R v Watkins

Case •

[2018] NSWDC 103

•

23 March 2018

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Watkins [2018] NSWDC 103
Hearing dates: 7 February 2018
Date of orders: 23 March 2018
Decision date: 23 March 2018
Jurisdiction:Criminal
Before: Hatzistergos DCJ
Decision:

I make the following orders:

 1 For the offences the subject of the bond, dated 23 July 2015 (2015/65752), the Offender is sentenced as follows:
(a) For the offence of Use of Offensive Weapon with Intent to Commit Indictable Offence, namely Intimidation, I impose a sentence of 12 months imprisonment;
(b) For the offence of Intimidate with Intention of causing Fear of Physical or Mental Harm, I impose a sentence of 12 months imprisonment;
(c) For the offence of Common Assault, I impose a sentence of 12 months imprisonment.
Those sentences will be served concurrently and commence on 13 February 2016 and expire on 12 February 2017. In light of the further sentences I am to impose I decline to specify a non-parole period but will account for the length of time in custody in fixing the appropriate ratio of non-parole to parole.
2 On each of Counts 1 to 9 the offender is convicted (2016/47184; 2016/226688).
3 In relation to the matters for which the offender is to be sentenced before (2016/47184; 2016/226688) me I impose an aggregate sentence of 9 years imprisonment, pursuant to s 53A of the 1999 Act to commence from 13 February 2017 to expire on 12 February 2022. Thereafter the offender shall be eligible to be released to parole from 13 February 2022 to expire on 12 February 2026.
4 The indicative terms that I would impose are as follows:-
(1) Count 1 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment. In light of the plea I would have imposed a sentence 1 year and 8 months
(2) Count 2 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years and 6 months imprisonment. In light of the plea I would have impose a sentence of 2 year and 1 month (taking into account the matter on the Form1)
(3) Count 3 (Common Assault): but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months.
(4) Count 4 (Common Assault) but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment.
(5) Count 5 (Common Assault) but for the plea of guilty I would have impose a sentence of 12 months imprisonment but in light of the plea I would have imposed a sentence of 10 months imprisonment.
(6) Count 6 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment however in light of the plea I would have imposed a sentence of 1 years and 8 months imprisonment
(7) Count 7 (Common Assault): but for the plea I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment.
(8) Count 8 (Sexual Assault without Consent): but for the plea I would I would have imposed a sentence of 6 years imprisonment but in light of the plea I would have imposed a sentence of 5 years and 1 month imprisonment. The non-parole period I would have set is 3 years and 6 months.
(9) Count 9 (Common Assault): but for the plea of guilty I would have imposed a sentence of 18 months imprisonment however in light of the plea I would have imposed a sentence of 15 months imprisonment.
Catchwords:

CRIMINAL LAW – Breach of Good Behaviour Bond – Use offensive weapon with intent to commit indictable offence, namely intimidation – Intimidate with intention of causing fear of physical or mental harm – Common Assault (Domestic Violence)

 

CRIMINAL LAW – Assault Occasioning Actual Bodily Harm – Common Assault – Sexual Intercourse without Consent

  SENTENCING – Aggravating Factors – Offences committed in the home of the victim – Offence was committed while the Offender was on conditional liberty in relation to an offence – offender has a record of previous convictions – Mitigating Factors – Remorse established – Self Intoxication not to be taken into account as a mitigating factor – Plea of Guilty – Discount of 15% – Special circumstances established
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 12, 21A, 28, 47, 98(3)
Crimes Act 1900 (Cth) ss 33, 59, 61, 61I, 61J
Cases Cited: Yates v Commissioner for Corrective Services of NSW [2014] NSWSC 653
Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2
Georgopoulos v R [2010] NSWCA 246 246
R v Hibberd [2009] NSWCCA 20
R v Baines 2016] NSWCCA 132
Frigiani v R [2007] NSWCCA 81
R v Gommerson (2014) A Crim R 534; [2014] NSWCCA 159
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
Category:Sentence
Parties: Regina (Crown)
Watkins (Offender)
Representation:

Counsel:
Mr Robinson (Crown)
Mr Coyne (Offender)

  Solicitors:
Office of the Director of Public Prosecutions (Crown)
Bateman Battersby Lawyers/ Legal Aid NSW (Offender)
File Number(s): 2015/00065752
Publication restriction: N/A

rEMARKS ON sENTENCE

  1. The Offender pleaded Guilty and appeared for sentence before me on 8 February 2018 in respect of nine offences, the details of which are set out below.

  2. At the time of the offences, the Offender was also the subject of three bonds pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. [1] Being bonds imposed at Mudgee Local Court on 23 July 2015 for a duration of 12 months in each case. In submissions before me in relation to the Offender, this Court is exercising jurisdiction to deal with a breach of the bonds that were imposed at the Mudgee Local Court. [2] As the circumstances of the breach of those bonds involved the commission of further offences, the breach of the bond must be considered first. [3]

    1. Hereinafter referred to as the “1999 Act”

    2. Yates v Commissioner for Corrective Services of NSW [2014] NSWSC 653

    3. Director of Public Prosecutions v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2

  3. According to the facts to which the Offender pleaded Guilty, during the term of the offences subject to the bond, the Offender was residing at Springwood with his mother but had a 13 month-old daughter who resided with the victim at an address in Mudgee. Furthermore, at the time, the victim was 5 months pregnant with their unborn son. The Offender was unemployed and receiving government benefits and was recorded as suffering from an acute form of Asbergers.

  4. At about 12:00pm on 3 March 2015, the victim was not well and requested the Offender to help her around the house. The victim had a bucket in her hands and was attempting to vomit. The victim and the Offender began arguing. The Offender looked into the bucket, saw that she hadn’t been sick and then slapped the bucket away from the victim and punched her in the face causing her nose to bleed. The victim and the Offender became involved in an argument over household responsibilities and domestic issues. The Offender declined to help and as a result, the victim asked the Offender to leave. The Offender became angry, grabbed the victim from behind by the hair and struck her in the back of the head. The Offender pushed the victim multiple times, hitting her and continually grabbing her hair. He pulled her head down towards the ground to try and control the victim’s movements. The Offender then grabbed the victim around her throat with both hands. The victim put her feet onto the Offender’s shoulders and extended her legs in order to loosen his grip around her neck to reduce some of the pressure. The victim sustained bruising and red marks to the front and side of her neck, where the Offender applied pressure.

  5. The Offender told the victim that he was going to slit her throat so that she couldn’t scream anymore. The Offender then went to the kitchen and picked up a silver stainless steel steak knife and held it to the victim’s throat. The Offender put the knife away and the physical confrontation continued in the lounge room. The Offender pushed the victim onto the lounge and on impact, the victim hit her stomach causing pain to the top of her stomach. The Offender then kicked the victim in her back and on the side of the body causing bruising and red marks.

  6. A young child was present throughout the incident in an adjacent room whilst upset and distressed. The victim stated that the child was screaming and crying. The victim asked the Offender if he liked beating her in front of the child to which he replied, “Yes I do”.

  7. The victim picked up her mobile phone in an attempt to make contact with a case worker and called for help. The Offender took the mobile phone from the victim, removed the sim card and put it down the sink. The Offender then gave the victim back her mobile. Later on in the afternoon, the victim’s family support caseworker attended the residence for a surprise visit. The victim and the Offender could be heard arguing inside and the Offender immediately let go of the victim allowing her to open the front door and walk outside. The Offender closed the door behind the victim, leaving himself and their child inside the house. The victim had blood running out of her nose and was crying. The police and ambulance were called and the victim and child were conveyed to the Mudgee Base Hospital.

  8. The Offender was subsequently taken to Mudgee Police Station, where he declined to participate in a recorded interview. Consequently, he was charged convicted and sentenced in respect of the following offences:-

  1. Use an offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to s 33B(1)(a) Crimes Act 1900;

  2. Intimate with intent to cause fear of physical or mental harm contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007;

  3. Common assault (domestic violence) contrary to s 61 Crimes Act 1900.

  1. In respect of the circumstances amounting to the breach of the bonds under s 12, no argument was presented that the Offender’s failure to comply was trivial in nature or there were good reasons for excusing the Offender’s failure to comply. [4] It follows that I would call up the bonds and sentence the Offender on each Count to 12 months imprisonment.

    4. s 98(3) of the 1999 Act

  1. After the Offender was charged with the offences, the subject of the bonds, he and LP separated. At the time of the offences before the Court, the Offender was in the process of serving the s 12 bond.

  2. Following the separation, LP moved to Mudgee with her children. The Offender remained in contact with her in order to see the children. The Offender travelled to Mudgee on a number of occasions in 2015 and stayed with LP.

  3. The second complainant, AK first met the Offender in April 2015, when she moved into a share house with the Offender at Penrith. There were 2 other housemates at that location. Soon after moving in to the share house, the Offender and AK commenced a relationship. In June 2015, the Offender and AK moved in with the Offender’s mother, Ms Jennifer Watkins, at her home in Springwood. It is acknowledged in the agreed facts that the Offender and AK used drugs together, including MDMA and Methlamphetamines.

Count 1 – s 59(1): Assault occasioning Actual Bodily Harm

  1. On 18 October 2015, around mid-day, the Offender and AK were at the Springwood premises with Ms Watkins. Ms Watkins was inside watching television and the Offender and AK were outside on the porch. A verbal argument arose between AK and the Offender. AK said “I’m leaving you because you’re a liar” and started walking across the porch to go her car. The Offender followed AK, snatched her mobile phone from her hand and threw it on the ground, causing the phone to smash into pieces.

  2. AK slapped the Offender across the face using an open-palm and continued to walk up the driveway to her car. The Offender followed her and AK turned towards the Offender and the Offender punched AK in the face, connecting with the left eye, using a closed-fist. The force of the blow caused AK to fall backwards onto the ground landing on her back. AK felt dazed and was in pain from the blow and began to cry. The Offender walked back to the porch and sat down on a chair, before saying to AK “are you going to get up?” AK stood up and walked into the house as she felt too scared to leave the premises. AK received a black eye as a result of being punched by the Offender. The next day, AK took a photograph of the injury to her face and sent it to a friend.

  3. In December 2015, AK moved back to her parent’s house. The Offender had been spending an increased amount of time contacting LP prior to Christmas and decided that he wanted to spend Christmas with his children. At this time, LP was living Mudgee with her two children, one aged 2 years and the other, 8 months.

  4. At about 1:00am on 18 December 2015, LP received a phone call from the Offender who said that he was in Mudgee and that he wanted to see the children. He said that he was near the premises and arrived a short time later with his mother, Ms Watkins. After a short time, Ms Watkins left returning to her home in Springwood and leaving the Offender with LP. The Offender told LP that she and her children would be returning to Springwood with him for Christmas.

  5. On 20 December 2015, LP went to see her sister who also lived in Mudgee. LP informed her sister that the Offender was insisting that she spend Christmas with him and he would accept that things were over between them. At 9:00am on 21 December 2015, Ms Watkins returned to Mudgee to collect the Offender, LP and the children and take them to Springwood. LP was apprehensive and anxious when they arrived at the Springwood premises as she knew that she was expected to share a bed with the Offender.

Count 3 – s 61: Common Assault

  1. On 23 December 2015, LP and the Offender were in the kitchen. LP asked when she and the children could go home. The Offender said nothing but grabbed LP around the throat and started punching her in the stomach. The Offender then stopped assaulting her and returned to pouring himself a drink as if nothing had happened.

  2. On 26 December 2015, LP again brought up the subject about when she would be returning to her home. The Offender told her that he would take her out for New Year’s Eve. LP did not push the issue as she was fearful of being assaulting again.

Count 4: s 61: Common Assault

  1. On 27 December 2015, the Offender went out and left the children at home with his mother. LP received a phone call from a friend who wanted to catch up. LP told her friend about what was going on and that the Offender was not letting her leave. Her friend offered to meet her. LP asked the Offender’s mother if she would take her to meet up with her friend, but she refused. The Offender returned whilst LP was still on the phone with her friend. LP asked the Offender if she could go and see her friend. The Offender responded by grabbing LP around the throat and holding her up against the wall until she fell.

Count 5: s 61 – Common Assault

  1. On the morning of 28 December 2015, LP again asked the Offender if she and her children could go home. The Offender slapped LP hard across the right side of her head, causing ringing to her ear. At around midday, LP and the Offender were on the veranda drinking. LP was aware that the Offender was involved with another woman as she had seen clothing and other items in the bedroom. LP confronted the Offender about seeing another woman which the Offender denied. On the night of 31 December 2015, the Offender took LP to the Royal Hotel in Springwood for New Year’s Eve. The Offender, booked a room in the hotel. The Offender told her that he wanted to have sex with her, but he could not get an erection as he was affected by drugs. They returned to Springwood the following morning.

Count 6 – s 59(1): Assault occasioning Actual Bodily Harm

  1. On the evening of 2 January 2016, LP and the Offender were on the front porch drinking Vodka. By this stage, LP felt that the only way she would survive near the Offender was to consume alcohol. LP once again asked the Offender if she could return to Mudgee. The Offender started to yell at her and punch her to the side and back of her head with a closed-fist. The Offender punched LP around 10 times. This assault caused LP significant pain and caused bruising to LP’s head and nose. In an attempt to get away from the Offender, LP went and sat on the brick fence at the front of the property. The Offender followed LP and pushed her off the fence, causing her to fall to the ground. LP received scratches and bruising to the back of her legs and bottom as a result.

Count 7 – s 61: Common Assault

  1. While LP was on the ground, the Offender grabbed her by the hair, ripping some of it out and pulled her back into the house by her hair. He took her to the bedroom and threw her on the bed. LP was yelling at the Offender. He placed his hand over her nose and mouth, restricting breathing and yelling. LP pulled the Offender’s right hand down to her mouth and bit the Offender on the webbing between this thumb and index finger. The Offender yelled at LP to let him go but she did not. LP was crying and pushed the Offender off her. She ran to the bathroom to check her injuries. When she came out, the Offender took her out to the front porch for a cigarette.

Count 8 – s 61I: Sexual Intercourse without Consent

  1. The Offender said to LP “be completely honest, do you still love me?” LP responded, “no. you repulse me”. The Offender appeared upset by the response and did not say anything further. When LP had finished her cigarette, he said “let’s go sleep.” They went back into the bedroom and laid on the bed. The Offender climbed on top of LP who was fully clothed. He removed his penis from his pants and LP said “no.” The Offender became aggressive and undid LP’s pants and pulled them down. The Offender inserted his penis into LP’s vagina and had penial-vaginal intercourse with her for about 10 minutes until he ejaculated inside her. The Offender was not wearing a condom. The Offender then pulled his penis out of LP’s vagina, rolled over and started crying. LP said nothing and eventually fell asleep. LP did not struggle, believing that it was of no use and because her head hurt from the assaults immediately preceding the sexual intercourse.

  2. On the night of 3 January 2016, Nicholas Cavanagh, a friend of the Offender was at the house visiting. LP and the Offender were out on the front porch drinking. Mr Cavanagh was not drinking as he was driving. While Mr Cavanagh was present, LP again asked the Offender when she could go home. The Offender immediately became angry and LP started to walk away from him up the driveway. The Offender followed LP, grabbed her by her hair and punched her to the side of the head. The Offender told her that he would have her killed. LP managed to get away from him and walk down to the side of the road. Mr Cavanagh approached and asked what was going on. LP told Mr Cavanagh about the threats the Offender had been making to her about having her killed and that she knew the Offender was seeing someone else and also that he was refusing to allow her and the children to return to Mudgee.

  3. The Offender approached LP and Mr Cavanagh and LP asked the Offender to take her to the hospital and that she was having a panic attack. The Offender took LP back to the porch and told her she was insane and that he was going to take the children off her. The Offender began insulting LP and refused to take her to the hospital.

  4. Mr Cavanagh told the Offender to leave LP alone to let her go to the hospital, however the Offender told Mr Cavanagh that she was faking it. The Offender then grabbed 3 or 4 pills including LP’s anxiety medication and told LP to take the pills and calm down. LP said she would take her medication but not the other pills as she did not know whose pills they were and what type of pills they were. The Offender responded by grabbing LP’s face and forcible shoved the pills into LP’s mouth. He placed his hand over her mouth so that she couldn’t spit them out and held her mouth closed until she swallowed them. The Offender then took LP into the bedroom and told her go to sleep. The Offender then left the room.

  1. In the early hours of 4 January 2016, after the incident with the pills, LP had an argument with the Offender and his mother. LP ran away from the premises and attended the police station. LP said that she needed an ambulance as that she was having a panic attack. An ambulance arrived and she was transported to Nepean Hospital.

  2. Upon arriving at the hospital, LP disclosed to medical staff the numerous physical assaults and the sexual assault. She was offered to participate in a sexual assault investigation including examination, which she declined. Also on 4 January 2016, Police attended the premises to conduct a welfare check on LP’s children. Police determined that both children seemed looked after with no significant sign of injuries or mistreatment.

  3. The following day, on 5 January 2016, LP was discharged from Nepean Hospital. Around 8:00pm, LP and her friend, Ms Tyler returned to the Police Station to formally report the offences. A determination was made to record a statement with LP. During the interview, LP provided details of the physical assaults and sexual assault committed by the Offender.

  4. In the early hours of 6 January 2016, LP reattended Nepean Hospital where a medical and sexual assault investigation and examination was conducted by Dr Maria Nittis. Dr Nittis recorded a number of bruises and abrasions across multiple body parts including LP’s upper and inner areas of her arm and abdomen which Dr Nittis noted are unusual signs for accidental injury. Dr Nittis provided an opinion that LP’s injuries were supportive of the history of this physical and sexual abuse that she provided. Swabs were taken and sent for analysis. Subsequent analysis of LP’s vulva swab returned DNA that matched the Offender’s.

Count 2 – s 59(1): Assault occasioning Actual Bodily Harm

  1. Around the end of January 2016, AK moved back into the Springwood premises with the Offender and his mother. On 9 February 2016 at around 8:00pm, AK was in the bedroom at the Springwood premise lying on the bed. The Offender was also lying in the bedroom. The Offender jumped on top of AK, pinning her down and began yelling abuse at her. The Offender grabbed a glass bottle and hit AK over the head with it, causing her immediate pain and to become dazed. The Offender said, “I’m going to kill you” and started to choke her and smother her with the pillow. AK was unable to breathe. She knew the Offender’s mother was in the house and tried to call for help and to alert her, but was unable to make any sound. AK believe that the Offender was actually going to kill her this time and was scared that she was going to die. AK was thrashing her arms about, trying to get the Offender to get off her and managed to strike the Offender. He eventually released the pillow and AK was able to call out. The Offender’s mother asked what was going on and the Offender told her that AK was having a panic attack. AK told the Offender’s mother that the Offender was hurting her and asked for help.

  2. The Offender’s mother opened the door and entered the bedroom. She took AK by the hand and took her out of the bedroom to the kitchen. The Offender followed them into the kitchen. AK began telling the Offender’s mother what been happening in the bedroom, whilst still arguing with the Offender. Suddenly, AK found herself on the floor, while the Offender kicked her repeatedly in the stomach. The Offender’s mother screamed at the Offender to stop. Eventually the Offender stopped. The Offender’s mother told AK and the Offender to go into the lounge room and sort it out.

  3. In the lounge room, the Offender and AK sat on the sofa. The Offender said, “you’re mine, you are never going to leave me, you better go in there and apologise to her and tell that you are having a panic attack or I will fucking kill you.” Out of fear, AK did what she was told, AK wanted to leave but the Offender would not let her out of his sight.

  4. In sentencing the Offender for this offence, I’ve also been requested to take into account, one further offence on the Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 being Assault occasioning Actual Bodily Harm. This arose on the evening of 10 February 2016 when a friend of AK and the Offender, Mr Cavanagh, came over to the Springwood residence to visit. While Mr Cavanagh was outside the house, the Offender and AK were in the bedroom and started to argue. AK was on the bed and the Offender went over to her and started to choke her, before placing his hand over her mouth to prevent her from breathing or yelling out. AK was punching the Offender to make him get off her. The Offender then leant over AK clamping down on her nose and biting her with his teeth. AK was screaming in pain and crying and her nose was bleeding. The Offender eventually stopped assaulting AK, got up, cleaned himself off before going outside to join Mr Cavanagh. AK then got up and cleaned herself up, went outside the shed, where Mr Cavanagh was so that he could see the injuries to her face.

  5. On the morning of 13 February 2016, the Offender told AK that he wanted to have sex. AK told the Offender that she was sore and had to go to the chemist to get some cream. The Offender told her to just hurry up. AK left the house and eventually went to Springwood Police Station, accompanied by a friend. There she reported the matter and a four page statement was obtained. About 1:00pm whilst AK was at the Police Station, the Offender’s mother called the station to ask if AK was there. Police neither confirmed, nor denied it. The Offender’s mother said words to the effect of, “I think she may be there about my son. He had a mental episode last week and I am just worried.” The Offender’s mother subsequently entered and approached AK at the Police Station telling her to contact the Offender, at which point, AK became distraught.

  6. On 13 February 2016, the Police attended the Springwood premises and were met at the front door by the Offender and his mother and informed that he was under arrest for domestic assault. The Offender was cautioned. He was then conveyed to the Springwood Police Station, where he was interviewed. During the course of the interview, some partial admissions were made. The Offender stated in relation to arguments with AK and her hitting him:-

“I find it hard once that sort of this has begun to control, like, it’s difficult for me to control my actions.”

  1. The Offender denied that he would fly into rage and said:-

“there’s still, like, a sort of level of restraint” and “I do need serious help with my anger reaction, but I really want to reiterate how our fights are generally mutual, like she hits me just as much.”

  1. He stated that he was prepared to get counselling and said “I might need some, some anger help” and “I think that I could use a long period of time inside a psychiatric facility.” He also said, “I think [AK] needs some help.”

  2. The Offender was then charged in relation to the offences against AK.

  3. On 15 February 2016, AK attended Springwood Police Station and provided a further written statement, she then attended Nepean Hospital where she underwent a medical and sexual assault investigation kit examination, which was conducted by Dr Nittis, who recorded a number of bruises and abrasions across multiple body parts and gave an opinion that the number of bruises across multiple body parts supports an inflicted injury.

  4. On 16 March 2016, LP provided a written statement in relation to the offences committed against her.

  5. On 27 July 2016, the Offender was asked to participate in an ERISP in relation to the offences committed against LP which he declined. The Offender agreed to provide a DNA sample and then was charged in relation to the offences against LP and was served with an Apprehended Domestic Violence Order.

VICTIM IMPACT STATEMENTS

  1. The Court received two victim impact statements one from AK and another from LP. [5]

    5. Exhibit C; Exhibit D

  2. LP describes her physical injuries (bruising, scratches and redness) and need to take preventative action following the sexual assault. She refers to a level of reclusiveness and loss of self-esteem that followed making relationships harder. LP also refers to the impact on her daughter who can’t deal with loud noises and to use her words, “freaks out a lot”.

  3. AK describes the trauma she experienced feeling trapped in a dangerous lifestyle and holding onto the hope that things might change. After the Offender’s arrest, she stated that she was in a volatile state of high tension and hardly left her bed for four weeks. She stated that she had panic attacks, night terrors and anxiety on a level not previously experienced. Although eventually feeling free to express herself AK described that due to the impact of the abuse on her body and mind she wasn’t stable enough to work and study for a year. Through counselling, medication and support from family and friends she advised she has steered herself back to a functioning lifestyle.

  4. No submission was made as to the application of s 21A(2)(g) of the 1999 Act in any respect. No submission was made that the injury loss or damage caused by the offences was otherwise than what would ordinarily be expected from offences of this kind. Regrettably, they are not uncommon experiences of victims of domestic violence.

  5. It is important nonetheless that the Court be reminded of the impact of such offending. To that extent, the statements are matters to be taken into account in the way provided by s 28 of the 1999 Act.

ASSESSMENT

  1. The Crown contended that it was an aggravating feature that each offence was committed in the home of the victim or other person for the purpose of s 21A(2)(eb) of the 1999 Act. The Offender told police that AK was not living at Springwood premises at the time of the offences but agreed she was there most of the time. LP was resident at the Springwood home at the time of the offences, although her home was at Mudgee.

  2. The agreed facts acknowledge that AK lived at the Springwood residence, it being the case that she did not move back to her parents until December 2015. The agreed facts also acknowledge that AK moved back to the Springwood premises with the Offender in January 2016. In respect of Count 1, the offence occurred in what was the home of AK as she was seeking to leave following an argument. Count 2 occurred at a time AK was residing there in February 2016 when she was lying in bed. In both of these instances AK was entitled to feel safe and secure. I am satisfied that this aggravating factor has been established.

  3. Each of Counts 3 to 9 occurred whilst LP was residing at the Offender’s home spending time over the Christmas New Year period with their children. LP went there at the Offender’s insistence. Although LP was anxious and apprehensive she was entitled to feel safe and secure. I am satisfied that this aggravating factor has been established

  4. The Defence also accepted the Crown submission that s 21(2)(eb) was also engaged.

  5. The Crown did not contend that any the offences were in the presence of a child under 18 years for the purposes of s 21A(2) of the 1999 Act. The Crown did however draw attention to the fact that the children were in the house although they did not witness the various offences being committed. This could only relate to the offences involving LP. Although LP had her children with her at the Springwood residence, the agreed facts in the sentence matter before me do not indicate that the children heard or were disturbed by the offending.

  6. In addition, the Crown submitted the offences involved a continuance of criminality. The offence of sexual assault without consent was submitted to be in the mid-range of offending of this kind.

  7. The Defence submitted that the offending occurred in the context of unhealthy relationships formed by the Offender and characterised by violence, alcohol and drug abuse. It was argued that things spiralled out of control as the Offender saw it when each victim was aware of the relationship of each other. Each offence was otherwise described as below the mid-range and no assault was to be characterised as serious.

  8. Whilst there is some support for the Defence contentions it does not mitigate the offending. The agreed facts record an assertion by AK that she was leaving the Offender because she regarded the Offender as lying. Subsequent to Count 1, she remained with the Offender until December 2015 around the same time as the Offender had been increasingly contacting LP prior to Christmas. The agreed facts also record that in the context of Count 5 LP confronted the Offender about seeing another woman and in the facts related to Count 9 LP complained about the Offender seeing another woman. The agreed facts acknowledge that AK and the Offender used drugs together. The agreed facts also record in the context of Count 5 that the LP felt that she could only survive near the Offender by consuming alcohol.

  9. As Counts 1 to 7 and 9 do not carry a standard non parole period it is unnecessary to make a finding as to where precisely they lie on the spectrum of offending. [6] Nevertheless the salient features to be noted are as follows.

    6. Georgopoulos v R [2010] NSWCA 246 246 at [30]-[32]

  10. Count 1 involved a single punch by the Offender to AK connecting to the left eye resulting in the victim falling backwards and sustaining a black eye.

  11. Count 2 occurred following a resumption of the relationship with AK in February 2016 and involved jumping on top of her, pinning her down, yelling abuse and hitting her with a glass bottle causing her pain and to be dazed before the offender starting to choke her and smother her with a pillow. He eventually released AK who called out to the Offender’s mother and following a further argument he repeatedly kicked her in the stomach. LP was clearly fearful and was coerced to comply with his request that she go to the Offender’s mother and apologise and tell her that she was having a panic attack. The Form 1 offence which I take into account occurred on the following day involved choking AK and then placing his hand over the mouth to stop her breathing or yelling and after AK resisted, clamping on her nose and biting with his teeth.

  12. Count 3 occurred following LP asking when she and the children could return home and the Offender responding by grabbing LP’s throat and starting to punch her in the stomach. The duration and impact involved is not described in the agreed facts and it appears the Offender eventually desisted.

  13. Count 4 occurred after LP asked if she could visit her friend and the Offender grabbed her around the throat and held her against the wall until she fell. It appears to be of relatively short duration.

  14. Count 5 occurred after LP asked when she and the children could again go home and involved a single hard slap hard across the right side of the face, causing ringing to the ear.

  15. Count 6 again involved LP asking if she and the children could return home resulting in the Offender responding by punching her about 10 times causing significant pain and bruising to the victim’s head and nose and subsequent pushing her off the fence resulting in scratches and bruising to the back of her legs and bottom.

  16. Count 7 followed 6 when LP was on the ground and she was grabbed by the hair and pulling her into the house and in the process ripping some of the hair out. In the house, the Offender placed his hand over the victim’s nose and mouth restricting her from breathing and yelling. The description of this offence involves a longer duration than the other offending, and more significant pain and discomfort.

  17. Count 9 involved LP asking the Offender when she could go home , he would become angry following LP as she was trying to get away and grabbing her by the hair and punching her on the side of the head. The Offender refused a request to take LP to hospital and after further words were exchanged grabbed 3 or 4 pills, including her anxiety medication and forcibly shoved the pills in her mouth, placing his hand over her mouth until she swallowed. Some of this medication LP was not familiar with. It was early the following morning that she escaped.

  18. In relation to Count 9, the Crown argued that the Offender caused the victim to take, or to be affected by a narcotic drug, alcohol or any other intoxicating substance. Whilst there is evidence that the Offender required the victim to ingest pills, the agreed facts state that she did not know what the pills were or what type of pills they were. I am not satisfied that this aggravating factor as per s 21A(2)(cb) has been made out as whatever was ingested cannot be established to have been an narcotic drug, alcohol or any other intoxicating substance. Nevertheless, I take account of the circumstance of what occurred as stated in the Agreed Facts.

  19. Count 8 followed Count 7. As it involves an offence with a standard non parole period, I am required to consider the objective seriousness. In R v Hibberd Price J stated:-

56 Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include “the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation…” See Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced intercourse is an important factor it is not to be regarded as the sole consideration. [7]

7. [2009] NSWCCA 20 at [56]

  1. In considering the objective seriousness, I do not take into account surrounding factors to the extent they may have given rise to an aggravated offence under s 61J of the 1900 Act. It is however relevant that the offence did not occur in an isolated context. [8] The Offender was upset that LP told him that he repulsed her. The intercourse that followed involved penile to vaginal intercourse for ten minutes with ejaculation inside LP without a condom. The Offender had actual knowledge that LP was not consenting, evidenced from her having said no and his own actions in climbing on top of her, becoming aggressive and undoing her pants and pulling them down; all matters in the agreed facts.

    8. R v Baines 2016] NSWCCA 132 Basten JA at [5]-[7] (with whom, Rothman J at [57] and Fagan J at [127] agreed)

  2. Overall, I would regard Count 8 as falling in the mid-range for offending of this kind.

  3. It is acknowledged that the Offender has a history of mental health issues and substance abuse. These will be discussed in greater detail below. It suffices to say that I do not consider that mental health lessens the moral culpability of any of the offending.

  4. In respect of LP and the Offender, Ms Hopkins obtains a history that during the period from 23 December 2015 to 2 January 2016 the Offender:-

“endorsed excessive substance use. He said that he was consuming alcohol regularly and that he gave his partner bought a bunch of pills including Xanax Seroquel Valium and ecstasy. Given his level of intoxication during this period the Offender stated “I don’t remember heaps of it”. In terms of his sexual offending, he explained that he and his partner had an argument and ‘afterwards we had sex”. He outlined that “I don’t remember her saying no, but I agree she must’ve said no, but I don’t remember it. I just wanted to feel like she loved me”

  1. Ms Hopkins’ report notes that the Offender’s abusive sexual behaviour is suggested to have been facilitated by his disinhibition with alcohol and various ‘pills’ and occurred as a means of attempting to discourage LP from leaving him.

  1. In respect of the offending against AK, Ms Hopkins obtains a history that from October 2015 to February 2016:-

“… also apparently occurred during periods of acute intoxication with methamphetamine, ecstasy and alcohol is described that the relationship was bad because of lots of drugs and drinking and fights from nowhere”.

  1. The presentence report records that the Offender reported that he was under the influence of both alcohol and drugs at the time of the offences.

  2. Pursuant to s 21A(3)(5AA) of the 1999 Act, the Offender’s self-induced intoxication is not to be taken into account as a mitigating factor.

BREACH OF BOND

  1. At the time of the offence, Mr Watkins was the subject of a section 12 bond for the offences earlier identified. This is an aggravating factor on sentence pursuant to s 21A(2)(j) of the 1999 Act.

  2. It is more aggravating in this case that the offences in respect of which the Offender was on the s12 bond were of a similar nature to those for which he is now being sentenced. [9]

    9. Frigiani v R [2007] NSWCCA 81 at [24] (Howie J with Simpson and Barr JJ agreeing)

  3. The three matters the subject of the bond were the only prior record on the Offender’s antecedents. No argument was presented that this was a further aggravating factor under s 21A(2)(d) of the 1999 Act and care must be taken not to double Count.

MITIGATING FACTORS

Plea of Guilty

  1. The Offender pleaded Guilty at trial, although the trial had not been embarked on. The Crown conceded that a sentence discount of 10-15% was appropriate. The Defence accepted that the plea was at a late stage following negotiations and contended that a discount of 15% was appropriate.

  2. Despite the lateness of the plea, it did save use of Court resources. Despite the negotiations, the utilitarian value is reflected largely by the timing. No submission was made that the trial would have been particularly complicated or lengthy. In my view, a discount of 15 % is appropriate.

  3. The Offender did not give evidence at the sentence proceedings.

  4. A pre-sentence report was prepared by Amy Refalo, dated 30 November 2017. Appended to that report was a Department of Corrective Services Case Note Report prepared by psychologists, M Wright and A Redden [10]

    10. Exhibit A, Tab 4

  5. In the Defence case, patient records were tendered from the Balance Springwood Family Practice which included a report from Dr Paul Thiering, Consultant Psychiatrist, dated 31 July 2012. [11] Also tendered were clinical records from Justice Health and Forensic Mental Health Network [12] and a report from Danielle Hopkins, Principal Clinical Psychologist of Ease Psychology, dated 22 January 2018. [13]

    11. Exhibit 1

    12. Exhibit 2

    13. Exhibit 3

Remorse

  1. In the report of Ms Hopkins, she reports that the Offender offered that he has not previously been an aggressive individual. He stated to her that when he has been in confrontational situations, “I never used to fight back or retaliate”. He opined that his aggressive conduct occurred exclusively in the context of intoxication and despite one earlier offence against the mother of his children, this pattern of behaviour develop more consistency during his relationship with the two victims, as a means of ending arguments between them. The Offender reportedly acknowledged that such behaviour was problematic and he verbalised his need for anger management intervention. Earlier in the report, Ms Hopkins records that the Offender stated that “I really don’t understand how I got to the point I was doing that stuff.”

  2. In the presentence report, the Offender is reported to have initially stated that he was unable to remember what had happened but then once presented with the Police facts, agreed with most of the details, however disputed some. Minimising and denying some aspects of the physical violence and recounted a version of events with some discrepancies to the facts. He went on to say that violence is despicable and he was ashamed it got to that point.

  3. In terms of the sexual intercourse without consent charge, the Offender was noted to have attempted to justify his behaviour asserting that his Asperger’s condition prevents him from understanding the feelings of others. The report notes that the Offender claimed to not remember that the victim did not consent, however, looking back he believed that he should have been able to tell that she was not consenting. He also identified that the victim of this offence would have felt scared, betrayed and violated and still be experiencing trauma as a result of the offence. He recognised that both victims would have felt scared, angry and helpless.

  4. The presentence report also records that the Offender claimed that the domestic violence had progressively became worse over time, stating that initially the victims would assault him and then he began to retaliate and eventually became the instigator of the violence. He identified himself as a domestic violence perpetrator.

  5. In the Department of Corrective Services psychologists’ report it was noted that whilst taking responsibility for his offending, the Offender speculated that his deficits in social communication may have contributed to his incorrectly interpreting cues related to sexual consent/not consent. The Offender reported that one of his ex-partners was violent and stated violence subsequently became part of his intimate relationships. He acknowledged that this was not a healthy way of conducting a relationship and identified domestic abuse as a potential treatment target.

  6. The psychologists further recorded that the Offender took responsibility for his actions, he reported feeling significant remorse when he reflects on what he has done. It was also recorded that he showed insight into the factors that contributed to his offending behaviour and presented as motivated to address these factors to reduce the likelihood of his offending in the future.

  7. The Offender’s statements referred to above were not tested in evidence before me. Nevertheless, there are consistencies in the two reports referred to. The Defence conceded that the Offender was seeking to minimise responsibility for his behaviour but nevertheless acknowledged the offences and his behaviours. It referred to the pleas and admissions made to police. The police admissions recorded in the agreed facts do make some admissions, but seek to minimise the Offender’s responsibility.

  8. Overall, I am nonetheless satisfied that the Offender has exhibited a level of remorse in terms of s 21A(3)(i) of the 1999 Act.

Background

  1. The Offender was born on 16 December 1992 and is 25 years of age. He is the youngest of three siblings.

  2. The Offender gave Ms Hopkins a history of being a quiet, “weird” child with only a few friends during his primary schooling.

  3. According to Ms Hopkins, the Offender reported that he had social difficulties at school and increasing anxiety symptoms. For these reasons he apparently ceased regular education at Year 9 and completed his Year 10 through to his Year 12 certificate at TAFE. Ms Hopkins records that the Offender has studied science at TAFE.

  4. Ms Hopkins reports that the Offender was employed casually in his adolescence in an electronics store and in a fast food restaurant. In adulthood, it was recorded that the Offender advised that he had been employed in a gaming store for a few months and as an arborist for 6 months. Otherwise, he was reported to be unemployed related to his substance abuse lifestyle. He offered that he would like to study in the future and seek out related employment in Information Technology.

  5. The pre-sentence report records that the Offender’s parents separated when he was approximately 4 years of age and the Offender continued to reside with his mother visiting his father of a weekend up until age 13 years when he made a decision to no longer see him. The presentence report notes that he has no has had no contact with his father since age 15.

  6. The Departmental psychologists’ report states that the Offender’s parents separated when he was aged 5 years of age and that he spent weekends with his father until the age of approximately 12 years of age. It records that the Offenders’ father had significant alcohol and substance abuse problems and that he suffered physical abuse at the hands of his father and his friends.

  7. In Ms Hopkins report it is recorded that a reason for the separation was possibly his father’s drug and alcohol use. Ms Hopkins also records that spending time with the Offender’s father was traumatic for him “because his friends would get drunk and hit me”. The Offender also reported that on one occasion a friend of his father’s “tried to drown [him], but [he couldn’t] remember too much about it.” Otherwise, Ms Watkins also obtains a history that the Offender informed his mother that he no longer wished to see his father and since early adolescence has had very few occasions of contact.

  8. By contrast to the relationship with his father, the presentence report records that the Offender maintains a positive and supportive relationship with his mother whom he describes as a role model.

  9. In her report, Ms Hopkins records that that the Offender has had a close relationship with his mother throughout and his development was in the context of a reasonably stable and supportive family environment.

  10. Ms Hopkins records that the Offender began to engage in drug use clandestinely from early adolescence along with sneaking out unbeknownst to his mother. She was informed that the Offender’s mother set boundaries in the home and he adhered to them given that she was not aware of the negative behaviours he was involved in. Ms Hopkins records that the Offender’s mother did not approve of the Offender’s two most recent partners because she had witnessed the volatility between them and she supported him and his children regardless. The Offender reported that his mother continued to be an important person into his adulthood and she visits him weekly in custody and confirmed that he will return to live with her when he is released.

  11. The Offender has two children to LP, however he has had no contact with them since entering into custody. The psychologists’ report states that in terms of protective factors the Offender identified his children as a factor motivating his rehabilitation.

  12. Ms Hopkins’ report records that the Offender has good relationships with his siblings who he described as prosocial. There is no evidence before me of the nature of the relationship the Offender has with his siblings. I do however note that according to the agreed facts the Offender’s sister contacted police following the Offender’s arrest and attended as a support person.

Mental Health

  1. The Balance Springwood Family Practice patient health summary confirms that the Offender had a past active history of Asperger’s syndrome and depression.

  2. The pre-sentence report also records that the diagnosis of Asperger’s syndrome was confirmed with the Offender’s mother. It also noted that he reported being diagnosed with depression, anxiety and post-traumatic stress disorder as a teenager and previously engaged with counselling and psychiatrists.

  3. Ms Hopkins reports that at age 16 the Offender engaged in one suicide attempt when he reportedly cut one of his wrists in a distressed state, which adequately healed. He stated that he subsequently attended on a psychologist in Springwood. The Offender indicated that his anxiety related to schooling and that the treatment he received was helpful.

  4. In 2012 when the Offender was 20 years of age, he was seen by Dr Paul Thiering psychiatrist. In his report, Dr Thiering reported that the Offender was experiencing daily panic attacks at that time. It noted that that the source of his panic attacks is being alone, not social anxieties. Dr Thiering noted that the Offender’s parents separated when he was 4 and this was experienced by him as his father abandoning him. Separation anxiety and abandonment issues were seen as the key to the Offender’s anxiety and Dr Thiering felt this should be amenable with psychotherapy. It was noted that the Offender was diagnosed with depression since his parents’ separation when he was 4. He was treated with CBT which was not effective. The Offender was noted to be socially isolated and withdrawn for most of his adolescence. The report notes that he was unemployed and virtually housebound. He was prescribed medication and psychotherapy.

  5. Ms Hopkins obtained a history that the Offender had sessions with a psychiatrist and that the medication assisted his symptomology and recovery. Her analysis was that this occurred around a period that the Offender became abstinent from substances and it may have been that the anxiety symptoms he was self-medicating re-emerged when he maintained abstinence.

  6. Ms Hopkins reported at [31]:-

“Mr Watkins said that he was diagnosed with Asperger’s disorder when he was 18 years of age. He explained that his mother took him to be assessed by a community mental health team after presented with panic attacks and anxiety during social situations. However, it is noted that throughout the current assessment Mr Watkins was anxious, socially appropriate and. Incredibly reasonably and politely come is conversational style was called (regarding turning taking) and is late, will non-verbal communication such as when he made a joke and not in long questions whilst they were being asked. There were no obvious indications of symptoms consistent with spectrum disorder (ASD). It may be that seven years ago when he was darkness, his segments were more consistent with this diagnosis. The psychiatric assessment to investigating continues to meet criteria of ASD would be useful for treatment planning.”

  1. In conclusion, Ms Hopkins stated:-

“… there is no doubt that Mr Watkins has a complex history of anxiety, panic attacks and social problems reports and, according to provided medical information. He explained that he is fearful and nervous in new situations, especially when conversing with others. Reportedly, he has significant fears of being alone and prefers to always be in the company of others. He said that he experiences ruminative anxious thoughts that he will “say stupid stuff and be awkward.” Apparently, his fears of social interactions “worry me a lot and I feel defective.” Mr Watkins outlined that he felt his social anxiety affected his confidence, his ability to engage consistent and be within crowd places such as shopping centres. Indeed, he offered that his use of drugs and alcohol from early adolescence provided him with a pseudo confidence to engage with others, which reinforced and maintained his use in a self-medicated manner. Therefore, Mr Watkins meets the criteria for a diagnosis of Social Anxiety Disorder [300.23] (DSM5, 2013).”

  1. I accept Ms Hopkins’ opinion in this regard which is consistent with my own review of the evidence.

Drug and Alcohol

  1. Ms Hopkins’ report also notes that as the Offender entered High School, he was able to source illicit substances through someone known to his father and led him to be popular with other adolescents. He said that he maintained associations with other drug using individuals because he used to party a lot.

  2. The presentence report records that the Offender described an extensive history of poly-substance abuse commencing with experimentation of pills containing ecstasy, MDMA, speed and heroin at the age of 14. This continued along with the use of other drugs including LSD, hallucinogens, amphetamines, cannabis and methamphetamines until the birth of his first child where he claims to have had a break from drug use however he recommences use shortly after at approximately age 22. In the 12 months prior to him coming into custody, the Offender reported that he used ecstasy, MSMA, speed and heroin pills 3 to 4 times per week, half a gram of ice daily, smoking half a gram of cannabis per week, injecting one patch of fentanyl every few days and using barbiturate pills one a month.

  3. Ms Hopkins stated the Offender presents predominately with methamphetamine and alcohol misuse concerns and diagnostically he endorsed with substance abuse disorder.

  4. The presentence report also records a history of alcohol abuse commencing at the age of 14. It notes that the Offender was at the height, consuming a 750mm bottle of Jack Daniels on a daily basis as well as consuming spirits of a weekend.

  5. At the age of 19, the pre-sentence report notes that the Offender previously completed rehabilitation. In this regard, Ms Hopkins obtains a report that the treatment was for several months.

  6. From the age of 23 until entering custody it was reported that the Offender drank three 750mm bottles of bourbon over a period of a week.

  7. Since 2015 when the Offender was subject to the supervised bond, I have noted that case management was focused on domestic violence and emotional/personal factors. There is no evidence that it sought to address the Offender’s drug and alcohol issues.

  8. On 7 April 2016 when the Offender came into custody, the Justice and Forensic Health records confirm that the Offender requested:-

“I would like to get on methadone or Beup please. I was using heroin and I’m now unable to sleep. I’m tired of always looking and chasing the problems it causes and I’ve been getting angry for no reason other than my lack of meds and need for drugs. Also I need my proper meds.”

  1. The Offender’s custodial record confirms that since coming into custody he has had 3 institutional misconduct charges being 28 July 2017 and 18 December 2017 for failing a prescribed drug test and 9 November 2017 for possess a drug implement.

  2. So far as sexual offending is concerned he has no previous convictions. The Corrective Services psychologists’ report notes that the Static 99R preliminary assessment tool found him to be in the above average category for recidivism. However that report notes that it is not a complete risk assessment as only historical factors that are static in nature have been used to inform the risk rating and dynamic factors have not been assessed. I have noted that the Corrective Services psychologists’ report indicates that to access treatment in custody he requires a minimum of two years post-sentencing. I accept that it is desirable that the Offender participate in a custodial sex-offender programme and note the need to participate in a post release community maintenance group to ensure the gains made in treatment are supported and reinforced.

  3. Ms Hopkins in her report gives a detailed analysis of Static 99. She cautions the use of them noting several important limitations. Specifically, Ms Hopkins identifies protective factors that would reduce the future risk of the offending behaviour. In summary, noting the static and dynamic factor she opines that the Offender is at moderate risk of reoffending across the sexual domain without treatment. This assessment is drawn mostly based on what she describes as the Offender’s problematic lifestyle issues and that specific treatment to gain insight into precise factors that led to his offending behaviour would be useful.

  4. The presentence report notes that the Offender has verbalised that he is willing to engage in programmes for domestic violence, sex offending and drugs and alcohol. However it questions his motivation to remain abstinent from drugs given continued use during his incarceration.

  5. Overall the report assessed the Offender as medium to high risk of reoffending and identifies the criminogenic needs as financial, family/marital, leisure/recreation, companions, alcohol/drugs, emotional/personal and attitude/orientation.

  6. The Corrective Services psychologists’ report states that preliminary treatment targets were deficits in social communication skills particularly as they related to interpretation of cues about consent or non-consent; substance abuse and potential links to post traumatic stress disorder related to childhood trauma and domestic abuse and the use of violence in intimate relationships.

  1. Whilst I noted the need for caution in accepting untested statements, I accept the Offender is motivated to address his offending behaviour and partake in programmes for domestic violence, sex offending and alcohol and drugs. He has previously sought to do so in relation to substance abuse and at least for a period, it appears he succeeded however not without difficulty.

  2. I have noted that whilst the offences for which he is to be sentenced before me relate to two former partners there is also some evidence of past relationships in which he was involved of some duration, which do not disclose similar offending.

  3. The Offender appears to have family support at least of his mother and to some extent his sister. He has aspirations of working in IT. He has exhibited some remorse and insight into his offending. I accept that subject to obtaining relevant treatment and programmes, he has reasonable prospects of rehabilitation although I would assess the likelihood of reoffending and medium to high.

Custodial Circumstances

  1. Ms Hopkins reports the Offender telling her that after coming into custody he experienced drug induced psychotic symptoms including auditory hallucinations however a few weeks of withdrawal and medication these symptoms abated.

  2. The Justice Health and Forensic Mental Health Network clinical notes record the Offender on 14 February 2016:-

“expressing suicidal ideas and intent; appears upset, not coping well, isolative/withdrawn behaviour, giving away possession, may seem inappropriately happy, mood swings, inappropriate talking and laughing, isolative or overfamiliar behaviour, decrease or over attention to self-care, mood swings, agitation.”

  1. The clinical notes further record that on 4 October 2016 the Offender was treated for a laceration to the bridge of his nose, contusion to the forehead and to the back of the head and bruising to the left eye after being assaulted from behind.

  2. The clinical notes also record that the Offender presented on 25 September 2017 with a deep laceration to the left eyebrow, haematoma to the left side of the head behind the left ear following a fight.

  3. In Ms Hopkins’ report the Offender reportedly stated that he was assaulted in mid-2017 when he was “stabbed in the head” and required stitches but otherwise recovered adequately. Later in the report, Ms Hopkins records that the Offender reported that he was assaulted when another inmate reportedly discovered his sexual offence charge.

  4. The Offender entered Parklea Correctional Centre on 14 February 2016. The presentence report notes that the Offender is classified as A2 unsentenced inmate and housed within a Special Management Placement Area Placement (SMAP- protection) unit due to him having fears for his safety. The presentence report notes that he is quiet in the unit and avoids officers but generally adheres to Correctional Centre routine. He was previously employed in the cabinet shop and textiles but was dismissed due to numerous days off. The presentence report states that contact with Justice Health indicates that he is being treated for panic disorder and psychosis and remains compliant with medication.

  5. Overall the Offender presents with a complex mental health history marked by panic, a prior suicide attempt, social anxiety disorder, psychotic symptoms possible ADD and dysregulated anger and aggressive behaviour more recently.

  6. I am satisfied that incarceration will impact on him more harshly than would otherwise be the case. I take this into account in fixing the appropriate sentence bearing in mind however the manifold purposes of sentencing otherwise being met.

SPECIAL CIRCUMSTANCES

  1. The Crown submitted that a finding of special circumstances was supportable based on the need for an extended period on parole. The Defence concurred to this end. This is the Offender’s first period in custody. I am satisfied that by reason of his health needs and the need for a longer period under supervision, a finding of special circumstances is justified.

COMMENCEMENT DATE

  1. The Offender came into custody on 13 February 2016 and has been in custody from that time. In these circumstances, I propose to commence the sentence from that date pursuant to s 47(1)(a) of the 1999 Act, as I will indicate below.

SENTENCE

  1. In R v Hamid Johnson J observed:-

[86] In sentencing a domestic violence Offender, and in particular a repeat domestic violence Offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. [14]

14. (2006) 164 A Crim R 179; [2006] NSWCCA 302

  1. The offending needs to be denounced, the Offender made accountable and the harm to the victims recognised. I accept there is a strong need for specific and general deterrence although somewhat lessened by reason of the Offender’s mental health issues. As serious as the matters before me are, the Offender has no antecedents beyond those. He is a young man and rehabilitation if it can be achieved is important to ensuring that he returns to the community so that as far as possible so it is safeguarded from a reoccurrence of such events.

  2. In sentencing the Offender, I have regard to the principles of accumulation concurrency and totality. There are special considerations that come into play in such matters. [15] The agreed facts and the Crown submissions acknowledged that criminality in the offending overlapped. Here the offences did occur over a relatively narrow time period. Counts 6, 7 and 8 occurred on the same day shortly after each other. Two victims were involved and the level of concurrency to be provided needs to ensure that that feature is not glossed over. [16] I also bear in mind the nature of the offending.

    15. R v Gommerson (2014) A Crim R 534 at [108]-[109], [2014] NSWCCA 159

    16. R v Hamid (2006) 164 A Crim R 179 at [133]

  3. I call up the bond of 23 July 2015.

  4. For the offences the subject of the bond:-

  1. Use of offensive weapon with intent to commit indictable offend namely intimidation you are sentenced to 12 months imprisonment;

  2. Intimidate with intention of causing fear of physical or mental harm you are sentence to 12 months imprisonment;

  3. Common assault you are sentenced to 12 months imprisonment.

  1. Those sentences will be served concurrently and commence on 13 February 2016 and expire on 12 February 2017. In light of the further sentences, I am to impose, I decline to specify a non-parole period but will account for the length of time in custody in fixing the appropriate ratio of non-parole to parole.

  2. In relation to the matters for which the Offender is to be sentenced before me I impose an aggregate sentence pursuant to s 53A of the 1999 Act to commence from 13 February 2017. In relation to Count 8, I have regard to the statutory guideposts of the standard non-parole period of 7 years imprisonment for an offence in the middle of the range and the maximum term of 14 years imprisonment as statutory guideposts. In regard to the offences under s 59(1) and s 61l of the 1900 Act, I note the maximum penalty of 5 years and 2 years imprisonment respectively.

  3. On each of Counts 1 to 9, the Offender is convicted. The indicative terms that I would impose are as follows:-

  1. Count 1 (Assault Occasioning Actual Bodily Harm) but for the plea of Guilty I would have imposed a sentence of 2 years imprisonment. In light of the plea I would have imposed a sentence 1 year and 8 months

  2. Count 2 (Assault Occasioning Actual Bodily Harm) but for the plea of Guilty I would have imposed a sentence of 2 years and 6 months imprisonment. In light of the plea I would have impose a sentence of 2 year and 1 month (taking into account the matter on the Form1)

  3. Count 3 (Common Assault) but for the plea of Guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months.

  4. Count 4 (Common Assault) but for the plea of Guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment.

  5. Count 5 (Common Assault) but for the plea of Guilty I would have impose a sentence of 12 months imprisonment but in light of the plea I would have imposed a sentence of 10 months imprisonment.

  6. Count 6 (Assault Occasioning Actual Bodily Harm) but for the plea of Guilty I would have imposed a sentence of 2 years imprisonment however in light of the plea I would have imposed a sentence of 1years and 8 months imprisonment

  7. Count 7 (Common Assault) but for the plea I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment.

  8. Count 8 (Sexual Assault without Consent) but for the plea I would have imposed a sentence of 6 years imprisonment but in light of the plea I would have imposed a sentence of 5 years and 1 month imprisonment. The non-parole period I would have set is 3 years and 6 months. [17]

  9. Count 9 (Common Assault) but for the plea of Guilty I would have imposed a sentence of 18 months imprisonment however in light of the plea I would have imposed a sentence of 15 months imprisonment.

    17. Added pursuant to sentence clarification on 29 March 2018. See transcript of same date.

  1. Having regard to the principles of accumulation, concurrency and totality, I would impose an aggregate sentence of 9 years imprisonment.

  2. I would propose to commence this sentence from 13 February 2017, however in finding of special circumstances, I also have regard to the overall length of the custodial term to be served so as to ensure an extended period on parole. To this end, I would set a non-parole period of 5 years from 13 February 2017 to expire on 12 February 2022. Thereafter, the Offender shall be eligible to be released to parole from 13 February 2022 to 12 February 2026. The Offender’s earliest release date is 12 February 2026.

**********

Endnotes


Amendments

16 July 2018 - Endnote citing sentence clarification of 29 March 2018 in relation to Count 8.

Decision last updated: 16 July 2018

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Cases Citing This Decision

1

Giacometti v The King [2023] NSWCCA 150
Cases Cited

8

Statutory Material Cited

2

Tyron Yates v The Commissioner of Corrective Services, NSW [2014] NSWSC 653
Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2
Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2