The offender is to be sentenced in respect of the following matters to which he has entered pleas of guilty:
1. H73919939/1 - Common assault (Claire Dawson), an offence pursuant to s 61 of the Crimes Act 1900.
2. H73290820/1 - Common assault (Antoinetta Corak-Phan), an offence pursuant to s 61 of the Crimes Act 1900.
The maximum penalty proscribed in respect of each offence is 2 years imprisonment. There is no Standard Non-Parole Period.
There is a related offence subject to a certificate pursuant to s 166 of the Criminal Procedure Act 1986 ("CPA"), namely:
(3) H73919939/2 - knowingly contravene a prohibition or restriction in an Apprehended Domestic Violence Order (Claire Dawson), an offence pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.
The relevant maximum penalty in respect of that offence is the Local Court maximum of 2 years imprisonment and/or a fine of 50 penalty units.
[2]
The sentence hearing
The sentence hearing took place on 17 December 2020. The Crown Sentence Summary became Ex A, and included a Statement of Agreed Facts which may be summarised as follows.
R v Corak-Phan [2021] NSWDC 3 | Case summary | Zoe
The first offence referred to above occurred on 9 December 2019. The victim and the offender were in a previous domestic relationship. They had separated and have one child. On 17 July 2019, an Apprehended Domestic Violence Order ("ADVO") was granted on behalf of the victim. The order included a condition that the offender not approach the victim in any way.
At 12.30am on Sunday 9 December 2019, a witness heard the victim shout, "Help. Someone please help me". The witness observed the victim and the offender in a car park located at the rear of Bridge Road, Glebe. This is the conduct that breached the ADVO and is the subject of the related offence (Sequence 2).
The victim ran to her motor vehicle, pursued by the offender. The offender punched the victim a number of times to the head and upper body area. This was the first index offence of common assault (Sequence 1). The offender then returned to his vehicle, but subsequently returned to the victim's vehicle, where they engaged in a conversation. The offender then, again, went to his vehicle and then drove to a position where he immediately stopped, got out of the vehicle, approached the victim's vehicle which was still parked in the car park, and the offender threw a black bag at the victim's vehicle. The victim collected the bag and put it inside her vehicle. The offender began to approach the victim again, however, the police arrived. The offender immediately ran away, pursued by the police who found him concealing himself in a nearby building.
The victim identified herself to police as Claire Dawson. However, she refused to provide any details of the incident to police. She did not sustain any significant injuries other than red marks to her arm.
The second index offence referred to above occurred on 30 April 2020. The Agreed Facts may be summarised as follows. The victim, Antoinetta Corak‑Phan is the offender's sister. She was at her father's home in the morning of 30 April 2020 when an argument started between her and the offender. The victim was sitting in front of the offender on a couch. The offender pulled the victim by her ankles off the couch, as she tried to kick him away. As a result of the offender grabbing her, the victim fell to the ground. The victim begged the offender to stop and the offender screamed at her to "shut up".
The offender was arrested on 3 May 2020 at the Concord Mental Health Hospital.
Exhibit A contained the offender's criminal history, which was extensive. On 5 December 2014, he had been sentenced by way of an aggregate sentence to a term of imprisonment of 8 years and 7 months commencing on 22 July 2013, with a non-parole period of 5 years and 7 months. He was released to parole on 21 February 2019 and his sentence was due to expire on 21 February 2022. The first index offence was therefore committed within 10 months of his release on parole and the second offence was committed approximately 14 months thereafter. He was therefore on conditional liberty at the time of committing both offences.
Exhibit A also included the remarks on sentence of Judge Haesler SC on 5 December 2014, together with the Indictment, Forms 1 and Agreed Facts relating to that previous offending.
Exhibit A also included a breach of parole report under the hand of Mr T Partridge dated 13 December 2019, an order revoking the parole order as of 9 December 2019, and a notification of determination of rescinding a State Parole Authority decision dated 7 February 2020. A further breach of parole report dated 6 May 2020 under the hand of Ms L Turner, together with an order revoking a parole order dated 20 May 2020, complete Ex A.
It is common ground that the offender has spent one month and 28 days in custody in respect of the first index offence, and that he has been in custody, having had his parole revoked, since his arrest in respect of the second index offence since the date of his arrest on 3 May 2020.
[3]
The offender's evidence
The offender tendered a report of Ms I Manovski, forensic psychologist, dated 30 November 2020. Ms Manovski assessed the offender via AVL on 12 November 2020. She took a detailed background history of what could only be described as a dysfunctional childhood. The offender described it as unstable, and
"marred with neglect, physical and sexual abuse and as well, exposure to criminal behaviour, drug and alcohol use and domestic violence."
The offender's father was a cannabis user and seller, and the offender was exposed to smoking cannabis at a young age.
The offender described his father as an alcoholic and a gambler and disclosed being physically punished on a regular basis, stating:
"I'd get flogged because I'd get in trouble."
The offender reported experiencing sexual assault when he was approximately seven or eight years old by his mother's friend who was babysitting at the time, and also reported being sexually assaulted in juvenile detention in 2007. This led to him feeling unsafe due to his experiences of abuse, particularly whilst in a custodial environment.
The offender had difficulties with learning and concentration throughout his schooling and left school in year 8. He obtained a full-time position at McDonalds for a period of six months, but commenced criminal conduct at a young age. He has spent the majority of adulthood serving two custodial sentences, the first for five years and the second for 5 years and 7 months, non-parole period.
The offender had an extensive drug and alcohol abuse history since he was 10 or 11 years of age, commencing with cannabis use, but escalating to heroin, methamphetamines, GHB and Buprenorphine. He commenced using methamphetamines in 2006, and in 2020 was using intravenously. He attended WHOS rehabilitation centre in 2019, but stayed for only two days, and was placed in a mental health unit for two to three weeks, as a result of unstable mental health and paranoia related to his methamphetamine use.
Ms Manovski was of the opinion that the offender would require intensive intervention to assist his drug abuse issues.
The offender reported that upon release to parole in 2019, he commenced daily methamphetamine use relatively quickly, escalating to intravenous use in 2020. He became paranoid, however, since being in custody, he is no longer using methamphetamines and no longer experiencing paranoia and visual hallucinations. Ms Manovski opined that he met the criteria for Substance Induced Psychotic Disorder - amphetamines. He also reported a number of symptoms indicative of post-traumatic stress, including hypervigilance regarding safety and recurring intrusive thoughts regarding the physical and sexual abuse he suffered as a child. He worries constantly that he will be physically or sexually attacked in custody. Ms Manovski opined that he currently meets criteria for Post-Traumatic Stress Disorder ("PTSD").
In respect of the index offences, the offender reported that he had been "spinning out" at the time due to his regular use of methamphetamines. In respect of the first index offence, he reported that he and his ex-partner engaged in a verbal argument which escalated. He acknowledged using methamphetamines on the day of the argument and described feeling paranoid. The author noted that the offender had little insight in relation to his offences and would benefit in receiving offence-specific treatment to increase his insight and develop strategies to mitigate future risk of re-offending.
In the event of a custodial sentence being imposed, the author recommended the offender engage in a high intensity therapeutic intervention, namely, the Violent Offender Therapeutic Program ("VOTP"). He will also require significant support upon release and it was recommended that he enters a residential rehabilitation facility to receive support to cease his drug use. A long term rehabilitation program such as Odyssey House would be beneficial. The offender would also benefit in engagement with a psychologist to facilitate trauma-informed psychological therapy and to assist him in resolving the ongoing difficulties he continues to experience due to his early exposure to complex trauma.
Exhibit 2 was a bundle of certificates of achievement in relation to several programs the offender had successfully completed in custody.
[4]
The Crown submissions
The Crown relied on a written outline of submissions. The Crown submitted that the first index offence committed on 9 December 2019 fell comfortably within the mid-range of objective seriousness for an offence pursuant to s 61 of the Crimes Act 1900. The offender was on parole at the time of the offence, following which, his parole was revoked until that decision was rescinded when the offender received bail on 7 February 2020.
The Crown submitted in respect of the second index offence relating to the offender's sister, that the objective seriousness of that offence fell within the lower range of objective seriousness for an offence pursuant to s 61 of the Crimes Act 1900. At the time of that offence the offender was on bail and also on parole.
He was arrested on 3 May 2020 and as a result of this offence, his parole was revoked again as an from 30 April 2020. The offender was bail refused in relation to this matter from 3 May 2020 and remains in custody.
The related offence, subject to the s 166 certificate, included violence involving multiple punches to the victim. The Crown submitted that it was objectively serious offending.
The Crown submitted the following aggravating factors applied:
1. The offender had a previous record of criminal convictions.
2. Each of the offences were committed whilst the offender was on conditional liberty.
The only mitigating factor to apply was pursuant to s 21A(3)(k), in that the offender entered a plea of guilty prior to committal, which has a utilitarian value leading to a discount of 25% on sentence.
It was submitted that the offender's substantial criminal record disentitles him to any leniency. The offender also has a record of custodial infringements.
The Crown submitted that all of the offences are domestic violence related and the offender is an appropriate vehicle to reflect both specific and general deterrence. The Crown submitted that the s 5 threshold has been crossed in respect of the first index offence and the related matter, but not the second index offence.
In her oral submissions, the Crown rehearsed her submissions as to the objective seriousness of the offending. The Crown submitted that the court was empowered to sentence in relation to the first index offence, and the related offence by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"), relying on s 168(3) of the CPA, and R v Price [2016] NSWCCA 50.
[5]
The offender's submissions
The offender, by his counsel, also relied on a detailed written outline of submissions. He acknowledged that the first index offence on 9 December 2019 was relatively serious, and that at the time of the offence the offender was subject to a ADVO imposed on 17 July 2019 for the protection of the victim. It was submitted that the objective seriousness of the offending fell "around the mid-range of objective seriousness" in those circumstances. The only apparent physical injuries to the victim were marks to her arm, however, it was conceded that she was obviously in fear of the offender. In relation to the second index offence on 30 April 2020, the offending arose as a result of an argument between the offender and his sister, however, the offender applied minimal force to the victim, in grabbing her by the ankles and pulling her off a couch and onto the floor. The victim received no injuries, although she was clearly placed in fear of the offender. It was submitted that the offence fell towards the lower end of objective seriousness for an offence pursuant to s 61 of the Crimes Act 1900.
The offender conceded the aggravating factors advocated by the Crown, namely, that the offending occurred whilst the offender was on conditional liberty and that he had a prior criminal record.
The offender submitted that there was a significant subjective history outlined in the report of Ms Manovski dated 30 November 2020 (Ex 1), which he summarised in detail. It was submitted that that background as recorded, gave rise to the application of the principles in Bugmy v R [2013] 249 CLR 571; [2013] HCA 37, that an offender's deprived background may mitigate the sentence that may otherwise be appropriate for an offence and that full weight should be given to that background of deprivation in every sentencing decision. It was submitted that the court would accept that the offender has had a deprived and disadvantaged upbringing, reducing his moral culpability to a degree.
The offender conceded that the s 5 threshold had been crossed in respect of the first index offence. Any sentence should be backdated and it was noted that the offender had spent one months and 28 days in custody for that matter. Notwithstanding the revocation of parole, which meant that the offender had been in custody for seven months and 15 days following his arrest in respect of the second matter and revocation of his parole, the court had a discretion to backdate any sentence. It was submitted that the sentence should therefore be backdated to commence no later than 19 October 2020, with a discretion to backdate to an earlier date than that. It was submitted that it was a consequence of the Director's election that the delays of the charge certification procedure meant that the offender was not able to be sentenced on an earlier date than 17 December 2020.
Given the recommendations for treatment made by Ms Manovski, it was submitted that the court should impose a custodial sentence that will allow for a lengthy period in a residential facility, followed by monitoring for a period in the community.
In respect of the second index offence, counsel advocated the imposition of a community corrections order with supervision, which, depending on its duration, could extend the period of community corrections supervision beyond February 2022 when the offender's parole expires.
[6]
Determination
Section 3A of the C(SP)A sets out the purposes of sentencing as follows:
"3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community."
Given the circumstances of the first index offence on 9 December 2019, which involved the offender punching his former partner who was protected by an ADVO at the time of the offence, thereby placing her in considerable fear for her safety, the objective seriousness of the offending fell clearly within the mid-range for an offence pursuant to s 61 of the Crimes Act 1900.
Similarly, the related offence, pursuant to s 14 of the Crimes (Domestic and Personal Violence) Act 2007, was an objectively serious contravention, within the mid-range for such an offence, as it involved a clear and wanton contravention of a court order.
The objective seriousness of the offending in the second index offence which occurred on 30 April 2020, involving the assault on the offender's sister, in all the circumstances fell in the lower range of objective seriousness for an offence pursuant to s 61 of the Crimes Act 1900.
General deterrence is important in sentencing for domestic violence related assaults. The appellate courts have recognised the community-wide concern about such offences, and a clear message must be sent to like-minded members of the community that Parliament has proscribed maximum penalties involving extensive periods of imprisonment and that the courts will impose condign punishment where appropriate. Specific deterrence is also important here, given the criminal history of the offender which has included offences of violence.
That the offending occurred whilst the offender was in the grip of a drug addiction, does not mitigate the seriousness of the offending. Notwithstanding that the offender gave no evidence, and the court must approach self-serving reports to psychologists with some caution, I do take into account the subjective matters outlined in the report of Ms Minovski, namely, a dysfunctional childhood marred with neglect, physical and sexual abuse and exposure from an early age to drug and alcohol abuse, together with domestic violence, giving rise to the principles outlined by the High Court in Bugmy v R, supra, namely:
"(1) The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].
(2) The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].
(3) A background of that kind may leave a mark on a person throughout the life and compromise a person's capacity to mature and learn from experience [43]."
I am therefore satisfied that the offender's recourse to violence in the circumstances outlined above, albeit fuelled by his drug addiction, are such that the offender's moral culpability for his inability to control his impulses must be somewhat reduced.
It is an aggravating factor here that each of the offences was committed whilst the offender was on conditional liberty. Further, the offender's criminal history does not entitle him to any leniency.
I have taken into account the maximum penalty of two years imprisonment for the two index offences, and two years imprisonment and 50 penalty units for the related matter as guideposts in the sentencing process.
A mitigating factor applies pursuant to s 21A(3)(k), in that the offender entered a plea of guilty prior to committal and is entitled to a utilitarian discount on sentence of 25%.
The subjective matters set out in the report of Ms Manovski must be carefully scrutinised in the absence of any evidence from the offender himself. However, I am satisfied that he, at the age of 41, is at a risk of being institutionalised, having spent much of his adult life in custody. It is, however, to his credit, that he has applied himself whilst in custody in obtaining a number of certificates and has made some progress with his rehabilitation. There is clearly a need for him to undergo residential rehabilitation under supervision before he is discharged into the community.
I find that the threshold in s 5 of the CSPA has been crossed, and having considered all possible alternatives, no penalty other than imprisonment is appropriate for Sequence 1 and the related offence in Sequence 2. I accept the Crown's submission that an aggregate sentence may be imposed pursuant to s 53A of the CSPA, pursuant to s 168(3) of the CPA. For the purposes of transparency in the sentencing process, I am to provide indicative sentences for each offence. Having regard to the seriousness of the offending, and taking into account the subjective matters outlined above, together with a 25% discount on sentence, the indicative sentences are as follows:
1. Sequence 1 - common assault pursuant to s 61 of the Crimes Act 1900 - 15 months imprisonment
2. Sequence 2 - offence pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 - 15 months imprisonment.
I intend to impose an aggregate sentence of 20 months from 19 October 2020.
I make a finding of special circumstances pursuant to s 44(2) of the CSPA. Notwithstanding the offender's poor criminal history, his need for drug and alcohol rehabilitation, together with anger management, warrant a variation of the statutory ratio between head sentence and non-parole period. I therefore intend to set a non-parole period of 10 months, commencing on 19 October 2020 and expiring on 18 August 2021. I also intend to recommend that the offender be referred to a residential rehabilitation program upon his release on parole.
In respect of the second index offence, namely, H 73290820/1, the offence of common assault on the offender's sister, pursuant to s 61 of the Crimes Act 1900, I intend to sentence the offender by way of a Community Correction Order for a period of 18 months from 28 January 2021.
[7]
Orders
I make the following orders:
1. You are convicted of the following offences:
1. H 73919939/1 - common assault (Claire Dawson), an offence pursuant to s 61 of the Crimes Act 1900;
2. H 73290820/1 - common assault (Antoinetta Corak-Phan), an offence pursuant to s 61 of the Crimes Act 1900;
3. H 73919939/2 - knowingly contravene a prohibition or restriction in an apprehended domestic violence order (Claire Dawson), an offence pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.
1. In respect of the offences outlined in (1) and (3) above, I intend to sentence you by way of an aggregate sentence pursuant to s 53A of the CSPA. You are sentenced to a non-parole period of 10 months commencing on 19 October 2020 and expiring on 18 August 2021.
2. The balance of term will be a period of 10 months from 19 August 2021 to 18 June 2022.
3. In respect of H 73290820/1, pursuant to s 8(1) of the CSPA, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. The term of the order is for a period of 18 months from 28 January 2020.
4. The standard conditions of the order apply:
1. You must not commit any offence; and
2. You must appear before a court if called upon to do so at any time during the term of the order.
1. The following additional conditions apply pursuant to s 89(2):
1. A rehabilitation or treatment condition requiring the offender to participate in any rehabilitation program, or to receive treatment.
2. A supervision condition requiring the offender to submit to supervision by a Community Corrections Officer.
If you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be re-sentenced.
[8]
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Decision last updated: 28 January 2021