R v SS

[2022] NSWDC 399

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v SS [2022] NSWDC 399

Hearing dates:

11 – 12 August 2022

Date of orders:

01 September 2022

Decision date:

01 September 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

At [92]

Catchwords:

SENTENCE – Aggravated sexual assault – Sexual intercourse without consent – Domestic violence -Strong subjective case – mental impairment – Reduced moral culpability.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 197

Luque v R [2017] NSWCCA 226

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Moiler v R [2021] NSWCCA 73

Pearce v The Queen [1998] HCA 57

Texts Cited:

None

Category:

Sentence

Parties:

Regina
SS

Representation:

Counsel:
Mr A O’Connor (Crown)
Ms A Betts (Defence)

Solicitors:
Mr J Jones (ODPP)
Mr R Hill (Defence

File Number(s):

2018/00393105

Publication restriction:

Non-publication of any matter which may identify or lead to the identification of the complainant/victim (s578A Crimes Act).
Suppression order relating to offenders name.
Order pursuant to section 7 Court Suppression and Non-Publications Orders Act, 2010, no publication of any matter identifying the child involved in these proceedings.

Judgment

Introduction

1. The offender is a 53-year-old man without any criminal history whatsoever. Uncharacteristically he engaged in serious offending on 6 December 2018 in which his wife was the unfortunate victim. It is possible that his offending behaviour was caused or contributed to by his psychiatric condition. Experts provided opinions on that topic and were cross-examined by the Crown. I will refer to that evidence later in these remarks.

2. There are 2 principal charges for sentence. They are Count 3 aggravated sexual assault contrary to section 61J(1) of the Crimes Act and Count 4 sexual intercourse without consent in breach of section 61I of the Crimes Act. Count 3 carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years and Count 4 carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.

3. Attaching to Count 3 by way of a Form 1 are two further charges in respect of which the offender has admitted his guilt and which he has asked me to take into account when sentencing him for the count to which they attach. They are Count 1 assault occasioning actual bodily harm in breach of section 59(1) which carries a maximum penalty of 5 years imprisonment and Count two intentionally choke a person without consent in breach of section 37(1A). Both of the charges on the Form 1 carry a maximum penalty of 5 years imprisonment.

4. The maximum penalties and standard non-parole periods are guideposts for sentencing judges reflecting the seriousness with which the community, by Parliament, views the offending. All of this is very serious offending in a domestic violence setting. It calls for strong denunciation and deterrence.

Form 1 Offences

5. The existence of these additional offences demonstrates the greater need for deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], the sentencing judge takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted, in this case Count 3.

Application of the standard non-parole periods

6. The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The legislation specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors, and without bringing to account any matters that are unique to the offender or the class of offenders.

7. Ultimately though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise, together with the objective and subjective matters. Even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply, nor that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness.

8. The process is not arithmetical but more intuitive, however the law requires that I determine where on the scale of objective seriousness the offence does fall. The precise positioning of the offence along the scale is a matter of judgment, and is not easy to identify. While I am not compelled to impose a standard non-parole period, s 54B(3) of the Crimes (Sentencing Procedure) Act requires a sentencing judge to make a record of reasons for setting a non-parole period that departs from the standard non-parole period, as well as identifying the factors taken into account when doing so.

9. Both of the offences carry standard non-parole periods. I do not intend to apply them. In my opinion, to do so would result in a sentence which is unduly harsh, particularly having regard to the offender’s reduced moral culpability. Further, to do so would contradict the strong finding of special circumstances and the offender’s powerful subjective case. Nevertheless, I have had regard to the standard non-parole periods as guideposts in this sentencing exercise.

Background

10. The offender was born on 2 July 1969 and is now 53 years of age. He commenced a relationship with the victim, AS, in about April 2015. The victim had a son from a previous relationship. The offender had 2 adult daughters. The offender and the victim became engaged on New Year’s Eve 2015 – 16, later bought a property together and had a baby in August 2016. They were married in May 2017. The marriage was tumultuous. In November 2018 the victim and her children moved out of the family home to live with her mother.

11. The offending took place on 6 December 2018. The offender was placed under guard by police whilst in hospital on 7 December 2018 although not formally arrested until 20 December 2018. On 13 March 2020 he was committed for trial from Gosford Local Court. Guilty pleas were entered on 27 August 2020.

12. The sentence proceedings have been protracted. The offender’s original lawyers were replaced by those who now act for him. Upon their engagement in early 2022 they set about obtaining expert evidence in support of the offender’s psychiatric condition. The sentence proceedings had, up to that point, focused on the impact of a stroke upon the offender. Although there has been some delay, the fresh evidence is very informative and quite helpful.

The Facts

13. The circumstances surrounding the offending are troubling to say the least. The victim was brutally attacked and raped by the offender, some of that occurring in the presence of their youngest daughter who was about 2 years and 4 months of age at the time.

14. In June 2018 the victim told the offender that she wanted to end their relationship, although later agreed to stay for the sake of the children. In or about September 2018, the victim discovered that she was pregnant but underwent an abortion on 9 October 2018. The victim moved out of the family home on 17 November 2018.

15. On Thursday, 6 December 2018 the victim returned to the family home at about 8:55 AM to collect her daughter who had stayed overnight with the offender and to collect other property which had been left behind. As she entered the front door, the offender approached holding their daughter and began to pass her to the victim. The victim told the offender that she needed to go upstairs to “grab some stuff” and asked him to put their daughter down. He moved out of the way so that she could go upstairs. The offender moved to the side. The victim and their daughter walked up the stairs. The offender followed.

16. The victim asked the offender why he was coming upstairs he said “just to make sure the baby is okay”. The victim replied “the baby is fine, you don’t need to come up”. When the victim got to the top of the stairs she went straight to her son’s bedroom to collect some toys. As she came out of that bedroom she and the offender were standing in the rumpus room. The offender then approached the victim and punched her to the left side of the face with a closed right fist causing the victim to fall to the floor. He then punched her again to the left side of the face with a closed fist. The offender punched the victim’s face a third time. The victim’s daughter was standing nearby screaming “mummy, mummy,… stop, mummy”. These facts are the basis for Count 1 on the indictment.

17. The following facts relate to Count 2, intentionally choke a person without consent. The offender straddled the victim grabbed hold of her neck with both hands and squeezed. The victim struggled to breathe and began to scream “help me… please someone help me”. The offender then took one hand off the victim’s neck and put his hand over her nose and mouth. She was still struggling to breathe. She recalled biting the offender’s finger and scratching at his face.

18. The offender removed his hand from the victim’s mouth. The child was still screaming. The victim felt scared for her life and thought that the offender was going to kill her. The offender then punched the victim again to the left-side of her face with a closed fist, causing her to lose consciousness.

19. The following facts relates to Count 3, aggravated sexual intercourse without consent. The victim awoke to the offender penetrating her vagina with his penis. The victim’s shorts and underpants had been removed but she had no recollection as to when. The victim had been wearing a tampon which was also removed at some point. The victim saw the child was no longer in the room. She asked the offender where the child was to which he replied “she’s gone into the bedroom”. The victim said “we need to make sure she is okay”. The offender then removed his penis from the victim’s vagina and got up from on top of her.

20. The following facts relates to Count 4, sexual intercourse without consent. The victim got up from the floor and walked to the main bedroom. The child was hiding in the walk-in robe and crying. The offender walked over to the child and handed her a toy. The victim sat on the edge of the bed. She felt extreme pain to her head and face and was dizzy and disorientated. The offender then walked over to where the victim was sitting and pushed her onto the bed. The victim was lying on her back. The offender then lifted the victim’s legs so they were positioned over his shoulders. The offender stood on the floor and again penetrated the victim’s vagina with his penis for a short time until the offender ejaculated inside the victim’s vagina.

21. The offender then said “I’m going to die today… I’ve already taken 40 sleeping pills… There is no way I will go to gaol for what I’ve done to you. I thought two blows would have done you, you’re a lot stronger than I thought you were”.

22. The victim tried to keep the offender calm out of fear of what he might do to her child. She suggested they go and have a cigarette outside. The offender agreed and walked over to the walk-in robe. The victim got up and walked out of the bedroom to the top of the stairs. She saw her tampon on the floor near the baby gate at the top of the stairs. She then ran down the stairs, out the front door and onto the street. She was wearing only a singlet top and holding her daughter in her arms.

23. At about 9:30 AM a witness PM was driving along the street. The victim waved down his vehicle. He stopped and got out of his car. The victim was hysterical and badly battered, bleeding and bruised around the left side of the face. The victim screamed “help me, help me, he’s bashed the shit out of me and he is trying to take my child, call police”. PM called 000.

24. Other witnesses then attended the scene and assisted the victim. The victim said to a witness CS “I think he raped me. I don’t remember what happened, but I think he raped me.” The witnesses helped the victim put her pants back on and tried to calm her down.

25. The offender then came out of the house, and got into the victim’s motor vehicle and drove away towards Avoca Drive.

26. Police arrived at about 9:40 AM. The victim was sitting in a chair in the driveway of the Green Point Neighbourhood Centre. Police observed that the victim had severe facial injuries and dried blood in her hair, down her legs and on her clothes. An ambulance arrived and took the victim to Gosford Hospital.

27. Police patrolled surrounding streets but were unable to locate the offender or the victim’s vehicle.

28. At around 11:10 AM police found the vehicle in bushland at Green Point. The vehicle was empty and police observed on the ground near the vehicle a box and blister pack of Seroquel prescribed to the offender. Police commenced a search of nearby bushland but were unable to locate the offender.

29. At around 7:45 AM on 7 December 2018, the offender knocked on the front door of premises on Greenvale Road at Green Point. Witness CM answered the door and saw the offender had multiple serious lacerations including deep wounds to his neck and right leg. The offender seemed disorientated and said that he lived 2 doors up and wanted to borrow $20. CM and her husband spoke with the offender and made him a cup of tea. They contacted 000. The offender stated that he had been stuck in the bush since Monday.

30. Police attended the location at 8:10 AM, cautioned the offender and asked him about the cuts on his body. The offender said “my wife attacked me”. A short time later an ambulance arrived and escorted the offender to Gosford Hospital where he was placed in the intensive care unit.

31. On 20 December 2018 police attended Gosford Hospital where the offender had been moved to the Neurology Ward. The offender was placed under arrest for sexual assault and subject to a police guard whilst in hospital. I understand that the offender contends, and the Crown accepts, that a police guard was in place from 7 December 2018 and that date should be taken as the commencement date for a term of imprisonment.

32. On the day of the offending the police attended Gosford Hospital and took an account from the victim. The attending doctor observed that the victim was suffering from multiple bruises to her face and a large left facial haematoma. A CT scan was carried out which revealed no acute intracranial haemorrhage or facial fractures. There were no injuries requiring surgical intervention. The victim stayed overnight. On 10 January 2019 the victim consulted Dr Curtis, oral and maxillofacial surgeon, due to ongoing pain in the left temporomandibular joint region. On 23 January 2019 Dr Curtis performed a procedure on that joint. The victim was treated with occlusal splint therapy for a period of about 6 months to reinforce the procedure carried out.

33. On the day of the incident at about 2:10 PM crime scene officers attended the premises and conducted an examination of the scene. Bloodstains were observed in several locations throughout the house, including on the floor near the entrance, at the top of the stairs, and on pillows and bedsheets in the main bedroom. On top of the bed in the main bedroom was a white bloodstained bra and a bloodstained brown towel. A bloodstained tampon was discovered under water in the toilet bowl in the upstairs bathroom.

34. Those are the agreed facts.

Photographs of the victim

35. Exhibit B comprises 7 photographs of the victim taken at various times. Photograph number 1 was taken shortly after the incident occurred and shows the left side of the victim’s face significantly swollen and bruised. She had a bloodied nose and lip and a cut to the upper ear. Photograph number 2 was taken the scene of the incident and demonstrates the extent of the swelling to the left side of her face. Photograph number 3 was also taken at the scene and shows more clearly the extensive injuries caused to the victim’s face. Photograph number 5 was also taken at the scene of the incident and showed bloodstained hair and grazes to her left shoulder. Photograph number 12 was taken in hospital hours after the incident. There is severe bruising and swelling to the left side of the face, eye, cheek, jaw, mouth and chin. There is also a small cut to her nose. Photograph number 14 was also taken at hospital hours after the incident showing more clearly the damage the left side of the victim’s face. Photograph number 26 was taken 12 days after the incident. Bruising to the left side of the face, eye, chin and bruising on her neck and chest remain apparent.

Victim impact statement

36. The victim went to some effort to prepare a victim impact statement which is detailed. Its contents are disturbing. In terms of physical injuries, the victim still has a limited range when opening her mouth which occasions jaw pain and pain in her left ear. As a result of the injuries she was unable to eat solid food for several weeks and still gets pain sometimes when eating. She was dependent upon pain relief medication following the incident.

37. The impact of the victim’s appearance upon her children was profound. Her son wouldn’t come near her for 3 weeks and cried every time he looked at her. Her daughter came to her a little sooner but this was traumatic as she would say “Daddy did that” and point to her eye and burst into tears. The emotional impact is ongoing. Her daughter occasionally will say “mummy died, mummy didn’t wake up, wake up mummy” and “wake up”, “daddy punch you in the eye, mummy didn’t wake up”. The victim considers that the trauma experienced by her daughter caused delayed speech requiring speech therapy prior to commencing school. Both children are still affected by the emotional consequences of the offending. On occasions the victim will lay in bed for a whole day and she would often cry. The children suffer separation anxiety.

38. Unsurprisingly the victim has been diagnosed with severe PTSD and anxiety. She is medicated day and night due to her anxiety attacks, flashbacks and nightmares occur on a daily basis. She remains fearful for her life and is worried that he will “finish the job and end my life”.

39. There has been economic and social impacts on the victim and her family. They had to move out of the home they occupied for just a few weeks prior the incident as they did not feel safe. They have since moved out of the area as the victim was struggling with memories and many people knew about what had happened. A considerable cost was incurred in moving house on 2 occasions following the incident. The victim has installed security cameras. The victim’s son changed school on 2 occasions as result of the moves.

40. The victim went from being a very confident, happy person to a person without confidence and rarely happy. She suffers anxiety performing the most routine tasks. The offending has caused both the victim and her children to have trust issues with men. The victim said the crime has had significant impacts on all parts of the life which she has been left to deal with on a daily basis.

41. I note the objections to the victim impact statement taken by counsel for the offender (MFI 3). In my opinion, the criticisms made of the victim impact statement are largely unwarranted. I accept that in respect of most matters there is no corroborating evidence or expert evidence and I have borne that in mind in considering the statements as above.

Aggravating factors s21A(2)

42. The Crown submitted that the following 2 aggravating factors arise:

1. the offence occurred within the victim’s home, although that was not her primary residence at the time of the offending. Nevertheless, the Crown contend, and I accept, that the fact that it occurred in what was the family home involves a violation of the victim’s reasonable expectation of safety and security; and

1. that the offending took place in the presence of a child under the age of 18, namely their daughter aged 2 years 4 months. The facts would seem to demonstrate that the child was present for most of the offending. There is no evidence as to whether she witnessed the intentional choking or the aggravated sexual assault in the rumpus room at which time the victim was unconscious. Although the evidence that the child since has said that her mother ‘died’ and ‘did not wake up’ does suggest that the child was present for Count 3. Without more however, I cannot find that this is established to the requisite standard. At some point the child moved from that room to the walk-in robe where she was situated when Count 4 occurred, that is sexual intercourse without consent. I find this aggravating factor arises in respect of Count 1 namely assault occasioning actual bodily harm.

Mitigating factors s21A(3)

43. The Crown conceded the following statutory mitigating factors:

1. the offender does not have any record of previous convictions;

2. the offender was a person of good character; and

3. the offender did plead guilty.

44. I accept those submissions and make those findings. The offender is entitled to the leniency which may flow from being a person who was of good character.

45. In addition, the following statutory mitigating factors were advanced on behalf of the offender:

1. the offence was not part of a planned or organised criminal activity;

2. the offender is unlikely to reoffend. The expert evidence supports that submission;

3. the offender has good prospects of rehabilitation. Again, the expert evidence supports that submission; and

4. the offender has shown remorse. In his oral evidence before me on 10 August 2021, the offender accepted responsibility for the offending and acknowledged the considerable harm caused by it. I accept that evidence.

46. I accept those submissions as to additional mitigating factors and make those findings.

Nature of the offending

47. Domestic violence calls for condign punishment, particularly when the consequences are, as here, very serious. The law recognises that the prevalence and seriousness of domestic violence requires that considerable weight be given to general deterrence and denunciation.

Objective seriousness

Submissions for offender

48. For the reasons set out in paragraph 10 of the defence submissions, it is put that the circumstances of the offending falls below the mid-range of objective seriousness. The factors relied upon, include the following:

1. the offending occurred in the context of the breakdown of the marriage. In my opinion whilst this provides context it does not reduce the objective seriousness of the offending. In a sense, it heightens the objective seriousness as the offending took place in a domestic violence setting;

2. the offending was spontaneous without any evidence of pre-planning. I accept that submission;

3. it was an isolated incident. There was no history of domestic violence or any violence involving the offender;

4. the incident was of short duration. I not satisfied that this has been made out on the balance of probabilities. The offending commenced in the rumpus room where the victim was knocked unconscious and continued in the bedroom. The evidence does not permit any assessment as to the duration of the offending;

5. there was some initial force. The victim was punched in the face with the offender’s closed fist on a number of occasions rendering her unconscious enabling him to sexually assault her. The evidence does not permit any assessment of the degree of violence involved in the aggravated sexual assault being Count 3. The significant acts of violence are captured by Counts 1 and 2. I will not have regard to those acts in assessing the objective seriousness of Counts 3 and 4, other than in the manner permitted by reason of the fact that those charges are on a Form 1;

6. there is no residual physical injury. I have already made observations about the ongoing consequences of the offending upon the victim. Fortunately, she appears to have made a good recovery from the physical injuries inflicted by the offender. The emotional impact is substantial and ongoing; and

7. it was submitted that there was no evidence of verbal or physical humiliation. I do not accept that submission. I consider that the sexual offending was such that it was humiliating for the victim, particularly as she had to run onto the street not fully clothed to escape the offender.

Submissions for Crown

49. The Crown submitted that the objective seriousness for the aggravated sexual assault (Count 3) was well above the mid-range having regard to the degree of violence, the element of domestic violence, the significant injuries sustained requiring treatment, the duration, the sustained nature of the offence globally, the humiliation of the victim and the risk of pregnancy.

50. In relation to the charge of sexual intercourse without consent (Count 4), the Crown submitted that it falls above the mid-range of objective seriousness having regard to the domestic violence context, the humiliation the victim, the use of some violence, the duration, the sustained nature of the offence globally and the risk of pregnancy from unprotected sex.

Findings regarding objective seriousness

51. I have given consideration to the submissions referred to above.

52. In respect of Count 3, aggravated sexual assault, I find the offending falls just above the mid-range taking into account that the offending occurred initially whilst the victim was unconscious. The offender removed part of the victim’s clothing and a tampon, the offending took place between a husband and wife albeit in separation and the act was committed in what was the family home.

53. In respect of Count 4, sexual intercourse without consent, I find that the offending falls at the mid-range taking into account the force applied by the offender to the victim, the fact that it occurred in what was her bedroom prior to their separation, that the offender ejaculated inside the victim’s vagina and that their young daughter was nearby in an adjacent walk-in robe. Whilst the evidence does not permit a finding that this was a statutory aggravating factor as the extent to which the child was in their presence is unclear, it is still a relevant consideration in assessing objective seriousness.

Subjective case

Generally

54. The offender has a compelling and strong subjective case. This offending, whilst abhorrent, does appear to have been an isolated event in the context of a man who had lived a stable and crime-free life. He has a history of what seems to be continuous employment from the time he left school. He also contributes to the welfare of the community, primarily through surf lifesaving.

55. His medical history was generally unremarkable. There were episodes of migraines and cervical spine restrictions. On 30 July 2018 he consulted his doctor and complained of being very distressed due to his failing relationship with the victim. A mental health plan was devised and the offender was referred to a psychologist for counselling. He was also prescribed Seroquel. Prior to the subject offending he appears not to have been admitted to a mental health facility.

Expert evidence

56. A redacted version of Dr Furst’s report was relied upon. The offender was assessed as a below average risk of reoffending. I accept that opinion. Dr Furst considered that the offender had good prospects of rehabilitation and recommended treatment for depression and adjustment issues including counselling and cognitive behavioural therapy. I accept that the offender has good prospects of rehabilitation, a mitigating factor on sentence.

57. The experts have also taken a history of the offender’s remorse. Those accounts support my finding that the offender has shown remorse to the extent required for it to be a mitigating factor.

58. The offender principally relies upon the reports of three experts: Dr Dayalan; Dr Wearne; and Ms Zipparo. There expert reports were tendered in the sentence hearing without objection, although all experts were required for cross examination.

59. Dr Dayalan took a history that the offender was experiencing symptoms of depression and anxiety around the time leading up to the offending. This is supported by the clinical notes of treating doctors. The expert expressed the opinion that the offender suffered from an adjustment disorder with anxiety and depressed mood. Dr Dayalan said:

The description of his behaviour at the time of the offences as per the agreed facts does not indicate acute confusion but is clearly indicative of impaired judgment and impaired ability to consider the consequences of his behaviour. It is noted that he had engaged in the offending behaviour in the presence of his young daughter. Given the uncharacteristic presentation at the time of the offence, it is probable that his psychiatric condition namely the adjustment disorder with anxiety and depressed mood along with the ingestion of Seroquel contributed to the impaired judgments and capacity to fully appreciate the consequences of his behaviour (emphasis added).

60. The ingestion of Seroquel is an act of self-intoxication which cannot be taken into account as a mitigating factor on sentence. It had been prescribed for the offender by his GP to assist with his sleep. In evidence, the expert expressed the opinion that if Seroquel was excluded as a contributing factor then the mental disorder would still contribute to impairment in cognition. In cross examination, the expert maintained that his impaired judgment and ability to consider consequences were apparent through the offending including that there was no history of like offending and that some of it was committed in the presence of his young daughter.

61. He also said that the effects of an adjustment disorder vary from person to person and that it was hard to speculate as to the seriousness of its consequences at the time of the offending.

62. Further, in cross examination, the expert said that the mental condition was not however a mental illness and that the impairment at the time of the offending was made significantly more likely by taking the Seroquel pills. Dr Dayalan said that irrespective of the indigestion of the medications the adjustment disorder contributed to the offending. He described the offending as uncharacteristic and that the psychiatric condition probably contributed to his behaviour.

63. Dr Wearne was asked to consider whether at the time of the offending the offender was suffering from a cognitive impairment and/or mental illness and also to identify any psychological and/or neuropsychological factors of relevance. It was the expert’s opinion that the offender’s cognitive, language and physical difficulties are consistent with an acquired brain injury occasioned by the stroke which occurred after the offending. He diagnosed minor neurocognitive disorder due to acquired brain injury.

64. Dr Wearne was of the opinion that it was unlikely that any neurobiological or cognitive factor contributed to his behaviour at the time of the offence. He considered that the psychological impairments suffered by the offender in the time leading up to the incident “may” have impacted on his thinking and judgment at the time of the offence. He was unable to say whether or not that was the case. Further, even if there was such an impact, he was unable to say to what degree.

65. Nevertheless, given his current level of function, it is likely that his judgment and decision-making would have been impaired at the time of the offences. It was more likely to be mental health issues rather cognitive problems.

66. Ms Zipparo performed a neuropsychological assessment on 22 October 2021. She agreed with the diagnosis made by his treating psychologist prior the offending of adjustment disorder with depressed mood. She described the condition in the following terms:

The development of emotional or behavioural symptoms in response to an identified stress or characterised by marked distress that is out of proportion to the severity or intensity of the stressor and which results in significant impairment in social, occupational or other important areas of functioning.

67. She continued:

A clinically significant stress response may be a relevant contributing factor to the current offences given the well-established effect of severe stress on the functioning of the frontal lobes, the area of the brain responsible for good decision-making and the control of impulsive behaviours and risk assessment.

68. Ms Zipparo further said that an adjustment disorder is an “extreme emotional or behavioural response “causing reduced blood flow to the frontal lobes which control decision-making and inhibition”. She considered the offender displayed irrational thought processes at the time of the offending.

Letter of apology

69. Exhibit 5 is a handwritten letter from the offender. It expressed how sorry he was for hurting the victim and their child. He also acknowledged the impact on the other children together with the victim’s extended family. He acknowledged that his conduct was “totally unacceptable”. Attached to the letter is an extract of the transcript from 10 August 2021 where similar sentiments of remorse were expressed.

Testimonials

70. The offender’s good friend of almost 20 years provided a letter of support (Exhibit 6) in which he expressed his surprise about the offending as the offender has always been an upstanding member of the community and supportive of him and his family.

71. The offender’s daughter also provided a short reference in which she referred to father as “caring, bubbly, humble and selfless”. She described the offending as being “very out of character” and she acknowledged his remorse.

72. The third testimonial came from a person who has known the offender since they were teenagers, more than 30 years ago. He referred to the offender as being “a passionate, peaceful person”. He stated “in my time of knowing SS I have never known him to be aggressive to anyone, especially women. I believe he has great respect for women, being brought up in a very religious Catholic family”.

Impacts of subjective case on sentence

73. Counsel for the offender made a submission concerning his mental health issues at the time of the offending and relying upon the decision of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 197 at [177] in which McClellan J summarised the principles relating to an offender suffering from mental health issues at the time of the offending, as follows:

1. where the state of a person’s mental health contributes to the commission of the offence 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;

2. it may also have the consequence that the offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;

3. it may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous on that person. The length of the sentence or the conditions under which it is to be served may be reduced;

4. it may reduce or eliminate the significance of specific deterrence; and

5. 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.

74. Counsel for the offender also relied upon a more recent decision of Luque v R [2017] NSWCCA 226 where Hamill J observed at [114]:

When dealing with evidence of the offender’s mental condition the issue is whether that condition mitigates the punishment that ought to be visited upon the offender. In one respect, this involves assessing whether moral culpability is reduced because the mental condition contributes directly or indirectly to the commission of the offence. In other respects, the impact of a mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for general (or specific) deterrence, and/or that incarceration may be more onerous as a result of the offender’s difficulties.

75. In response to that authority, the Crown in the present matter conceded that the need for general deterrence is moderated.

76. The difficulty in assessing the offender’s moral culpability for the offending is that at the time he was also affected by the ingestion of Seroquel. As observed, this self-intoxication cannot be taken into account as a mitigating factor. Notwithstanding, I am satisfied that there was a link between his mental condition and the offending for the following reasons:

1. his behaviour time of the offending was extremely out of character;

2. he displayed a complete lack of judgment and insight into the consequences of his offending;

3. the expert evidence demonstrates that an adjustment disorder with anxiety and depressed mood may impact upon a person’s judgment and cognitive processes;

4. his behaviour appears to have been confused with a lack of awareness and understanding of what he was doing; and

5. his behaviour was “normal and fine” just before the offending and the victim noticed a strange look in his eyes at the time he was committing the offences. Whilst this observation is not at all scientific, it does suggest a degree of impairment.

77. I am fortified in my conclusion by the observations made by Button J in Moiler v R [2021] NSWCCA 73 at [59]:

It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a 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 oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it.

78. I am satisfied, on the balance of probabilities that the offender was impaired at the time of the offending so as to attract the moderation of the sentence considered by the court in De La Rosa. I find that the offender’s moral culpability is reduced and that he would be an inappropriate vehicle for general deterrence. I also find the need for specific deterrence is reduced.

Formulation of sentence

Section 5 threshold

79. It is accepted and I find that no sentence other than one of imprisonment is reasonable or appropriate given the circumstances of this offending.

Discount

80. The offender pleaded guilty on 27 August 2020 after the matter had been committed for trial to the District Court. Pursuant to section 25D(2)(c) of the Crimes (Sentencing Procedure) Act he is entitled to a discount of 5%.

Commencement date

81. I intend to commence the sentence from the date when the offender lost his liberty. That is, on 7 December 2018 when he was in hospital under police guard.

Purposes for sentencing

82. I have had regard to the purposes set out in section 3A of the Crimes (Sentencing Procedure) Act. I consider that the need to reflect the harm caused to the victim and her family is of great importance in this sentence. It is also necessary that the sentence be adequate having regard to the serious nature of the offending. As the offending arose in the context of a domestic relationship it is necessary that the sentence also denounces the offender’s conduct. The purpose of promoting rehabilitation is also of great significance in this instance.

Special circumstances

83. I find special circumstances and will adjust the ratio of non-parole to parole on the following grounds:

1. the offender’s medical condition is such that he requires treatment which is best accessed in the community;

2. due to his psychiatric condition, his time in custody has been and will be more onerous than would otherwise be the case;

3. the offender has been in custody throughout the entire Covid-19 pandemic. The impacts of the pandemic on prison inmates is well documented and known. Generally, prisoners have spent lengthy periods of time in isolation, often locked in cells for days on end. There has also been a disruptions to visits and the usual programs available to prisoners in custody. Whatever recreation was available to prisoners was also affected;

4. the offender has also been placed in protection whilst in custody following incidents of violence. The limitations upon prisoners in protection is also well-known; and

5. the offender has no criminal history and this is his first time in custody.

84. In my opinion, the offender needs a longer than usual time in the community upon release to address the factors which led to his offending behaviour.

Aggregate sentence

85. I intend to impose an aggregate sentence in accordance with section 53A of the Crimes (Sentencing Procedure) Act. Before doing so it is necessary for me to indicate the sentence which I would otherwise have imposed for the two offences.

Indicative terms

86. For Count 3, after a discount of 5% and taking into account the 2 charges on the Form 1, I provide an indicative term of 7 years imprisonment. I provide an indicative non-parole period of 3 years and 6 months.

87. For Count 4, after a discount of 5% I provide an indicative term of 4 years imprisonment and an indicative non-parole period of 2 years.

Totality

88. It was submitted for the offender that the offending “falls within the one incident” on 6 December 2018 and that the court may consider that the sentences for both offences be served concurrently. I do not accept that submission.

89. I accept that the sentences for each offence are to be determined and the overall objective criminality is to then to be take into account in determining the degree of concurrency or accumulation: Pearce v The Queen [1998] HCA 57.

90. I accept that a high degree of concurrency is warranted given the temporal proximity of the offending. Notwithstanding, to reflect the harm done to the victim and the two separate acts of offending, I intend to allow small degree of accumulation.

Conviction

91. You are convicted of the charges on the indictment on which you were arraigned.

Sentence

92. For those convictions you are sentenced to a term of imprisonment for a period of 8 years. I set a non-parole period of 4 years which will expire on 6 December 2022 and a balance of term of 4 years which will expire 6 December 2026.

Final apprehended domestic violence order

93. There is an ADVO in place which expires in 2025.

94. Pursuant to section 39 of the Crimes (Domestic and Personal Violence) Act 2007 it is necessary to make a final order. The persons protected by the order are the victim and her children. I direct that a final order be taken out to commence upon the offender’s release on parole for a period of 5 years with the following conditions:

1. prohibiting or restricting approaches by the offender to the protected persons, other than through a lawyer;

2. prohibiting or restricting access by the offender to any or all of the following:

1. to any premises occupied by the protected persons from time to time or to any specified premises occupied by the protected persons;

2. to any place where the protected persons work from time to time or to any specified place of work of the protected persons; and

3. the school or any other place of study attended by the victim’s children; and

3. prohibiting or restricting the offender from locating or attempting to locate the protected persons.

95. Further, I direct that pursuant to section 12(2) of that Act these offences be recorded on the offender’s criminal history as domestic violence offences.

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Amendments

07 September 2022 - Cover page updated

05 October 2022 - cover page

Decision last updated: 05 October 2022