R v Williams

[2021] NSWDC 133

District Court

New South Wales

Medium Neutral Citation:

R v Williams [2021] NSWDC 133

Hearing dates:

31 March 2021

Date of orders:

31 March 2021

Decision date:

31 March 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

See paragraph 23

Catchwords:

Criminal law – domestic violence – blight on civil society – no man should strike a woman – abuse of relationship – obligation of the state to vindicate the dignity of the victim – community disapproval – protection of the vulnerable against violence – denunciation of domestic violence – repeat domestic violence offender – protection of the individual and the community.

Legislation Cited:

Crimes Act1900

Crimes (Personal and Domestic Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Hamid (2006) 164 ACR 179

R v Edigarov (2001) 125 A Crim R 551

In Patsan v R [2018] NSWCCA 129

Category:

Sentence

Parties:

Regina (Crown)
Kenneth Ray Williams (Offender)

Representation:

Counsel:
Mr Cassels (Offender)
Solicitors:
Ms Dawson (DPP)
Ms Howell (Legal Aid)

File Number(s):

2020/00065195

Ex tempore Judgment

INTRODUCTION

1. HIS HONOUR: Kenneth Ray Williams is to be sentenced for two offences, namely aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm) contrary to s 112(2) of the Crimes Act1900. The maximum penalty is 20 years imprisonment. There is a standard non‑parole period of five years. The second charge is reckless wounding contrary to s 35(4) of the Crimes Act.  The maximum penalty is seven years.  It has a standard non‑parole period of three years.  The maximum penalties and standard non‑parole periods are an important guide in the assessment of sentence.

2. There is a s 166 matter, contravene prohibition or restriction in an Apprehended Domestic Violence Order contrary to s 14(1) of the Crimes (Personal and Domestic Violence) Act 2007. Pursuant to s 168(3) of the Criminal Procedure Act the Court is to proceed to sentence on related offences as if the offender was being dealt with in the Local Court.  The Court is subject to the restrictions on sentence imposed in that Court.  The maximum penalties are imprisonment for two years and/or a fine of $5,500.

DISCOUNT FOR PLEA

3. The offender entered pleas of guilty at the first available opportunity and the Crown concedes that the discount should be 25%.

STATUTORY AGGRAVATING FACTORS

4. Sequence 1:  The offence involved the threat and use of violence.  Immediately prior to forcing opening the door he said, "Open the fucking door or I'll smash the window", it is a statutory aggravating factor pursuant to s 21A(2)(b).

5. Sequence 5:  The offence involved the use of a weapon.  The offender hit her with a torch.  The offence was committed in the home of the victim.  This is a statutory aggravating factor pursuant to s 21A(2)(b).  The offence involved the use of a weapon, it a statutory aggravating factor pursuant to s 21A(2)(c).  The victim was staying at the Fountain Court Motor Inn after she sought assistance to obtain emergency housing.  It was her home.

FACTS

6. Contained in exhibit 1 is an agreed facts document. It reads as follows:

1. Kenneth Ray Williams (the offender) is a 45 year old male who ordinarily resides in North Albury, New South Wales.

2. The offender has been in a domestic relationship with Rachel Charles (the complainant) for approximately six years.

3. On 8 August 2019 a final apprehended domestic violence order was made at Albury Local Court enforceable until 7 August 2021, naming the complainant as the PINOP and the offender as the defendant.  The conditions of the order are the offender must not do any of the following to the complainant

1. assault or threaten her,

2. stalk/harass or intimidate her,

3. intentionally or recklessly destroy or damage any property that belongs to or is in her possession. The offender must not approach or be in the company of the complainant for at least 12 hours after consuming alcohol or taking illicit drugs.

4. On 25 February 2020 the complainant sought emergency housing as she had separated with the offender and needed somewhere to live.  She was placed in room 29 at the Fountain Court Motel Inn situated at 568 David Street, Albury.

5. At approximately 11pm on 26 February 2020 the complainant finished work in Lavington and caught a taxi to the motor inn.  She entered room 29 closing the timber door and locking it using the chain mechanism.

6. The complainant then went to the bathroom and had a shower.  She had been inside the room for only a few minutes when she heard a knock at the door.

7. The complainant thought it may be the manager of the motor inn and said, "Who is it?". She saw the offender standing outside holding a torch and shining it through the window (sequence 3, contravene apprehended domestic violence order).  He asked who else was inside the room.  The complainant replied, "There is nobody in here".

8. The offender began to yell, "Open the fucking door or I'll smash the window".  The offender then forced open the front door breaking the locking mechanism.  He entered the room and immediately began to punch the complainant who was hiding behind the door (sequence 1, aggravated break and enter and commit serious indictable offence, assault occasioning actual bodily harm).

9. The offender grabbed the complainant by her hair and dragged her towards the bathroom.  As he did so he continued to punch the complainant in the face, head and arms.  The complainant raised her arms above her head to protect herself.

10. As the offender neared the bathroom door he began to hit the complainant with the torch, which was still in his hand.  He struck her numerous times to the face causing a laceration to her nose (sequence 5, reckless wounding).  The complainant was screaming at the offender for him to stop hitting her.  The complainant was holding her mobile phone in one of her hands.  She told the offender that she was going to call the police if he did not leave.  The offender said, "Give me your fucking phone" and took it from her.  He then fled the room.

11. A short time later police attended the motor inn and spoke to the complainant.  They observed blood on her face, arms and clothing.  There was also blood on surfaces within the room and on the front door.

12. The complainant was conveyed to the Albury Base Hospital by ambulance where she received medical treatment.  She sustained the following injuries:  a laceration to the left nostril exposing underlying cartilage, and superficial lacerations to right arm and head with minor swelling.  The complainant underwent a surgical operation to repair the laceration to her nose.

13. At approximately 4pm on Friday 28 February 2020 police attended 539 Byron Street at Glenroy where they located the offender who was cautioned, placed under arrest and conveyed to Albury Police Station where he was entered into custody.

14. While in custody police determined not to offer the offender the opportunity to participate in a recorded interview as he appeared well affected by a prohibited drug.

15. At 9pm the offender was read his rights pursuant to pt 9.  He later consented to a forensic procedure (buccal swab and photographs).

16. He was subsequently charged.

OBJECTIVE SERIOUSNESS

7. The offending is an example of domestic violence. Domestic violence is a blight on civil society.  No man should strike a woman nor should he do so with a weapon.  To do so is cowardly, abhorrent and contrary to the rules of civilised society.  If you strike a woman you forfeit your opportunity to live in a civilised society.  You forfeit the privilege.  You must be removed; gaol is the only option for you. Your conduct was humiliating, disrespectful, brutal and an abuse of the relationship of trust between you and your partner.  You were aggressive, you were physically stronger than she, and you knew that there was no real prospect of spontaneous physical retaliation because of the disparity between you and her because of your strength.

8. It is the longstanding obligation of the State to vindicate the dignity of a victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against violence.

9. An appropriate sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interests of the general community in the denunciation of domestic violence.  You are a repeat domestic violence offender.  Specific and general deterrence are important factors together with the requirement of powerful denunciation and the need for protection of the community: R v Hamid (2006)164 A Crim R 179 at [86]. In R v Edigarov (2001) 125 A Crim R 551 at [41] Wood CJ at CL (Studdert and Bell JJ agreeing) said:

"…violent attacks in domestic settings must be treated with real seriousness.  Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct.  In truth such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

10. Criminal law in the area of domestic violence requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.  A genuine but mistaken belief that the victim may have been unfaithful to him can in no way justify or ameliorate the seriousness of the offending.

11. In Patsan v R [2018] NSWCCA 129 Adamson J at [39] (Bathurst CJ and Leeming JA agreeing) said:

"The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern to which the applicant's conduct in the present case conformed.  A male attacks (or kills) a woman with whom he is or has been in an intimate relationship when she expresses a wish to leave that relationship.  Typically the male is physically stronger than the female.  The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respect strengths."

SEQUENCE 1

12. The Crown submits that sequence 1 is a serious example of an offence contrary to s 112(2) for the following reasons:

1. The offence occurred late at night (shortly after 11pm);

2. prior to the door being forced open the offender shone a torch through the window and made verbal threats towards the victim "Open the fucking door or I'll smash the window";

3. The victim was aware of the offender's presence outside the room immediately prior and witnessed the forcing open of the door.  The Crown submits that this elevates the seriousness of the offence in comparison to other offences of this type (for example where an offender opens a closed but unlocked door and enters a residential property in the early hours of the morning whilst the occupants are asleep);

4. the serious indictable offence committed inside room 29 was assault occasioning actual bodily harm.  The Crown submits this offence is more serious than other indictable offences, for example, intimidation or larceny;

5. the offender assaulted the victim by punching her to the face, head and arms.  He also grabbed her by the hair and dragged her across the room.  The assault was entirely unprovoked.  The victim offered no resistance instead raising her arms above her head to protect herself.  As a result the victim sustained superficial lacerations to her right arm and head with minor associated swelling;

6. towards the end of the assault the victim threatened to call the police if the offender did not leave.  In response the offender forcibly took her mobile phone before fleeing the scene.

13. I accept that the objective seriousness falls below the midrange.

SEQUENCE 5

14. The Crown submits that the wounding offences are principally result based offences. The Crown submits that sequence 5 is a very serious example of an offence contrary to s 35(4) for the following reasons:

1. that the wound was inflicted during a violent assault by the offender upon his de facto partner.  The attack upon the victim was entirely unprovoked;

2. as a result the victim sustained a laceration to her left nostril exposing underlying cartilage and requiring surgical repair.  The photographs at tab 7 of the Crown bundle depict a large laceration of the victim's nose which covers most of the nasal tip.  The laceration was occasioned to a very prominent area of the victim's face which is not easily concealed by clothing, hair or headwear (as opposed to a laceration on a person's arm or back of the head, for example).  Given the size and the depth of the laceration it is highly likely that the surgical scar would be visible for some time after the procedure.

15. The Crown submits that the objective seriousness of sequence 5 falls at the midrange.  The defence submit that it falls just below the midrange.  I accept the Crown's submission and that the offence falls at the midrange.

SUBJECTIVE CASE

16. Exhibit A is a report from Dr Furst, who is a forensic psychologist, dated 24 March 2021.  It informs me of the following:

"Mr Williams is a 48 year old Aboriginal man who has been involved in a de facto relationship with the victim Rachel Charles for the last eight years.  Mr Williams has two children from two prior intimate partners.  One is aged 28, the other is 19.  He grew up in Wilcannia where he attended primary school and a high school to year 9.  Mr Williams was exposed to drinking, drug use and violence in his formative years both amongst his immediate family members and his community peers.  He was expelled in year 9 after assaulting a teacher.  His parents were both heavy drinkers, alcoholics, and would host drinking parties virtually every weekend.  There was drunkenness and frequent fights at those events.

He smoked cannabis heavily in his teens.  He used heroin and amphetamines. His drug use led to a number of incarcerations in his 20s. He stated he stopped drinking ten or 11 years ago (around 2010) and that he stopped using ice five years ago in 2015 or 2016.  However, Mr Williams relapsed into using ice and alcohol about one month prior to his arrest last year."

17. Under the heading "Offence Related Issues" the report says he became convinced Rachel was having sex with his cousin. He said it was in that context he attended the motel and offended in the manner outlined in the agreed facts on 26 February 2020 at Albury.  He said, "I just clicked, I got violent".  He now feels bad about what he did to his partner, Rachel, stating "I saw the photos.  It brought tears to my eyes. I feel bad about this".

18. His New South Wales criminal history demonstrates angry and violent tendencies, Mr Williams has a number of assault convictions dating back to the 1990s.  He also has convictions for causing injuries to other people in Victoria in 2006 and 2010.  He is diagnosed as having an alcohol/substance abuse disorder.  His criminal history disentitles him to any leniency.

CONTRITION/REMORSE

19. I accept that Mr Williams has expressed genuine contrition and remorse.  He did so to Dr Furst where he said that he now feels bad about what he did to his partner Rachel stating "I saw the photos.  It brought to my eyes.  I feel bad about this".

PROSPECTS OF REHABILITATION

20. Taking into account his criminal history his prospects of rehabilitation are guarded.  I note he was unable to be interviewed because he appeared well affected by an illicit drug.  I do not accept Mr Cassell's submission that his prospects are good.

BUGMY

21. In my view the Bugmy principles have been enlivened and I accept what the High Court said at [44] of that judgment in that full weight needs to be given to every sentencing decision in relation to cases where the Bugmy principles have been enlivened.  The Crown concedes that the Bugmy principles have been enlivened.  There must be a reduction of the moral culpability of the offender and I take that matter into account when coming to an appropriate sentence in this case.

SPECIAL CIRCUMSTANCES

22. It is clear that Mr Williams has battled alcohol and drugs throughout his entire life.  There should be a finding of special circumstances to assist in his reintegration into the community.  He needs a longer parole period than the statute says because of the issues he has with continued alcohol and drug abuse.

SENTENCE

23. I am satisfied the s 5 threshold has been crossed. The major sentencing considerations are general deterrence, specific deterrence, denunciation of conduct and the protection of the community. I do take into account all of the matters listed in s 3A of the Crimes (Sentencing Procedure) Act when arriving at the appropriate sentence.

I impose the following indicative sentences which have been discounted by 25%:

Sequence 1 three years, indicative non‑parole period of 24 months.

Sequence 5 two years, indicative non‑parole period of 16 months.

I impose an aggregate sentence of three years and six months commencing 29 February 2020 and expiring on 28 August 2023.

I impose a non‑parole period of two years and four months whereby Mr Williams will be eligible for parole on 28 June 2022.

In relation to the 166 matter I impose a sentence of 12 months commencing on 29 February 2020 which expired on 28 February 2021.

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Decision last updated: 17 May 2021