R v Barnett

OBJECTIVE SERIOUSNESS

1. The main issue of contention when assessing the objective seriousness of the offending was the relevance, if any, of a pre-existing alcohol disorder in the offender.

Suggested Alcohol Use Disorder

1. The offender relied upon a report of Lee Knight, who is a clinical nurse with expertise in forensic mental health. Mr Knight has impressive academic credentials in relation to mental health. Mr Knight relevantly noted that the offender had commenced drinking since the age of 9 and thereafter commenced drinking every day. Co-incidentally, he also commenced smoking cannabis at about the same age; smoking this substance three or four times a week. The offender's alcoholic intake increased significantly when he was 34 years old. He tried, periodically, to abstain. He had not used alcohol or illicit substances since being placed in custody.
2. Mr Knight opines that the offender suffers from alcohol use disorder. He also opined that despite the offender's reporting of a depressed mood and symptoms of an anxiety disorder, his current pressing problem is the grief associated with the unexpected death of his wife. He was, Mr Knight thought, deprived of the opportunity of trying to reconcile the issues concerning their relationship as a result of his being placed in custody; itself the result of the offending conduct. Mr Knight did not, in terms, identify a causal connection between this alcohol use disorder and the offending conduct.
3. Nevertheless, Counsel for the offender submitted that I should find that the offender suffers from an alcohol use disorder. Where a causal connection is established between an addiction, or disorder, of this kind and the offence, it can (amongst other things) serve to reduce the objective seriousness of the offending conduct. She submitted that Mr Knight's evidence established that, but for some relatively brief periods in his life, the offender has been a continuous and chronic alcoholic. She submitted further that it is apparent from some of the Agreed Facts that I have identified that he was heavily intoxicated at the time of the offending (see, in particular Agreed Facts 11, 26 and 28 in the document).
4. The Crown disputed a connection between the offender's alcohol disorder and the subject offending. Mr Crown submitted that the offender, aged in his mid-50s had gotten by, for most of his life, without any incident of violence notwithstanding his condition. He was prepared to accept that although alcoholism may have, to some degree, weakened his ability to perceive what he saw in its reasonable or proper context (i.e. Ms Jagessar's perceived infidelity towards him), thereby rendering him more susceptible to feeling provoked, the offender retained the capacity to falsely represent to the 000 how she was injured (Agreed Fact number 24). That indicated, he submitted, at least a reasonable level of functioning.
5. In my opinion, the Crown's acknowledgement that the offender's alcoholism impaired his perspective, and led him to misperceive the dealings between the two victims, establishes that a causal connection did in fact exist between the offender's alcohol disorder and the subject offending. Further, the Agreed Facts convey that as the effects of alcohol wore off as the morning progressed, the offender appeared completely ignorant of the damage to his wife (for example, Agreed Facts 30-31). There were other manifest indications of his being drunk (Agreed Facts 26 & 28). That mitigates to some degree the level of the objective seriousness of the offending. The alcoholism also has implications for the offender's prospects of rehabilitation, and the sentencing principles of general and subjective deterrence to which I will return later in these remarks.

General Considerations

1. In R v Newell [2004] NSWCCA 183, the Court of Criminal Appeal identified as relevant circumstances to the adjudication of the gravity of this category of offence as including: (i) the period of detention, (ii) the circumstances of detention (including actual violence and the presence of a weapon); (iii) the person detained (and the relationship of the person to the offender); and (iv) the purpose of detention.
2. The seriousness of this category of offence is shaped by the seriousness of the wounding and, further, the nature of the attack and surrounding circumstances (McCullough v R (2009) 194 A Crim R 439 at [37]).

Common features

1. The Crown submitted that there were common features in the two detain offences, as between the two victims: the duration of the detention was for a period of 3 hours. The purpose of the detention was, in each case, to assert psychological control.
2. Counsel for the offender also identified certain common features bearing on the gravity of the offending conduct. In each case, there was no premeditation or planning. Indeed, earlier in the evening, both victims and the offender had been socialising. Counsel for the offender submitted that the offender misinterpreted the behaviour of Ms Jagessar and Mr Wallace as indicative of infidelity. I consider below, in the section concerning the offender's culpability, the offender's reliance upon the concept of 'perceived provocation'. The 'control' was exerted, she submitted, to prevent the two victims engaging in unfaithful activities.

Differences between the detain offences

1. But the Crown also submitted that there were some material differences, as between the two detain offences. In the case of Ms Jagessar, the offender held a knife towards her during the period of detention and thereafter used it to cut both of her legs (with the victim receiving a superficial laceration to her left leg). He also repeatedly pushed her into walls and furniture; resulting in a shallow subdural haematoma, bruising under the right eye, a fracture of her left rib and a long superficial laceration to her right leg. He also threatened to "cut her head off".
2. In relation to Ms Jagessar, Counsel for the offender submitted that the wounds to her right leg were already to be factored into the reckless wounding offence, so that to take them into account in relation to the detain offence would involve double counting.
3. Counsel submitted that the Court could, on the other hand, take into account the injuries to the extent that they were confined to the shallow haematoma, bruising under the right eye, abrasions and bruising and a displaced fracture.
4. In the case of Mr Wallace, the Crown noted that he received death threats through the period of detention with the threat being augmented by the offender holding a knife towards him. Mr Wallace suffered an open laceration to his finger and a superficial laceration across his throat.
5. Counsel for the offender accepted that the Court could take into account those injuries and the threats of violence.
6. In relation to Ms Jagessar, I accept the offender's submissions about disregarding the wounding to her right leg. These are to be taken into account on the reckless wounding offence. I also accept that the circumstance that the offence occurred in connection with domestic violence is not only more properly treated as an aggravating factor, but is at any rate, dealt with in the related charge. I find that the period of detention was relatively short and that the purpose of the detention was to exert psychological control. A threat to kill was made at a point where the offender was unstable; and his actions therefore unpredictable. In this last respect, I reject as too narrow the purpose identified by the offender. The offender was exerting, or trying to exert emotional ascendency. More generally, care must also be taken not to elevate the significance of the actual injury, since actual bodily harm is already taken into account for this offence; making it an aggravated form of the basic offence of kidnapping. Use of the knife is also an aggravating factor later to be taken into account. In the circumstances, I regard this offence as falling at the mid-range of objective seriousness for an offence of this character.
7. In relation to Mr Wallace, there were multiple threats to kill. Otherwise, essentially the same features relevant to objective gravity as I have found them in relation to the detain offence involving Ms Jagessar also apply in relation to this offence, although I note that there was distinct injuries. I regard the offence as falling at the mid-range of objective seriousness for an offence of this kind.

Reckless Wounding Offence

1. The Crown noted that Ms Jagessar suffered three wounds to her right leg. The most serious of those was a 10 cm wound extending through the dermis into the muscle compartment. Another (15cm long) penetrated the dermis. Emphasis was placed upon the circumstance that the injuries were inflicted by the offender cutting in a sawing motion, during the course of detention and in the context of threats to the complainant.
2. Counsel for the offender accepted the correctness of these matters. Counsel baulked however when, during the sentencing hearing, the Crown submitted that the Court could infer that the infliction of the injury by cutting in a sawing motion had to contend with resistance by the victim. She submitted, also, that there was no premeditation with this conduct, that it was also caused by the offender's intoxication and was emotionally motivated; which I understood to be another way of saying that the offender had perceived provocation.
3. I agree with Counsel for the offender that it goes beyond the scope of the Agreed Facts to infer any struggle between the victim and the offender, or resistance from the former, at the point where the knife wounds were inflicted on the right leg. As I read Agreed Fact 13, it appears that the inference may be unsound, at any rate, because the victim was feeling the effects of being pushed around against the walls and furniture. It appears that she was conscious at the time when the knife wounds were inflicted but there is no indication as to her capacity to resist.
4. Having regard to the nature of the injuries and the manner in which they were inflicted, to the extent that this is indicated by the evidence, and the context in which they were inflicted - during a period of detention - I classify the offending conduct as being above the mid-range for offences of this character.

AGGRAVATING CIRCUMSTANCES

1. In relation to the detain offences, it is common ground that the circumstance that a victim had the protective benefit of an Apprehended Violence Order, which was breached by the offender, is an aggravating circumstance (s 21A(2)(j) of the Crimes (Sentencing and Procedure) Act 1999 (NSW)). In this case, however, the offender's Counsel submitted that this was only made on a 'without admissions' basis, so should not deprive the offender of leniency. It was also submitted that care should be taken to avoid double counting, given that the related charge relied upon by the Crown involves the contravention of an AVO. In my view, the circumstance that an AVO may have been consented to without admissions does not make it any less an aggravating factor.
2. The offender concedes that the circumstances of the detention involved the presence of a weapon, being the knife (s 21A(2)(c)), is an aggravating factor.
3. Further, the offending conduct occurred in the home of one of the two victims, Mr Wallace (s 21A(eb)).

THE OFFENDER'S SUBJECTIVE CIRCUMSTANCES

1. In addition to Mr Knight's report, the offender put before the Court the following material in the sentencing hearing: 1. an affidavit sworn by him on 4 May 2020; and 2. an affidavit of Alan Mosedale, a friend of the offender, sworn on 5 May 2020.
2. The offender also placed before the Court a good deal of information concerning the COVID-19 pandemic.

Alcoholism

1. The offender reported to Mr Knight that over the course of three days prior to the offending conduct, he had consumed large quantities of alcohol. He reported that his wife had been visiting him at his caravan. Although he acknowledged that he and his wife had previously had sex with other partners, even in each other's company, he apparently became incensed with what he thought was his wife's flirting with Mr Wallace. He speculated that he may have thought that Mr Wallace was taking advantage of his wife; though he did not explain the basis for this belief.
2. I accept that there was a causal connection between the offender's alcoholism and his offending conduct. But in weighing the significance of that with reference to the offender's culpability, there is force in the Crown's submission that until that conduct had occurred, he had not engaged in conduct amounting to violent offences. Further, there were indications in Mr Knight's report that although he was receiving treatment, of sorts, to help him manage his alcoholism, the last efforts ceased about 6 years ago. I am mindful of the vicious grip that alcohol can take hold over an offender - especially one who had commenced consuming alcohol when as young as this offender - but the circumstances suggest that the offender had previously had it within his capacity to mitigate his condition in the past. There was really no information before the Court as to what had gone wrong in the offender's life over the last 6 years explaining his relapse into alcoholism.

Perceived Provocation

1. Counsel for the offender submitted that there was a subjective and wholly erroneous misinterpretation of conduct that led to the offender perceiving that he was provoked.
2. As to the last submission, Mr Crown submitted that I should reject, as a suggested point of mitigation, any perception of provocation. I understood him to submit that actual, or perhaps objectively-based provocation was necessary to enliven the mitigating circumstance in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.
3. On this point, I accept the offender's submission that perceived provocation may be relevant in the sentencing context. In Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13, the High Court determined at [19] that the "subjective reason (the offender) reacted to events as he did was not irrelevant" (emphasis supplied). Mr Odgers has also suggested that (though without reference to additional authority) it is relevant that an offender mistakenly believes that there has been provocation [1] .
4. However, the nature of the provocation was, put at its highest for the offender, flirtation. There were no obvious signs of preparatory activity before sexual relations between the two victims which appear in the Agreed Facts. I also note that in the past, it appeared that the offender had known about and tolerated Ms Jagessar and himself mutually having sexual relations with other partners - to such degree of engaging in that activity in each other's presence.
5. In other words, the likely explanation for the offender's conduct - a combination of intoxication and sexual jealousy - were conditions which he was well aware about, and had previously managed (at least to some extent in relation to the alcoholism), prior to engaging in that conduct. That being so, I do not consider that the offender's culpability is reduced to any substantial degree on account of either condition. Both matters are, however, relevant to the principle of subjective deterrence to be considered later in these remarks.

Guilty Plea

1. The Crown accepted that the offender is entitled to the 25% discount for the utilitarian value of his pleas.

Antecedents

1. The offender submitted that he has no prior record of violence-related offences, or any other offence. The Crown accepts that he has no significant record of prior convictions, but points out that there was one charge of common assault on his record from 2014; which had been dealt with by way of non-conviction.

The Offender's Background

1. The offender is currently aged 56 and was 55 at the time of the offending.
2. He was born in England. He was reared in a supportive and happy home environment. His primary schooling was uneventful, but in the early years of senior schooling, his academic struggles became more pronounced. He engaged in acts of truancy at school and started 'working', apparently doing odd jobs. For much of his later teenage years, he travelled overseas. He presently has difficulties spelling and with mathematics.
3. The offender was married in England when he was young (aged only 18) and had two sons in the relationship, but the marriage broke down. Those sons are now in middle-age. The offender has not had contact with them for 8 years.
4. He met his second wife, Ms Jagessar, in England when he was aged about 30 and they migrated to Australia in 1996. They had a son together, Leeris, now aged 22, who the offender has seen twice since his incarceration.
5. It appears that he had a son from another relationship with a different partner. The nature of that relationship was determined in part by the prevailing relations which he had with his wife.
6. The offender has been a trained nurse, including in particular working as a dementia nurse. He has also worked as a cook over the years.

Prior Good Character

1. Mr Mosedale has known the offender for 18 years. He, and his wife, have been friends with the offender and his late wife.
2. Mr Mosedale noted that the offender and his wife had appeared to be very happy. He never had any inkling of any violence towards each other. Once he is released from custody, he said he would be happy to have the offender stay with him.
3. I interpret this evidence as grounding a submission that the offender's conduct was out of character. As I have noted, however, the offender had been the subject of an order for no conviction on a charge of common assault.

Remorse

1. The offender composed a long hand-written letter which was presented to the Court by way of affidavit. The letter manifests some of the offender's reputed spelling difficulties. As to its substance, the letter frankly acknowledged his responsibility for his offending conduct and made no excuse for that conduct. He expressed his sense of shame and guilt.
2. In the letter he noted his alcoholism and depression for many years.
3. The letter evinced a clear sense of regret and guilt when learning that his wife, one of the victims of the detain offences, died of liver and kidney failure in February 2020. He was only advised of this by his son; not having been able to attend her funeral. Mr Mosedale also confirmed his observation of the offender being grief-stricken about his wife's death.
4. I accept that the offender is sincerely remorseful for his conduct. I consider that the reliance of the offender's grief is of more significance to his prospects of rehabilitation.

Time in Custody

1. Since being in custody, the offender has completed a Remand Domestic Abuse Program (in September and October 2019). He has used the time constructively to also plan how he may deal with his conditions after his period of incarceration is completed.
2. He has received a glowing testimonial from one of the chaplains in his correctional centre; noting his willingness to engage in hard work and helping custodial and other personnel.
3. It was submitted that the offender has behaved in an exemplary fashion whilst in custody.
4. The offender's period of incarceration will be backdated to the date when he was remanded in custody.

Rehabilitation Prospects - Likelihood of Re-offending

1. In his report, Mr Knight suggested several treatment plans for alcohol and drugs and the assistance of a mental health professional that would assist the offender after his release from custody. In light of his attitude in custody, the circumstance that he is a first-time offender, and his evident remorse, I accept the probability that the offender would try to avail himself of these forms of treatment once he is released.
2. Against this, the Crown urges the Court to be cautious in assessing whether attempts at rehabilitation can be sustained outside of the controlled environment of custody. I was reminded that the offender had previously tried to manage his alcoholism prior to his offending conduct, but this could not be sustained.
3. Further, the conditions which might lead to alcoholism - such as unemployment and social isolation - may be problematic for this offender. Other than his son, and his friend Alan Mosedale, there is very little evidence of community connection and nothing was indicated to the Court about the likelihood of his obtaining employment upon release. Given the nature of his offences, and his age, it may be that those prospects are bleak. Counsel for the offender, quite fairly, recognised that an alcoholism condition for a man in his mid-50s going back to drinking from the age of 9 will take a formidable determination to tackle.
4. On the other hand, I consider that it would be too simplistic to fail to recognise that it was not only the alcoholism that contributed to the offending conduct. It was the combination of that condition with the emotional instability and turmoil of the relationship with his now deceased partner which contributed as well. The offender may well feel a strong sense of isolation whenever he is released, but it must be doubtful whether, when that release occurs, he will endure the same degree of emotional instability stemming from an intimate relationship with a future partner or partners which so inflamed him in connection with the offending conduct in this case.
5. I consider that his prospects of rehabilitation are reasonable to good.

CONSIDERATION

1. The offender concedes that the s 5 threshold under the Crimes (Sentencing Procedure) Act is passed, such that a term of full-time imprisonment should be imposed. I consider that concession is properly made.

Sentencing Principles

1. I take into account the general sentencing principles in s 3A of Crimes (Sentencing Procedure) Act.
2. In Patsan v R [2018] NSWCCA 129, the Court of Criminal Appeal (at [41]) emphasised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to general deterrence, specific deterrence, denunciation and community protection. To the last two considerations, I am also influenced by the consideration adverted to by the High Court in Munda v Western Australia (2003) 249 CLR 600; [2013] HCA 38 at [54] regarding the importance of vindicating the dignity of victims of domestic violence. It might be said also that the other side of that coin is ensuring that the offender is properly made accountable for his violent conduct in this context.
3. For reasons indicated earlier in my remarks, I consider that there should be some moderation of the principle of general deterrence on the ground that the offending conduct was caused by the offender's alcoholism; and, subjective deterrence is also moderated, to a small degree, because of that circumstance and the mistaken sense of provocation he held. On the other hand, I accept that subjective deterrence is somewhat elevated because of the aggravating circumstances referred to, including the breach of the apprehended violence order. That last matter is most pertinent to the related charge.
4. I am mindful of the offender's strong subjective case: his plea; his remorse; his first-time offending and his progress in managing his alcoholism well in custody.

The significance of the COVID-19 pandemic

1. Counsel for the offender also submitted that the current pandemic make the conditions of custody more onerous and impeded the offender's rehabilitation. The restrictions designed to facilitate social distancing (including, without limitation, the reduction of visits [2] ) effectively limited or reduced the effectiveness of interventions intended to help the offender deal with his alcoholism and pre-existing anxiety disorder. The recent death of Ms Jagessar has caused grief which could precipitate depression or at least accentuate the offender's anxiety. Increased isolation is itself likely to be accentuating the offender's anxiety.
2. The Crown responded in several ways to those submissions. First, incarceration for offenders is inherently isolating. Secondly, the offender's reporting to Mr Knight suggested that the submission concerning the offender being deprived of visits was exaggerated - he had children overseas with whom he had no contact at all and the one son of his who had visited him had only done so twice since he went into remand over a year ago. Thirdly, the Crown submitted that the incidence and effects of the pandemic were simply too uncertain to be given significant weight. Reference was made at the time of the sentence hearing to a statement of the Prime Minister on 5 May 2020 signifying the prospects of an imminent easing of restrictions on movement in the community. This was, so it was submitted, likely to portend a corresponding easing of restrictions in correctional centres; although no indication was given as to what that might practically mean.
3. On balance, I accept that, at least in the short term, the offender is likely to find custody generally more onerous to some degree as a result of the general restrictions imposed because of the pandemic, even if there was something of an absence of specific evidence of restrictions imposed upon the offender. In particular, I accept that, given his mental health condition prior to the offending, his anxiety may be exacerbated to some degree; in the sense that he, like other inmates, is likely to be concerned about the risk of his contracting the virus, that he and others are at the mercy of others when it comes to protective steps to limit the risk of their becoming infected and these circumstances may also generally heighten a general sense of alienation.
4. However, I note that, to his credit, the offender did not report to Dr Knight any grave fears or anxiety about the pandemic: because he currently works as a sweeper (an activity which he said he enjoyed), he has access to gloves and hand sanitiser whilst working in that capacity. At any rate, the reality is that because of the objective gravity of his conduct, he will receive a very substantial period of incarceration. I think it is both realistic and not unfair to say that the incidence and effect of the pandemic may be more keenly felt for an offender who has a short non-parole period to serve in comparison to someone who will receive a significant head sentence. As I raised with Mr Crown during argument, one cannot foretell how long this pandemic, and its effects, will last: perhaps restrictions might be eased very shortly in the community generally and correctional centres in particular; but there is an obvious risk of future waves of the pandemic arising once restrictions are eased in the absence of discovery of a vaccine. It is therefore speculative for the Court to predict for how long conditions of custody are made more onerous for inmates. I also consider that, in this context, courts should not be too ready, in the absence of express legislative action, to be unduly influenced by the pandemic when weighting its significance in the sentencing exercise. Overall, then, whilst I acknowledge some short term general detriment to the offender in terms of exacerbating a pre-existing sense of anxiety, I am unable to ascribe significant weight to the incidence and effects of the pandemic upon this offender so as to have any substantial bearing upon the head sentence or the period of parole.

Totality

1. It is common ground that an aggregate sentence should be appropriate. It is also common ground that some accumulation should be applied to the two detain offences. The point of difference was the degree of accumulation. The offender submits that accumulation should be modest, measured by only a few months in recognition of the circumstance that there were two victims. The Crown submitted that the level of accumulation should not only recognise that there were two victims, but also some unique circumstances augmenting the criminality in the two detain offences. For example, Mr Wallace suffered threats to kill and injuries that were distinct from the offensive conduct against Ms Jagessar.
2. In my opinion, the circumstances of multiple victims, and the differing threats and injuries justify a level of accumulation; to reflect the overall criminality of the conduct.
3. The offender submitted that there should be concurrency between the detain offences and the reckless wounding offence. The Crown did not make any submission to the contrary.
4. The related charge is to be served concurrently with the aggregate sentence.
5. I acknowledge that, insofar as the sequence 6 offence is concerned, there is a standard non-parole period for the aggregate sentence. I take that, and the maximum penalties for each offence, as relevant guideposts in determining the length of imprisonment for that offence. The maximum penalties are also guidelines for the detain offences and related charge.

Special Circumstances

1. I accept the submissions on the offender's behalf that special circumstances are made out which warrant variation of the non-parole period. Most significantly, the interest of protecting the community is enhanced by the offender's rehabilitation and transitioning out of custody. The circumstance that this is a first time offender, and his encouraging behaviour whilst in custody, are also significant.

SENTENCE

1. Mr Barnett, please stand.
2. You are convicted of the offences being sequences 3, 4 and 6; as well as the offence on the s 166 certificate.
3. In respect to sequences 3, 4 and 6 you are sentenced to an aggregate period of imprisonment of 7 years, 6 months with an aggregate non-parole period of 4 years and 6 months. This period of imprisonment commences on 16 April 2019 and expires on 15 October 2026. You will first be eligible for release on parole on 15 October 2023.
4. The sentence on the related charge is to be served concurrently with the aggregate sentence.
5. The indicative sentences (taking into account the guilty pleas) are as follows: Sequence 3: 6 years' imprisonment Sequence 4: 6 years' imprisonment Sequence 6: 3 years & 4 months' imprisonment (non-parole period of 2 years) Section 166 offence: 9 months' imprisonment
6. The Crown has also requested, and the offender's counsel consents to, the Court recording sequences 3 & 4, respectively, as "domestic violence offences" on the offender's record, in accordance with s 12 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It is so ordered.
7. Notifying the Crown's concession, the two back-up offences are withdrawn.

Endnotes

1. Odgers, Sentence (4th ed, 2018) [4.49].
2. Scott v R [2020] NSWCCA 81. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2020