Features Demonstrating Manifest Inadequacy of Sentences
91 Several aspects of the sentences imposed in the District Court have led me to conclude that the sentences imposed were so inadequate as to be plainly unjust.
92 Firstly, I am satisfied that error has been demonstrated in the accumulation of the sentences passed. The backdating of sentences for Counts 1, 2 and 3, so that they operated concurrently with the balance of parole, was erroneous in the circumstances of this case. Her Honour observed that the only factor of which the Court was aware that resulted in parole revocation was the commission of the subject offences (ROS[5]). The Respondent was subject to a parole condition that he undertake counselling and rehabilitation for drug use. He was using illicit drugs and this was itself a breach of parole: R v Merrin (2007) 174 A Crim R 100 at 111-112 [48]. Although it appears that he was attending for drug counselling, this represented superficial compliance with his parole conditions at a time when he persisted in illegal drug use. Indeed, immediately after committing the detain for advantage offence on 18 January 2007 (Count 5), the Respondent departed for a drug counselling appointment as part of his parole (see [22] above). The juxtaposition of this serious crime and his purported compliance with parole points somewhat starkly to the ineffectiveness of non-custodial measures in his case at that time.
93 Although there was a discretion to make the sentences wholly or partly cumulative on the balance of parole (Callaghan v R at 149-150), I am satisfied that error has been demonstrated in this case. The Respondent's breach of parole extended beyond his commission of these crimes of violence. He was using illicit drugs whilst maintaining a façade of compliance with his parole conditions. The approach adopted at first instance led to manifestly inadequate sentences for three separate and serious offences of violence. The sentences imposed meant that no effective sentence was passed for the offences in Counts 1 and 2 and virtually no sentence for Count 3. The sentences imposed on Counts 4 and 5 were also backdated wholly (Count 4) or substantially (Count 5) so as to run concurrently with the Respondent's balance of parole.
94 Secondly, I am satisfied that a manifestly inadequate sentence was imposed for the detain for advantage offence (Count 5). I accept the Crown submission concerning the objective seriousness of this offence. The use of a knife was a serious statutory aggravating feature to which specific reference was not made. More importantly, the sentence actually passed for this offence did not reflect the objective gravity of the offence.
95 The gravamen of a s.86 offence, for the purpose of sentencing, is the unlawful detaining of a person: R v Newell [2004] NSWCCA 183 at [32]; R v Falls [2004] NSWCCA 335 at [42]. As in R v Hamid at 203 [131], I observe that this s.86 offence was committed in the context of the Respondent's controlling and violent relationship with the victim. An assessment of the objective seriousness of the offence involved an examination of the immediate acts of the Respondent in the context of his violent control of the victim. The s.86 offence extended over some hours and involved actual threats of violence with weapons (a knife and a hair comb with a metal end) towards the victim. This was an objectively serious s.86 offence, a conclusion not reflected by the sentence imposed at first instance.
96 Thirdly, I accept the Crown submission that the use of s.9 bonds for the influencing witness offence (Count 6) and the assault offence on 24 March 2007 (Count 7) was manifestly inadequate. The s.323(a) offence was an objectively serious one. I am satisfied that the learned sentencing judge's assessment of the objective seriousness of the s.323(a) offence (at [60]-[61] above) was clearly wrong. It was erroneous to characterise the offence as one occurring "in a domestic relationship, so statements of the type made were something that one would expect between a person who was incarcerated and his partner". Her Honour did not advert to the Respondent's pressure which envisaged that the victim may herself be charged with a criminal offence as part of the process of extricating the Respondent from his custodial predicament. In any event, the "domestic relationship" between the victim and the Respondent existed only for two months before the Respondent was taken into custody, and was marked by repeated acts of violence towards the victim.
97 In R v Hamid at 192-193 [67]-[77], reference was made to judicial and other statements which emphasise the exercise of power and control over the victim in domestic violence offences. The offences which comprised Counts 1 to 5 demonstrated a grave course of conduct, involving the exercise of power, dominance and control by the Respondent over the victim in December 2006 and January 2007. The fact that offences (or at least some of them) were committed whilst the Respondent was affected by drugs does not assist him on sentence. The commission of offences whilst using illicit drugs, in breach of parole, represents an aggravating factor on sentence: R v Merrin at 111-112 [48].
98 After the Respondent was taken into custody, he committed the s.323(a) offence over a period of time in February 2007. Once again, this offence reflects the exercise of power or control by the Respondent over the victim. Although the Respondent rejected the suggestion in cross-examination that he was "emotionally blackmailing" the victim to try and get her to drop the charges (T10.7), I am satisfied that this characterisation was accurate.
99 The Respondent's efforts in this regard disclosed a level of planning, following consultation with other inmates, and a persistence over a period of time. It extended to the suggestion that the victim should say that she had made a false statement with the potential consequence that she herself would be charged with a criminal offence. It is difficult to see how the Respondent's past drug usage played any part to mitigate penalty for this offence.
100 The victim made statutory declarations seeking to withdraw the charges against the Respondent although not recanting her allegations. The prosecutions continued and the Respondent ultimately pleaded guilty. Even then, the victim provided a measure of support to the Respondent at the sentencing hearing.
101 The essence of a s.323(a) offence is that it strikes at the integrity of the system of justice and some form of custodial sentence is normally appropriate: Warby v R at 580 [25]. The sentence imposed here for the s.323(a) offence diluted significantly, and erroneously, the objective criminality revealed in this case. The objective seriousness of the offence required imposition of a full-time custodial sentence. The use of a s.9 bond was erroneous. I have not overlooked the Respondent's submission that breach of a s.9 bond would permit the Respondent to be called up for sentence at a later time. The circumstances in this case, however, required the imposition of a full-time custodial sentence.
102 The victim's attitude towards sentencing of the Respondent ought to have played no part on sentence. Decisions of this Court in R v Glen (19 December 1994, unreported, BC9403423); R v Palu (2002) 134 A Crim R 174 at 183-184 [37] and R v Newman and Simpson [2004] NSWCCA 102 at [79]-[87] support this conclusion. It appears that the learned sentencing judge attached little significance to the victim's views (see [56] above).
103 As Howie J said in R v Palu (with the concurrence of Levine and Hidden JJ at 184 [37]), "a serious crime is a wrong committed against the community at large and the community is itself entitled to retribution", and "matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim".
104 In the present context, it is important to repeat the observations of Simpson J in R v Glen:
"In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind [forgiveness by the victim] in cases that fit within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.