R v WS

Case •

[2025] NSWDC 463

•

07 November 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v WS [2025] NSWDC 463
Hearing dates: 27 October 2025
Date of orders: 7 November 2025
Decision date: 07 November 2025
Jurisdiction:Criminal
Before: Fitzsimmons SC DCJ
Decision:

[83] I make the following orders:

(1) The offender is convicted of the offences.

(2) The indicative sentences with respect to counts 2, 3, 4, 5, 6, 9, 10, 11 and sequences 2, 5, 7, and 10 are set out above.

(3) With respect to sequences 1, 3 and 9 the offender is convicted without imposing any other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

(4) The offender is sentenced to an aggregate term of imprisonment of 10 years commencing 21 June 2025 and expiring 20 June 2035.

(5) I impose non-parole period of 6 years 3 months to expire 20 September 2031. The earliest date the offender is eligible for release is 20 September 2031.

(6) [ADVO orders redacted].

Catchwords:

CRIME — domestic violence — sexual intercourse without consent — choking, suffocation or strangulation — stalking or intimidation — armed with intent to commit indictable offence — common assault

CRIME — sexual offending — where offending took place in the context of a highly sexual consent-no-consent relationship

SENTENCING — where crimes committed against one victim over extended period — victim impact statement

SENTENCING — aggravating factors — in the presence of infant — armed with a weapon - where offending took place in victim’s home — where offending aggravated by being in the victim’s home notwithstanding that the offender and victim lived in the home together

CRIME — offences on s 166 certificate found to be proven by the Court

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Alseedi v R [2009] NSWCCA 185

Biddle v The Queen [2017] NSWCCA 128

DC v R [2023] NSWCCA 82

Director of Public Prosecutions (NSW) v Darcy-Shillingsworth (2017) 269 A Crim R 40

Hall v R [2021] NSWCCA 220

Hesketh v R [2021] NSWCCA 262

Jonson v R [2016] NSWCCA 286

R v Brown [2023] NSWDC 477

R v Brown [2023] NSWDC 477

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Olbrich (1999) 199 CLR 270

R v Storey [1998] 1 VR 359 at 369

RA v R [2024] NSWCCA 149

Category:Sentence
Parties: Rex, WS
Representation:

Counsel:
B Hart (Offender)
G Steedman (Crown)

Solicitors:
Clowry & Associates (Offender)
Solicitor for Public Prosecutions (NSW) (Crown)
File Number(s): 2022/00096692
Publication restriction: Nothing is to be published which identifies the complainant or is likely to lead to the identification of the complainant.

JUDGMENT

  1. On 26 June 2025, following a trial in the District Court at Wollongong a jury of 11 (unanimous) found the offender guilty of the following offences:

  1. Count 2: Intentionally choke so as to render unconscious, insensible or incapable of resistance contrary to s 37(1) of the Crimes Act 1900. This offence carries a maximum penalty of 10 years imprisonment with no standard non-parole period.

  2. Counts 3, 4, 5, 6 and 9: Sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. This offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.

  3. Count 10: Armed with a weapon with intent to commit an indictable offence (intimidation) contrary to s 114(1)(a) of the Crimes Act 1900. This offence carries a maximum penalty of 7 years imprisonment with no standard non-parole period.

  4. Count 11: Intimidate with intention of causing fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. This offence carries a maximum penalty of 5 years imprisonment and or 50 penalty units, with no standard non-parole period.

  1. All offences were committed against the same victim, CP, who was in a relationship with the offender at the time of the offending.

  2. The offender was found not guilty of the four remaining counts on the indictment.

  3. On 22 October 2025, the Court found that seven additional counts on a s 166 certificate were proven beyond reasonable doubt and the offender was convicted of those seven offences. These seven offences were:

  1. Five counts of common assault contrary to s 61 of the Crimes Act 1900. This offence carries a maximum penalty of two years imprisonment.

  2. Two counts of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. This offence carries a maximum penalty of 5 years imprisonment or 50 penalty units.

  1. The offender is to be sentenced with respect to the eight counts subject to the trial proceedings, and the seven counts on the s 166 certificate which the offender was found guilty of.

  2. The maximum penalties for the offences act as a sentencing guidepost or reference point. Section 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (CSPA), provides that the standard non parole period (counts 3, 4, 5, 6 and 9) is that which is included in the table of provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The fixing of a non-parole period is only one aspect of the task when determining what is an appropriate sentence.

  3. In making relevant findings of fact for the purposes of sentencing I must not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, to the extent that facts in favour of the accused are to be taken into account on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 at [27]; R v Storey [1998] 1 VR 359 at 369.

  4. The Crown relied on the following evidence on sentence:

  1. Exhibit C1 – Indictment

  2. Exhibit C2 – s 166 certificate

  3. Exhibit C3 – Agreed findings of fact

  4. Exhibit C4 – Criminal history

  5. Exhibit C5 – Custodial history

  6. Exhibit C6 – Victim Impact Statement

  1. The offender relied on the following evidence on sentence:

  1. Exhibit O1 – Psychological report of Mr Chafic Awit dated 13 October 2025.

Findings as to the offending and objective seriousness

  1. The Crown prepared a proposed summary of facts from the evidence at trial. The offender took no objection to the proposed facts and accepted that the Court would sentence the offender in accordance with that document. In any event, my findings of fact for the purposes of passing sentence are as follows, consistent with the guilty verdicts and my s 166 findings.

  2. At the time of the offending, the victim and the offender were in a domestic relationship, having met online in April 2021. The victim was age 29 and the offender was aged 49. Over several months the victim progressively spent more time at the offender’s home and, by early July 2021, the victim was living permanently at the home, coinciding with the discovery of her pregnancy.

  3. They commenced a sexual relationship shortly after meeting and engaged in all types of sexual intercourse including anal intercourse. Whilst not something she enjoyed, the victim engaged in anal intercourse as it made the offender happy. The dynamic was such that the offender would be the dominant or controlling person in the sexual activity with the victim adopting a submissive role, reflected in the offender being referred to by the victim as “Daddy" and the offender calling the victim “Baby Girl". At times during the consensual intercourse, the offender would grab the victim by the throat, consistent with the wishes of the offender and the agreement of the victim. This constituted a light pressing of the neck in circumstances where the victim would nod her head in agreement. However, the victim had clearly communicated to the offender that she did not consent to the offender choking her to the extent of passing out.

Sequence 1 on the s 166 certificate: common assault (11 May 2021)

  1. On 11 May 2021, the offender and the victim engaged in an argument culminating in the offender asking the victim to leave. Having asked a friend to collect her, and whilst leaving the house, the offender threw a mug in her direction, from a distance of approximately 1 to 2 m, where it grazed her shoulder before smashing on the ground. The offence was relatively short-lived, with the incident occurring whilst the victim had her back to the offender. There is no suggestion that the victim suffered any injury as a consequence. I find this offence falls within the low range of objective seriousness.

Sequence 2 on the s 166 certificate: intimidation (7 July 2021)

  1. The offender and the victim were engaging in an argument whilst the offender was ironing clothes inside a bedroom at the home. At the time, the victim was in the doorway of the bedroom and there was an argument as to the offender speaking to other women. The offender turned to the victim and held the iron in such close proximity to the victim's face that she could feel the heat emanating from it. The offender told the victim to leave or he would hit her with it. Having turned to leave the offender threw the iron onto the floor. I accept the offending would have caused significant fear in the victim in circumstances where a hot iron was held close to her face whilst the offender issued a threat. I find that this offence falls more towards the mid-range of objective seriousness for offences contemplated by the section.

Counts 2 and 3: intentionally choke without consent and sexual intercourse without consent (on or about 21 July 2021)

  1. Approximately two weeks after the victim discovered she was pregnant, the offender and the victim commenced engaging in consensual penile-vaginal intercourse. The victim was positioned with her knees on the couch seat in the loungeroom, with the upper half of her body leaning over the back of the couch. The offender became progressively rougher with his left hand on the victim's hip and his right hand on her throat. The offender’s nails began to dig in. The offender then tried to insert his penis anally which hurt the victim and she told him to stop. In response to the victim telling the offender that she wanted it to stop, the offender instead growled in her ear and continued to apply pressure to the victim's throat until she blacked out. When the victim regained consciousness, the offender had his penis in her vagina and after several minutes he ejaculated. Further, when the victim regained consciousness, she was experiencing a lot of pain where the offender had attempted inserting his penis into her anus. She also experienced pain in her vagina and some light bleeding.

  2. With respect to count 2, whilst the offender contended in written submissions that the activity initially involved consensual choking, in oral submissions counsel conceded the evidence did not support such a submission. Whilst it is acknowledged that the act of choking did form part of their sexual relationship (in qualified circumstances), the offender’s conduct involved an intentional choking (consistent with the guilty verdict) to the point that the victim was rendered unconscious. However, as the offender correctly noted, the additional element of the offence is that the offender was reckless as to rendering the victim unconscious. I am satisfied that this offence falls towards the mid-range of objective seriousness.

  3. With respect to count 3, in written submissions. counsel for the offender contended that the Court could not be satisfied beyond reasonable doubt that the offender had actual knowledge that the victim did not consent, but rather was reckless as to consent. However, in oral submissions, counsel acknowledged that, contrary written submissions, the unequivocal evidence of the victim, which I accept, was that upon the offender becoming progressively rougher, the victim told him that it hurt and that he should stop. It was the victim's evidence, which I accept, that contrary to the victim's demands, the offender continued, growling in her ear as he did so. He continued to engage in sexual intercourse for at least several minutes (the victim having lost consciousness for an unspecified period) until he ejaculated. As a result of the offending the victim’s anus and vagina were painful and there was some bleeding. It was contended that these offences were committed in the context of a sexual domination/submissive relationship. As with all of the offences of sexual intercourse without consent, the nature of the relationship in this respect does not otherwise diminish the seriousness of the offending. The fact that their relationship had a dominant/submissive foundation does not lessen or mitigate the offending. I am satisfied this offence falls towards the mid-range of objective seriousness.

Sequences 3 and 5 on the s 166 certificate: common assault x 2 (on or around 23 July 2021)

  1. In the course of another argument about the offender’s interaction with other women, the offender threw a water bottle at the victim whilst calling her a “pretentious bitch". The offence of common assault was fleeting and did not involve the victim being struck with the water bottle. I find this offence falls towards the low end of objective seriousness of the type offending contemplated by the section. In response to the victim laughing, the offender charged towards her, before grabbing the victim by the throat and pushing her up against a wall in the hallway. The pressure on the victim's neck was such that she experienced some dots in her vision before the offender let the victim go. This offence involved a not insignificant degree of violence in circumstances where the victim asked him to stop and she was crying throughout the ordeal. I am satisfied that this offence falls above the mid-range of objective seriousness for offences contemplated by the section.

Count 4: sexual intercourse without consent (July 2021)

  1. A number of days prior to this offence, the victim had been released from hospital for a burst cyst, resulting in severe period style cramps and, in the vicinity of the cyst, “horrific pain … feeling like someone sliced through you".

  2. The victim was asleep in her bed naked, lying on her side with her back to the offender when she began to feel his hands up and down and his erect penis. She told the offender that she was not feeling well and that she had fluid leaking from her vagina. The offender replied that it was okay as it was “not what daddy wants anyway". The offender then pushed the victim from her side onto her stomach before attempting to insert his penis into her anus whilst saying “be a good girl and give daddy what he wants." She was conscious of not making noise or screaming out in circumstances where her son was in the next room staying overnight. The offender inserted his penis into the victim's anus which she described as “immensely painful." The offender ejaculated into the victim's anus. Apart from being painful, there was also some bleeding.

  3. I am satisfied that the offender had actual knowledge that the victim was not consenting. No submission was made by the offender to the contrary. It would have been clear to the offender, given the victim’s medical condition, that she did not wish to engage in sexual intercourse of any form with him. This is supported by the fact that the offender said to the victim that she was to be a “good girl” and give the offender what he wanted. I do not accept that this statement merely reflected the dominant/submissive sexual relationship, given the circumstances of the complainant’s fragile health and her statements to the offender immediately prior to the act of sexual intercourse. I am satisfied that this offence falls within the mid-range of objective seriousness.

Sequence 6 on the s 166 certificate: common assault (5 September 2021)

  1. The offender was angry with the victim in circumstances where she had purchased him a gift on Father's Day. The offender threw the gift on the table before throwing things around the house and leaving. When he returned in a similarly bad mood, the victim said that she was not going to deal with it and started to walk down the hallway of the home. At this point the offender pushed the victim from behind, as a result of which she fell and grazed her knees on the tiled floor. At the time, the victim was at least four months pregnant. I am satisfied that this offence, involving a degree of violence, and resulting in the victim falling to the floor whilst pregnant, falls towards the mid-range of objective seriousness for offences contemplated by the section.

Counts 5 and 6: sexual intercourse without consent (28 December 2021)

  1. Several nights after the victim returned home from hospital, where she was being treated for contractions and pseudo seizures, she was still unwell. Whilst in the shower, the offender entered the shower in circumstances where this was unusual. When the victim asked the offender what he was doing the offender said, “giving daddy's little slut what she needed." The offender then turned the victim around, forcing her upper body into the corner of two solid walls of the shower before inserting his penis into her vagina. The victim told the offender not to do it, that it hurt and that she wasn't feeling well (count 5). I am satisfied that the offender knew the victim was not consenting in circumstances where the victim was unwell, heavily pregnant and they had not previously engaged in such activity in the shower. Further, the offender’s statement that he was giving the victim “what she needed" further supports the finding that at the time he engaged in the sexual intercourse, he knew the victim was not consenting. This is further supported by the victim’s evidence, which I accept, that she told the offender not to do it as it hurt. I find this offence falls towards the mid-range of objective seriousness.

  2. The offender then turned the victim around before pushing her to her knees and inserting his penis into her mouth (count 6). He continued to engage in oral intercourse with the victim in circumstances where she was shaking her head at the offender and crying. At the same time the offender was telling the victim how good it was and that was what she needed. This lasted for some time before the offender ejaculated into the victim's mouth.

  3. This offending occurred in circumstances where the victim had expressly stated she did not wish to engage in sexual intercourse with him. It involved the offender, despite this, physically manoeuvring the victim whilst she was heavily pregnant, unwell and distressed, into a position where he inserted his penis into her mouth for some time before ejaculating. I am satisfied that this offence falls above the mid-range of objective seriousness.

Sequence 7 on the s 166 certificate: common assault (8-9 February 2022)

  1. The offender and victim’s child was born in February 2022. The night after her discharge from hospital their child would not settle for the offender, who told him to “stop being stupid". When the victim told the offender to go back to bed, the offender shoved their child into her arms, as a result of which she stumbled but did not fall. The offence was brief, and whilst it did involve their infant child, I am satisfied that this offence falls towards the low range of objective seriousness.

Count 9 – sexual intercourse without consent (10 February 2022)

  1. Several nights after returning from hospital (having given birth), the victim was sitting on the corner of the couch with her infant son in a swing. The offender came out of the bathroom with a towel around his waist and asked if she wanted to suck his cock. The victim said that she did not want to do so in circumstances where she was tired, having just given birth. The offender walked over to the couch, stood with his legs either side of her and told her to be “a good girl" and to give “daddy" what he wanted. When their infant started “fussing", the victim said no. Despite her protestation, the offender forced his penis into the victim's mouth for several minutes. At the same time, the offender had a grip on the back of the victim's head and a chunk of her hair. It felt like her scalp was “prickling” and like “he was going to pull it completely out". The offender ultimately ejaculated in the victim's mouth during which time their child was in the vicinity crying.

  1. The offending occurred in circumstances where the victim had only recently given birth to their child and where she clearly indicated she did not wish to engage in any sexual activity with the offender. The offending occurred in the presence of their child. It involved the offender forcibly inserting his penis in the victim's mouth and controlling the victim's head before ejaculating. I am satisfied that this offence falls above the mid-range of objective seriousness.

Counts 10 and 11: armed with intent and intimidation (11 February 2022)

  1. The offender was frustrated with their infant son in the context of a night feed and where he was crying. He called his child stupid. The victim took their child into her arms and told the offender to get the baby seat so she could leave. The offender repeatedly told the victim that she could not leave. He then walked into the kitchen, picking up a knife with a 20 cm blade, before holding it to his wrists, saying that if she left he would kill himself. The victim walked towards the offender while still holding the baby. The offender then turned the knife towards where the victim was standing telling her that if she tried to leave he was going to kill the victim and their child. The offender thereafter turned and pointed the knife towards the infant child’s back.

  2. The averred indictable offence is one of intimidation, carrying a maximum penalty of five years imprisonment, being an offence towards the lower end of the range of indictable offences contemplated by the provision. The relevant weapon was a knife and the intimidation was the offender’s threat to kill himself. I am satisfied that this offence falls towards the low range of objective seriousness offences contemplated by the section.

  3. The victim thereafter told the offender that he needed help to which he responded that if she was to call anyone, he would kill her. The victim thereafter locked herself and the baby in the bedroom for the rest of the night and until the next morning. Unlike count 10, the use of the weapon is not an element of count 11 and is a further aggravating factor. Further, each of the offences were committed in the presence of a child under the age of 18. I am satisfied that this offence falls between the low and the mid-range of objective seriousness.

Sequence 10 on the s 166 certificate: intimidation (3 March 2022)

  1. On the day the victim finally left the offender (3 March 2022) an argument developed between the two over the care of their son. The victim ultimately sat on the couch with the infant and told the offender that she was leaving. The offender responded by head-butting the wall. The victim told the offender that he was out of control and that she was leaving. Whilst in the process of packing, the offender grabbed a knife and started slashing photographs that he had of his other children. He was then walking around the house with the knife. The offender then left the house for a period before returning whilst the victim was still present. When the offender returned, he was demonstrating the same temperament. This offence was committed whilst the offender was armed with a knife and was clearly acting in an aggressive manner which, self-evidently, would have instilled significant fear in the victim. I am satisfied that this offence falls above the low range of objective seriousness although is less than at the midrange.

  2. In summary, the offender engaged in a course of conduct over a period exceeding nine months against his partner in a domestic setting involving repeated sexual abuse interspersed with other acts of violence and intimidation. All but one of the offences of sexual intercourse without consent occurred in full knowledge that the victim was pregnant with their child, with the last of the acts being committed days after his birth. It is unsurprising that the offending has had a profound impact on the victim.

Victim impact statement

  1. The victim stated that she continued to be “haunted” by the offender’s abuse. She continues to experience nightmares which include fearing the death of her newborn. She no longer experiences the same joy from her youngest child given the connection with the offender. The victim experiences difficulties trusting her own psychological and emotional health and on days cannot leave her house. She startles easily and is constantly reminded of the offender, fearful of him further causing her harm. She can no longer wear clothes touching her neck and experiences adverse reactions to anyone else doing so. The offending has also significantly impacted the relationship with her children. There are constant fears on significant days including birthdays, Christmas and Father's Day. The victim is no longer able to relax or unwind, or for that matter enjoy the simple pleasures. She is unable to be around open kitchens in restaurants given the offender’s occupation. She struggles with professional and personal relationships and experiences triggers from everyday activities and events. The victim experiences discomfort with her nakedness, and it has significantly impacted her intimate relationships, including with her present partner.

Other aggravating factors

  1. With respect to each of the offences, a distinctly aggravating factor is that each of the offences were committed in the victim's home (s 21A(2)(eb) of the CSPA). I do not accept the offender's submission that the fact the offences occurred in the residence where the victim and the offender ordinarily reside renders this factor any less aggravating: Jonson v R [2016] NSWCCA 286 at [14]; [49]. As previously observed, counts 9, 10 and 11 occurred in the presence of a child under 18 years of age: s 21A(2)(ea) of the CSPA.

Criminal history/mitigating factors

  1. The offender's criminal record, prior to the present offending, was limited to convictions in 2000 of several obtain money by deception offences for which the offender performed community service and was the subject of a former section 9(1) bond. In the circumstances, I accept a mitigating factor is that the offender does not have any significant criminal record of previous convictions: s 21A(3)(e) of the CSPA. I accept that the offender is otherwise a person of good character.

  2. I accept as a further mitigating factor that the offending was not otherwise planned (s 21A(3)(p)) although it is not uncommon for this to be the case, particularly in the context of sexual offending within a subsisting relationship.

Report of Mr Chafic Awit

  1. Mr Awit assessed the offender on 8 October 2025. By way of background, the offender was raised by his biological mother and stepfather, with two younger half-siblings. He has never known the identity of his biological father, only being made aware that his stepfather was not his real father at the age of 15. The offender's parents separated when he was 13 or 14, which the offender described as a difficult period given the acrimonious separation. However, prior to this time, the offender described his upbringing as “great" with his father in full-time work as a police officer and his mother as a homemaker 80% of the time.

  2. He had not remained in any regular contact with either his mother or his half-siblings. The offender described the most traumatic thing that occurred to him in his developmental years was finding that his father was not his real father. This was in circumstances where his mother has continued to refuse to provide any information as to his biological father.

  3. The offender previously qualified as a chef and has been generally in full-time employment since leaving school. In more recent years he has worked as a chef on the South Coast and was in full-time employment at the time of his arrest.

  4. The offender reported use of alcohol from the age of 17 and drank more heavily at the peak of his depression. He commenced using cannabis at the age of 22 and has regularly used it since, apart from a five-year period of abstinence. The offender has also used ecstasy, MDMA, speed, cocaine, ketamine and ice at times, using these substances heavily, although there was a five-year abstinence after a mental health episode.

  5. The offender had previously been diagnosed with bipolar II disorder (2019), had been under the care of a psychiatrist and was prescribed Seroquel. The offender told the psychologist that he had experienced various periods of depression and increased drug use, particularly during periods of personal stressors. He reflected that he may have in fact struggled with depression whilst in high school, reporting repeated self-harm (cutting) when performing poorly at school during his parent's separation. The offender had a two-week inpatient stay the psych ward at Shellharbour Hospital following a work injury in 2008 leading to personal and financial stressors and the mother to his two children leaving him. The offender found himself homeless, jobless and childless. In 2018 he suffered a major breakdown which occurred approximately one year prior to his bipolar diagnosis.

  6. With respect to his relationship with the victim, the offender reported that they were together for 11 months and “despite the accusations [the offender] states that this had been the best relationship he had ever been in". The offender further reported: –

"He never loved anyone as much as he loved her, and never felt love, the way he felt she loved him."

  1. The offender reported that the victim's pregnancy was difficult and it took its toll on both of them, leading to a worsening of his mental health. Towards the end of the relationship the offender had given up his employment and became the victim's carer due to a condition she had towards the end of her pregnancy. They were ultimately evicted from their house due to a lack of finances, causing further stress which further worsened his mood. Six weeks after their child was born, the offender found the relationship was over, and due to the eviction, the victim and his son moving to her mother's house, he planned a further stay at a mental health ward.

  2. The offender continues to deny the allegations. Whilst he has not had psychological or psychiatric intervention for some years, his antipsychotic medication is being reviewed by his general practitioner. He experiences hypomanic episodes every four to six weeks with significant depression thereafter. The mental health examination was largely unremarkable.

  3. Further screening revealed the offender was suffering, at the time of assessment, extremely severe levels of depression, moderate levels of anxiety and severe levels of stress. The offender told Mr Awit that he believed that in the period of the alleged offending he would have felt even worse. Mr Awit concluded that during the alleged offending the offender was likely suffering bipolar II disorder and substance use disorder.

  4. It is difficult to accept the offender's assertions that during the period of the alleged offending he would have felt worse than at the time of the assessment by Mr Awit. Self-evidently, at the time of the assessment, the offender was in custody and on remand following guilty verdicts for serious offences and facing a not insignificant sentence of full-time imprisonment. It is unsurprising, and indeed understandable, that the offender would be suffering extremely severe levels of depression and stress in addition to moderate levels of anxiety. This is to be contrasted with the offender’s description that the relationship with the complainant for the best part of 11 months was the best relationship he had been in and that he felt a strong sense of love for the complainant which he considered was reciprocated. That said, I accept that towards the end of the relationship, the offender's mental health deteriorated, culminating in the offender seeking admission to a mental health facility.

Other sentencing considerations

  1. Counsel for the offender conceded that remorse was not relied upon as a statutory mitigating factor, particularly in circumstances where the offender continues to deny the offending.

  2. In considering the purposes of sentencing provided in s 3A of the CSPA, the Court takes into account the harm to the victim so eloquently expressed in the victim impact statement. Whilst not a statutory aggravating factor for the purpose of s 21A(2)(j), it is clear from the victim's statement that the offending has had a profound impact and permeates every aspect of the victim’s life including her sleep, her physical and intimate relationships with partners and her relationship with her children.

  3. Specific and general deterrence remain highly relevant in the sentencing process. As the Crown contended, the Courts have observed that general deterrence, community protection and denunciation are of considerable importance with respect to such offending and that any sentence requires “rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community”: Biddle v The Queen [2017] NSWCCA 128 at [105]; Director of Public Prosecutions (NSW) v Darcy-Shillingsworth (2017) 269 A Crim R 40 at [84].

  4. That said, I accept that at the time of the commission of offences constituting counts 10 and 11, the offender was suffering from a mental health condition which played a role of some significance in this offending such that it reduces the offender's moral culpability for this offending with less weight to be afforded to punishment and deterrence: DC v R [2023] NSWCCA 82 at [74] – [76]. I accept that these offences were committed in the context of the offender suffering under considerable stress, no doubt aggravated by his underlying mental health condition. This particular offending was in the context of stress within the relationship with the victim and further stress because of the birth of their child.

  5. However, I am not satisfied on the balance of probabilities that the offender's underlying mental health condition otherwise in any way played a role in the offender’s offending. I accept that, consistent with the opinion of Mr Awit, the offender may well have been experiencing symptoms of bipolar disorder and substance use disorder during the relationship. However, I am not satisfied that any underlying mental health condition played a role of any significance in the offending (DC at [74]) or that there is any link, direct or indirect, between the offending and any mental health condition: DC at [76]. It is inconsistent with the offender’s assertions to the psychologist that generally his relationship with the complainant was the best relationship which he had ever been involved in and from his perspective was a loving one. The offender did not assert, either in his evidence or at trial, nor in any history provided to the psychologist, that his mental health was such that it had any role in his offending.

  6. The offender must be made accountable for his actions, and the offending must be denounced in the strongest terms. The sentence must ensure that the offender is adequately punished for his offending against the victim.

  7. Counsel contends that the offender is unlikely to reoffend and has good prospects of rehabilitation. In support of this submission, it is noted that the offender will have available in the custodial setting various programs which will support and enhance his prospects of rehabilitation, as well as minimising his likelihood of reoffending.

  8. Self-evidently, a significant step towards rehabilitation is an acceptance of guilt and a willingness to address the underlying issues leading to the offending. The offender’s continuing denial of the offences in the absence of any remorse is an obstacle to his rehabilitation. However, as Giles JA observed in Alseedi v R [2009] NSWCCA 185, there can be rehabilitation without confession and offenders found guilty after trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt: at [65]. I find that the offender’s prospects of rehabilitation are somewhat guarded although not altogether hopeless.

  9. It is difficult to make a definitive finding as to the likelihood of reoffending, although a not insignificant period of imprisonment, in conjunction with programs available in the custodial setting, should permit the offender to reflect on his offending and the significant harm occasioned to the victim. It should give the offender significant pause for thought as to engaging in similar behaviour in a domestic relationship upon his release.

  10. I have taken into account that the offender’s mental health impairments identified in the report of Mr Awit will render the offender’s experience in custody more onerous than would otherwise be the case given his underlying mental health impairments.

  11. Counsel for the offender contended that the s 166 offences pale into insignificance when compared with the offences on the indictment and accordingly those offences should be dealt with pursuant to s 10A of the CSPA. The Crown contended that these offences should incur additional penalties, particularly the more serious the violence. Whilst I accept that the more minor offences of common assault reflected in sequences 1, 3 and 9 are such that they should not attract any further penalty, I am of the opinion that the more serious common assaults reflected in sequences 5 and 7, together with the offences of intimidation (sequences 2 and 10) should attract a discrete sentence.

  12. I am satisfied the s 5 threshold has been crossed with respect to each of the counts on the indictment and that no sentence other than imprisonment is appropriate. I am further satisfied that the s 5 threshold has been crossed with respect to sequences 1, 3 and 9 and sequences 2 and 10.

  13. There ought to be a finding of special circumstances such that the offender has an extended period on parole. Such a finding is justified on the basis that it is the offender’s first time in custody and that he suffers a significant mental health impairment for which he should be afforded every opportunity to seek treatment in the community. It is hoped that this will further enhance the offender’s prospects of rehabilitation.

  14. I find that this is an appropriate matter for the Court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

  15. With respect to count 2, intentionally choke without consent contrary to s 37(1) of the Crimes Act 1900, an appropriate indicative sentence is 2 years imprisonment.

  16. With respect to count 3, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900, an appropriate indicative sentence is 4 years imprisonment with an indicative non-parole period of 2 years, 6 months.

  17. With respect to count 4, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900, an appropriate indicative sentence is 4 years imprisonment with an indicative non-parole period of 2 years, 6 months.

  18. With respect to count 5, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900, an appropriate indicative sentence is 4 years imprisonment with an indicative non-parole period of 2 years, 6 months.

  19. With respect to count 6, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900, an appropriate indicative sentence is 4 years, 6 months imprisonment with an indicative non-parole period of 3 years, 2 months.

  20. With respect to count 9, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900, an appropriate indicative sentence is 4 years, 6 months imprisonment with an indicative non-parole period of 3 years, 2 months.

  21. With respect to count 10, armed with intent contrary to s 114(1)(a) of the Crimes Act 1900, an appropriate indicative sentence is 1 year, 6 months imprisonment.

  22. With respect to count 11, intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, an appropriate indicative sentence is 10 months imprisonment.

  1. With respect to sequence 1, common assault contrary to s 61 of the Crimes Act 1900, the offender is convicted without imposing any other penalty pursuant to s 10A of the CSPA.

  2. With respect to sequence 2, intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, an appropriate indicative sentence is 12 months imprisonment.

  3. With respect to sequence 3, common assault contrary to s 61 of the Crimes Act 1900, the offender is convicted without imposing any other penalty pursuant to s 10A of the CSPA.

  4. With respect to sequence 5, common assault contrary to s 61 of the Crimes Act 1900, an appropriate indicative sentence is 3 months imprisonment.

  5. With respect to sequence 7, common assault contrary to s 61 of the Crimes Act 1900, an appropriate indicative sentence is 4 months imprisonment.

  6. With respect to sequence 9, common assault contrary to s 61 of the Crimes Act 1900, the offender is convicted without imposing any other penalty pursuant to s 10A of the CSPA.

  7. With respect to sequence 10, intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, an appropriate indicative sentence is 10 months imprisonment.

  8. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ; R v Brown [2023] NSWDC 477 at [90].

  9. This was again referred to in RA v R [2024] NSWCCA 149, where the Court noted that “the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time.”

  10. As Bell P (as his Honour then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences: R v Brown [2023] NSWDC 477 at [91].

  11. Whilst the offending involved a single victim, it occurred over a not insignificant period between May 2021 and March 2022. In the circumstances, there must be some degree of accumulation although a degree of concurrency remains relevant as to ensure the overall sentence reflects the totality of the offending behaviour.

  12. In all the circumstances, an appropriate aggregate sentence is 10 years imprisonment with a non-parole period of 6 years 3 months.

  13. The offender was in custody from 5 August 2022 until 8
    August 2022. The offender was again remanded in custody following the guilty verdict on 26 June 2025 and has remained in custody until the date of sentencing (7 November 2025). Accordingly, the offender has spent a total of 139 days in custody and the sentence is to be backdated to reflect this period.

Orders

  1. I make the following orders:

  1. The offender is convicted of the offences.

  2. The indicative sentences with respect to counts 2, 3, 4, 5, 6, 9, 10, 11 and sequences 2, 5, 7, and 10 are set out above.

  3. With respect to sequences 1, 3 and 9 the offender is convicted without imposing any other penalty pursuant to s 10A of the CSPA.

  4. The offender is sentenced to an aggregate term of imprisonment of 10 years commencing 21 June 2025 and expiring 20 June 2035.

  5. I impose non-parole period of 6 years 3 months to expire 20 September 2031. The earliest date the offender is eligible for release is 20 September 2031.

  6. [ADVO orders redacted].

**********

Decision last updated: 12 November 2025

Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

3

Alseedi v R [2009] NSWCCA 185
Biddle v R [2017] NSWCCA 128
DC v R [2023] NSWCCA 82