R v Steele (No 2)

[2023] NSWDC 99

District Court

New South Wales

Medium Neutral Citation:

R v Steele (No 2) [2023] NSWDC 99

Hearing dates:

3 February 2023

Date of orders:

3 February 2023

Decision date:

03 February 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Judgement - Related summary matters after trial

Sentence - Aggregate sentence of 3 years 9 months with a non-parole period of 2 years 5 months.

Catchwords:

CRIME – Stalk/intimidate intend fear physical etc harm (domestic) - Aggravated Break and enter & commit serious indictable offence - Contravene prohibition/restriction in AVO (Domestic)

CRIMINAL PROCEDURE — Back up and related offences - judgment

SENTENCING - Relevant factors on sentence – sentence after trial - domestic violence offending – victim impact -

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Public Health Act2010 (NSW)

Cases Cited:

Browning v R [2015] NSWCCA 147

Cahyadi v Regina [2007] NSWCCA 1

Campbell v R [2014] NSWCCA 102

Cherry v R [2017] NSWCCA 150

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

Muldrock v The Queen (2011) 244 CLR 120;

[2011] HCA 39

Munda v Western Australia (2103} 243 CLR 600; [2013] HCA 38

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Burton [2008] NSWCCA 128

R v Herring (1956) 73 WN (NSW) 203

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Steele [2022] NSWDC 603

R v Windle [2012] NSWCCA 222

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Suksa-Ngacharoen v R [2018] NSWCCA 142

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Category:

Sentence

Parties:

Benjamin Steele (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr J Lang (for the offender)

Solicitors:
Bannisters, Lawyers (for the offender)
Mr A Tonks (for Director of Public Prosecutions)

File Number(s):

2021/00221485, 2021/00221486

sentence – ex tempore revised

Judgment - Back up and related offences

1. On 2 December 2022, after a trial by judge alone at Bega District Court, I convicted Benjamin Steele of three serious criminal offences: R v Steele [2022] NSWDC 603. They are for sentence today. There remains a number of summary matters that came to this Court pursuant to s 166 Criminal Procedure Act 1986.

2. Backup charges - sequences 1, 8 and 10, are withdrawn in the light of my findings at trial.

3. Sequence 5 is a COVID related, Public Health Act2010 offence. A plea of guilty was entered, consistent with admissions made by Mr Steele at trial. In all of the circumstances although I record a conviction for that matter, I deal with it pursuant to s 10(A) of the Crimes (Sentencing Procedure Act) 1999. No punishment, other than the conviction, is required.

4. Sequences 2 and 3, relate to an incident recounted by the complainant at the trial, said to have occurred at Casula. Pleas of not guilty are entered. As is evident from my judgment at trial, I rejected Steele's version of events and accepted the complainant version of events that was led as context evidence in the trial. In those circumstances, consistent with my judgment at trial, I would have to find those matters proved beyond reasonable doubt, and I do. Accordingly, Steele is convicted.

5. Sequences 5, 9, and 12, relate to alleged breaches of Apprehended Violence Orders then in place. They relate to each of the counts in the indictment. Although pleas of not guilty were confirmed today, consistent with my determination at trial, the fact of each of the convictions, and the facts that support those convictions, also support convictions for the contraventions. Accordingly, Steele is convicted of each of those matters. I will proceed to sentence in relation to the trial and related matters.

Sentence Proceedings - Introduction

6. The Crown have submitted that an aggravating circumstance of each of the trial counts is that they were committed in contravention of Apprehended Violence Orders. The general practice is that independent sentences be imposed for breach matters: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132]. As I will be sentencing for the breach of apprehended violence orders, I need to be particularly careful that I not double count as a factor in aggravation by taking the breach into account when assessing the appropriate sentence for the trial maters and then and accumulate to some extent the sentences for the summary contraventions.

7. The complainant in this matter is present in Court. She has a name, but I have called her the complainant. She is entitled to her privacy. My conviction in this matter is a reported judgment, and these sentencing proceedings presume some knowledge of that judgment. The offences occurred in a town in southern New South Wales. To preserve her privacy and her child’s, I am not referring to that town, but it is well known to the parties.

8. Benjamin Steele was committed for trial to the Bega District Court for three serious offences.

• Count 1 - that he between 27 July 2021 and 28 July 2021, intimidated the complainant with intention of causing her to fear physical or mental harm, s 13(1) Crimes (Domestic and Personal Violence) Act 2007.

• Count 2 - that he on 29 July and 28 July 2021 at Rosemeadow and elsewhere did intimidate the complainant: s13(1) Crimes (Domestic and Personal Violence) Act.

• Count 3 - that he on 30 July 2021, broke and entered the dwelling of the complainant and in that house committed a serious indictable offence, namely intimidation. The circumstance of aggravation was that he knew a person was present in the house: s 112(2) Crimes Act 1900.

9. After receiving legal advice, Mr Steele waived his right to trial by jury and elected for trial by judge alone. The Director of Public Prosecutors consented to that course.

10. On Monday 28 November 2022, an indictment was presented before me at Bega District Court. Mr Steele said he was not guilty of each count. The trial continued until Wednesday 30 November 2022.

11. On 2 December 2022, I convicted Steele of each count. In that judgment, I summarised matters of fact that were uncontroversial and those that were; including the evidence of the complainant and Steele. I set out my findings on the critical matters put in dispute. Those findings apply to these sentencing proceedings.

12. Today, I was also asked to deal with six related summary matters put before the Court on s 166 Criminal Procedure Act 1986 certificates. I determined those matters at the outset of those proceedings. I determined, although not guilty pleas were entered, having regard to all of the facts that were before me at trial, it was accepted that convictions were inevitable. There was one undisputed matter, a Public Health Act2010 (NSW) prosecution. A plea was entered to that matter consistent with the evidence in the Court, the evidence before me at Bega. I dealt with that matter pursuant to s 10A, Crimes (Sentencing Procedure) Act 1999.

13. I will sentence Steele for the indictable and summary matters today. I will do so by way of an aggregate sentence.

Facts for sentence

14. Steele and the complainant met in 2016 and married in 2019. They have a child. In August 2019, Steele committed a number of serious offences against the complainant, including; assault, intimidation, choking and using a carriage service to menace her. He received a two-year aggregate sentence and was imprisoned. He was released to parole on 3 December 2020. An Apprehended Violence Order (AVO) was put in place. In April 2021, that order’s conditions prohibiting contact between the two were removed, although the other orders continued - specifically, the standard conditions.

15. After that variation that the two met and spent time together. The evidence before me indicated that there was a possibility of reconciliation. But they also met because the complainant accepted Steele should have contact with his son. On some weekends he would stay overnight at her home. How often was in contest at trial - but I do not have to resolve that dispute. He was, at the time, living with his parents in Sydney and working long hours as a concreter in the Sydney central business district. He would regularly drive to the complainant’s home southern New South Wales after he finished work. He was allowed to sleep there.

Count 1

16. Steele became angry and upset about a belief he formed that the complainant had slept with other men while he was in gaol. That anger was triggered by something he saw on an Xbox screen at the complainant’s home when he was visiting one weekend. Angered - he made a threat to kill in explicit terms - described by the complainant in this way, “He said if I fuck up he's going to put a bullet between my eyes… and he's going to come back and saw my head off”.

Count 2

17. After those words, Steele drove back to Sydney. In Sydney, he was stopped by police and charged with possession of cannabis. He feared his parole would be revoked as a result of that charge. He contacted the complainant seeking her support. She made it clear that she did not want to talk or text with him. At one point, she said - in response to his request - “I’m not being childish. I just don’t know what to say to you right now”. Count 2 relied upon a series of text messages sent by Steele that morning. The messages speak for themselves - but one, in particular, stood out:

“I'm not going to message or call you again I will not put up with this from you… I'm already disappointed and mentally struggling here and you shit down when I need you most I'm fuckn gutted you're treating me this way….Wwwwwhhhhhhyyyyy the fuck are you doing this to me Fukn why I need to talk to my fuckn wife fuckn stop it pleeeeeseeee Fukn talk to me… I'm going to go fucking crazy very fucking shortly I'm telling you now shit going to get real… please I need you.. please I… please.. I'm driving there now… I don't want to come like this I can't stop shaking.”

18. I found at trial that in those texts he intended to intimidate the complainant. I also accepted that he was expressing his anger and frustration - and his fear that he would return to gaol. But, as I commented in discussion earlier, he was in Sydney. His parents were in Sydney. He had support in Sydney. There was no reason or rationale for doing what he did - nor was there any reason or rationale for what occurred so far as Count 3 is concerned.

Count 3

19. After being dealt with by police, Steele chose to drive from Sydney to the complainant’s home. He arrived at her home in the early hours of the morning. He banged on the front door but there was no response. He knew at the time the complainant and their child were inside. Having got no response, he went to a rear door and forced it. He then went to the complainant, who was cowering in her bed. She had called Triple‑0. The Triple‑0 operator remained on the line, and what occurred in the bedroom was recorded.

20. I accept that there were no overt threats made. But Steele entered the home when the door was locked against him. I found that he had never held a key after the door locks were changed. He broke through a rear door, although, on the evidence before me, little force would have been required, given it was already damaged. But he knew the complainant was in the premises. He entered to fulfil the threats which had been made in the text sent earlier - not out of concern for her. He said nothing overt to threaten the complainant while he was beside her. But his actions and his presence intimidated her. He was aware she was upset and cowering in her bed.

21. He persisted for a period of about eight minutes in staying with her, despite her distraught condition and her repeated requests he leave. His behaviour, at the amounted to harassment of her. He was intimidating her (in the terms of the Act). And he knew it. As that was his intention; harassing her and, by his presence, causing her to fear physical and mental harm.

Section 166 matters

22. Sequences 2 and 3 - relate to an incident where the couple were in a hotel with their son at Casula. It was the subject of evidence at trial. There was an argument. They kept it quiet because of the presence of the son. But the argument resulted in threats, intimidatory threats being made - such threats were in contravention of an Apprehended Violence Order (AVO).

23. Sequence 5 relates to a clear breach of the AVO for Count 1. As did Sequence 9, the breach of the AVO for count 3; and sequence 12, the breach of the AVO for count 2.

Objective seriousness

24. A sentencing judge must identify all the factors relevant to the sentence, discuss their significance, and then make value judgments as to what is the appropriate sentence - given all the factors in the case: Markarian v The Queen (2005) 228 CLR 357 at 378; Muldrock v The Queen (2011) 244 CLR 120.

25. Crimes such as these are treated with real seriousness because domestic violence, in all its forms, is unacceptable behaviour. Proper recognition must be given to the real harm crimes such as this cause their victims, the children of victims, and the community in general.

26. It is recognised there are special dynamics to crimes involving domestic violence. Any relationship must involve trust. Such offences breach and abuse that trust. Here, the complainant was personally targeted by the offender. As the evidence at trial revealed, each offence was part of a larger picture of physical and mental violence in which the offender exercised power and control over her: R v Burton [2008] NSWCCA 128 at [97]: The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 (2016) 91 ALJR 131.

27. The evidence at trial revealed that - like many other perpetrators - Steele believed, in some way, what he did was justified or could be excused. He gave the impression at times he thought he was the true victim. That continued belief carries with it a continued threat. As a consequence, a complainant such as the woman here may never feel truly safe. There are matters to which I will refer later which indicate the efforts that can and must be taken to prevent repetition of this offending.

28. Although submissions were made about where in a hypothetical range, I should find each of the matters, I do not believe I am required to do so. Placing the conduct within a graduated scale involves a high level of imprecision. I have to weigh too many factors - and many of those factors are, frankly, impressionistic and matter about which judicial opinions differ. My focus is on what was done. That is my findings are fact. But an assessment of objective seriousness assessment is critical to the sentencing process: Campbell v R [2014] NSWCCA 102 at [27].

29. Mr Tonks, solicitor, for the Director of Public Prosecutions- who appeared at the trial and on sentence – referred me to some s 21A (2) Crimes (Sentencing Procedure) Act factors; which are said to aggravate the objective seriousness of the offence.

30. Care must be taken. All relevant matters must and will be taken into account. But the simple recitation of s 21A factors, after all facts relevant to objective seriousness are taken into account, risks double‑counting. Nuance is required in synthesising an appropriate sentence; not ticking off a checklist. Mr Tonks referred me to s 3A Crimes (Sentencing Procedure) Act. I will have regard to s 3A (g), in particular, which requires the Court to recognise the harm to the victim.

31. I also have regard to the objects provision in s 9 Crimes (Domestic and Personal Violence) Act, which notes that domestic violence, in all its forms, is unacceptable behaviour and concludes at s 9 (3)(g):

“domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and, in certain cases, may be the subject of appropriate intervention by the court.”

This, of course, is required here.

Count 1.

32. The threat to kill was made in graphic terms. While it was not accompanied by any immediate violence, it occurred in the context of a heated argument. It appears to have been spontaneous - but it was intended to, and did, cause fear and apprehension. The nature of the threat and its context reveals this crime’s real seriousness. It requires a custodial sentence.

Count 2.

33. The complainant said she was not immediately concerned. That is not an answer to the charge, but it is a matter I should consider on sentence. Her fear only became manifest when the possibility that the threat might be carried out was revealed by Steele’s car pulling up outside her home. She had, however, prior to that been put in a situation and state of anxiety as she waited, anticipating that the threat would be acted on. That state of anticipation caused her fear as she waited, awake, late into the morning.

34. In context, the threat was, I find contrary to the defence submissions, explicit. The words used, in particular “shit going to get real”, achieved what was intended, leaving the complainant in a state of sleepless anxiety for some hours. Again, in context, this is a serious example, of a verbal intimidation offence.

Count 3.

35. Steele came to the home to fulfil the threats which had been made in the text (Count 2). He did not go to her home out of concern for her. He did not enter the home out of concern to her. I accept that when inside the home, he made no overt threat to her, nor did the actual words he used show any intention to intimidate. But the fact he was talking to her; his presence; his failure to respond in any way to what she said, what she asked, what she demanded, aware, as he was, that she was upset and cowering; his persistence in staying with her despite her distraught condition and repeated requests he leave, at the very least, as I found, amounted to harassment of her.

36. His behaviour demonstrated the exact opposite of the words he was using at the time and the intention he still maintains. He said he did not know his actions would be likely to cause her harm. I did not believe him. His actions spoke louder than words. He was not concerned for her - his concern was only for himself. His actions demonstrated a presumed entitlement and the control he sought to exercise over her.

37. The complainant was in the presumed security of her home. Her son was present. Force was used to enter, but it was minimal. While I accept that no overt assault or direct threat of harm was made, the serious indictable offence of intimidation was made out.

38. While serious, in the context of the sort of matters that can make up the serious indictable offences contemplated by s 112(2) Crimes Act, the breaking and other context makes this matter relatively less serious than those that attract the heavy sentences revealed in the authorities and Judicial Commission statistics; and many of my own sentencing decisions.

39. Here, each of the counts occurred in breach of an apprehended domestic violence order. The criminality in breaching such orders rests in the complete disregard for the Court order. This conduct has the practical effect of undermining the authority of the Courts and prevents the Courts from extending effective protection to persons at risk of harm.

40. If the authority of the Courts in making orders such of this is simply ignored, as Steele did, the law and the Courts are diminished and the Court’s capacity to protect vulnerable individuals is impeded.

41. Where there is a deliberate disobedience of a Court order, it will be treated seriously and is ordinarily separately punished. That creates, in this case, a matter that requires careful nuance and consideration. The breaches were breach of a form of conditional liberty designed to protect a complainant from further intimidation by Steele.

42. It means that greater weight has to be given to the sentences, with greater weight to specific deterrence, general deterrence, and denunciation: Browning v R [2015] NSWCCA 147 at [4]-[9]; Cherry v R [2017] NSWCCA 150. But care has to be taken. I am being asked to deal with the breach offences and impose, or indicate, separate sentences for them. When I take into account the breaches and aggravation of sentence, as I must - and also, as I must, indicate some separate and discrete sentences for the breaches themselves - to double‑count those matters would lead, impermissibly, to an increase in the sentence which was not justified. And I will take care not to do so.

35. The stalk - intimidate offences dealt with indictment carry maximum penalties of five years’ imprisonment. The aggravated break and enter matter carries a maximum penalty of 20 years’ imprisonment. There is a standard non‑parole period of five years. For the summary matters of contravene AVO, the maximum is two years, and for the stalk intimidate five years. But if dealt with in the Local Court, there is a cap of two years.

36. Careful attention is required to maximum penalties - and, where applicable, standard non‑parole periods. Both provide sentencing measures to, or guidance, to be balanced with all other relevant factors. Content should be given to any standard non‑parole period. But there are reasons here for departure, both in my findings as to objective seriousness relative to many other matters that fall within the rubric of the section and the offender’s subjective case.

Aggravating features

45. These offences were committed in breach of parole. There is a parole report before the Court. The report indicates that there was a positive response to supervision while on parole, and Steel appears to have benefited from the domestic abuse program he undertook. He had obtained employment and was, at the time, making attempts to engage in psychological counselling. But knowing what he had ostensibly learnt, he offended in clear breach of his obligations.

46. There is some indication of positive progress while on parole. The earlier offences were committed while, as I understand it, he was abusing illicit drugs. There are positive suggestions that whatever drug problem he had was in remission. He served three months, five days balance of parole. A submission was made that I should date this matter from the day he was apprehended, 3 August 2021, as I will be taking into account as an aggravating circumstance of commission to the offence while subject to conditional liberty.

47. I have given this matter some consideration. In my view, there should be some modest independent punishment for the breach of parole reflected in the sentence. Accordingly, I propose to start this sentence on 3 September 2021one month into the balance of parole period.

48. The offender has a criminal record. I will ignore the cannabis conviction. It is not relevant, apart from a part of the factual matrix. The most relevant matters relate to two prior relationships that ended Court proceedings relating to domestic violence offences. As a consequence, Steele is not entitled to the leniency often given first offenders. While his record is relevant to his prognosis for the future, he is not to be punished for it.

Victim Impact Statement

49. There is a Victim Impact Statement from the complainant, who is present today. I acknowledge that she had to endure giving evidence at trial and being challenged in cross-examination. She tells me that after these offences were committed, she fled her home with her child. She left with only clothes and what she could fit into the car. She travelled interstate, and then had difficulty finding accommodation. She left the home where she and her son were established.

50. Since then, she has had difficulty regaining normality in her life. She still is anxious and has had trouble holding employment; something that is difficult enough when you are a single mother. Their child has special needs. She has suffered unemployment, financial harm, and gross disruption to her life.

51. So, too, has their child - who has had to change schools and for periods be put in the care of other family. He has had to make significant adjustments. The complainant says she has; depression, fear, anxiety, nightmares, and panic attacks. All of these have affected her social life. She has difficulty trusting others and feels very vulnerable. Financially, she has lost her independence. Not having a place to call home is very significant. She hopes that this year will be happier, and she will be more at peace with herself.

52. I have no hesitation in accepting what she said. It will be taken into account. Sadly, it speaks to what I would expect a victim to say in response to matters such as this.

The Offender’s subjective case.

53. Steele did not give evidence, but what is put before me is not controversial and can be accepted.

54. I received an affidavit from his father. It sets out the family history. It sets out the unconditional support that his parents have given him all his life and intend to give him in the future. They know Steele as a down-to-earth and genuine, and generous man. But they have chosen to stay out of his personal affairs.

55. So far as the future is concerned, they will support him in his desire to not form relationships. While he has still said to his father he would love to be around his child, if this cannot be facilitated, Steele told his father he would work on himself. He notes that Steele’s time in custody has been made worse by COVID‑19. He notes the lockdowns that he was subject to. And I have had evidence from many prisoners that gaol now is harder than it has ever been; and that includes from prisoners who have spent most of their life in gaol. Matters I will take into account.

56. Additionally, in the material before me there are indications that Steele was suffering particular personal anxiety during the pandemic additional to that often felt by all fathers. I will not recount all the matters going to his background. There are a number of significant incidents in that background that I have considered. They helped form the man for sentence. There are aspects of his relationship with his family that, while not unusual, have to be taken into account.

57. He was born in 1982 - so he is old enough and mature enough, to make rational decisions. But his capacity to make rational decisions has, in part, been impeded by a background that is referred to comprehensively in the report of a psychologist, Mr Wong. Mr Wong notes Steele’s history as a hyperactive, “full-on child” who did not do well at school but has a capacity for hard work. He has been in almost continuous employment, as is reflected in the references from friends and those he works with.

58. His prior relationships were marred by jealousy and reactions to fears of infidelity, which led to criminal offending. There is a period of illicit drug use, apparently in remission. Although he is in good physical health, he has struggled most of his life with anxiety. Steele expressed a desire to Mr Wong that he wants to live his life and be with his child - but his actions may well have cruelled that particular objective, at least for a significant period.

59. Mr Wong noted matters in Steele’s history that indicate the positives - and some negatives - including some experience of sexual abuse. There are clinical factors to which I will later refer. In terms of risk management, Wong reports a motivation by Steele to attend on and get psychiatric and psychological care, maintain abstinence, and, it appears, take positive steps, supported by family and friends, to avoid future offending.

60. There is a very detailed and complex clinical opinion which I have taken into account, but I will not recount. It appears that hard work and overworking was his coping strategy for long-term anxiety. He is a person who is emotionally and, at times, physically unavailable, meaning that his relationship qualities might be poor.

61. There is a cycle here that has to be broken. It would appear that his substance use problems are in remission. But Mr Wong forms the view that he suffers from, and has suffered for some time, attention deficit hyperactivity disorder and a generalised anxiety disorder. Both of which requires ongoing treatment.

62. That background, Mr Wong suggests, meant that Steele at the relevant time was in a mental state where he did not have the ability to see that his he was in contributing to the failure of his relationship. Given his offending history and his offending against this complainant; Mr Wong concludes that Steele had no ability to manage his anxiety. This, at the time of the commission of these offences, led to his extended and intense emotionally driven behaviour. Mr Wong notes that that behaviour can be moderated given that there appears to be some emerging insight into his mental health That insight is shown by Steele’s comments that he should not start a new relationship until he has sought and engaged with mental health support.

63. Mr Wong opines Steele would benefit from; a psychiatric review, especially where stimulant medication is indicated; residential rehabilitation; ongoing psychological therapy for his trauma and addictions; for example, from Narcotics Anonymous.

64. I accept that his underlying conditions operated when these and other offences were committed. There is a positive prognosis if he engages in treatment on release and continues whatever treatment can be given to him, including medication, while he is in custody.

65. Of course, his underlying conditions do not excuse his behaviour. And, to a degree, it makes him more at risk of reoffending. Those problems are longstanding and should have been addressed by him much earlier. They do not excuse, but they help explain, reactions which otherwise would be inexplicable - as the facts of this matter reveal.

66. Stelle has, however, displayed no remorse or contrition. And while, practically, steps can be taken by him to prevent reoccurrence, from the material before me it still appears that he does not quite understand the impact of his behaviour on others. And he tends to blame others, and does blame others, for problems in his own life.

67. He has failed to recognise, at any stage, even today, that the complainant in this matter is entitled to a life of her own choosing, not as he imagines it. There is a continuing risk to her, because he has a desire to reconnect with his child who is residing with the complainant. If he puts his own interests above those of others and fails to take the treatment that is available to him; if he ignores the orders of Courts, as he has done repeatedly in his past; then more serious, further serious offending could be committed.

68. If the insight noted by his father and his friends is a rue insight; if the behaviour reflected in the custodial records is carried through in the community, then that risk will be moderated. But I strongly suspect the complainant will always have an underlying fear. Sadly, there is nothing I can do about that, except express my concern and my feelings for her. I cannot protect the community by removing Steele from it for any longer than the law allows. And I have to give him the full benefit of the matters raised in mitigation.

Submissions

69. I am indebted to Mr Lang and Mr Tonks for their comprehensive written and oral submissions, and I hope this judgment does justice to them. I have not explicitly referred to each of the matters raised, but I have sought to have considered and addressed them in coming to my determinations as to the appropriate sentence.

Structure of the Sentence

70. I have to indicate an appropriate sentence for each offence. Each count had its own discrete act of criminality; however, each was part of a course of conduct, and there are many common and overlapping features. The sentences should be partly cumulative. The aggregation of all the sentences to be indicated must be just and appropriate to the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. Mc Hugh J at 307-308; Cahyadi v Regina [2007] NSWCCA 1.

Special circumstances

71. I will be making a finding of special circumstances. Steele’s positive responses to custody must be rewarded. The impact of the COVID pandemic on him must be taken into account. The longer he is supervised and monitored in the community, the safer the community will be. He has, and should be encouraged to maintain, pro‑social contacts. His work history and work ethic were demonstrated both in custody and in the community, meaning that he is capable of providing for himself and others.

72. My finding, however, has to be tempered by the fact that the minimum term for which the offender should be imposed must properly reflect the gravity of his offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Synthesis

73. I cannot, with respect, impose the period out of custody suggested by Mr Lang in submissions. It needs to be stated and re-stated that crimes such as these are treated with real seriousness because domestic violence, in all its forms, is unacceptable. Proper recognition must be given to the real harm crimes such as these do their victims, children of the victim, and the community in general. Denunciation is required. A retributive sentence is required. Retribution is the notion that reflects the community expectation offenders will suffer punishment, and that offences such as this will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court’s view of the seriousness of the crime and should let this offender and others know what will happen if they commit serious similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205.

74. Gaoling offenders in domestic violence creates particular dilemmas. Community protection, supported by growing community perceptions, demand that men who intimidate, commit domestic violence offences - particularly so when they occur in their home - are to be punished severely.

75. Traditionally, we do this by removing men from our community and putting them in gaol. As a deterrent to violent behaviour, gaols do not have a great success rate. Gaol can break pro-social bonds and encourage links with other criminals. Putting violent offenders in cells with other violent offenders, rather than discouraging crime, can have a crime-producing effect.

76. Protection aims can be met by removal from the community, but Steele must be released. We do not have indefinite detention, and sentences must be proportionate to the crimes committed.

77. But as the High Court said in Munda v Western Australia [2013] HCA 38, while general deterrence may be of little utility, important points have to be made. It would be wrong to presume that a victim of domestic violence is somehow less in need or deserving of protection than any other victim. Courts also have an obligation to vindicate the dignity of a victim of domestic violence, to express the community’s disapproval of that offending, and to attempt to accord some protection to the vulnerable against repetition of this type of offending - both against this complainant, but in general.

78. I have sought to synthesise all those matters in the indicated and total sentence. The sentences will commence on 3 September 2021.

Orders

79. Sequence 006 - Travel from Metropolitan Sydney area to NSW outside area: You are convicted. I dispose of the proceedings without imposing any other penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. This

80. For sequence 2 Stalk/intimidate and sequence 3 Contravene AVO: For each offence, the offence is proved. You are convicted.

81. For sequence 5, 9 & 12 Contravene prohibition/restriction in AVO (Domestic): Consistent with the trial outcome - you are convicted.

Indicated sentences

82. I indicate the following sentences:

83. Count 1 (sequence 4) Stalk/intimidate intend fear physical etc harm (domestic): I indicate a sentence of 9 months

84. Count 2 (sequence 11) Stalk/intimidate intend fear physical etc harm (domestic): I indicate a sentence of 12 months

85. Count 3 (sequence 13) Aggravated B&E & commit serious indictable offence: as it carries a standard non-parole period I indicate a sentence of 2 years 9 months with a non-parole period of 1 year 9 months.

86. Sequence 2 - Stalk/intimidate intend fear physical etc harm (domestic): I indicate a sentence of 4 months

87. Sequence 3 - Contravene prohibition/restriction in AVO (Domestic): I indicate a sentence of 2 months

88. Sequence 5 - Contravene prohibition/restriction in AVO (Domestic): I indicate a sentence of 6 months

89. Sequence 9 & 12 Contravene prohibition/restriction in AVO (Domestic): for each offence I indicate a sentence of 6 months

Aggregate sentence

90. The term of the aggregate sentence will be three years and nine months. The non‑parole period, reflecting a finding of special circumstances, will be two years and five months. That non‑parole period will commence on 3 September 2021, making the offender eligible for release to parole on 2 February 2024. Given the gaol history, it would be expected he would be released on that date. The balance of the term of one year and four months commences. The total sentence will expire on 2 June 2025.

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Decision last updated: 14 April 2023