R v Salom

[2021] NSWDC 386

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Salom [2021] NSWDC 386

Hearing dates:

23 April 2021

Date of orders:

30 April 2021 and 18 June 2021

Decision date:

18 June 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentenced to an aggregate term of 2 years and 10 months imprisonment to be served by way of Intensive Correction Order

Catchwords:

CRIME — Domestic violence — “Personal violence offence”

CRIME — Violent offences — Recklessly cause grievous bodily harm

SENTENCING — Subjective considerations on sentence — Mental illness

Legislation Cited:

Crimes Act1900 (NSW), s 35(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 3A, 66, 4B

Cases Cited:

Lawson v R [2018] NSWCCA 215

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Moiler v The Queen [2021] NSWCCA 73

Muldrock v R (2011) 244 CLR 120

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Miles Salom (Offender)

Representation:

Counsel:
Ms Trajovski (Crown)
Mr G James QC with Mr E James (Offender)

File Number(s):

2020/67936

Publication restriction:

Nil

SENTENCE

30 April 2021

Introduction

1. The offender stands to be sentenced, having pleading guilty to two offences under s 35(2) of the Crimes Act1900 (NSW) of recklessly causing grievous bodily harm. The first offence occurred on 24 September 2015, the victim being Amanda Holmes and is contained in charge sequence 11. The second offence occurred on 25 April 2017, the victim being the same victim as in the first offence and is contained in charge sequence 14. The maximum penalty for each offence is ten years imprisonment and there is an applicable standard non-parole period of four years.

2. The offender also acknowledges his guilt and asks that I take into account two offences on two Form 1s. The offence on the Form 1 which relates to charge sequence 11 is an offence of assault occasioning actual bodily harm. It occurred on 30 July 2016 and concerns the same victim of the principal offence. On 30 July 2016, the offender pushed the victim who fell backwards and suffered a broken wrist. This offence is of sufficient seriousness to have some impact upon the sentence to be imposed on the charge that it relates to.

3. The offence on the Form 1 which relates to charge sequence 14 is also an offence of assault occasioning actual bodily harm on the same victim. In short, that offence involved the offender on an occasion on 15 October 2018, grabbing the victim on her neck and pushing her backwards, occasioning a bruise to her left neckline. This Form 1 offence has a limited impact upon the sentence to be imposed on the charge to which it relates.

The Facts

4. The facts are agreed and the following is taken from the agreed facts. The offender and the victim met in about December 2014 through an internet dating website. They first met in Cronulla at a bar, and saw each other regularly after that. They commenced dating and they were in an on again, off again relationship, between December 2014 and February 2019. They did not live together, although they often slept at each other’s homes. The offender lived in Cronulla and the victim was living in Caringbah. The relationship apparently was often marked by argument.

First Offence

5. On 24 September 2015, the victim and the offender were alone inside his apartment in Cronulla. She had returned home from a work trip and they were sharing a bottle of champagne to celebrate. They began an argument. Both were yelling at each other in close proximity. The offender grabbed the victim around the shoulders with his arms. He lifted his foot and brought it down onto the victim’s ankle with force. The victim heard a cracking sound that sounded like a breaking bone. The victim felt immense pain in her left ankle. She collapsed to the floor and was screaming in agony. The offender said something similar to “stop making such a big deal, it’s probably just a sprain”.

6. The offender took the victim to the hospital. Whilst at the hospital, the offender tried to come up with a story as to how the victim’s ankle had been broken without him being involved. The victim attended Sutherland Local Hospital and was admitted early on the morning of 25 September 2015. The victim was transferred to Kareena Hospital for surgery and back to Sutherland Local Hospital before discharge on 29 September 2015. Upon examination, it was determined that the victim had suffered a lower fibular fracture which had to be reduced with a plate and screws and a surgical procedure to allow her to have a normal ankle joint alignment. There were fortunately no complications in the surgery. The victim did have to take about three months off work to regain enough strength to stand for periods of time. She continued her relationship with the offender during her period of recovery.

7. In terms of the Form 1 offence which occurred on 30 July 2016, the victim went back to work in late Autumn or early Winter of that year. The victim and the offender had an argument, alone in his apartment in Cronulla, during the day. During the argument, the offender was angry, he grabbed hold of her around the upper body and pushed her backwards onto the ground. She felt pain in her wrist when she hit the ground.

Treatment

8. On 30 July 2016, the victim visited Caringbah Medical Centre. Upon examination, it was noted that the victim had a wrist/ thumb injury with swelling to the thumb and metacarpal. The snuffbox of the hand was tender. The victim underwent a CT scan in which the radiologist identified a comminuted un-displaced intra-articular fracture of the distal radius. The victim’s wrist was braced in a black slab cast until the Saturday of that week and then it was placed in a fibreglass cast for five weeks. On 12 September 2016, the cast was removed. The physiotherapist recommended soft tissue and gentle wrist therapy and she took about three months off work to recover.

Second Offence

9. In terms of the second principal offence, the offender and the victim attended Caringbah Hotel on the afternoon of Anzac Day, somewhat ironically in the circumstances here, in 2017. In the evening, they both were drinking, and were asked to leave the licensed premises as they were intoxicated. The offender and the victim left the venue and were standing on the footpath at Port Hacking Road and they were arguing in close proximity to each other. The offender was close to the victim when he grabbed her by the upper body and threw her backwards onto the footpath. Her head hit the pavement. The victim landed heavily on both wrists and felt immediate pain. She could not move her fingers. The victim was unable to get off the ground because of the pain. The offender ran from the scene.

10. Three witnesses in the bar saw what had occurred and assisted the victim to the hospital. Upon presentation to the hospital, the victim reported that she was with her partner at Caringbah Hotel and they had been drinking. She described herself as a jealous person, so that arguments regularly stemmed from the same; that her partner pushed her and she fell backwards onto both hands and her partner ran off, after the incident.

Treatment

11. The victim was admitted to Sutherland Hospital and underwent surgery. A close reduction was performed and a cast applied for bilateral distal radius fractures in both hands. The victim was to elevate her hands in a sling and then be reviewed by a doctor in one, two and six weeks. On 10 May 2017, she underwent an open reduction and internal fixation of the bilateral distal radius fractures in both hands. Her right hand was a comminuted fracture and left largely extra articular. A plate and screws were applied to each wrist. Her hands were placed in casts and were required to be elevated in a sling. The victim was unable to work for three to four months and lived with her mother and had limited contact with the offender.

12. In terms of the Form 1 offence, in the day preceding 16 October 2018, the offender and the victim were at the offender’s apartment in Cronulla. There was an incident where the offender grabbed her with two hands around her throat while she was sitting on the lounge. He forcibly pushed her backwards so that she could not say anything. The victim was having trouble breathing and trying to scream but nothing would come out.

13. On 16 October 2018, the victim noticed she had a bruise on her lower left neckline. The facts state the victim also remembers three or four occasions during the relationship where the offender had put his hands around her throat and threatened to strangle her.

Objective seriousness

14. Turning then to my assessment of the objective seriousness of the offences. Both offences are correctly described as offences of domestic violence. The offence on 24 September 2015 involved the offender lifting his foot and moving it in a downwards motion onto the victim’s ankle with force. The victim clearly suffered great pain and the resulting fracture required surgery and considerable time off work to heal.

15. The offence on 25 April 2017, in terms of actual force applied by the offender, involved a push by him which caused the victim to fall to the ground, striking her head and landing heavily on her hands. Fortunately, no head injury appears to have been suffered. That is probably due to luck more than anything. Both hands required surgery and the victim was unable to attend work for some time.

16. The Crown did not submit there are any aggravating objective factors under s 21A of the Crimes (Sentencing Procedure) Act associated with the offences. I assess both offences, given the limited actions of the offender, to be considerably below the mid-range of objective seriousness but not at the bottom of the range. The offence on 24 September 2015, given the nature of the conduct towards the victim, is more serious than the offence on 24 April 2017.

The offender’s subjective case

17. Turning then to the offender’s subjective case. His date of birth is 27 March 1969 so he is currently 52 years of age. He has a limited criminal record. There is a 30 year old drink-driving conviction. He has a conviction in 2019 for breaching a domestic violence order in relation to the same victim for which he initially received a 12 month Conditional Release Order without conviction. He subsequently breached that order and the Conditional Release Order was called up and a 12 month supervised Community Correction Order was imposed on 3 December 2020 in the Local Court. His record is not one which disentitles him to some leniency in this sentence.

Documentary material

18. In terms of documentary material, there is before me the following: a letter dated 30 November 2020, under the hand of Dr Graham Altman, a consultant psychiatrist; a Sentencing Assessment Report dated 9 April 2021; a psychologist’s report from Stephen J Woods dated 9 April 2021; a letter of apology from the offender dated 29 January 2021; a reference from the offender’s sister Caroline Salom dated 21 January 2021; a letter from Timothy White, a director from Kapani Warrior, an organisation specialising in the employment of returned service personnel with trauma in remote Indigenous communities dated 31 January 2021; a character reference from the offender’s friend Roger Renni dated 31 January 2021; and a medical certificate dated 20 January 2021, concerning the offender’s mother which indicates that she has extensive degenerative osteoarthritic and disc disease in the area of her spine.

19. Since originally conducting the sentence hearing last week, there has been tendered today before me the following: a letter dated 1 January 2015 under the hand of a colonel in the Australian Army thanking the offender for his 24 years’ service to that institution. It also expresses sincere appreciation for the offender’s service in various theatres of combat, including Somalia, East Timor and Afghanistan and acknowledges the personal sacrifices the offender made in that regard. There is also a document from the Australian Army being the offender’s certificate of service and I note a meritorious unit citation for work in Afghanistan is endorsed on that document.

20. In addition, there is documentation noting that the Department of Veteran Affairs in June 2017, considered him eligible to receive treatment funded by the department for PTSD and alcohol abuse disorder.

Family background

21. In terms of the offender’s family background, the evidence before me is that the offender was raised in a “caring family environment, free from any forms of abuse”. The offender’s father was also a military person and served in the Australian Army. He was medically discharged from the Australian Army suffering a service related bone injury, and passed away in 2015.

22. The offender’s mother is elderly and suffers from a number of medical conditions. I am informed that the offender has relocated to assist his mother with her day to day needs, although I note in Dr Altman’s letter, he records that due to the offender’s mental state, the mother does most of the work around the house. The offender is close to and supported by his sister and family members who were present last week and this week in support of the offender.

23. The offender has had two prior failed marriages and has two children from the first marriage who are now both adults. A psychologist’s report that is before me notes that “both marriages reported a collapse in response to the offender’s symptoms of complex PTSD in Timor with major depressive disorder”. I will return to the offender’s psychological history in more detail later in these remarks. The offender is said to maintain a close relationship with his two children. His relationship with the victim Ms Holmes was characterised in the psychologist report as being “chronically unstable and characterised by frequent arguments”.

Education and employment history

24. In terms of his education and employment history, according to the psychologist’s report, the offender completed high school in Canberra, joining the army as a general recruit a few years after completing Year 12. The unchallenged evidence is that the offender served in the Australian Army for 24 years before being medically discharged. He, therefore, has a long history of military service with numerous overseas postings.

25. The offender served in Somalia for five months in 1993, Timor for 12 months in 2001 and Afghanistan for six months in 2006 and again for seven months in 2011. During these postings the offender served in active military combat and was subject to what the psychologist’s report described as a “high level of trauma”. Somewhat surprisingly, I initially had no independent evidence from the Australian Army as to his military service or the reasons for his discharge. There was some reference to it in the testimonial from Roger Renni. However, I set out earlier the documentation that has now been tendered from the Australian Army as to his military service.

26. Since being discharged from the army, the offender has briefly volunteered his services to the organisation known as Kapani which I referred to earlier, which specialises in the employment of Indigenous returned service personnel who suffer from service-related post-traumatic stress disorder or other injury.

Substance use

27. In terms of his substance use, according to the psychologist’s report, upon the offender’s return to Australia, following his posting to Afghanistan in 2011, he was “disillusioned” and his symptoms of trauma and depression were such that he turned to cannabis and heavy alcohol consumption to cope.

28. According to the Sentencing Assessment Report, the offender acknowledged that his use of alcohol had caused him to behave “badly” in the past, and that he had taken positive action to decrease his use of it.

29. I noted earlier that the Department of Veteran’s Affairs had approved funding in June 2017 for him to be treated for his alcohol use disorder. The inference being, it was accepted it was linked to his military service.

30. The Sentencing Assessment Report notes that the offender was admitted for one week to the Northside Group Cremorne alcohol detoxification program in October 2020. At that point he was under the care of Dr Altman, his consultant psychiatrist. Dr Altman records that since 1994 until his admission to the Northside Clinic in 2020, the offender had been drinking approximately ten standard drinks a day and smoking approximately two joints of marijuana on a two weekly basis.

31. There is evidence before me in the Sentencing Assessment Report and Dr Altman’s report which suggests that in recent times, the offender’s use of alcohol and marijuana has decreased markedly. It is clear from the agreed facts that the offender had been drinking at the time of the two offences that I am to sentence him for.

Psychological/psychiatric history

32. Turning then to his psychological and psychiatric history. The evidence that has now been tendered from the Australian Army as to his military service and from the Department of Veteran Affairs, is consistent with him suffering Post-Traumatic Stress Disorder as a consequence of his military service.

1. Assessment by Dr Altman

33. Dr Altman has been treating the offender since May 2020. Dr Altman, notes that during the offender’s military service, he was exposed to “a tremendous amount of action, including being exposed to death and dying on many occasions”. Dr Altman states as a result of being exposed to such trauma, the offender suffers from severe chronic Post-Traumatic Stress Disorder and an associated major depression, alcohol use disorder and marijuana abuse. Dr Altman records that from 6 to 13 October 2020 the offender, under the doctor’s care, required a psychiatric admission from the Northside Cremorne Clinic.

34. Dr Altman describes the offender as presenting with many of the typical features of Post-Traumatic Stress Disorder which include being irritable and having an exaggerated startle reaction and is hypervigilant. Dr Altman also records the offender as suffering symptoms indicative of a major depression. Dr Altman’s report appears to have been prepared in relation to the breach of apprehended domestic violence order proceedings in 2020. In that report, the doctor considered that it was important to note that the offender was not receiving any psychological treatment at the time of those offences.

35. The doctor records that the offender has not seen a psychologist since 2013 and saw a psychiatrist on two occasions in 2017 and at the end of 2019. The doctor considered that except possibly towards the end of 2019, the offender would have been suffering from severe depression, anxiety and irritability, including the psychiatric disorders. The doctor also considered that his alcohol intake would have aggravated those disorders, noting that his alcohol and marijuana use was linked to his Post-Traumatic Stress Disorder. Dr Altman considered that in 2019 the offender’s judgment would have been impaired and he would have been depressed and anxious. I note there was no suggestion in Dr Altman’s report that absent appropriate treatment, the offender would have been “suffering dissociative episodes during which the individual has no or little awareness of their behaviour and or rational appreciation and conscious control of their behaviour”.

1. Assessment by Professor Stephen Woods

36. The psychological assessment provided by Professor Stephen Woods confirmed the initial diagnosis of the Australian Army and subsequently by a medical practitioner, Dr Sam Hay and more recently Dr Graham Altman, the psychiatrist I have already discussed. This diagnosis was that the offender suffers from complex Post Traumatic Stress Disorder with comorbid major depressive disorder. The post-traumatic stress disorder was recorded as being “chronic and severe”. The offender was also said to satisfy diagnostic criteria for cannabis use disorder and alcohol use disorder, though both of those disorders are now said to be in full remission.

36. The psychologist considered these diagnoses were as a result of the trauma the offender suffered during military service. The psychologist’s report noted that whilst in the army the offender came under attack, witnessed the serious injury and death of civilians, other troops and of a close friend, and was subject to vicarious trauma through providing support to those under his command. The offender suffered recurring distressing memories and flashbacks of such events. The offender was also said to suffer features of separation disorder, secondary to the collapse of his previous relationship.

37. According to the psychologist’s report, the symptoms of PTSD include: vulnerability to “marked alterations in arousal and reactivity associated with traumatic events” which involve “episodic irritability and angry outbursts, sometimes with little or no provocation”; recklessness or self-destructive behaviours; dissociative episodes during which the individual “has no or little awareness that their behaviour and or rational appreciation and conscious control of their behaviour”.

38. As I have previously stated, the offender believed the relationship with the victim to be unstable. According to the psychologist’s report, the offender described the victim as “exhibiting varying levels of behavioural dysregulation” during their arguments, including raising her voice and lunging at him. According to the evidence, the offender stated he was often triggered by their arguments, causing him to have flashbacks and relive the trauma, including being under attack.

39. The evidence before me is that the offender’s mental health conditions greatly impacted upon his behaviour at the time of the offending. It was the opinion of the psychologist that the offender would have been “deprived of his ability to recognise and be in rational conscious control of his behaviours” that constitute the offending.

1. Tension between the two opinions: ‘rational conscious control’ of behaviours

41. There is in my opinion, however, some tension between the report of Dr Altman and that of Professor Woods, in that Professor Woods considered the offender was at the time of the offences “in all clinical probability in a dissociated state and re-experiencing various trauma at all times. Further and in circumstances where his post-trauma responses were acutely active, he would have been deprived of the ability to appreciate and rationally control the nature of his offending, reactive behaviour”. Professor Woods also considered that the offender “would have been deprived of his ability to recognise and be in rational conscious control of his behaviours that culminated in the charges that now bring him before the Court”. I note at one point, Professor Woods went so far as to suggest that the offender’s conduct “was not voluntary” (see p 21 of his report).

42. I note that Professor Woods expresses the opinion that the offender’s mental health is likely to deteriorate in a correctional facility, due to experiencing violent, acting out behaviour by other inmates and social isolation. I note the Professor’s opinion that the offender is likely to have a high risk of suicide.

43. While I am prepared to accept the offender’s mental illnesses were operative at the time of the offences, I am not prepared on the balance of probabilities to accept Professor Woods’s opinion that the offender was probably in a dissociated state such that his ability “to recognise and be in rational conscious control of his behaviours” was impacted as at the time of the offences. My reasons for not accepting that aspect of Professor Woods’s opinion are as follows.

44. Professor Woods saw the offender for the first time on 25 March 2021 and the offences occurred on 24 September 2015 and 25 April 2017, several years before Professor Woods saw the offender. In relation to the first offence, that occurred some five and a half years before the offender saw Professor Woods. Professor Woods appears to have relied on things the offender told him about the alleged incidents which give rise to the charges which are not contained in the Agreed Facts.

45. There is an aspect of the agreed facts in relation to the first offence which suggests that the offender was not in some type of dissociative state as described by Professor Woods. After the victim’s ankle was injured and the victim was screaming in agony, the offender is recorded in the agreed facts as saying something similar to “stop making such a big deal, it’s probably just a sprain”. The Agreed Facts also indicate that the offender took the victim on that occasion to the hospital and while there “was trying to come up with a story for how” the victim’s ankle had been broken.

46. It is difficult, in my opinion, to see how those facts are consistent with the offender being in a dissociative state as described by Professor Woods in his report. I also consider that it is relevant that there is no suggestion in Dr Altman’s report that the offender when untreated would have been in a dissociative state as described by Professor Woods. I am prepared to accept on the balance of probabilities that the offender’s judgment was impaired by his mental health conditions to some degree at the time of the offending. I am also prepared to accept that because of his Post-Traumatic Stress Disorder, he was hypervigilant and had an exaggerated startled reaction.

47. It is difficult to determine to what degree the offender’s judgment was impaired because he had been drinking at the time of both offences, although I am prepared to accept that his consumption of excessive alcohol was linked to his PTSD. I also consider on the balance of probabilities that his mental health conditions are linked to his military service, service which of course he engaged in on behalf of his country and this country’s government.

1. Relevance of the offender’s mental health to sentencing

48. In this state, there is a close connection between an offender’s mental health condition and the objective seriousness of an offence when sentencing (see in that regard Lawson v R [2018] NSWCCA 215). It seems to be the more accepted position that a person’s mental health is relevant to an assessment of a person’s moral culpability or responsibility for an offence. The principles in relation to the relevance of a person’s mental health for sentencing are well-known. They were summarised in DPP v De La Rosa (2010) NSWCCA 194.

49. Where the state of a person’s mental health contributes to the commission of the offences in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction of the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is to be served may be reduced. It may reduce or eliminate the significance of specific deterrence, conversely it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

50. My attention during oral submissions was drawn to the recent decision of the Court of Criminal Appeal in Moiler v R [2021] NSWCCA 73, where those principles were considered in connection with an offender who had significant mental health conditions along with an addiction to alcohol and prohibited drugs. Button J, giving the judgment of the Court noted;

“In my opinion care should be taken not to take too prescriptive an approach in the process of instinctive synthesis whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy, that the first dot point of that often quoted paragraph which is a reference to De La Rosa speaks of material contribution to offending, not singular or direct causation of it”.

51. His Honour also said;

“Whilst it is true that abuse of prohibited drugs played a role in the commission of the offence and abuse of such substances is not a mitigating factor on sentence, except in unusual circumstances. Care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other”.

52. Applying the principles from De La Rosa as discussed in Moiler to the evidence here concerning the offender’s mental health and alcohol consumption, I am satisfied that his mental health conditions and alcohol abuse were linked to his military service. I am also satisfied on the balance of probabilities that his mental health materially contributed to the offences as it impaired his judgment and resulted in him having an exaggerated startled reaction which in my opinion materially contributed to the offending.

53. While the fact that the offences were committed under the influence of alcohol is not a mitigating factor, like in Moiler, the abuse of alcohol was “tightly bound up with” his mental health conditions. As a consequence, there is less of a need to reflect the components of personal and general deterrence when sentencing the offender for the two offences in accordance with the principles discussed in De La Rosa. The offender’s mental health, in particular his risk of suicide, is such that a sentence of full-time custody, would be more onerous for the offender because of his mental health.

Response to supervision if relevant

54. The offender has not previously been subject to supervision by Community Corrections, however, the Sentencing Assessment Report notes that he willingly participated in the preparation of the report.

Attitude to the offence

55. In terms of his attitude to the offending, according to the Sentencing Assessment Report, the offender claimed that heavy alcohol consumption was the catalyst for the behaviour constituting the offences which indicated “the deflection of blame”. The report also noted that regarding one of the offences where the victim was said to be “scratching”, the offender’s face in an argument, the offender said he “believed he had little choice but to defend himself”. This would suggest a lack of acceptance of full responsibility, and to in part put blame on the victim, noting that those assertions are also inconsistent with the Agreed Facts on which the offender is to be sentenced.

56. In his letter of apology, the offender did state that he accepted full responsibility for his actions. I have some reservations about that statement, given all the material before me, noting that the offender did not give evidence on sentence. The offender is said to have had considerable insight into the impact of his offences on his own family and life, noting that he has “let down” his two children who are in need of his support, his mother and sister, his friend and his employers. The offender also noted that he has “let entire communities down” by his actions.

57. His insight into the impact of his offences on the victim was more limited. The author of the Sentencing Assessment Report noted that whilst the offender more recently expressed remorse towards the victim’s injuries and the impact on her life, he previously had not done so.

Imposition of sentence

58. The offender was assessed as having a medium to low risk of reoffending in the Sentencing Assessment Report. The pleas of guilty were entered in the Local Court and I will allow the offender a 25% discount of his sentence for the utilitarian value of his pleas. There is some evidence of remorse here in addition to the early pleas of guilty. However, for the reasons I have given, I do not consider that the remorse is completely fulsome.

59. I consider the offender has good prospects of rehabilitation. He has a limited criminal record. He is engaged with mental health professionals. He was assessed as having a medium to low risk of reoffending and has considerable family support. There is no pre-sentence custody to consider as future court attendance notices were issued to the offender.

60. I propose to utilise the aggregate sentencing provisions, if I had not done so, there would have been a degree of accumulation of the sentences, given the separate incidents of violence involved in the two offences. In determining the indicative non-parole periods, I consider the offender to have special circumstances, being his mental health conditions and that he is being sentenced during the Covid-19 pandemic which fortunately so far as Australians are concerned, appears to be under control but we are only ever a break out away from potential disaster.

61. I have had regard to the objective sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which include the need to impose adequate punishment, general and specific deterrence protection to the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community and rehabilitation of the offender. Domestic violence is regrettably very prevalent in our community. It is nearly always committed by men against women. The community, as are the Courts, is very concerned about the level of domestic violence in the community.

62. Significant sentences must be imposed to act as a deterrent both for the offender concerned but also for others in the community who might be inclined to engage in violent conduct towards women. I have already explained why the concept of general deterrence is of less significance in this sentence than it would otherwise be because of the offender’s mental health.

63. Senior Counsel for the offender accepted that a sentence of imprisonment was the only appropriate sentence. Senior Counsel submitted, however, that the sentence should be one of three years or less and that it should be served by way of an Intensive Correction Order. The Crown submitted the only appropriate sentence was one of full-time custody. I will return to the issue of how the sentence should be served shortly.

64. I have also had regard to ss 4A and 4B of the Crimes (Sentencing Procedure) Act. The maximum penalty and the standard non-parole period have been taken into account as legislative guideposts as explained by the High Court in Muldrock v R (2011) 244 CLR 120. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier. Just stand up Mr Salom thanks.

65. You are formally convicted of the two offences to which you have pleaded guilty. I record as the indicative sentence for charge 11, being the offence committed on 24 September 2015 and having regard to the offence on the Form 1 as one of two years imprisonment with an indicative non-parole period of one year and four months. I record as the indicative sentence for charge 14 being the offence committed on 25 April 2017, having regard to the offence on the Form 1 as one of one year and seven months imprisonment with an indicative non-parole period of one year. I impose an aggregate sentence of two years and ten months.

66. As the aggregate sentence is less than three years, I have considered whether I should extend the leniency of allowing the offender to serve the sentence in the community by way of an Intensive Correction Order. In considering whether to impose a sentence by way of an intensive correction order, I am to consider as the paramount consideration community safety. I am to assess whether the making of such an order or serving this sentence by way of full time detention is more likely to address the offender’s risk of reoffending (see in that regard s 66 of the Crimes (Sentencing Procedure) Act).

67. I am also to consider the purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act and any other matter that I think is relevant. The offender will, as I understand it, be residing some considerable distance from the victim so it is unlikely that they will be in contact with each other. The offender has a very limited criminal history and is fully engaged in psychiatric treatment for his mental health condition and has a need for continued psychiatric and psychological treatment. He was assessed as having a medium to low risk of reoffending. I do not consider that if I allow the offender to serve the sentence in the community, community safety in these circumstances would be compromised.

68. But for the offender’s mental health conditions which are directly linked to his military service and their relationship to the offences, I would have considered the principles associated with sentencing for domestic violence offences and the concept of general deterrence would have resulted in the offender serving the sentence in full time custody, despite the opinion I reached in relation to community safety. I explained earlier why his mental health conditions mean that he is not an appropriate vehicle through whom to give full expression to the concept of general deterrence when sentencing him.

69. Similarly, in relation to s 4B of the Crimes (Sentencing Procedure) Act, I am satisfied the victim and any person with whom the offender is to reside will be adequately protected. Before I finalise the sentence of the offender, I want to know whether he is a suitable person to have a home detention condition attached to the Intensive Correction Order for all or part of the duration of the order.

Sentence after Intensive Correction Order Report with Home Detention Condition

18 June 2021

70. When this matter was last before me on 30 April this year, I effectively delivered remarks on sentence. I now realise that I failed to mention the Victim Impact Statement which I had due regard to and it does indicate that the episodes of violence encompassed by the two offences were very traumatic for the victim, as one would expect, and had a considerable impact upon her. But the Crown did not assert that it amounted to an aggravating factor.

71. On 30 April, I recorded the following indicative sentences. On charge sequence No 11 which is a recklessly cause grievous bodily harm offence, an indicative sentence of two years imprisonment with an indicative non-parole period of one year and four months. On charge sequence 14 which was another recklessly cause grievous bodily harm to the same victim, I recorded an indicative sentence of one year and seven months imprisonment with a one year indicative non-parole period. I indicated that I would impose an aggregate sentence of two years and ten months. As the aggregate sentence was under three years, I indicated I was considering an intensive correction order.

72. On the material that was currently before me, I was of the view that community safety would not be compromised if I imposed the sentence by way of an Intensive Correction Order. There is nothing before me that changes my assessment in that regard. I did call for a Sentencing Assessment Report to assess whether the offender Mr Salom would be suitable to have a home detention condition imposed as a condition of the Intensive Correction Order and he is suitable. I propose therefore to impose the sentence in that way. Just stand up Mr Salom please.

73. Mr Salom, you are sentenced to an aggregate term of two years and ten months imprisonment. It commences today and it expires on 17 April 2024. It is to be served by way of an Intensive Correction Order. The conditions are as follows;

74. The standard conditions being that you must not commit a criminal offence and you are to be subject to supervision by Community Corrections. The following additional conditions apply to the order. You are to perform 250 hours of community service. You are to be subject to a home detention condition for a period of one year and nine months. You are to abstain from prohibited drugs and you are to abstain from alcohol for a period of one year and nine months.

Orders

1. The offender is convicted of the offences to which he pleaded guilty

2. Impose an aggregate sentence of two years and ten months imprisonment. The sentence commences 18 June 2021 and it expires on 17 April 2024.

3. The sentence is to be served by way of an Intensive Correction Order.

4. The standard conditions are as follows:

1. The offender must not commit a criminal offence

2. The offender is to be subject to supervision by Community Corrections.

5. The following additional conditions apply to the order:

1. The offender is to perform 250 hours of community service.

2. The offender is to be subject to a home detention condition for a period of one year and nine months.

3. The offender is to abstain from prohibited drugs and is to abstain from alcohol for a period of one year and nine months.

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Amendments

10 August 2021 - Amended paragraph indent for case quotes

Decision last updated: 10 August 2021