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[2026] NSWDC 25
General information, not legal advice.
District Court of NSW
2026-02-27
Newlinds SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Alaska (a pseudonym) [2026] NSWDC 25
Hearing dates: 17 February 2026
Date of orders: 27 February 2026
Decision date: 27 February 2026
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision: (1) The Offender is sentenced to an aggregate term of imprisonment of 5 years and 3 months, to commence on 12 September 2024 and expire on 11 December 2029.
(2)There will be a non-parole period of 3 years and 6 months, which expires on 11 April 2028, being the first day the Offender will be eligible for parole.
Catchwords: SENTENCING — Domestic violence — Multiple serious examples of domestic violence offending — Victims are Offender’s partner and 7-year-old child — Some offending in breach of ADVO — Some offending whilst on Community Corrections Order for common assault and breach of ADVO — One count of seek to influence witness in court proceedings — Being alleged victim of domestic violence offences
SENTENCING — Subjective considerations on sentence — Statements of remorse not accepted — Finding of lack of remorse and insight — Prospects of reoffending significant — Difficult childhood probably engaging Bugmy principles — 25% discount for early plea of guilty
Legislation Cited: Crimes Act 1900 (NSW) s 37(1A), s 61, s 323(a)
Crimes (Domestic and Personal Violence) Act 2007 s 13(1), s 14(1), s 39, s 40(5)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 4A, s 4B, s 21A, s 25D(2)(a)
Cases Cited: Browning v R [2015] NSWCCA 147
Bugmy v The Queen (2013) 249 CLR 571
Jeffries v R [20081185 NSWCCA 144
Kennedy v R [2008] NSWCCA 21
R v Do (No 4) (2015] NSWSC 512
R v Halloun [2014] NSWSC 1705
R v Hines (No 3) [2014] NSWSC 1273
R v Macadam-Kellie [2001] NSWCCA 170
R v Rumbel (unrep, 15/12/94, NSWCCA)
R v Sabbah [2025] NSWCCA 203
R v Stephens [2024] NSWCCA 170
Suksa-Ngocharoen v R [2018] NSWCCA 142
Yoman v R [2020] NSWCCA 239
ZA v R [2017] NSWCCA 132
Category: Sentence
Parties: Rex (Crown)
Mr Alaska (a pseudonym) (Offender)
Representation: Counsel:
A Marquard-Karp (Solicitor Advocate) (Crown)
P Butterfield (Offender)
Solicitors:
ODPP (Crown)
Smythe Wozniak Lawyers (Offender)
File Number(s): 2024/338793
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication is prohibited of any matter that is likely to identify the name of the victim, described as “SM’s son” or “her son”.
The names of the Offender, SM, and “their daughter” have been anonymised to prevent the identification of the victim described as “SM’s son” or “her son.”
Between 2020 and 2024, the Offender and the person I will refer to as “SM” were in an on and off again intimate romantic relationship. SM has a son by a different father, whom I will refer to as “SM's son” or “her son.”
The Offender and SM have one child together, whom I will refer to as "the**ir daughter."
From 2022 until his arrest in 2024, the Offender engaged in repeated and serious criminal conduct, every one of which is caught by the definition of “domestic violence,” against both SM and her son.
This conduct included the Offender committing crimes of common assault and intentional choking against SM, often in the presence of her son, and on one occasion, of intentionally choking her son, apparently because her son had witnessed the choking of his mother, which choking had rendered her apparently unconscious.
By that conduct, the Offender also committed a series of offences of knowingly breaching an Apprehended Domestic Violence Order (ADVO).
Some of the conduct occurred whilst the Offender was serving a Community Corrections Order for a crime of common assault and breach of an earlier ADVO.
Some of the conduct occurred whilst the Offender was on conditional liberty, having been granted bail for other alleged offending against SM. Those charges were ultimately dismissed because SM did not give evidence following threats by the Offender as to what would happen to SM if she gave evidence. Those threats constitute the basis of the “intent to influence a witness” charge being Sequence 13.
I will come to the facts shortly, but the offending, either taken individually or overall, in my opinion, constitutes very serious examples of these type of offences.
The impact on the victims and the community will inevitably have been profound and ongoing. If there was any doubt about that, I have heard a detailed Victim Impact Statement from SM which confirms why offences of this nature are taken so seriously by the community. SM highlighted, not just the immediate consequences to her and her son of the offending, but also of the ongoing impact on their lives of the trauma.
The Offender has been charged with a large number of offences. It is accepted that the s 5 threshold has been well and truly passed for the purpose of an aggregate sentence. In my view, a term of imprisonment is appropriate as an indicative sentence for each and every one of the offences.
| Seq | Offence | Section and Act | Maximum Penalties | | Main offences | | 1 | H433669194/1: Stalk/ intimidate intending to cause fear of physical or mental harm- domestic violence offence Victim: SM | s 13(1), Crimes (Domestic and Personal Violence) Act 2007 | District Court - 5 years’ imprisonment and/or $5500 Fine (50 PU) Local Court - 2 years’ imprisonment and/or $5500 Fine (50 PU) | | 3 | H433669194/3: Intentionally choke person without consent - domestic violence offence Victim: SM | s 37(1A), Crimes Act 1900 | District Court - 5 years’ imprisonment Local Court - 2 years’ imprisonment and/or $11000 Fine (100 PU) | | 10 | H433669194/10: Intentionally choke person without consent - domestic violence offence Victim: SM’s son | s 37(1A), Crimes Act 1900 | District Court - 5 years’ imprisonment Local Court - 2 years’ imprisonment and/or $11000 Fine (100 PU) | | 13 | H433669194/13: Act (intimidation) with intent to influence a witness in a judicial proceeding not to attend Victim: SM | s 323(a), Crimes Act 1900 | District Court - 7 years’ imprisonment Local Court - 2 years’ imprisonment and/or $11000 Fine (100 PU) | | 18 | H433669194/18: Common assault- domestic violence offence Victim: SM | s 61, Crimes Act 1900 | District Court - 2 years’ imprisonment Local Court - 2 years’ imprisonment and/or $5500 Fine (50 PU) | | Section 166 offences | | 7 | H433669194/7: Common assault- domestic violence offence Victim: SM | s 61, Crimes Act 1900 | District Court - 2 years’ imprisonment Local Court - 2 years’ imprisonment and/or $5500 Fine (50 PU) | | 8 | H433669194/8: Common assault - domestic violence offence Victim: SM’s son | s 61, Crimes Act 1900 | District Court - 2 years’ imprisonment Local Court - 2 years’ imprisonment and/or $5500 Fine (50 PU) | | 14 | H433669194/14: Knowingly contravene prohibition/restriction in an ADVO | s 14(1), Crimes (Domestic and Personal Violence) Act 2007 | Local Court - 2 years’ imprisonment and/or $5500 Fine (50 PU) | | 17 | H433669194/17: Knowingly contravene prohibition/restriction in an ADVO | s 14(1), Crimes (Domestic and Personal Violence) Act 2007 | Local Court - 2 years’ imprisonment and/or $5500 Fine (50 PU) |
General deterrence has a significant role to play in domestic violence offences: Yoman v R [2020] NSWCCA 239 at [131]-[135].
The criminal law, when dealing with crimes of domestic violence, demands rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community. Whatever the position may have been in times past, domestic violence offending is now regarded with the utmost seriousness, and sentencing for such offending must reflect proper recognition of the need to denounce the conduct, to vindicate the dignity of the victims and recognise the harm done to them, to protect the community and, where appropriate, by imposing a sentence that sends a clear message to the general community that such conduct will be met with stern punishment: R v Stephens [2024] NSWCCA 170 at [175].
In relation to Sequences 3 and 10, in R v Sabbah [2025] NSWCCA 203, Adams J (with whom Sweeney and Free JJ agreed) considered and identified a non-exhaustive list of relevant factors to be considered when assessing the objective seriousness of an offence contrary to s 37(1A):
At [111], Adams J said:
“As for the context in which the choking occurred, the fact that an offence contrary to s 37(7A) occurred in the context of a domestic relationship is a highly relevant factor. When an offender exerts pressure with both hands to a victim's throat, that victim becomes powerless to the offender and is cognisant that the offender could end their life at any moment by restricting their breathing. For a person to commit such a potentially dangerous act as a means of control over their domestic partner is a serious abuse of trust and a betrayal. As the second reading speech clearly stated, the new offence was created specifically with domestic violence offending in mind."
The Statement of Agreed Facts discloses a series of distinct charged acts of violence, committed in the context of an intimate domestic relationship that existed between the Offender and SM. Sequences 10 and 8 were committed against SM's son, who was 7 years old at the time.
The offending conduct against SM and SM’s son was not isolated. The victims had been subjected to a domestic violence relationship characterised by controlling and threatening behaviour and physical violence between 2020 and 2024.
Turning then to the objective seriousness of each event. I propose to primarily describe what occurred, which in my opinion is demonstrative of the seriousness of each offence.
The Offender was subject to various forms of conditional liberty at the time of some of the offending.
The Offender committed Sequences 13, 14 and 17 whilst serving a 9-month Community Correction Order for H96280322-1 – Common assault (commencing on 18 June 2024 and concluding on 17 March 2025).
It is an aggravating factor if an offence is committed in breach of an ADVO: Kennedy v R [2008] NSWCCA 21 at [8]; R v Macadam-K**ellie [2001] NSWCCA 170 at [37]-[38]; R v Rumbel (unrep, 15/12/94, NSWCCA).
Breaching an ADVO is distinct from a breach of conditional liberty simpliciter because it involves breaching an order specifically designed to protect the victim from further attacks. This factor applies to Sequences 1 (the Offender was subject to an ADVO for H92947530 that included Conditions 1, 2 and 9 from 21 October 2021) and Sequences 3, 7, 8, 10 and 18 (the Offender was subject to a provisional ADVO that included Conditions 1, 2, 3, 5 and 9 from 6 November 2023, and a final 2-year ADVO from 1 July 2024 for H94094320).
I consider it to be a significant aggravating factor under s 21A(2)(j) if an offender commits offences whilst on conditional liberty for offences arising from breaches of an AVO order: Jeffries v R [20081185 NSWCCA 144 at [91]; Browning v R [2015] NSWCCA 147 at [8].
The Offender committed Sequences 3, 7, 8, 10, 13, 14, 17 and 18 whilst serving a 12-month Conditional Release Order without conviction for H92947530-1 – Contravene prohibition/restriction in an ADVO (commencing on 8 June 2023 and concluding on 7 June 2024).
The Offender also committed Sequences 3, 7, 8, 10, 13, 14 and 18 whilst on bail for H94094320-1 – stalk/intimidate intend fear physical etc harm – domestic violence offence. 1 x intentionally choke etc person without consent – domestic violence offence and 1 x common assault – domestic violence offence. These charges were withdrawn and dismissed on 1 July 2024 at Burwood Local Court, as a result of the Offender’s conduct, the subject of Sequence 13.
There is a Sentencing Assessment Report prepared on 16 January 2026 by Hayden Waterson and the Psychologist Report of Mr Awit in relation to the Offender's subjective case. The Offender also tendered a letter of apology. The Offender was assessed by Mr Awit via AVL on 6 February 2026 for approximately two hours. The report contains a self-reported history.
The Offender told Mr Awit that, whilst being in custody, he has had time to reflect over his past behaviours and to work out where he has gone wrong and has been able to better regulate his emotions. In his letter of apology, he says he is sorry for what he did and seems to attribute his conduct to the pressure of working hard and him not being able to spend enough time with his family. I am sceptical as to these untested statements and am not prepared to act on them. They must be contrasted with what is attributed to the Offender and the opinion of Mr Waterson in the Sentencing Assessment Report, who concluded that the Offender appears to have no insight into his propensity to engage in serious violence, or threats, towards his victims.
The Sentencing Assessment Report records that the Offender denied involvement in the offending, demonstrating a failure to accept responsibility for, or have any insight into, his actions; matters which the Crown submits are relevant to assessing his prospects of rehabilitation and genuine remorse. Mr Waterson concludes:
"his behaviour demonstrated a pervasive minimisation and denial of responsibility, reflected through shifting blame on to the victims and attempts to characterise his actions as due to his lack of understanding attributed to cultural differences".
Mr Waterson goes on to say that, throughout the assessment period, the Offender consistently denied having any concerns with violence or aggression, particularly in the context of domestic relationships. The Offender also claimed that there would be no ongoing impact on the victim and continuously attempted to position himself as the victim.
I am not satisfied that the Offender is truly remorseful for his actions. I accept that he is sorry, but that is in the context of having been charged and denied bail. I think he is sorry for himself, not his actions. I do not think he has any real insight into why what he did is not, just legally wrong, but morally reprehensible.
As to prospects of rehabilitation and chances of reoffending, unless the Offender comes to understand why physically and mentally assaulting members of his own family is wholly unacceptable behaviour, I consider his prospects of rehabilitation to be, at best, guarded and therefore his chances of reoffending to be reasonably high.
Of course, these things are not set in stone. With time, he may well develop the necessary insight to change his ways. I hope he does.
In my judgement, the Offender has shown no relevant remorse and only limited insight as to why his conduct was wrong. I regard his prospect of rehabilitation as guarded. Importantly, what follows from that conclusion is that he remains a danger, not just to SM, but to any future domestic partner.
Mr Awit stated that the history given by the Offender, alongside his own clinical opinion, supported a probable diagnosis of Major Depressive Disorder (multiple episodes) with Anxious Distress in the lead up and during the period of the offending. Mr Awit does not draw a correlation between the offending behaviour and this probable diagnosis.
There is no evidence of a causal nexus between this diagnosis and the offending, or that it contributed to the commission of the offences in a material way, such that the Offender's moral culpability should be reduced.
On behalf of the Offender, Mr Butterfield of counsel generally accepts that the level of objective seriousness involved in each of the offences for sentence is high.
Mr Butterfield submits that there was little sophistication involved in the criminality. I think that is a neutral observation because it will almost always be the case in crimes involving domestic violence. The same can be said to the submission that there was little planning involved.
Mr Butterfield acknowledges that the context of the offending in a domestic relationship is a highly relevant factor, as is the power imbalance and the abuse of trust and betrayal against a domestic partner.
Mr Butterfield has submitted that it is open to conclude that the motivation and offending appears to have been, in large part, a desire to control and dominate the Offender’s domestic partner and her own child. So much may be accepted, but I do not understand how that submission advances the Offender’s case, in the sense of being a reason to mitigate the appropriate sentence.
Ultimately, Mr Butterfield, whilst conceding that the crimes are objectively serious, has submitted, on an overall basis, that the offending should all be considered to be at or above the mid-range of offending for offences of this type. I consider that to be a fair concession, albeit I consider the offending overall to be much closer to the top of the range than the middle.
The Offender appears to have experienced a significant amount of exposure to violence, being allegedly subjected to sexual conduct at a young age and physical acts of violence and suffering from anxiety from a young age. That anxiety went untreated throughout his early life in Iran. He reported that he worried about his mother being the target of abuse and the ongoing wars in Iran, which all contributed towards him struggling to be able to control his worry.
After the Offender’s arrival in Australia by boat, he was held in detention for a period of time before being able to integrate into the community.
There was debate before me as to whether the Offender’s experiences in childhood strictly qualify for consideration under what is known as the “Bugmy principle:" Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).
I accept that the Offender had a very difficult childhood, including being the subject of sexual assault as a child, and that his experiences in coming to Australia have been difficult.
That being said, since arrival in Australia, leaving aside his propensity to become domestically violent, he has been a hard worker with a good employment history. If not for him persistently resorting to acts of domestic violence, he otherwise appears to be a satisfactory member of the community.
I am not sure whether the Offender’s upbringing qualifies for consideration under the principles described in cases like Bugmy, but I will give the benefit of the doubt and take it into account in his favour. That qualifies him for some leniency, but of course, if there is a link between the Offender’s deprived upbringing and his criminal behaviour, which I find difficult to identify, it may well be that that link will make it harder for him to change his ways, which of course points in the other direction when considering an appropriate sentence, in particular the very important consideration of protection of the community.
The offending took place over a period of four years. The Offender had ample opportunity after committing each offence to reflect and consider the wrongfulness of his conduct and the potential impact on each victim, yet he continued to offend. Accumulation is necessary and to be expected where there are separate domestic violence offences against different victims.
Notwithstanding that some of these offences were committed in close proximity and time (for example, Sequences 7, 8, 10 and 18), they are separate and distinct offences involving two victims, which could be categorised as occurring in a course of conduct, rather than there being overlap in the criminality.
In relation to the contravene ADVO offences (Sequences 14 and 17), the conduct and the breach of the ADVO constitute separate acts of criminality and ordinarily require separate punishment: Suksa-Ngocharoen v R [2018] NSWCCA 142 at [131]-[132]. The same can be said for the s 323 charge.
In sentencing the Offender for a number of offences at the same time, I must have regard to the common law sentencing principle of totality. In ZA v R [2017] NSWCCA 132, per Johnson and Fullerton JJ, the principle was explained at [70] - [71].
In this context, it has been said that the totality principle serves to ensure that an offender is not subjected to a "crushing sentence". That concept is often a way of saying that an excessively long sentence may increase the prospects of an offender re-offending upon release. That may be so, but at the present time, I consider his prospects of re-offending to be high in any event. It is also to be remembered that the principle of totality is not to be used so as to have the effect that the punishment for multiple offending reduces with each offence.
A sentence of full-time detention must be imposed for a domestic violence offence unless the court is satisfied that a different sentencing option is more appropriate and gives reasons for reaching that view: s 4A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
An Intensive Correction Order (“ICO”) must not be made in respect of a sentence of imprisonment for a domestic violence offence, or an aggregate sentence of imprisonment for two or more offences, one or more which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by the ICO conditions or for some other reason): s 4B(1).
Taking into account the objective seriousness of the crimes, together with the subjective case of the Offender, including his difficult upbringing, together with what I consider to be a particular need to place significant weight on the need for general and specific deterrence and the protection of the community, and my conclusions as to the lack of remorse, insight, and low prospects of rehabilitation, it is inevitable that a significant term of imprisonment must be imposed on the Offender. The question becomes, for how long?
Mr Butterfield has submitted that, in the event that I conclude that an aggregate term of imprisonment of less than three years is appropriate, that such term should be served in the community pursuant to an ICO.
I have determined that the aggregate sentence should be greater than three years, so the issue does not arise, but I should record that in the event I had concluded that the appropriate aggregate term of imprisonment was three years or less, I would not have ordered that term be served in any other way than full-time custody. In short, the seriousness of the criminality, combined with my assessment as to the limited prospects of rehabilitation, demand that any sentence be served full-time.
Turning then to the appropriate sentence and, taking into account all the matters I have mentioned, I have determined that an appropriate aggregate sentence, without discount, is 7 years imprisonment.
From that there should be deducted 25% to recognise the utilitarian value of all the pleas, thus reducing the head sentence to 5 years and 3 months.
The indicative sentence for each charge is as follows:
Seq 1 – 1 year – 9 months after 25% discount.
Seq 3 – 2 years – 18 months after 25% discount.
Seq 10 – 2 years – 18 months after 25% discount.
Seq 13 – 3 years – 27 months after 25% discount.
Seq 18 – 1 year – 9 months after 25% discount.
Seq 7 – 1 year – 9 months after 25% discount.
Seq 8 – 1 year – 9 months after 25% discount.
Seq 14 – 1 year – 9 months after 25% discount.
Seq 17 – 1 year – 9 months after 25% discount.
Notwithstanding the totality of those indicative sentences, I have determined that an aggregate sentence of 5 years and 3 months, after deduction of 25% for the early pleas, represents the appropriate punishment for the overall criminality involved, notwithstanding the multiplicity of offending.
The sentence shall be backdated so as to commence on 12 September 2024, so as to take into account the time already served.
This is a “serious offence” as defined in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (s 40(5)(c)), and as there is no interim ADVO in place, s 39 gives power to the Court to make a final ADVO upon conviction.
The timing of such an ADVO is prescribed by s 39(2B) to be as the term of the head sentence plus a further two years or a different period if the Court determines there is good reason for a different period (s 39(2C)).
In light of the history of the Offender, I consider there is good reason for me to extend that period so that the ADVO remains in place for 5 years after the Offender’s release from custody.
To give the Act sensible operation, any such extension that I impose should run from the time that the Offender becomes eligible for parole.
Accordingly, I propose to order a final ADVO, on conditions, for a period of five years, commencing 11 August 2028, being the first date the Offender is eligible for parole.
For those reasons, my orders are as follows:
For Sequences 1, 3, 10, 13, 18, 7, 8, 14, and 17, the Offender is sentenced to an aggregate term of imprisonment of 5 years and 3 months, to commence on 12 September 2024 and expire on 11 December 2029.
There will be a non-parole period of 3 years and 6 months, which expires on 11 March 2028, being the first day the Offender will be eligible for parole.
Pursuant to s 39 of the Crimes (Domestic and Personal Violence) Act 2007, I make a final Apprehended Domestic Violence Order to commence on 11 March 2028 and expire 10 March 2033, on the following conditions:
(a) The Offender must not do any of the following to SM, her son, or their daughter, or anyone they have a domestic relationship with (“the protected persons”):
(i) assault or threaten them, (ii) stalk, harass or intimidate them, (iii) intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of SM, her son, or their daughter.
(b) The Offender must not approach:
(i) the school or any other place the protected person might go to for study, (ii) any place they might go to for childcare
(c) The Offender must not try to find the protected person except as ordered by a court. (d) The Offender must not approach the protected person or contact them in any way, unless the contact is:
(i) through a lawyer, or (ii) to attend accredited or court-approved counselling, mediation and/or conciliation, or (iii) as ordered by this or another court about contact with children, or (iv) as agreed in writing between the Offender and the parent(s) about contact with children.
(e) The Offender must not go within 100 metres of:
(i) any place where SM, her son, or their daughter live, or (ii) any place where they work, or (iii) any place where they go to school.
**********
R
Alaska
(2013) 249 CLR 571
On behalf of the Offender, it has been submitted that the Offender’s time in custody has and will continue to be difficult in light of his mental health issues and the fact that this is his first time in custody, and that an extended period under supervision would enhance the Offender’s prospects of rehabilitation. I have amended the standard non-parole period slightly in his favour to a period of 3 years and 6 months.