R v Saunders

[2021] NSWDC 530

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Saunders [2021] NSWDC 530

Hearing dates:

26 March 2021, 7 May 2021

Date of orders:

12 May 2021

Decision date:

12 May 2021

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate sentence of 3 years imprisonment with a non-parole period of 1 year and 6 months

Catchwords:

SENTENCING — Mitigating factors — Remorse — Unlikely to re-offend

SENTENCING — Relevant factors on sentence — Domestic violence — Deterrence — General deterrence — Specific deterrence

SENTENCING — Subjective considerations on sentence — Hardship — Health issues — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act1999 No 1 of 2002 (2002) 56 NSWLR 146

CahyadivR (2007) 168 A Crim R 41; NSWCCA 1

LeevR (2019) NSWCCA 15

R vEdigarov (2001) 125 A Crim R 551

RvEdwards (1996) 90 A Crim R 510

RvKilic (2016) 259 CLR 256

Category:

Sentence

Parties:

Regina (Crown)
David Saunders (Offender)

Representation:

Counsel:
Ms A Cook (Offender)

Solicitors:
Ms M Wallis (ODPP)
Mr S Singh-Panwar (Offencer)

File Number(s):

2017/339313

Publication restriction:

Nil

Judgment

1. David Saunders, 52 years of age, appears for sentence in relation to the following four offences:

• Count 1 - Intentionally choke and render unconscious and being reckless as to rendering unconscious (the victim being Sarah Foote), an offence pursuant to s 37(1), Crimes Act 1900 (NSW). The maximum prescribed penalty for this offence is 10 years imprisonment. There is no prescribed standard non‑parole period.

• Count 4 - Assault occasioning actual bodily harm (the victim being Sarah Foote), an offence pursuant to s 59(1), Crimes Act. The maximum prescribed penalty for that offence is 5 years imprisonment. There is no prescribed standard non‑parole period. 

• Counts 3 and 5 - Each offences of intimidation with intent to cause fear of physical or mental harm (the victims being Sarah Foote and Peter Fernance), an offence pursuant to s 13(1), Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum prescribed penalty for that offence is 5 years imprisonment. There is no prescribed standard non‑parole period.

2. When dealing with the offender for Count 1, the Court is taking into account on a Form 1, two further offences as follows:

1. Intentionally choke, render unconscious and be reckless as to rendering unconscious (the victim being Sarah Foote), an offence pursuant to s 37(1), Crimes Act; and

2. Intimidate with intent to cause fear of physical or mental harm (the victim being Peter Fernance), an offence pursuant to s 13(1), Crimes (Domestic and Personal Violence) Act.

3. The victim Ms Foote is the offender's former partner. Their relationship had broken down in early 2017. All the offences involve either Ms Foote or her new partner Mr Peter Fernance. 

4. The offender pleaded guilty on 1 February 2021 which was the first day of the trial.  Having regard to the timing of the plea, I propose to allow a discount on sentence of 5%. 

5. I note that the offender was rearraigned today in relation to Counts 1 and 5 in circumstances where there was an amendment to each of those counts. 

The Agreed Facts

6. The first victim is Ms Sarah Foote. The offender and the victim Ms Foote were previously in a domestic relationship from 2004 to 2017. They lived together at Mandalong. The relationship broke down in early 2017.  Ms Foote was residing at another property with her new partner, the second victim Mr Peter Fernance.

The events of 4 May 2017

7. On 4 May 2017, Ms Foote attended the property at Mandalong to pick up her dog.  The offender rang Ms Foote to advise that he could no longer look after her dog and that he was going to leave it at the property, in a truck to be picked up.  The offender told Ms Foote that he would be in Newcastle. 

8. After Ms Foote had collected the dog, the offender emerged from behind the truck and grabbed hold of her in a bear hug.  He was behind her and had one arm across her chest and another around her throat.  The offender squeezed Ms Foote's throat until Ms Foote passed out (Count 1 and commencement of Count 2).  Ms Foote came to shortly afterwards. She tried to get up and the offender grabbed her from behind as she screamed.  The offender placed his fingers into the mouth of Ms Foote. Ms Foote bit them and the offender grabbed her neck again until she passed out again.  Ms Foote was able to wriggle free after waking up (end of Count 2).

Form 1

9. The offender took hold of Ms Foote again and said to her that he was going to harm her, Mr Fernance and then himself (Count 3). Ms Foote kicked at the offender and the offender struck Ms Foote, causing bruising around her eye (Count 4). The offender was then sitting on the ground and Ms Foote was standing. When Ms Foote would try to leave, the offender would hold onto her legs. She sat next to him in an effort to calm him down. The offender began crying. 

10. Ms Foote ran away from the offender up the driveway. She eventually got into a car and locked the doors. The offender asked her to stay and invited her into the house to have a shower. Ms Foote called the offender's mother from inside the vehicle, who said that she would come straight over. The offender went back down the driveway, towards the house. 

11. Ms Foote sent a text message to Mr Fernance stating, "He's here, he snapped. He hit me. His parents are coming out". The offender's parents arrived a short time later and Ms Foote told them what had happened.

12. She then left the property, leaving the offender and his parents there. Ms Foote called the offender on speaker phone with Ms Kingi still in the car, to check whether he was going to be home. The offender told Ms Foote that he was sorry for what had happened, he said that he "didn't mean to snap" and apologised to her. 

13. The offender called Ms Kingi later that day and inquired about how Ms Foote was. The offender said, "I'm not usually like that, I didn't mean for it to get so far out of hand". 

The later offences

14. After these events and before June, the offender attended the workplace of Mr Fernance and asked to speak with him. The two men went to where the offender's vehicle was parked. The offender pointed to a sledgehammer in the back of the vehicle, a scuffle ensued and the offender said, "I came here to knock you out" (Count 5). 

15. Around 10 am on 7 November 2017, the offender called Mr Fernance. A settlement dispute was continuing between Ms Foote and the offender in relation to their assets. The offender threatened Mr Fernance, saying, "Game on, I'm going to get you" (Count 6 Form 1).

Complaint and arrest

16. Ms Foote and Mr Fernance attended Wyong Police Station on 7 November 2017. Photographs of the injuries from the incident on 4 May 2017 were provided to police. 

17. On Friday 9 November 2017, the offender attended Wyong Police Station at the request of police.  He was arrested and cautioned, he was offered the opportunity to participate in a record of interview which he declined. 

18. Those facts clearly disclose very serious objective criminality.  The offender's use of violence caused the victim Ms Foote to become unconscious on two separate occasions before he struck her to the face. He then made threats to her safety and her new partner's safety. There was also separate conduct directed towards her new partner Mr Fernance.

19. There is no doubt that the offender's conduct towards Ms Foote would have been wholly terrifying in circumstances where there was no reasonable prospect of her being able to retaliate, having regard to the degree and type of force used against her. 

20. Important factors in sentencing for domestic violence offences are specific and general deterrence, denunciation of the offending conduct and protection of the community. 

21. In R v Edigarov (2001) 125 A Crim R 551 at [558], Wood CJ stated as follows:

"…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 both personal and general deterrence."

22. Recently, the High Court in R v Kilic (2016) 259 CLR 256 said as follows:

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

23. Domestic violence is so debilitating for victims because they often suffer enduring emotional harm. Domestic violence undermines the victim's sense of safety and wellbeing. Sentences imposed for such conduct must also reflect the harm done to the victim.

Assessment of objective seriousness

24. In assessing the objective seriousness of Count 1 (intentionally choke person, rendering the person unconscious and being reckless as to so rendering the person unconscious), I have taken into account the following factors:

1. The degree of violence. There was a significant degree of violence used in circumstances where the offender squeezed the complainant around the throat until she became unconscious. I regard the rendering of the complainant unconscious as a more serious example of this offence, disclosing a higher level of objective seriousness in circumstances where the offence is also made out if a person is rendered insensible or incapable of resistance.  I regard each of those circumstances as demonstrating a lower level of objective seriousness. I am satisfied that the offender demonstrated recklessness of a very high order.

2. The offending occurred in an isolated location where it was highly unlikely that the victim would be able to raise the alarm about the offender's behaviour. Exhibit F was tendered in the sentence proceedings, showing the location.

3. Whilst the Crown submitted that the Court would find that there was some planning in relation to the offending in circumstances where the offender remained at the property despite telling the victim he would be in Newcastle, I am not satisfied of this fact beyond reasonable doubt in circumstances where the offender gave evidence during the sentence proceedings that he was leaving the property when the victim arrived (T 14, 26 March 2021).

4. The offending was an episode of domestic violence.

25. The Crown submitted that the objective seriousness for this offence was above the mid-range. It was submitted on behalf of the offender that the objective seriousness was below mid-range. 

26. I assess the objective seriousness as being in the middle of the range. An important factor in that assessment is that the offending is an episode of domestic violence.

27. In assessing the objective seriousness of Count 4 (assault occasioning actual bodily harm), I have taken into account the following factors:

1. The degree of violence used. The offender struck the victim Ms Foote to the face.

2. The actual bodily harm occasioned was bruising around the victim's eye. I accept that the actual bodily harm occasioned is towards the lower end of objective seriousness. By those remarks, I am not intending to minimise the criminality, but rather place it in the context of a spectrum of actual bodily harm that can be caused by this type of offence.

3. Again, the offending was an episode of domestic violence.

28. Having regard to those factors, I assess the objective seriousness of this offence as below the middle of the range. 

29. In assessing the objective seriousness of Count 3 (Stalk, intimidate intending to cause fear of physical or mental harm) (the victim being Sarah Foote), I have taken into account the following factors:

1. The nature of the threat made, namely the offender told Ms Foote that he was going to harm her, Mr Fernance and then himself.

2. There are no particulars provided of the words used by the offender that constitute the offence.

3. The context in which the threats were made, specifically the offender had choked Ms Foote, rendering her unconscious on two occasions before the threats were made.  In such circumstances, Ms Foote would have expected that the offender was capable of carrying out the threats.

4. Again, the offending was an episode of domestic violence.

30. Having regard to those factors, I assess the objective seriousness of this offence as being below the middle of the range.

31. In assessing the objective seriousness of Count 5 (Stalk and intimidate intending to cause fear of physical or mental harm) (the victim being Mr Fernance), I have taken into account the following factors:

1. The nature of the threat, namely the offender pointed to a sledgehammer and threatened to "knock" Mr Fernance out.

2. The context in which the threat was made, that is, in circumstances where Mr Fernance could see the sledgehammer and he would have expected that the offender was capable of carrying out the threat.

3. Again, the offending occurred in the context of a domestic relationship and was being directed at Mr Fernance because he was the new partner of Ms Foote.

32. Having regard to those factors, I assess the objective seriousness of this offence as below the middle of the range. 

Aggravating factors

33. The Crown relied upon two aggravating factors.

34. Firstly, that the victim was vulnerable because the offending occurred at a geographically isolated location. In circumstances where I have taken that factor into account in assessing the objective seriousness, I do not propose to double count it. 

35. Secondly, the Crown relied upon the offence involving planning.  I have not accepted that this aggravating factor is established beyond reasonable doubt.

Victim Impact Statement

36. The victim Ms Foote provided a victim impact statement to the Court.  She stated as follows:

"I thought I was going to die that day. As his hand tightened around my neck and I felt the life draining from my body, I thought this is it, I'm 29 years old and this is how my life will be taken from me.  I had never been so terrified.  I then found myself apologising to him for what he had just done.  He made me feel responsible for his actions, like I was to blame for what he had done.  I had pushed him that far just because I left him.  As I write those words, it is so clear to me now that that is not right, but that is how manipulated I was."

37. She described the ongoing impact upon her in the following way:

"His actions showed me that his threats carry meaningful intent and I live in a constant state of fear. I can't remember the last time I slept through the night. Nightmares that startle me awake. For a long time, I would check every room when he would come home or before we would go to sleep. I was constantly waking Pete up because the house would creak through the night or I would hear a noise outside or Ellie would bark. I was putting him through hell not letting him sleep. Now, to give him peace, I leave our bed and lay on my loungeroom floor with my eyes glued to the security camera screens, searching for movement.  Every time the lights of a car shine through my bedroom window, I have my ears strain to hear that it keeps driving. This is what my nights consist of now. I never even used to lock my doors before. I was never scared of what might be in the dark or being alone at night. I never understood people with that fear until now. It is a sad fact that, although I'm now in a loving and caring relationship, I'm only ever fully relaxed when we are away from our own home."

38. She also describes her hypervigilance in the following way:

"My mind was never wired to constantly worry and think the worst. Now it's not just me that I worry about when it comes to David's violence. I feel I have unintentionally put Pete at risk and that breaks my heart.  He helped me get out of a violent situation and I had thanked him by bringing unpredictable chaos to his life. I hope he knows how sorry I am for that."

39. Ms Foote concludes as follows:

"I'm proud of myself for seeing this through and although I am still terrified of what might happen in the future, I hope that myself, the police and everyone else involved in holding David accountable for his actions may save another young woman from going through what I went through.  And I thank all those people for everything they have done."

40. It is clear that Ms Foote has shown considerable courage in being able to report the offending to police.  It is also clear to the Court that the offending has had a significant impact upon her life, not only at the time the offending was committed but because of the ongoing emotional difficulties that impact on her day to day life.  The Court is hopeful that with the ongoing love and support of her family and friends, she is able to look forward to a more positive future. 

41. One of the purposes of sentencing, as I already indicated, is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act 1999 (NSW)).

Subjective circumstances

42. The offender is now 52 years of age.

43. He has a criminal history commencing in 1991 when he was fined for an offence of common assault. 

44. In 2005, he was dealt with for possessing an unregistered firearm and not keeping a firearm safely. He was fined. 

45. In 2007, he was dealt with for an offence of assault occasioning actual bodily harm and fined. 

46. Having regard to the offender's criminal history, I am satisfied that it disentitles him to the leniency that would otherwise be available to a person of good character. 

47. The following material was tendered on behalf of the offender during the sentence proceedings:

• Exhibit 1 - Affidavit of the offender sworn on 17 March 2021; 

• Exhibit 2 - Letter of Kim Saunders dated 20 March 2021; 

• Exhibit 3 - Letter of Makayla Morris dated 19 March 2021;

• Exhibit 4 - Letter of Justine Fernance dated 21 March 2021;

• Exhibit 5 - Letter of Zane Fernance, undated;

• Exhibit 6 - Letter of Chad Fernance, undated;

• Exhibit 7 - Health summary printed on 23 March 2021;

• Exhibit 8 - Defence written submissions;

• Exhibit 9 - Psychological report of Ms Susan Wojciechowski dated 7 May 2021;

• Exhibit 10 - Letter under the hand of Lisa Spencer dated 27 April 2021. 

• Exhibit 11 - Operation report from Coastal Orthopaedics; and

• Exhibit 12 - Certificate of capacity. 

48. The offender also gave evidence during the sentence proceedings. The offender's background is outlined in his affidavit and also his evidence. 

Education and employment

49. The offender attended school both on the Central Coast and in Tamworth. After leaving school in Year 10, he worked as a shearer and panel beater before commencing working in excavation. 

50. He began his own excavation company in 1998. He has one employee part‑time. His business cannot operate without him. His main contract is with Beechwood Homes. 

Previous relationships 

51. The offender reported that he was previously married to Kim Saunders. They were together for 18 years, separating in 2005. They had four children, three boys aged 30, 27, 22 years and a girl, 18 years of age, as well as two grandchildren. He remains close to his former partner and also his four children. Ms Saunders has provided a letter to the Court (Exhibit 2) which I will refer to later in my remarks. 

52. He began a relationship with the victim Ms Foote soon after he separated from Ms Saunders. He separated from Ms Foote in April 2017. 

53. He is currently living with a new partner, Mikayla Morris. Ms Morris has also provided a letter to the Court (Exhibit 3) which I will also refer to later in my remarks. The offender commenced his relationship with Ms Morris in 2018. Ms Morris has two children aged 3 and 6 years. Ms Morris is financially dependent on the offender. She works part‑time and also receives some child support. 

54. They live together on the offender's 100 acre property at Mandalong. The offender gave evidence that Ms Morris will not be able to pay the mortgage on the farm, which has repayments of $481.26 per week.  He expects he will lose the farm and his business. 

51. The offender described that he also has a close relationship with the children and former partner of the victim Mr Peter Fernance.

52. He currently provides assistance also to his elderly parents who are aged 82 and 87 years and live on acreage at Bonnells Bay. They both have health issues. He attends their house once or twice a week to do gardening or general maintenance. He expects his parents will also have to sell their house and move to a retirement village. 

Remorse

57. In the offender's Affidavit he stated as follows at [46]:

"I really loved Sarah at the time and feel terrible about what I did. I never set out to hurt her but it happened. I apologised later but I know it was too late". 

58. In relation to his insight into his circumstances and the offending, the offender stated as follows:

"I was struggling emotionally with all the emotions over the breakdown, I hadn't slept much at all for about a week. When I saw Sarah I just snapped.  I can't really explain or remember it all that clearly, I knew I was doing the wrong thing. 

As to Peter Fernance, he was my best friend and had an affair with Sarah. I was angry with him but I regret what I did to him."

Future plans

59. In relation to his future plans, the offender intends to marry his current partner Ms Morris and support his children, grandchildren and the Fernance boys, and continue to develop his business and support his parents. 

Medical history

60. During the offender's evidence, he outlined his current health issues as including diabetes and a heart condition and high blood pressure. He takes medication for each condition (see Exhibit 7, health summary). 

61. He also has suffered an injury to his shoulder at work. He underwent surgery on 14 April 2021 (see Exhibit 11, operation report). 

62. During his evidence he described he is close to his 18‑year‑old daughter Holly who was "bad anxiety" and sees a psychologist. 

63. During cross‑examination, he agreed that he could not explain his offending behaviour and he also gave evidence that he has not yet participated in any domestic violence courses.

Other evidence tendered on behalf of the offender

64. Exhibit 2 is a letter prepared by Kim Saunders, the offender's former partner. She has known the offender since 1987. She described she was shocked by the offending and regarded it as out of character. She had never known the offender to be violent towards women. She described the offender as a "really hard worker, well liked with lots of friends and very generous". She also described him as a good father and grandfather. 

65. She is concerned for her daughter Holly should the offender go to custody, in circumstances where she expects her anxiety and depression will be exacerbated. She is also concerned about the impact on the offender's new partner's children. 

66. Exhibit 3 is a letter from Mikayla Morris, the offender's current partner. Ms Morris currently lives with the offender. They have lived together for two years. She has two children aged 4 and 6 years. She describes the offender as a genuine person who is respectful towards her and her children. She has never seen him being aggressive.

67. She also describes the assistance the offender provides to his parents. She indicated she will be unable to financially support the mortgage should the offender receive a custodial sentence. She will live with her parents. She also describes the impact on their children. 

68. Exhibit 4 is a letter prepared by Justine Fernance.  Justine Fernance is the former partner of the victim Peter Fernance. She has known the offender since 1999.  Her three sons aged 17 and 16‑year‑old twins have been close to the offender, who has ongoing involvement in their lives.  She outlined in detail his ongoing commitment to her children.

69. She described the offender as extremely generous and a compassionate man. She was concerned about the mental wellbeing of her sons should the offender be sentenced to a custodial sentence.  She described the offender's new relationship in positive terms and his business as successful. She indicated the offender had expressed to her that he was "very sorry" for what he did.  She believed the conduct was completely out of character. 

70. Two of her sons, Zane and Chad Fernance, both provided letters to the Court (Exhibits 5 and 6). They both confirmed the important role that the offender plays in their lives.  I note that each of those persons who had provided a letter to the Court was present in Court during the sentence proceedings. 

71. Exhibit 7 is a report prepared by Ms Wojciechowski, psychologist. Ms Wojciechowski assessed the offender on 7 April 2021 for approximately 50 minutes.  She administered the following tests, an alcohol use disorder checklist, depression anxiety stress scale and personality assessment inventory. The offender did not report any alcohol or drug issues. In the opinion of Ms Wojciechowski, the personality assessment inventory was entirely within normal limits.

72. In relation to the question of depression and anxiety, Ms Wojciechowski stated as follows:

"It seems likely that Mr Saunders experienced a period of low mood as a stress response to the demise of his relationship". 

73. In her opinion, his symptoms are consistent with a diagnosis of major depressive episode, however he is no longer depressed and the depression would "seem to be confined to a single episode". 

74. In relation to a causal link between the offender's depression and the offending, Ms Wojciechowski stated as follows:

"While a causal link between mental health and his offending is not able to conclusively demonstrated, the matters currently before the Court may be far better accounted for by Mr Saunders' likely depression during the breakdown of his relationship, rather than inherent criminality."

75. In relation to the offender's attitude to the offending, Ms Wojciechowski noted that the offender described the breakdown of the relationship in terms as follows, he reported he was not angry with his former partner, but with Mr Fernance for "breaching his trust". 

76. It is difficult to reconcile his expression of an absence of anger with respect to the victim Ms Foote, having regard to the offending that can only be described as an extremely physically violent act directed towards her. The offender reported that he experienced extreme distress after Ms Foote left their house. 

77. Ms Wojciechowski noted the following:

"Mr Saunders reported that after the female victim finally left the home, he experienced extreme distress.  He was unable to go to work or leave the house.  He reported insomnia, early morning waking, feelings of extreme sadness, poor personal functioning and a feeling of being overwhelmed.  He lost interest in his business, in his home and in the activity which he usually enjoyed."

Treatment recommendations

78. Ms Wojciechowski did not consider mental health treatment was warranted in circumstances where depression is no longer apparent and he does not appear to be at risk of further episodes of offending.  In her opinion, there were no offence‑related needs to be addressed because there were no beliefs around male entitlement, ownership or domination which are linked to offending in domestic violence. 

79. I simply do not accept either that there are no dysfunctional beliefs to be addressed or that there are no beliefs around entitlement, ownership or domination.  It is clear in my view that the conduct was a response to feeling aggrieved because Ms Foote had chosen to be with another partner. 

80. Exhibit 10 is a letter from Compassion Psychological Services. The letter outlined that the offender's daughter Holly Saunders is currently being treated for anxiety and depression.  Her anxiety is described as extremely severe and is affected by the offender's current circumstances.  Her treating psychologist was of the opinion that incarceration of the offender could have a detrimental effect on her mental health.

Submissions of the parties

81. The Crown relied upon oral and written submissions. 

82. Ms Cook of Counsel, on behalf of the offender, also relied upon oral and written submissions. 

83. The Crown's ultimate submission was that only a full-time custodial sentence was appropriate for Counts 1, 3 and 4. It was conceded that a non‑custodial sentence was within the appropriate sentencing range for Count 5. 

84. Ms Cook submitted that the Court should have regard to the following factors:

1. That the offences could have been dealt with in the Local Court. I do not accept this submission in circumstances where I regard the jurisdictional limit of two years as inadequate sentencing scope, given the objective seriousness of Count 1.

2. The offender is remorseful, relying upon the evidence of the offender and his remorse demonstrated in the Agreed Facts.

3. That he has no significant criminal record and he has good prospects of rehabilitation and is unlikely to reoffend.

4. The seriousness and significance of the offender's health issues, which it was submitted are a matter in mitigation.

5. The hardship to the offender's partner and her children, the offender's children and his parents and the offender's employee and business, which it was submitted is relevant to the nature of the penalty imposed.

85. Ultimately, it was submitted on behalf of the offender that an intensive correction order was within range for Counts 1 and 4, and that counts 3 and 5 could be dealt with by way of a conditional release order or community correction order. 

Remorse

86. Having regard to the evidence of the offender and also the evidence of remorse demonstrated in the Agreed Facts, I am satisfied that he is remorseful for his conduct. 

Prospects of rehabilitation

87. I am satisfied the offender has good prospects of rehabilitation, having regard to his age, his limited criminal history, his employment history and his significant family support, and that I accept he is otherwise of good character. 

88. The Community Correction Officer who prepared the Sentencing Assessment Report assessed the offender has a low risk of reoffending.  I am also satisfied he is unlikely to reoffend.

Hardship to third parties

89. Whilst I accept that should the offender be sent to serve a full-time custodial sentence that there will be hardship to his current partner, his parents and his daughter, I am not satisfied that such hardship is exceptional. The general principle is that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration unless such hardship is wholly, highly or truly exceptional. 

90. In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ said at [515]:

“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.”

91. In Lee v R (2019) NSWCCA 15 at [74], the Court said as follows:

"The extent which highly exceptional hardship to family members may be taken into account on sentence is a discretionary decision to be made by a sentencing judge in the light of the particular facts and circumstances of the case."

The offender's medical conditions

92. Having regard to the offender's evidence, I accept that he has the following health concerns: diabetes, heart disease, and high blood pressure. He is currently medicated for each of those conditions and is monitored by his GP. 

93. I also note that the offender has recently had surgery for a shoulder injury sustained approximately 12 months ago. I have taken each of those matters into account in determining the appropriate sentences. 

Totality

94. In circumstances where I am dealing with the offender for more than one offence, I am required to determine each sentence and thereafter consider the principle of totality. 

95. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentence should be served concurrently but if not, there should be some accumulation (see Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1).

96. I am satisfied that in respect of those offences that I will impose a custodial term, there should be some partial accumulation to reflect the separate and distinct criminality.

Form 1

97. In sentencing the offender, I am taking into account two offences on a Form 1.  I will take those matters into account in accordance with the principles enunciated in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

98. The s 37 offence on the Form 1 is objectively serious and warrants an increase in the penalty that would otherwise be imposed for Count 1. 

99. The s 13(1) offence on the Form 1 would not have resulted in a custodial sentence, so I do not propose to increase the penalty that would have otherwise been imposed on account of this count on the indictment.

Determination

100. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act. 

101. Having considered all possible alternatives in relation to Counts 1 and 4, I am satisfied that no penalty other than imprisonment is appropriate, pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

102. I am not satisfied that the custodial threshold has been crossed in relation to Counts 3 and 5 and I propose to impose community correction orders. 

103. In determining the appropriate sentences, I have had regard to the objective gravity of each offence, the relevant prescribed maximum penalties and the offender's subjective circumstances. 

104. I propose to impose an aggregate sentence for Counts 1 and 4 in accordance with s 53A(1), Crimes (Sentencing Procedure) Act. 

105. In accordance with s 53A(2)(b), the indicative terms are as follows:

• Count 1, taking into account the Form 1 matters - A starting term of three years, less 5% for the plea of guilty, leaving a total term of two years and ten months. 

• Count 4 - A starting term of 6 months discounted by 5% for the plea of guilty, leaving a total term of 5 months. 

106. I propose to impose an aggregate sentence of 3 years imprisonment.

107. In determining whether that sentence can be served by way of an intensive correction order, I have had regard to s 66, Crimes (Sentencing Procedure) Act. 

108. Section 66(1) provides that community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

109. Section 66(2) provides that the court, when considering community safety, must assess whether making the intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.

110. Subsection 3 requires the court, when deciding whether to make an intensive correction order, to also consider the provisions of s 3A, that is, the purposes of sentencing and any other relevant common law sentencing principles.

111. Whilst I accept that an intensive correction order would be more likely to reduce the offender's risk of reoffending, in my view only a full-time custodial sentence can properly address the need for punishment, denunciation, the need for general deterrence and to recognise the harm done to the victim. 

Special circumstances

112. I am satisfied that special circumstances is established in circumstances where it will be the offender's first time in custody. I propose to vary the ratio between the non‑parole period and the parole period, pursuant to s 44(2B), Crimes (Sentencing Procedure) Act. 

113. Stand up, please, Mr Saunders.

114. In relation to Counts 1 and Count 4 on the indictment, you are convicted. 

115. Taking into account the Form 1 offences, you are sentenced to a total aggregate sentence of 3 years imprisonment to date from 11 May 2021 and expire on 10 May 2024. I impose a non‑parole period of 1 year and 6 months to date from 11 May 2021 and expire on 10 November 2022. 

116. I direct your release to parole on 10 November 2022. 

117. I have found special circumstances and I have reduced the non‑parole period that you will serve in full-time custody. 

118. In relation to Counts 3 and 5, in respect of each of those offences you are convicted. 

119. You are sentenced to a community correction order for a period of 12 months in respect of each matter. That community correction order will date from 12 May 2021 and expire on 11 May 2022. 

120. The conditions of the orders are as follows:

1. You must be of good behaviour; and

2. You must report before the Court if called upon to do so.

121. I have backdated the sentence by one day to take into account one day in custody.

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Amendments

06 October 2021 - Fixed citation error

Decision last updated: 06 October 2021