R v Brown

[2024] NSWDC 29

District Court of NSW|2024-02-09

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2024-02-09

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

Sentencing Remarks

Mr Mitchell Brown, the offender, is before the Court for sentencing for a range of offences, following guilty pleas entered in the Local Court. He adhered to those guilty pleas in today's sentencing hearing.
The offences, the statutory provisions and the maximum penalties and (where applicable standard non parole periods) are as follows. Offence # Description Offence provision Max Penalty SNPP? 532/1 Assault (Ashlee Harrison) occasioning ABH (4 November 2022, at Woongarrah) Crimes Act 1900 (NSW), s 59(1) 5 yrs imprisonment No 532/6 Acquiring pistol subject to firearms prohibition order (between 11 September 2022 and 11 November 2022, at Woongarrah) Firearms Act 1996 (NSW), s 74(1) 14 yrs imprisonment No 532/8 Assault (Ashlee Harrison) occasioning ABH (4 November 2022, at Woongarrah) Crimes Act, s 59(1) 5 yrs imprisonment No 532/9 Using offensive weapon to commit indictable offence (intimidation) Crimes Act, s 33B(1)(a) 12 yrs imprisonment No 872/29 Attempting to influence witness with intent to procure acquittal of serious indictable offence (24 November at Malabar) Crimes Act, s 324 14 yrs' imprisonment No s 166 Contravening an ADVO (17 November - 28 December 2022 at Malabar) Crimes (Domestic Violence) Act 2007 (NSW), s 14(1) 2 yrs imprisonment and/or $5,500 fine No

[2]

[3]

First incident - 4 November 2022

The following facts for this incident and that of 11 November 2022 emerge from a statement that the offender signed on 8 August 2023.
The offender was in a domestic relationship with the victim, Ashlee Harrison. They were both of about the same age and had been in a relationship since 2020. They had lived together and had a child from their relationship. His name was Spencer; who was only 7 months old at the time of the offending (in November 2022). The victim, however, had 3 children from a previous relationship.
Before this relationship began, on 21 November 2015, the offender had been served with a Firearms Prohibition Order.
At about 5:30pm on 4 November, the victim discharged herself from Wyong Hospital and returned home. She went to the hospital since she had been vomiting.
She arrived home at about 6:30pm to find the offender in an agitated state. This was said to be attributable to his being left with his young child Spencer and the victim's other 3 children.
The victim commenced to breastfeed Spencer. That, however, was disrupted when the offender went over to her, took Spencer, then placed him on the ground. He then proceeded to walk to the front door of the residence and locked it. He then approached the victim and told her that he was going to kill her (seq 532/2, one of the offences on the Form 1 attached to 532/9). He then attempted to choke her (532/1), as a result of which, the victim sustained bruising to her neck.
A scuffle then broke out between offender and victim before the victim pushed the offender off her. He then walked off and returned with a hunting knife. A photo of that knife appears in Agreed Fact 7. The offender pinned the victim down on her back and waved the knife in her face; telling her that he was going to stab her with it. (Although this event is described in the Agreed Fact 8 as concerning seq 532/8, it appears to more clearly relate to seq 532/9).
The victim freed herself and ran up the hallway, moving towards the front door. But the offender ran after her and stopped her from exiting. He began to hit her in the head. This caused her to fall to the floor. But in the process of falling, she hit the side of the lounge; causing her to become disoriented for a short time. She had a black eye, a bruised chin and a lump on the back of her head. The offender later kicked the victim in her torso area. This winded the victim and resulted in bruising and soreness to her ribs. The assault only stopped when the victim told the offender that his friend (Amber) was almost at the residence.

[4]

Second Incident - 11 November 2022

In the week following, the victim was mainly bed-ridden and feeling unwell.
On 11 November 2022, the offender and the victim had a lengthy text message exchange. The entirety of that message appears in Agreed Fact 11. Features of that message included the offender's threat to leave the victim, expressions of hate towards her ("Good hope you die") even in circumstances where the victim indicated that she was unwell; the victim trying to placate him by telling him of her love and her attempt to organise weed; a menacing indication that she get out of the way so that he could take their car.
During the conversation, the victim took Spencer out of the house and locked herself, with him, in the car. The offender walked out of the house and told her that he was going to "Fucking kill you". He then walked back in the house and returned with a knife, which he concealed in his jumper. He walked up to the car and began to yell at her to come inside. Eventually he stopped yelling and returned inside the house. This was the conduct concerning seq 532/3, which was another offence on the Form 1 attached to seq 532/9.
The victim then phoned 000. This was about 7:00 at night. She told the 000 operator, in whispered tones, that she could not walk, that the (offender) had "flattened" her, she was having difficulty breathing and had been vomiting.
Police became aware of the incident and arrived at the premises at about 7:30pm. Paramedics arrived shortly after. At about this time, the offender, who was standing in the driveway (with Spencer) told police, amongst other things, that there had not been any domestic disputes.
The victim was taken to Wyong Hospital. Police followed the ambulance and some officers spoke to the victim. In the course of that conversation, the victim disclosed that she had been assaulted the previous week after having left hospital. She also disclosed to police that the offender had a Gel-Blaster that the offender kept in the drawer in the garage of the residence.
The victim's disclosure partly prompted the police officers to return to the residence. At the time that they arrived back, no one was home. The officers entered through the back door which was unlocked. They located two items of present significance. The first was a hunting knife in the top drawer of the dresser in the walk in wardrobe. The second was a gel-blaster, which resembled a Glock 17, within a set of drawers in the garage. A photo of the gel-blaster appears below Agreed Fact 17(d). It was later examined by ballistics experts. It was determined to be reasonably capable of being raised and fired by one hand. It did not exceed 65cm in length. Viewed in combination with the extant Firearm Prohibition Order referred to earlier, this is the conduct constituting seq 532/6, but also the conduct constituting the additional offence 532/5 to the primary offence of 532/6.
Police arrested the offender, in connection with the offending on 4 and 11 November very early in the morning of 12 November. Although he declined the opportunity to participate in an interview when he was conveyed to Gosford Police Station, it is agreed that he provided police with some information about the Gel-Blaster. The offender said that he had been given it only a month and a half before by a friend. He said that it was not working and did not know how to fix it. He explained that he had it in his possession because a mate of his got robbed and he was afraid that "bikies were going to attack us."

[7]

As to the personal violence offences

The offender's counsel rightly characterised the offences of 4 and 11 November, as a whole, as a "serious example of unacceptable interpersonal violence". In The Queen v Kilic (2016) 259 CLR 256 at [28] it was said that an offence committed during a domestic relationship necessarily entails abuse of a relationship of trust.
As to seq 1, the assault occurred at a time when the victim was in a delicate state, having only just returned from hospital. She then met with the offender's unprovoked attack. This was particularly violent and directed to a vulnerable part of the victim's body; the neck. The injuries were relatively minor. It is unknown how long he attempted to choke her for, but aside from the physical injury occasioned (which was relatively minor) it would likely have terrified the victim. It was about the mid-range.
As to seq 6, any assessment of objective gravity for this offence should pay cognisance to the principles and objects of the Firearms Act (ss 3(1) and (2)). In R v Ferguson [2021] NSWDC 226 at [49] and with reference to the facts in that case, Haesler SC DCJ said, in terms that are apposite here, that the legislation makes it clear that: "… firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no justification here for the possession of the firearm. The firearm was a pistol. It was, by its nature, an easily concealable weapon…. It was accepted as it is an element of the offence that it was possessed in contravention of a firearms prohibition order. …. ... The weapon was not licensed nor registered and its possession posed a significant risk to the safety of the community"
The offender had been on notice of the Firearms Prohibition Order for many (about 7) years before it was detected by police. The weapon here - a gel blaster and 'air-gun' was a substantial weapon; although not the most serious of its kind: it was capable of being raised and fired by one hand. But there is nothing to gainsay the offender's indication that it was not working. The offender explained that he possessed it for the purpose of self-defence and an apprehension that he might be attacked by bikies. He said he obtained it from "a friend" a month and a half before (though did not apparently disclose the friend's identity). This account was not contradicted. The offending was below the mid-range.
As to seq 9, the indictable offence was intimidation. This offending occurred in the context of a scuffle. The offender sought to prolong it. The knife was itself a substantial implement and capable of instilling fear itself. The offender's waving it in front of the victim's face also added to the fear. Violence and verbal threat to stab the victim accompanied the offending, by pinning the victim down This was within the mid-range.
As to seq 8, there were several violent acts wrapped up in this. There was the hitting of the victim's head, which caused her to fall but collide with the side of the lounge. The offender's conduct contributed to her having a black eye, a bruised chin and a lump on her head. She became disoriented. The offender was responsible for all of this. The offender must have seen the victim in a distressed state and then, in cowardly fashion, kicked her in the torso, resulting in bruising and soreness to her ribs. The injuries were significant for an offence of this kind. As with the other assault (sequence 1) the victim was in a vulnerable state; having relatively recently been released from hospital. The offending occurred within the mid-range for offending of this kind.

[9]

As to the 'Justice offences'

As to seq 29, this is an aggravated version of the offence under s 323(a). As has been often said, the basic version of the offence strikes at the integrity of the justice system: R v Burton [2008] NSWCCA 128 at [101]. In the same decision, it was also said that where it occurs in the context of domestic violence, in a situation where the offender seeks to dissuade the victim from giving evidence, there is a need for a significant element of general deterrence (at [105]), and also elevates specific deterrence and denunciation (at [107]). This is not a case of dissuasion, but rather an attempt to elicit false evidence. Arguably this makes it worse as it involves an attempted deception of the Court. Here the behaviour was blatant, although it lacked sophistication. I regard it as falling within the mid-range.
As to the offence on the s 166 certificate, the offence is one of a course of conduct: there were serial violations of the contravention. It can hardly be said that there was an isolated instance and over a significant period of time against a woman who was in a vulnerable state.
It may be acknowledged, as the offender's counsel's submissions noted, that the victim was receptive to receiving those calls. The call that was made on 23 November 2022, featured the victim indicating her inclination to "do everything I can" for the offender. But that, in my view that is a reflection not only of some material needs (accommodation and child rearing responsibilities) but sheds insight into the nature of the relationship being one of domestic abuse was symptomatic of emotional (and possibly other) dependence of victim upon offender then much else. The point does not materially assist the offender. As was pointed out, an indication of forgiveness on a victim's part should not reduce an otherwise appropriate penalty since victims of domestic violence may "forgive their assailants or compelled for other reasons to show a preparedness to forgive them": Shaw v R [2008] NSWCCA 58 at [27] (emphasis supplied).
The letters from the victim comprising Exhibit 9 were said, from the Bar table, to explain this offending. They do not assist the offender. They are undated. The offender (whose honesty is itself open to question as a result of his conduct) did not give sworn evidence of when or how they were received. I give them no weight.
In one of those calls, (Agreed Fact 11) he pressured the victim in connection with the AVO against him, however with the exception of the conduct giving rise to the other offence, the nature and content of the calls was not known. This was a very serious contravention for offending of this kind.

R v Brown

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (6)