R v Weir

[2023] NSWDC 671

District Court

New South Wales

Medium Neutral Citation:

R v Weir [2023] NSWDC 671

Hearing dates:

13 December 2023

Date of orders:

13 December 2023

Decision date:

13 December 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 5 years 7 months with a non-parole period of 3 years 6 months

Catchwords:

CRIME — Violent offences — Detain for advantage — Circumstances of aggravation

CRIME — Domestic violence — Stalking or intimidation — Breach Apprehended Domestic Violence Order

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability reduced due to mental illness — Multiple offences — Crushing sentence — Objective seriousness

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Schizoaffective Disorder — Numerous periods in custody

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

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

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Dungay v R [2020] NSWCCA 209

Engert v The Queen (1995) 84 A Crim R 67

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Mundav State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

R v Burton [2008] NSWCCA 128

R v Holder; R v Johnston [1983] 3 NSWLR 245

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

R v Tsiaras [1996] 1 VR 398

R v Verdins [2007] VSCA 102; 16 VR 269

R v Windle [2012] NSWCCA 222

Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 476

Category:

Sentence

Parties:

Joshua James Weir (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
T McKenzie (for the offender)

Solicitors:
Kells Lawyers (for the offender)
B Edye solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2022/77338

Publication restriction:

Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the complainant

JUDGMENT – ex tempore revised

Introduction

1. When men offend against women who they profess to love; assault them and keep them away from medical treatment and away from the help of others; when they exercise actual physical control and coercive control backed by repeated acts of violence; it is expected, and only just, that they be punished and that punishment be proportionate to the harm they caused: R v Burton [2008] NSWCCA 128 at [97].

2. No matter what the offender’s underlying personal problems and the genesis for those problems, the courts are required to act. And here, it is accepted that so serious were the offences that substantial period of imprisonment must be imposed.

3. Joshua Weir pleaded guilty in the Local Court to two offences of detaining the complainant in this matter with intent to obtain an advantage and with causing actual bodily harm to her. The advantage I can presume was psychological control over her. Those offences charged pursuant to s 86(2)(b) Crimes Act 1900 (NSW) carry maximum penalties of 20 years imprisonment. Assault occasioning actual bodily harm is charged separately and carries a maximum penalty of 5 years imprisonment.

4. The maximum penalties are important guides to the exercise in my sentencing discretion. But I do not start at the maximum and then make proportional deductions from it. Sentencing requires an intuitive assessment of all relevant matters, including the seriousness and gravity of the offences, and their collective impact and matters raised in mitigation.

5. When I sentence him for the first matter there is also a further charge of intimidation pursuant to s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW) to be taken into account on a Form 1. While I do not sentence for that matter, it requires some consideration of the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. Here, it is accepted, that that would only lead to a marginal increase given that if it had stood alone it would not have added to any significant degree to the aggregate sentence I will be imposing.

6. There is a further matter where guilt has been admitted. It comes to this Court on a 166 certificate, pursuant Criminal Procedure Act 1986 (NSW), of contravening the Apprehended Domestic Violence Order that was put in place when these matters came to light. That offence occurred from the gaol. The Order was imposed for the specific purpose of ensuring the complainant’s safety. The breach occurred even though he was imprisoned. A person who acts in breach of such orders should expect, as here, that the breach will be treated seriously.

7. Through his counsel, Mr Mackenzie, the offender said that having reviewed the facts and seen the photographs, he accepts his behaviour was totally unacceptable and that he must receive significant punishment for what he did. Weir’s early plea of guilty, and that obvious acceptance of responsibility, must be taken into account. For its utilitarian value I will reduce the otherwise appropriate sentences by 25% and I will take care that the process of accumulation does not erode that benefit.

Agreed Facts

8. There are Agreed Facts before the Court. Joshua Weir was born in 1987. He formed a relationship with the complainant in 2021. She was born in 1994. It is obvious from the facts that the complainant had a number of personal problems, some of which involved the use of drugs and required her appearance before the Local Court. It is also obvious that Weir had his own problems, as his criminal record and the history before me makes clear. He has struggled for a long time with what a number of respected psychiatrists diagnose as a Schizoaffective Disorder.

9. Dr Furst, in Exhibit 2, describes that disorder as:

“A chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought, form, difficulty in processing information, prominent mood symptoms, episodes of severe depression and mania and bizarre behaviour, as a consequence of the illness. It is thought to be biologically driven and is best addressed by a multidisciplinary approach for future rehabilitation.”

10. The material before me also indicates that for a long time the offender has suffered from Substance Use Disorders relating to the drugs methamphetamine and cannabis.

11. The offender has spent much of his adult years in custody. And it is sad and tragic, that these offences occurred after he had, relative to his prior history, apparently obtained some stability in his life. He had his own apartment. Although he did come to notice the police he had, on his release from custody on 11 August 2020, engaged in the longest gaol free period of his adult life. It is in that context that these offences occurred.

12. On 31 October 2021 the complainant was at the offender’s unit. She was on the phone. There was an argument. The offender struck her and then damaged her phone. She did not argue, rather she tried to ignore his verbal abuse. In the early hours of 1 November, she awoke and noticed that Weir was still awake. She went back to sleep and woke at 8am.

13. About 9am without any apparent provocation or reason the offender began hitting her over her head and body. She started to bleed from her face, but he continued to punch and kick her. He used a phone cable and put it around her neck restricting her breathing. He used a rock, slightly bigger than his hand, to hit her on her body. He used a curtain rod to strike her. He poured water over her. She tried to get away from him, but he pushed her on the bed and punched and kicked her. He asked her to stop screaming. He stood on her back. He put his fingers in her mouth. She bit his fingers, but the more she did so the more he pulled on her mouth and jaw with his thumbs. He punched her.

14. A neighbour called out, “Are you okay?” but the complainant was too fearful to answer.

15. The Agreed Facts reveal that Weir then made threats to kill and dispose her body. She went to the bathroom to clean herself and go to the toilet, but she was attacked in that room too. She was grabbed by the hair. He pushed her head into the bathtub. It had water and bleach in it as because they had been soaking a shower curtain the previous day. Her head was pushed under the water. She felt burning pressure in her chest and lungs. When she was finally released, she hit her head on the tiles causing an injury. She was pushed under water a second time. She was able to pull out the plug and the water drained away.

16. The offender knelt and made threats to her and her family. He then demanded she clean herself up and leave. She remained in the bath, fearful. Her phone was not able to be used. Eventually she left and visited a friend who offered support to her.

17. So frightened was the complainant, that she did not go to police or seek medical attention. The Agreed Facts note that she was bedridden for days with immense pain, unable to move. She required assistance with toileting, showering and sitting up. She suffered injuries; to her ribs and fingers, bruising to her face, hips, legs, calves, shins and forearms. She had an injury to head, bruising and swelling to her spine, a cauliflower ear and broken teeth. There were other grazes and scratches over her body and face.

18. On 16 March 2022 the complainant was meant to appear at a Local Court. The offender was angry at her. He exhibited, what appears to be, paranoid thoughts that she was intending to drug him. He punched her face causing her left eye to split. He made her clean up the blood. He made her take pills she had in her possession. He punched her many times more. He held a machete against her neck. Then rubbed it against her neck. She fell on a mattress. And then he stomped on her head. He tried to cover her head with a pillow. As he did so, he was saying that she was trying to poison him with pills, which he believed to be cyanide.

19. He tried to gouge out her eyes. He assaulted her by dragging her around the bed by the hair. He continued to hit her. He poured candlewax on the cut above her eye.

20. At some stage she lost consciousness. When she awoke in the afternoon she was forced into a bathtub where he attempted to clean her body. Given what had occurred on the earlier occasion, she did not want to enter the bath. She pleaded with him to let go home but he would not allow it.

21. Police arrived at the premises at about 2.40am. They were intending to execute a warrant because of her non-attendance at Court the previous day. They found her lying on a mattress with severe injuries. She had difficulty moving, speaking and lifting her head. She was not orientated to time or date.

22. She told police about being held at the unit against her will. Photographs were taken. Other investigations showed; swelling to her wrist and bruising to her shoulder blade and lower back.

23. Weir was arrested and has been in custody ever since. He lied to police about what had occurred.

24. The complainant was taken to hospital. She was found to have suffered multiple soft tissue injuries including; bilaterial, periorbital hematomas, a left orbital floor fracture and bulging of the left lateral rectus, that is an eye muscle tear. She was discharged on 18 March 2022. A follow up was required with an ophthalmologist and a plastic surgeon. A photograph is before the Court.

25. The Form 1 matter concerns a letter the offender sent to the complainant from custody which intimidated her. He intended to let her know he was still watching her.

26. In November 2022 a call was made originating from gaol where a cousin of hers was in custody. During that call the offender came on to the line and spoke to her saying, “We need talk about this and fix it because I’m looking at 10 years gaol”. That is the contravention matter.

Objective seriousness

27. As is obvious from those facts the detain for advantage offences were, taking into account only their objective features, grave crimes. Each detention was accompanied by multiple assaults. I have to have regard to the period of the detention; I have to have regard to the nature of the advantage sought, which even when viewed in the context of an underlying mental condition, appears to have been personal gratification, revenge and desire to exercise control over the complainant.

28. The offender’s mental condition, and the influence of that condition on his motivation, go to assessment of objective seriousness. I must also take into account, the anguish and discomfort, the violence and the harm inflicted during the detention.

29. The first offence took seven hours or thereabouts, the second approximately 24 hours. It ended when the police arrived. The violence during each period was protracted and gratuitous. The series of assaults carried with it a real risk of more serious harm. The harm was inflicted on a welcome visitor to his home. The overt acts of detention were intrinsically related to the violence inflicted and the threats made. The seriousness of the assaults cannot be underestimated. There was a possibility of more serious harm, even death, particularly where a person is choked or strangled or held under water, so far as the first incident is concerned. Or repeatedly assaulted around the head, so far as both incidents are concerned. That harm should not be underestimated.

30. The offences abused the relationship of trust that had existed between the complainant and the offender. Clearly, she was personally targeted. She suffered in both matters an extended period of physical and mental violence during which the offender exercised total power and control over her.

31. She could never have felt safe. It is in that context that the summary offences on the Form 1 and the s 166 certificate have importance, as even when in custody, the complainant was unable to feel safe and protected.

32. Detentions involving assaults are always treated seriously by the Courts. Proper regard has to be had to the maximum penalty. Any domestic violence is unacceptable, and these crimes occur in a domestic context. Proper recognition must be given to the real harms caused, not just physical but psychological.

Other matters

33. No matter what the personal circumstances of the offender, denunciation is required. That principle applies here even though Weir’s mental health issues must be properly taken into account when assessing objective circumstances. The Court does not engage in a staged approach to sentencing. All relevant matters have to be considered. Here, I must have regard to the offender’s criminal record. It appears that he was on bail for relative minor matters at the time of the commission of the latter offence which of itself is an aggravating period.

34. He can draw no comfort from his criminal record, and while I have material going to his mental health issues, which moderate the application of what are commonly called, Veen (No 2) principles: Veen v R (No 2) [1988] HCA 14; 164 CLR 465. Here however, some still apply as Weir’s continuing disobedience towards the law has to be considered.

35. His history cannot result in a sentence which is disproportionate the gravity of the offending, but here in particular, weight should be given to specific deterrence. When he is in gaol and subject to buprenorphine treatment, as I understand it, he is capable of understanding that he has to change and take mental health advice and take his medications. If he fails to do so and offends again, as he has, the courts would have little choice but to continue to detain him.

36. There is evidence of appearances before the Children’s Court, but as I understand it, the evidence of any penalties imposed would be inadmissible because there was a crime free period. I do not take them into account but his appearances before the Children’s Court is relevant to his personal history: Children (Criminal Proceedings) Act 1987 (NSW), s 15; Dungay v R [2020] NSWCCA 209.

37. As I have already remarked, he has been regularly before Local Courts and District Courts, in fact, every year since he first went to custody in 2008. There have been a number of acquittals. He will have the full benefit of those. As I said earlier, this was the longest period he had been out of gaol as an adult; and that period seems to correspond with him having a stable home.

Victim impact

38. There is no Victim Impact Statement. Its absence does not rise to give any inference that the offence had little or no impact on the complainant: Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(5). It would be obvious to anyone who heard or read these remarks to otherwise find that the physical injuries were significant and to fear there is likelihood of continuing psychological harm.

Case for the offender

39. The subjective case of the offender was provided by an affidavit from his mother and a report of Dr Richard Furst, forensic psychiatrist, prepared for another matter and dated 28 November 2019.

40. There is no reason to not accept the professional opinion of Dr Furst and the history given by the mother, which does not attempt to make excuses for her son. She notes that he started going “off the rails” when he was about 13. She notes that the family did make efforts to try and help him and that he spent time at Father O’Reilly’s school.

41. Despite attempts at counselling and psychiatric care her son did not consider he had anything wrong with him. She notes that the more he used “ice” his mental health was became “a thousand times worse”. She still provides support to him. She tries to speak to him at least once a month. She told me how “shocked” she was by the offending when she read about the crimes in the media.

42. Dr Furst provide Weir’s personal history. It too is not controversial. He notes the offender has children, but he does not appear to have ever cared for them. Dr Furst notes, by reference to other reports, that Weir has been diagnosed with a schizoaffective disorder. He has had periods of paranoia. He has spent periods undergoing mental health treatment. There is also a long history of methamphetamine use and other drug use, going back to when he was a young teenager, when he was too young to make rational decisions.

43. Dr Furst notes that Weir has had periods of State care under the Department of Community Services. There were periods when he was insightless about his mental illness. There have been periods where he has been managed under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). He has a long history of bizarre behaviour, inappropriate affect, expansive mood, including when in gaol. This has led to the intimidation of officers and other inmates. This appears to have changed.

44. When Weir was before the Court last, Dr Furst recommended he be subjected to management in the community by a mental health team and the possibility of a Community Treatment Order. It would seem before he was released to parole that would be essential and critical.

Mental health

45. Weir’s history of drug and alcohol use has to be viewed in the context of his mental health history and the fact that he was effectively living on his own resources as a young teenager. His mental illness and drug problems as an additional factor, have left a mark on him and compromised his capacity to mature and learn from experience. All of those matters mean his moral culpability is less than the culpability of an offender whose formative years had not been marred in that way: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

45. Obviously, as this factor is relevant both to the objective facts and his subjective case, his longstanding mental illness looms large in this consideration of appropriate sentencing. Every sentencing exercise begins with the purposes of sentencing: Crimes (Sentencing Procedure) Act, s 3A. Sentences must, so far as practical, attempt to protect the community by deterring future offending by this offender and others, but there is also the need to consider both retribution and reform. As Gleeson CJ remarked in Engert these considerations can be complex, even intricate: Engert v The Queen (1995) 84 A Crim R 67. The Chief Justice noted the frequency with which the mentally ill came into collision with the criminal justice system, requiring what he described as “sensitive discretionary decisions” by sentencing judges.

46. The High Court in Veen No 2 at [476] noted the difference between protection of the public by the assessment of a just and proportionate sentence as distinct from preventative detention derived from the need for such protection and the need to distinguish between the two.

47. Sentencing is not an exercise in strict logic. A heavy sentence for someone whose moral responsibility for a crime has been lessened by mental impairment may be illogical. But the just proportionality, of a sentence must be such as supports, and not undermines, public confidence in the process of criminal justice and the law: Veen (No 2) at [477]; R v Windle [2012] NSWCCA 222 at [43].

48. As Veen (No 2) and Engert make clear, an offender’s mental illness, even if it causally relevant to the commission of the crime, as it appears it was here, does not lead automatically, or as a logical consequence, to a reduction in sentence. But here, because of its effect on his moral culpability and the whole history of the offender, that reduction is required.

49. What then is just and proportionate punishment? Guidance as to the effect of psychiatric illness was given by McClellan CJ, at Common Law, in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and the Victorian Court of Appeal in R v Tsiaras [1996] 1 VR 398 at [400] and in R v Verdins [2007] VSCA 102; 16 VR 269 at [32]. I take that guidance into account.

50. Obviously, the offender will suffer in custody because of his mental illness. I am told, and accept, while he is on the buprenorphine program he has received no other medication. And despite his lengthy period in custody on remand and serving other sentences, he is yet to see a psychiatrist. His release to the community will be subject to an order of the State Parole Authority and they cannot, and will not, release him until they have considered the questions of community safety as s 136 Crimes (Administration of Sentences) Act 1999 (NSW) makes clear. He will, I believe, require a Community Treatment Order when he is released into the community.

51. Weir is less a vehicle for general deterrence than others who do not have his underlying conditions or the other matters that go to his moral culpability. But, as I have remarked earlier, his punishment still has to be proportional and, more importantly, has to bring home to him the need to cooperate when he is next released. Ultimately sentences are about protection of the public, a matter which weighs heavily on my consideration of this issue.

Submissions

53. I am indebted to Mr Edye, solicitor for the Director of Public Prosecutions and Mr McKenzie, counsel for Weir, for their comprehensive submissions to which they spoke briefly this morning. I hope this judgment does justice to them.

54. They do not differ in relation to matters of principle. Mr McKenzie urged me not to impose a “crushing” sentence, that is, not to impose a sentence that would crush all hope of a productive life on release or cause the offender to abandon hope and thus not cooperate with gaol authority. This could reduce his chances of rehabilitation.

55. No sentence, if at all possible, should operate to destroy prospects of rehabilitation and reform. An extremely long sentence can crush, in the offender’s sense, their prospects by inducing a feeling of hopelessness and thus destroy expectation of useful life after release. That in turn increases the severity of the sentence already made more severe because of the underlying mental illness. But what is proportionate or what might be seen as crushing really depends on the perspective of the observer, whether they are a victim of crime, members of the community, the offender or even an appeal court: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

Special circumstances

56. The evidence relating to the offender’s need for help; monitoring his substance abuse issues, monitoring his mental health issues, preferably subject to a Community Treatment Order, and help adjusting to normal community life on release, all provide a basis for a finding of special circumstances. If at all possible, his further institutionalisation must be prevented, but I am mindful of the requirement that the minimum period for which he must be imprisoned should reflect the gravity of his offending and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. The need for some accumulation on other sentences’ parole periods is a further matter that goes to special circumstances

Totality

57. I am required to impose an appropriate sentence of each offence and structuring the overall sentence, so it is just and appropriate to all the offender’s crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. I have to evaluate, in a broad sense, the overall criminality involved in these two separate offences and determine what, if any, downward adjustment is necessary in the aggregate sentence to achieve an appropriate relativity between the total criminality and the totality of the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ). There are many common features to both offences, but they involved distinct detention periods and associated attacks upon the complainant, both physically and psychologically, requiring some accumulation.

Synthesis

58. I have to take into account all these considerations. There cannot be a direct correlation between harm done and time served. That is impossible, but a court must attempt to consider and apply various purposes of sentencing to which I have referred.

59. I will give, so far as is possible, full recognition to the background of the offender, marred since he was young, by an underlying mental illness, associated drug use and repeated periods of custody. His time in custody has not, so far as I am aware, had a significant deterrent or rehabilitative affect. I will give that background full measure, but the sentence must also recognise the human dignity of a woman who was subject to two periods of significant detention and associated violence. There must be appropriate and just punishment to vindicate that dignity: Mundav State of Western Australia [2013] HCA 38; (2013) 249 CLR 600. In doing so, I synthesise many competing features and my duty ultimately is to translate the complexity of the human condition and human behaviour to some mathematics of units of punishment, here expressed in time in custody.

60. I note the 25% utilitarian value will be taken into account on each indicated sentence. I will take care not to erode the benefit by the process of accumulation. I confirm there is a finding of special circumstances. The offender has been in custody on this matter since 17 March 2022. During the course of his remand, he served 10 months for a balance of parole periods. I propose to start this sentence five months after he went into custody so as to allow for some independent punishment for that matter.

Orders

61. I must indicate sentences.

1. The first detain for advantage matter takes into account the Form 1, will be a sentence of 4 years and 6 months.

2. For the second detain for advantage matter, a sentence of 4 years and 6 months.

3. The matter on the 166, 3 months.

62. The term of the aggregate sentence is 5 years and 7 months. There will be a non-parole period of 3 years and 6 months. The balance of the term is 2 years and 1 month. The sentence will commence on 17 August 2022. Weir will be eligible for consideration for release of parole on 16 February 2026. The balance of term of 2 years and 1 month will commence on 17 February 2026 and the total sentence will expire on 16 March 2028.

63. If there was an Apprehended Domestic Violence Order made it would be held in abeyance, as I understand it, until he is released. I will give the parties leave to restore the matter before me tomorrow if there is a requirement for me to make an Apprehended Domestic Violence Order.

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Decision last updated: 25 August 2025