment of the Chief Judge at Common Law, with Stoddard and Bell JJ agreeing, in Regina v Edigarov (2001) 125 A Crim R 551. In that case, his Honour said:

“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.”

Finally, the Court referred to its judgment in Regina v Dunn (2004) 144 A Crim R 180, where the Court said that domestic violence crimes are differentiated from many other crimes of violence first because the offender usually believes in a real sense that what they do is justified and secondly because the continued estrangement between the parties requires continued threat. The Court said that the victim never feels truly safe. The Court said in Dunn that “these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.”

65. There is evidence in this case that RX regarded the violence which he had inflicted upon his wife when she was in detention at Guildford as justified. He made a remark to that effect to one of the police officers who attended the scene. Obviously from the evidence of what occurred at the unit including what he said to his wife, he believed that what he did was justified.

66. Mrs RX’s victim impact statement points clearly to her feeling never safe. Those principles must guide me in fixing the sentences which I am now about to fix. I have taken into account the principles of concurrency and the extent to which the sentences need to be partly concurrent and those principles will be reflected in the sentences which I impose.

67. RX, if you would stand up? For the offence of aggravated break and enter and commit a serious indictable offence, I set a non-parole period of six years to date from 19 November 2007 and to expire on 18 November 2013. The balance of the term is six years from 19 November 2013 expiring on 18 November 2019. I accept that there are special circumstances for the balance of the term exceeding one third of the non-parole period namely, that this is your first time in custody.

68. For the kidnapping offence, I set a non-parole period of four years, to commence on 19 May 2010 and to expire on 18 May 2014. The balance of the term will be three years from 19 May 2014 to 18 May 2017.

69. For the assault occasioning actual bodily harm, I set a non-parole period of two years from 19 November 2012 to 18 November 2014. The balance of the term will be one year from 19 November 2014 expiring on 18 November 2015. The earliest date on which, on the information available to me, you will be eligible for parole is 18 November 2014.

70. Now MX, if you would stand up? For the break and enter and commit serious indictable offence, I set a non-parole period of five years to commence today, 19 December 2008 and to conclude on 18 December 2013. The balance of the term will be four years from 19 December 2013 to 18 December 2017.

71. For the kidnapping, I take into account that you have served custody of some four months and four days relating to this matter and I sentence you to a fixed period of four and-a-half months(as said) to commence on 19 August 2009 and to expire on 18 February 2014. The earliest date on which it appears to me that you will be eligible for parole is 18 February 2014.

HIS HONOUR: All right, now what I propose to do now is to adjourn for a quick morning tea whilst you, the parties, look at the figures and any other orders that I need to make and I will come back in about ten or fifteen minutes.

SHORT ADJOURNMENT

HIS HONOUR: Okay, the matters of RX and MX. My associate has drawn my attention and one correction that I need to make is I think I imposed a sentence of four and-a-half months instead of four and-a-half years, although I probably articulated the - is that what you were going to say, Ms Herbert?

HERBERT: That was one of the things I was going to say, yes.

72. Let me immediately say, MX for the kidnapping offence, your sentence is four and-a-half years from 19 August 2009 to 18 February 2014.

All right, now what else?

HERBERT: There’s nothing the Crown’s raising in relation to sentences your Honour. However in relation to RX, under the Crimes (Domestic and Personal Violence) Act 2007--

HIS HONOUR: Volume?

HERBERT: I’ve got it in my volume, court volume, your Honour it’d be just after the Crimes Act, so it should be volume 1.

HIS HONOUR: Crimes (Domestic and Personal Violence) Act 2007?

HERBERT: Yes, your Honour.

HIS HONOUR: Yes, what do you want to draw to my attention?

HERBERT: There’s a mandatory apprehended violence order to be made under s 39. That says if a person pleads guilty or is found guilty of an offence of a domestic violence offence.

HIS HONOUR: All right, now this is obviously a domestic violence offence but where is that--

HERBERT: Going back, section 4 of the Act defines what a personal violence offence is which includes an offence on section 86. It’s a domestic relationship because they were married at the time and those are the definitions relevant to section 11. So domestic violence offence is a personal violence offence committed by a person in a domestic relationship.

HIS HONOUR: And this offence is section 112--

HERBERT: 112 does not come within that but section 86.

HIS HONOUR: Right, 86.

HERBERT: And section 59, both are personal violence offences.

HIS HONOUR: 86. Sorry, section 86 is the rules.

HERBERT: No, section 86 of the Crimes Act being the detain for advantage.

HIS HONOUR: All right.

HERBERT: That’s a personal violence offence as is assault occasioning actual bodily harm.

HIS HONOUR: Yes, I see what you mean, yes. I see, because break, enter and steal may not necessarily - it just happens to be these offences, yes, yes, as I understand.

All right. So I am satisfied that it’s according to section 11, it’s domestic violence offence so I go to section 39, do I?

HERBERT: Yes, your Honour.

HIS HONOUR: So RX has been found guilty of domestic violence offence. Now I must make an apprehended violence order. What are the terms of that order or where do I find that?

HERBERT: Your Honour, I’ve got the standard form which includes the mandatory orders. If I can hand up a copy?

HIS HONOUR: Right. Where does that come from, rules or regulations?

HERBERT: The mandatory provisions, section 35 of the Act.

HIS HONOUR: So what are the terms of the order which you’re asking me to make?

HERBERT: The terms of the order I’m seeking your Honour are the mandatory orders which on that form are 1A, B and C.

HIS HONOUR: Yes?

HERBERT: And I’d suggest an additional order, 3. Your Honour, the question of duration of that--

HIS HONOUR: Yes, because he’s in gaol until--

HERBERT: Since he’s in gaol, section 79 of the Act, basically there is not a limit as to the duration of an apprehended violence order.

HIS HONOUR: All right. So what do you propose?

HERBERT: So I’d invite your Honour to consider an order that would continue for five years post release which would be an order up to the 18th of November 2019.

HIS HONOUR: Okay, anything else?

HERBERT: No, your Honour.

HIS HONOUR: Mr Brady?

BRADY: Your Honour has to make the order, how long it’s made for is a matter for your Honour.

73. Under s 39 of the Crimes (Domestic and Personal Violence) Act 2007, I make an apprehended violence order for the protection of Mrs RX. The order is made against RX. The order is in the following terms:

(a) RX must not assault, molest, harass, threaten or otherwise interfere with Mrs RX or a person with whom Mrs RX has a domestic relationship;

(b) RX must not engage in any other conduct that intimidates Mrs RX or a person with whom she may have a domestic relationship;

(c) RX must not stalk Mrs RX or a person with whom she may have a domestic relationship;

(d) RX must not enter any premises at which Mrs RX may, from time to time reside or work.”

It says already other specified premises but I am not specifying any.

HERBERT: No, no, it’s specified--

HIS HONOUR: All right. No other orders sought or conditions or orders of--

HERBERT: No, your Honour.

HIS HONOUR: Okay. Ms Herbert, we will mark that for identification, whatever number we’re up to, that formal order.

HERBERT: Sorry, did your Honour set an expiry date for the order?

HIS HONOUR: No, I didn’t. Thank you.

74. The terms of the order are to commence on 19 November 2014 and to expire on 18 November 2019.

HERBERT: I don't know if you can put in a future date.

BRADY: From today and to expire on 18 November 2019, your Honour should--

HIS HONOUR: Say that again?

BRADY: From today, your Honour makes the order and you just give an expiry date.

HIS HONOUR: I make the order but - I see. That’s the problem whether I

can--

BRADY: Make a future order.

HIS HONOUR: I see.

BRADY: Sorry, a future starting date.

HIS HONOUR: I see the point, yes.

74. The order is to date from today and to expire on 18 November 2019.

BRADY: Thank you, your Honour.

HERBERT: Thanks your Honour.

HIS HONOUR: Ms Herbert, anything else?

HERBERT: Nothing else, thank you, your Honour.

HIS HONOUR: All right. Mr Brady, any corrections or issues, legal issues so far as the sentence is concerned?

BRADY: No, your Honour. No.

HIS HONOUR: And Ms Macdougall, insofar as MX, is there any legal issues to do with the sentence?

MACDOUGALL: No, your Honour.

HIS HONOUR: No. Okay, both offenders may be taken down.

ADJOURNED

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