R v AM

Judgment (8 paragraphs)

[1]

REMARKS ON SENTENCE

On 15 November 2024 the offender appeared at the Wagga Wagga District Court and pleaded guilty to 7 counts on an indictment, namely that he: 1. On 26 March 2022 at Coolamon in the State of New South Wales did assault BH, contrary to s 61 of the Crimes Act, 1900 and further 2. Between 1 January 2022 and 31 January 2022 at Tumbarumba in the State of New South Wales assaulted SM thereby occasioning actual bodily harm to her, contrary to s 59(1) of the Crimes Act, and further 3. On 24 December 2022 at Rosewood in the State of New South Wales did assault SM, contrary to s 61 of the Crimes Act, and further 4. On 3 September 2023 at Rosewood in the State of New South Wales did have sexual intercourse with SM without her consent knowing she was not consenting, contrary to s 61I of the Crimes Act, and further 5. On 3 September 2023 at Rosewood in the State of New South Wales did possess a firearm not being authorised to do so by a licence or permit, contrary to s 7A(1) of the Firearms Act, 1996, and further 6. On 3 September 2023 at Rosewood in the State of New South Wales did have sexual intercourse with SM without her consent knowing she was not consenting and in circumstances of aggravation namely that at the time of the commission of the offence (he) intentionally inflicted actual bodily harm on SM, contrary to s 61J(1) of the Crimes Act, and further 7. On 3 September 2023 at Rosewood in the State of New South Wales did have sexual intercourse with SM without her consent, knowing that she was not consenting, contrary to s 61I of the Crimes Act.
Although an indictment was presented it is uncontroversial that the offender entered pleas of guilty in the Local Court and is therefore entitled to the full 25% discount for the utilitarian value of the pleas of guilty. There is a matter that entitles the offender to a further numerical discount in respect of the firearms offence.
Attaching to count 2 is a Form 1 document containing a further count of Assault Occasioning Actual Bodily Harm. Attaching to count 7 is a Form 1 document containing a further count of Sexual Intercourse without consent. In passing sentence on counts 2 and 7 I will need to apply the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146.

Facts

The facts are before the Court by way of set of agreed facts; those facts are not necessarily in the same order as counts on the indictment. For the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt. The offender is 39 years of age at the time of sentence and was 37 or 38 at the time of the offending. The victim was the offender's wife. The offender and the victim had commenced a relationship in 2011 and they had children together.
Given the number of counts on the indictment, I will deal with the issue of the objective seriousness of the matter at the conclusion of my summary of the facts of each matter. Each matter will be assessed individually, however, most of the offences can accurately be described as domestic violence offences.
The facts initially go to count 2, that is the charge of assault occasioning actual bodily harm. On 29 January 2022 the offender and the victim had been to a friend's house in Tumbarumba. The offender had been drinking alcohol. While at that house the victim was talking to a male named Adrian whom she had met while working at a local hotel. After leaving the friend's house, the offender became upset that Adrian had been talking to the victim and accused the victim of inappropriate behaviour with him. The offender then swung his left arm across his body and hit the victim in the face with an open hand, which caused the victim's lip to split and bleed.
Offences of violence such as Assault Occasioning Actual Bodily Harm are generally result offences. That is to say the more serious the injury the more objectively serious the matter will be. However the nature of the assault is also relevant to the assessment of the seriousness of the matter. See for e.g. Mitchell & Gallagher v R [2007] NSWCCA 296 and McCullough v R [2009] NSWCCA 94.
In respect of count 2, the offender was motivated by jealousy brought about by some perceived inappropriate behaviour by the victim. The assault was a strike of an open hand to the face; injuries were limited to split lip. The matter is well below mid-range.
Facts then go to count 1, which is a count of Common Assault. On 26 March 2022 the offender and victim were at an engagement party at Coolamon. During the party (around 10pm) the offender became agitated and aggressive towards the victim's father, BH. BH went to check on the offender. He walked around the corner of the house and the offender grabbed him by the shirt and forced him onto the ground and put him in a headlock. The facts recite that the victim received grazes to the face. Given the effect of the decision of R v Abboud [2005] NSWCCA 251 at [19] (per Rothman J) , I ignore the injuries for the purpose of proceeding to sentence. After the incident the offender's wife was able to get the offender into the car and they left. The offender told his wife it was her fault.
The facts also recite that on the drive from Coolamon to Wagga Wagga the offender placed his hands around the victim's neck for a few seconds. The pressure was sufficient for the victim feel pain and there was bruising after the offending. This relates to sequence nine which attaches to a form 1 document.
The facts merely recite that the offender became agitated and aggressive towards the victim's father. The irresistible inference is that the offending was unprovoked. Noting the nature of the assault, including taking the victim to the ground and putting him in a headlock, this is within the mid-range for common assault.
Then the facts go to count 3, a further charge of Common Assault. On 24 December 2022 the offender and victim went to a family barbecue at a different house. The offender had been drinking alcohol. During the night the offender made comments to the victim about how she was looking at a friend's husband. During the evening the offender and the victim took the children home to bed. The offender and the victim took the children's Christmas presents to a service station at Tumbarumba to wrap them. Whilst at the service station the victim had a screwdriver in her hand. The offender came to the victim and accused her of "trying to fuck my friend's husband". The victim told the offender that was not the case.
The offender called the victim a slut and ripped the screwdriver out of her hand and threw it away. The offender then grabbed the victim and pushed her head on to the concrete floor. The victim put her hands on the concrete floor in order to stop herself and her fingers bent right back. Her fingers were sore and out of place. Later that evening the victim asked the offender to help to try and put her fingers back into place.
Again, I will need to ignore any bodily injury as I am sentencing the offender on a count of Common Assault. Noting the nature of the assault and that it was entirely unprovoked, taken with the nature of the assault the matter is within the mid-range seriousness for a common assault.
The facts then go to what is described as the 2023 offending. At the start of 2023 the victim began talking to another male on Snapchat. The male was friends with the offender. The facts recite that the conversation started off with just having someone to talk to as he was aware of the victim's situation at home but it became more personal. The male's wife found out and rumours spread around Tumbarumba.
On 2 April 2023 the offender's oldest daughter (from a previous relationship) sent a message to the offender, which included screen shots of the messages between the victim and the male. The victim found the messages on the offender's phone and deleted them before the offender found them.
Given the previous conduct, the victim became concerned for her safety and that of the children. She sought assistance from a Domestic Violence Hotline and left the premises and went to Wagga Wagga but before doing so wrote a letter to the offender explaining what was going on.
The offender made attempts to find the victim and the children. After a phone call with him the victim agreed to meet him at the Botanical Gardens. The offender and the victim had a conversation and they decided to move forward and repair their relationship.
On Sunday, 3 September 2023 at about 3:50 am the victim collected the offender from a service station and drove him home. Once inside the house both the victim and the offender went to their bedroom.
The offender began getting undressed and went to the shower and laundry room and closed the door. The victim meanwhile went and lay on the bed on the side furthest away from the shower and laundry door, One of the children was asleep in the middle of the bed.
The offender came out of the shower, naked, and sat on his side of the bed. The victim and offender had a conversation with the offender saying "You don't love me anymore do you?" The victim replied, "Of course I do. Why would I be here if I didn't?" The two of them continued talking about selling the house and at some point the victim responded to the offender "Well you obviously don't love me either". The offender said, "Finally you fucking admit it. You don't love me." The victim said, "That's not what I meant" and the offender replied, "Don't fucking lie to me, tell me the fucking truth".
With that the offender grabbed the victim by the hair and dragged her from one side of the bed to the other. This woke up the child on the bed, however the child settled quickly. The offender again grabbed the victim by the hair and pulled her across the bed, pulled her head into his knee and put her on the ground. In doing so, the offender pulled some hair from the victim's head. The offender began to knee and punch the victim in the face repeatedly. The offender then knelt on the victim's chest and continued to knee and punch her in the face. He then grabbed the victim by the shirt and pushed her against the wall and continued to hit the victim a few more times. The offender pulled the victim by the shirt and the victim fell to the ground, landing on her back near a desk. The offender told the victim that she deserved it.
The offender said to the victim "I'm going to fuck you all day and you are going to have to deal with it. I'll fuck you up the arse cos that's what you deserve." At this point the victim was scared as she had previously told the offender she did not ever want to have anal intercourse with him.
The offender pulled down the victim's pants and took them off. He then pulled the victim's body up from the floor so she was in a sitting position. The offender started licking the victim's face, which was covered in blood. The victim pulled away from the offender, but he pulled her back towards him. The victim was crying and in pain. The offender told the victim to go and have a shower and pointed towards blood on the floor.
The offender followed the victim to the shower which was in the laundry area. The offender turned on the shower, picked up the child and took the child to the bedroom. The offender came back and got into the shower with the victim. The offender started to wash the victim's face with a plastic wire shower puff which hurt the victim and she pulled away. The offender said to the victim "I'm sorry, I don't mean to do this, but I do this because I love you. You made me do this. I'm going to fuck you all day and you're going to have to deal with it".
Then the offender let the victim back into the bedroom and began to have penile/vaginal sexual intercourse with her. The victim was lying on her back. The offender commenced thrusting in and out of the victim is the victim's vagina and the victim was crying at the time. The violence and this act of sexual intercourse grounds count 6 on the Indictment, that is the charge of Aggravated Sexual Intercourse Without Consent.
The assault was violent and sustained. It involved the offender striking the victim a significant number of times and her being manhandled. The victim was crying. The intercourse was penile/vaginal. I deal with the matter on the basis that the intercourse did not last particularly long and was limited to a few minutes at most. This is very much a domestic violence offence. Mr Swaine, counsel for the offender submits (written submissions MFI 1 on sentence) that the offending "falls around the mid-range of objective seriousness contemplated by an offence contrary to s 61J(1). The Crown appears to agree with counsel for the offender. Independently, I agree with the assessment of counsel that the matter is mid-range.
Immediately after the offending with which I have just dealt the offender took his penis out of the victim's vagina and put it in the victim's mouth and moved it in and out. He told the victim that if he "came" she would have to swallow. This is the conduct that grounds count 4 on the indictment.
There was no violence or specific threat of violence, however that has to be seen in the context of what earlier occurred. The offending was of indeterminate duration there is no suggestion the offender ejaculated. In all the circumstances the matter is below mid-range.
The victim attempted to get away from the offender and said that she needed to go to the toilet. This was in the hope of being able to retrieve her phone and call for help. The offender told the victim go to the toilet and she went to the toilet, shut the door but it was unable to be locked. The offender came into the toilet and said to her, "I'm pretty sure you're done. You'll just have to deal with it". The offender walked the victim back to the bedroom. The victim told the offender she was tired and want to go to bed.
The victim lay towards the end of the bed. The offender was standing between her legs. He then forced his fingers into the victim's vagina and pushed his fingers in and out in a forceful manner. This was painful for the victim and she indicated that she was in pain, however, the offender continued. This constitutes the charge of sexual intercourse without consent attaching to the form 1 document. Noting it was digital penetration and of an indeterminate duration if required to do so I would assess the matter at below mid-range.
Sometime later (the facts do not say how much later) the offender made the victim get on top of him and he placed his penis into her vagina. He grabbed the victim's breast in a way that hurt the victim and he said to the victim "Why don't you let me see them? The whole of Tumbarumba's seen them."
At some point the victim grabbed a pillow and put it over the offender's face and held it there in an attempt to knock him out in order that she could get away. The offender grabbed the pillow, threw it off the bed and said to the victim, "Are you going to try to kill me now?" The victim replied "no, I just want to go to sleep".
The offender then ended up back up on the victim and he put his penis into her vagina. He said to the victim "You are so fucking beautiful, that's why I want to fuck you all the time. I want you to myself." The victim did not resist due to her fear of being hurt by the offender. The victim kept saying to the offender "I'm tired can we just go to sleep?" This is the conduct that grounds count 7 on the indictment.
Again, the intercourse was of indeterminate duration. There was no coercion or circumstances of humiliation and there was no violence or threats of violence specific to that act of intercourse. The intercourse was penile/vaginal. Counsel for the offender submits (written submissions MFI 1 on sentence) the matter "falls around the mid-range of objective seriousness…" Independently I agree with that assessment.
The offender ejaculated and collapsed on top of the victim. The victim rolled the offender off of her. She waited until she thought he was asleep lifted up his arm, got out of bed, got dressed, found her phone and left and walked and called a friend. At about 7:15 am her friend picked up the victim from a club at Rosewood. The friend saw the victim had blood around her nose and cuts under her eye which were bleeding. Her friend drove the victim back to her premises. Once at the friend's premises and the victim told her friend what had happened. At about 7:45 am the victim rang her parents and told them what had occurred. They immediately got dressed and collected the victim. They also observed the victim to have injuries including dried blood on her face and around her nose, bruising around both eyes, her left eye was swollen and she had a cut on her right cheek. The victim's parents took her to the Wagga Wagga Base Hospital where a medical examination took place.
Police spoke to the victim. A crime scene at the address at Rosewood was established. Police located a patch of blood and tuft of hair on the bedroom carpet.
During the search police located four firearms within a safe inside the house. The offender told police the victim is the registered owner of those firearms. The offender informed police the victim keeps the key to the safe on a hook on the wall which he accessed by his own free will on a regular basis. He also admitted that he does not hold a current firearms license and he uses the firearms on a fortnightly basis to hunt wildlife on the property. This relates to count 5 five on the indictment.
As was observed at the sentence hearing the offender is entitled to substantial consideration given his assistance. No specific submission was made however I would assess the combined discount for the plea of guilty and the assistance to be 40%. I also observed at the sentence hearing that taken in isolation this matter would not cross the threshold within s 5(1) of the Crimes (Sentencing Procedure) Act 1999. I maintain that observation but emphasise the words "taken in isolation". As I also observed at the sentence hearing, the practical solution this matter is to impose a modest fixed term which would be wholly concurrent with other sentences.
The offender was arrested at about 1:10 pm on Sunday, 3 September 2023 at his mother's home. He was cautioned, arrested and conveyed to the Wagga Wagga Police Station where he participated in an electronically recorded interview during which he made full admissions to the offences and stated he was aware of the victim did not attempt to fight him off.
That leaves the six counts of Contravention of an Apprehended Domestic Violence Order attaching to the s 166 Certificate. The offender was bail refused and has been in custody since his arrest on 3 September 2023. There are four children of the relationship between the victim and the offender. A Provisional Apprehended Domestic Violence Order was sought and obtained on 3 September 2023 and on 12 September 2023 the Local Court at Wagga Wagga made an interim order. The offender was present at the time of the making of the interim order.
While in custody inmates are able to make telephone calls to approved external telecommunication services. These calls are made to the offender telephone system, which records all calls made by inmates. Callers and receivers of calls are made aware that each call is being recorded. Approved external phone numbers are linked to an inmate's Master Index Number (MIN). CH is the offender's mother and grandmother of the PINOPs (Person in Need of Protection) and her mobile telephone service is linked to the offender's MIN through the offender telephone system as "Mum".
On 2 November 2023 CH contacted the victim to make arrangements for her grandchildren (that is the victim's children) to have a sleepover at her home in Wagga Wagga the weekend of 18 November 2023. On Friday, 17 November 2023 at 3:38 pm and 4:56 pm the offender called CH via the offender telephone system. During these calls there was a conversation between the offender and his mother about calling the PINOPs the following day. On 18 November 2023 CH collected the children from Rosewood at about 10:30 am and went with the children to her home in Wagga Wagga.
Between 3 pm and 9:20 pm on 18 November 2023 the offender called CH a total of eight times and spoke to his children, that is the PINOPs. On 19 November 2023 between 12:27 pm and 4 pm the offender called CH on three separate occasions and spoke to the PINOPs. The children were returned to their home at Rosewood by CH and they informed the victim they had spoken to their father, the offender, while at CH's home. On 19 November 2023 the offender called CH and thanked her for arranging calls.
The children again had a sleepover at CH's premises on Saturday, 9 December 2023. Both on 9 December 2023 and 10 December 2023 the offender called CH and spoke to the children, which calls were recorded on the offender telephone system at the Bathurst Correctional Centre.
Similar arrangements occurred on the weekend of 16 and 17 December 2023. The offender called CH and spoke to his children on both of those days. The calls were recorded.
The breach of the order is constituted by the offender making contact and speaking to the children. These matters are below mid-range.

Subjective Case

The offender gave evidence and was cross-examined at the sentence hearing. There is also a volume of written material including a psychiatric report tended as Exhibit 1 on sentence.
In his evidence the offender said that he told Dr Dayalan the truth in the consultation with him. Further, the offender said he is now abstinent from all alcohol and drugs. This is to be as expected given that he is in custody. The offender acknowledged the considerable family support he had at the sentence hearing. This included his parents, uncles, aunts, and his first wife.
When asked what he would say to the victim if she were at court the offender said words the effect of "I'm sorry, I'm supposed to be loving and caring not act like that, I hope she gets better and lives a full life". The offender was quite emotional when he was giving evidence. There was no reason to doubt his sincerity in his expression of being sorry for what he had done.
At paragraph 20 of Dr Dayalan's report it is noted that the offender told the doctor that he "felt terrible" and "I was married to my wife and I cannot believe I treated someone like that… Someone I loved. I went against my vows and they mean a lot to me".
The offender's evidence taken with the contents of the report of Dr Dayalan entitles the offender to a finding on balance that he is remorseful.
Returning to the offender's evidence, he said the worst thing about being in custody is being away from his family. He keeps busy working with textiles in the gaol at Bathurst. He is second in charge of the textile section and was offered the position of being in charge but he chose not to take that.
The evidence continued that while in custody has completed a number of courses including a basic computer course. He has apparently nominated to participate in the EQUIPS programme but the course has not been conducted because of shortage of staff.
Upon his release the offender intends to get work with contract fencing or in the construction industry. One of the references and letters of support in Exhibit 1 is a letter from Mr Dan Hodge who is prepared to offer the offender employment upon his release.
The offender said that he has been prescribed medication for mental health in particular for depression. He has been compliant with medication and he has found that it is of assistance to him.
Further, the offender accepted that he will be subject to supervision upon his eventual release. He said he is willing to undertake supervision and to follow directions as given by staff from the Department of Community Corrections. This includes undertaking any course of rehabilitation is that might be directed.
I go now to the report of Dr Dayalan. Initially the report notes his age and the fact he has eight children from two different relationships. It also notes he works in the textile section of the jail where he is held.
The offender reported that he had experienced anxiety symptoms from an early age but was unable to explain why he experienced anxiety. The doctor noted that there was a strong family history of anxiety and depressive disorders especially amongst the offender's maternal relatives. The offender reported poor impulse control. Further he described experiencing anxiety during social interactions including talking to shopkeepers. In exploring reasons for social anxiety, the doctor noted that the offender had been bullied at school due to being a "redhead". No psychotic symptoms or manic episodes were noted.
Dr Dayalan recounts that the offender stated the relationship with his second wife (the victim) was strained for several years and he claimed that she had admitted to being unfaithful. The relationship was strained largely due to his concerns concerning her fidelity.
The offender became distressed by the loss of his employment as a tree feller after the 2019-2020 summer bushfires as he had worked in that industry for 16 years. He has not had stable employment since he had worked casually and assisted his second wife with a business venture in hospitality but poor administration in the Covid pandemic affected the business and they incurred significant debts. The offender described a pattern of binge drinking around the time of the offences. The binges averaged once a week and he would drink up to 20 standard drinks in a session.
In describing his mental state, the offender remarked that he "felt stressed" and said that he "was not in a good place". He had ruminated about the relationship and the financial circumstances, felt tense and irritable. He engaged in comfort eating and gained approximately 15 kg around the time of the offences.
Dr Dayalan notes that since the arrest the offender noted a significant deterioration in his mental state that he felt suicidal. He has been assaulted in custody and has been "stood over" by other inmates.
Some weeks after his initial incarceration the offender was recommenced on venlafaxine and engaged in mindfulness training for 2 to 3 months but this ceased abruptly. There has apparently been an improvement in the offender's mental health in recent months. He has been engaging in regular exercise and managed to lose weight and reports to be sleeping well.
The offender reported to Dr Dayalan that his father had been largely absent in his childhood due to long working hours and he had conflict with his mother when she tried to discipline him. His parents divorced at around the same time his first marriage failed. The offender recounted to Dr Dayalan a history of exposure to violence and excessive corporal punishment. While the history of deprivation is not to the extent that this court has seen in other cases, particularly in far western New South Wales, nevertheless the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to an extent. This further reduces the moral culpability of the offender. Further, it occurs to me that the background of the offender is relevant in that it goes to confirm the diagnosis of ADHD.
At paragraph 39 of the report Dr Dayalan opines that given the history from the offender and collateral information provided by the offender's mother the offender suffers from attention deficit hyperactivity disorder (ADHD). The experiences of poor academic performance, behavioural issues, being subject to punishment at home and at school and being bullied adversely affected the self-confidence and self-esteem of the offender. Further the doctor noted that the offender had been erratic with his compliance with his psychiatric medication and that the offender abused alcohol to cope with stress.
Further, at paragraph 44 of the report Dr Dayalan sets out: "…Depressive symptoms such as changes in appetite with associated weight fluctuations and low self-esteem were also reported. With the reference to criteria in DSM - 5, [AM] suffered from generalised anxiety disorder that was exacerbated around the time of the offences and there were comorbid depressive features".
This part of the report establishes a causal connection between the mental health condition suffered by the offender and the offending. This enlivens application of the factors set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. The offender's moral culpability is reduced, as is the need for specific and general deterrence. However, while the impact of specific and general deterrence are reduced, they are still relevant considerations, at least to some extent.
However, Dr Dayalan goes on to observe that increased irritability is a symptom of generalised anxiety disorder and probably contributed to his offending behaviour. Further his distressed state of mind and abuse of alcohol would have further impaired his ability to regulate his emotions and behaviour. The doctor also sets out that ADHD predisposes the offender to impulsivity that was evident in his offences.
It is recommended that the offender continues with treatment with antidepressant medication on a regular basis for at least two years after the condition fully remits. It is also recommended that the offender explores treatment options for ADHD that could assist with his impulsivity and emotional regulation. It is also recommended that the offender would benefit from consultations with a psychologist and engage in a treatment targeting his psychological vulnerabilities.
Further, the doctor opines that the offender poses a low to moderate risk of recidivism and that stabilisation of his mental health and abstinence from excessive alcohol would assist with reducing the risk.
Although given the offending the ultimate sentence will need to be quite substantial, there is still nevertheless in my view justification for finding a special circumstances. In no particular order the factors which justify that finding include the age of the offender, this is his first time in custody but moreover, a need for an extended period of supervision to ensure that the offender obtains meaningful and appropriate supervision and counselling in respect of alcohol abuse and mental health issues. It also occurs to me that the offender will require substantial assistance with reintegration into the community.
I did not understand the Crown to argue against a finding of special circumstances, rather, the Crown argued to the effect that any finding of special circumstances would not be substantial.
Noting the offender's age and relative lack of record with some minor hesitation I am prepared to find that he has good prospects of rehabilitation and that he is unlikely to reoffend. The minor hesitation I have is if the offender continues to abuse alcohol upon release his chances of reoffending increase and his chances of rehabilitation decrease.
Further, on the issue of likelihood of reoffending and prospects of rehabilitation I note that the offender has excellent family support and there is no reason to doubt that that will continue upon the offender's eventual release. He has an offer of employment available to him upon release from custody.
The referees speak of the remorse felt by the offender, what has been the good character of the offender and his work ethic. I note in particular the offender has been of substantial assistance to Ms Ham and her husband, noting her husband's spinal cord injury. The offender has also involved himself in various community and sporting clubs. Mr Hodge has visited the offender while in custody. The offender is also regularly attending Chapel.
Part of Exhibit 1 is a diary of prison "lock ins". Clearly there have been a significant number of these during the offender's time in custody which is now something in excess of 14 months. The lock ins go to custody being more onerous which goes to a finding of special circumstances.

At a glance

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Judgment (8 paragraphs)

Parties

Cases Cited (9)