R v Brown

First incident - 4 November 2022

1. The following facts for this incident and that of 11 November 2022 emerge from a statement that the offender signed on 8 August 2023.
2. 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.
3. Before this relationship began, on 21 November 2015, the offender had been served with a Firearms Prohibition Order.
4. 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.
5. 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.
6. 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.
7. 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).
8. 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.

Second Incident - 11 November 2022

1. In the week following, the victim was mainly bed-ridden and feeling unwell.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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."

s 166 offence

1. The following facts for the next two offences emerge from Agreed Facts signed by the offender on 13 December 2023.
2. A provisional ADVO was served on the offender the same day that the offender was arrested in connection with the offending on 4 and 11 November 2022. It contained the condition not to approach the victim (or her children, including Spencer) or contact them in any way unless it was through a lawyer or by court intervention.
3. By 12 November 2022, the offender was incarcerated in a correctional centre.
4. From 18 November 2022 the offender began to call the victim from custody. Thereafter, there were serial calls from the offender to the victim or vice versa, sometimes occurring many times on the same day virtually every day until 27 December 2022. These are detailed at length in Agreed Facts 6-38 inclusive. It will be noted that they occurred on different mobile telephone numbers.
5. In addition, and within this same period, on 10 December 2022 the offender wrote a long letter to the victim. In a passage in that letter (reproduced in Agreed Fact 29) on page 2, and after informing her how much he missed her, he wrote to the victim that "..its all in your hands now to get the AVO verried (sic) so we can talk." At page 4 of the same letter (Agreed Fact 30) he blamed the victim for informing police about messages he had sent to the 'Gel Blaster'.

Seq 872/29 offending

1. On 24 November 2022 the offender called the victim 19 times. In one of those calls, at 1:14pm, reproduced in Agreed Fact 14, the offender asks the victim to sign a statement he had prepared, and more particularly encouraging her to lie ("just tell him you've lied about a few things") and even coaching her as to what to say ("just say none of it happened… just say that was from me falling over …just fucken come up with something" …. "just say you were out of it on fucking drugs, babe, babe"). These were only some of the examples.
2. Police 'got wind' of the offender's calls to the victim and sending of the letter on about 12 December 2022. The offender was charged in relation to the offences of contravening the AVO and sequence 872/29 on 13 March 2023.
3. The offender declined the opportunity to participate in an interview. The victim declined to provide a police statement about the telephone calls she had with the offender.

As to the personal violence offences

1. 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.
2. 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.
3. 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"
4. 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.
5. 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.
6. 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.

Aggravated circumstances

1. All of these offences on 4 and 11 November were aggravated by their occurrence in the victim's home where she was entitled to feel safe and secure (CSP Act, S 21A(2)(be)). This factor is conceded.
2. I accept further the Crown's submission that for seq 532/1, a child (Spencer) was present (CSP Act, s 21A(2)(ea)).

As to the 'Justice offences'

1. 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.
2. 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.
3. 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).
4. 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.
5. 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.

The Form 1 offences

1. I take the additional offences as ordinarily, even presumptively, elevating the weight to be accorded to specific deterrence and retribution to the relevant primary offences.
2. But this had more effect in relation to the sentencing for the offence of using an offensive weapon (to intimidate). The first of the additional offences (on 4 November) involved a threat to kill. The second additional offence, which occurred on the later date (11 November) indicated that the nature or extent of the verbal abuse was such as to cause the victim to lock herself in a car with her baby and call 000. I agree with the Crown that the effect of the additional offences is to materially increase the penalty for the primary offence of using the offensive weapon to commit a serious indictable offence.
3. However, in relation to sentencing for sequence 532/6, ie acquisition of a pistol subject to a prohibition order, the additional offence scarcely adds to nature of the offending beyond what was encapsulated in the primary offence.

Age and background

1. The offender was 29 years of age at the date of the offending.
2. Within his custodial history in the Crown sentencing Bundle are references to his receiving medication for ADHD, depression and anxiety and, for a time, Bi Polar. There were other medical certificates in evidence (both dated 8 September 2022) which referenced a past history, amongst other things, of Bipolar affective disorder and schizophrenia. It appears he has had Bi Polar since 2015.
3. His background was alluded to in a primary report by a clinical psychologist, Dr Pusey, dated 16 January 2024.
4. He grew up with two parents and has 3 brothers and a sister. His father is terminally ill, currently receiving palliative care; the last point separately evidenced by medical documents.
5. The offender has negative memories of his childhood. He complained of being abused, physically and mentally, by his father. He also complained that his father perpetrated domestic violence against his mother.
6. He was already in juvenile detention at the level of year 10 at school. Prior to that he had a history of being suspended and expelled. The offender said he was sexually assaulted numerous times by a single perpetrator whilst in juvenile detention. Comments that he made to Dr Pusey indicate that those events exacted a significant toll upon him.
7. He told Dr Pusey that he had an extensive history of drug taking, and admitted to a history of injecting heroin and ice.
8. Prior to the events giving rise to the offending, between May 2021 and February 2022, he worked in scaffolding; and was a labourer from June 2022 to November 2022.
9. In his first report, Dr Pusey diagnosed him as having several mental abnormalities at the dates of the offending; being a Major Depressive Disorder, Post Traumatic Stress Disorder with a co-morbid Substance Use Disorder which impaired his judgment and behaviour.

Bugmy principles and significance of mental abnormalities

1. The offender explained to Dr Pusey that he was subject to work and family pressures at the time of the offending.
2. The offender's Counsel acknowledged in his written submissions that the offender was a 'very damaged personality' but said that this was due to the violence and abuse he suffered as a child.
3. I accept that the matters relied upon do moderate his culpability, and lessen the full force given to general and specific deterrence and associated considerations. But only to a small degree. I agree with the Crown that the connection between the mental disorders and/or childhood disadvantage was vaguely indicated. The details of past sentences in his criminal history indicate that multiple indulgences granted by a number of Courts, for example in the determination of non-parole periods, with the view to facilitating opportunity for his rehabilitation. By way of further example, at least in March 2020, an abstention condition was attached to a community corrections order. But he has proven incapable of meaningful reform. His record indicates an endemic or entrenched inability to control violent impulses and in such circumstances, the consideration of protecting the community assumes increased importance (Bugmy at [44]; De La Rosa at [177] fifth dot point).

Antecedents

1. As indicated, the offender has had an extensive criminal history since at least the age of 17, including a great many offences of personal violence and property damage or destruction. Many of his offences are domestic violence related, including contravention of prohibitions on restrictions in AVOs. He has spent long periods in incarceration. As his Counsel noted, he has spent a considerable portion of his adult life in custody. His record even extends to offences in Queensland (February 2017).
2. His time in custody has also been eventful, including assaulting a staff member and at least a suicide attempt. He has been disciplined regularly between 2016 and 2023 for many infractions, including assaults and intimidation.
3. He is disentitled to any leniency and I agree with the Crown that his offending, when considered in the light of his record, augments the force of specific deterrence.

Pleas of guilty

1. The offender is entitled to the 25% discount on penalty by reason of his guilty pleas.

Remorse

1. The offender told Dr Pusey that he loves the victim, with whom he was in a relationship with since 2010. When reflecting upon what he did to her, he told Dr Pusey that "She knows that it was the drugs and the impact of my mental health". He did also say that what he had done was "completely disgusting". In this hearing, his Counsel posited that the offending occurred at a time where the offender was subject to work pressures and that he neglected his mental health.
2. In Dr Pusey's supplementary report (1 February 2024), the psychiatrist recorded the offender providing an explanation for the seq 872/29 and 166 offences. This was to the effect that he was responding to an indication from the victim what she could do to help him and that although he contacted her, there was no aggression or coercion and that he was doing so as a result of the combination of his mental health, drug use and stress he was under and his belief that she did not want him in jail anyway.
3. There is added force to the Crown's submission that caution should attend acceptance of out of court statements attributed to the offender in light of his offences and his record generally. His Counsel argued, plausibly, that he was anxious, even desperate, to be with the victim or children. The Court is concerned he will do what is necessary to achieve his ends.
4. There are, in these statements, only a partial acceptance for responsibility and limited insight and a large measure of attribution of responsibility for his offences towards the victim, or 'blame-shifting'. I am unable to find true remorse that extends beyond regret for the consequences of his action.

Prospects of rehabilitation and likelihood of reoffending

1. The offender indicated to Dr Pusey that he has a limited circle of friends and support in the community.
2. His Counsel indicated that he is now on a Bupadiol injection program. In custody, he has been seeing a psychologist regularly. In June last year, he completed a Domestic and Family Violence program. In November last year, he recently completed a parenting program. That is to his credit.
3. His Counsel rightly concedes that his rehabilitation prospects are guarded.
4. I note Dr Pusey's assessment that the offender's risk of recidivism is 'moderate to high'.
5. The offender is a violent man, has a tendency to not comply with court orders and other constraints upon him (including those in a disciplined custodial setting). I consider Dr Pusey's view might be somewhat sanguine. There is a high likelihood of reoffending.
6. I note that there was no submission regarding hardship in incarceration, notwithstanding the reference to the offender's father being very ill which, although undoubtedly upsetting to the offender, is not very material to the sentencing exercise. At any rate, I observe that the offender has, in some respects, used his time productively.

INSTINCTIVE SYNTHESIS

1. I take into account the maximum penalties for each of the principal offences.
2. In the course of assessing the gravity of offending, for some offences I alluded to decisions which, for the relevant offence, had typically emphasised certain of the considerations in s 3A of the CSP Act. Overall, the sentence must reflect the contextual circumstances that the offender is a violent man and committed the offences against the victim in a domestic violence setting. Considerations of general and specific deterrence, denunciation and retribution (moderated only slightly because of a disadvantaged childhood or mental abnormalities), imposing a sentence that reflects the harm to the victim (in whatever manifestation) and protection of the community loom large in this exercise. I have however, also taken into account the consideration of enhancing the offender's rehabilitation, though this has subordinate force in the circumstances.
3. The offender concedes that the s 5(1) threshold is crossed. In my opinion, he was correct to do so.

Indicative sentences

1. Taking into account the guilty pleas, for each offence, these are: 532/9 (taking into account the 2 offences on the Form 1): 6 years imprisonment 532/1: 2 years and 3 months imprisonment 532/8: 2 years and 6 months imprisonment 532/6 (taking into account the offence on the Form 1): 2 years imprisonment 872/29: 3 years imprisonment s 166 offence: 1 year's imprisonment

Totality

1. The offending, insofar as it affected the victim, occurred over a period of two months. The offence concerning the acquisition of the pistol has its provenance in some facts that had occurred earlier.
2. There is scope for significant concurrency in relation to the offences occurring on 4 November although that should not be complete in view of the discrete acts of assault and the separate brandishing of the knife. The firearm offence was separate and discrete.
3. There is also scope for significant concurrency between the offence under s 324 and the offence on the s 166 certificate, given that it was one communication within a subset of communications. Nevertheless, the offence contained separate elements and more particularly was directed to an important aspect of public policy distinct from the ADVO contravention offence.
4. Most of the offences involve the same single victim; a matter which itself invites a level of concurrency.
5. The final sentence is intended to reflect my assessment of his criminality overall.

Time in custody

1. In all the offender has been in continuous custody since his arrest on 12 November 2022, whether that be reference to some or all of the index offences. This sentence should be backdated to that date.

Special circumstances?

1. The offender's Counsel submitted that a finding of special circumstances should be made, to enhance the monitoring of the offender's long term mental health and drug use and to limit the risk of institutionalisation.
2. The Crown accepts that such finding should be made.
3. I find that in view of his recent willingness to receive mental health treatment, the offender is not beyond hope. As the Crown indicated, the extent of his mental health concerns are such that the treatment of the kind Dr Pusey proposes may not all be accessible in custody. He is still relatively young and a longer period on parole, I expect, will be to his benefit and indirectly to the benefit of the community. I make a finding of special circumstances.

Final ADVO

1. The Crown seeks two further orders relating to the nature of the offences as concerning domestic violence. The first is an order under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that each offence is recorded as a "domestic violence offence" on the offender's criminal history, upon conviction.
2. The offender did not oppose this application. Subject to one exception, I consider I should accede to it.
3. Section 12(2) hinges upon a broad definition (in s 11) of "domestic violence offence" under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which expression incorporates the notion of 'domestic abuse' (as separately defined in s 6A). I am not persuaded that the sequence 532/6 offence falls even within that expanded definition, but find that the balance of the offences do satisfy the definition. For the avoidance of doubt, I regard the sequence 872/29 offence as (at least) constituting controlling or coercive behaviour against the victim which amounts to domestic abuse.
4. The Crown applies for a final ADVO for a period of 5 years upon his release. There is an obligation to make final ADVOs unless there are good reasons not to do so (Crimes (Domestic and Personal Violence) Act, s 39). Mr Crown invites the Court to extend the ADVO beyond the usual period of 2 years.
5. The offender did not oppose this order; however pointed to an agreement that there should be a variation to a condition that could facilitate the offender's contact with his children. Mr Crown did not dispute such agreement.
6. I find that in view of the nature and extent of the offending, there is good reason to impose a different period than that which is indicated under s 39(2B)(b).

Orders

1. Mr Brown, please stand.
2. You are convicted of offences for sequences 532/1, 532/6, 532/8, 532/9, 872/29 and the offence on the s 166 certificate.
3. I impose on you an aggregate sentence of 11 years and 6 months commencing on 12 November 2022 and expiring on 11 May 2034. The non-parole period, of 7 years expires on 11 November 2029; after which you will be eligible for release on parole.
4. Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct that the offences for sequences 532/1, 532/8, 532/9, 872/29 and the offence on the s 166 certificate be recorded on the offender's criminal record as a domestic violence offence.
5. Pursuant to s 39(2C) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the extant apprehended domestic violence orders remains in force for a period of [5] years until after the offender's term of imprisonment ends. Contact can be as agreed.

Postscript

1. When announcing the orders, the Court orally indicated the variation to a condition in the ADVO 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: 19 February 2024