Crimes Domestic and Personal Violence Act 2007 (NSW): 13(1),14(1)
Weapons Prohibition Act 1998 (NSW): s7(1)
Cases Cited: R v GWM [2012] NSWCCA 240
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
Crimes Domestic and Personal Violence Act 2007 (NSW): 13(1),14(1)Weapons Prohibition Act 1998 (NSW): s7(1)
Cases Cited: R v GWM [2012] NSWCCA 240
Category: Sentence
Parties: Regina (Crown)
Judgment (2 paragraphs)
[1]
Spiros Ladas, you appear for sentence today in relation to nine principal offences.
Two of the principal offences are using an offensive weapon. Each of those offences involves a contravention of s33B(1)(a) of the Crimes Act. The maximum penalty for each of those offences is 12 years imprisonment.
Four of the principal offences are assault occasioning actual bodily harm. Each of those offences involves a contravention of s59(1) of the Crimes Act. The maximum penalty for each of those offences is five years imprisonment.
Three of the principal offences are intimidation. Each of those offences involves a contravention of s13(1) of the Crimes Domestic and Personal Violence Act. The maximum penalty for those offences is also five years imprisonment.
In relation to most of the nine principal offences, there is a relevant Form 1.
In addition to the nine principal offences, you have consented to this Court dealing with one matter on a s166 certificate, namely contravening an apprehended violence order. This involves a contravention of s14(1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty for that offence in the Local Court is two years imprisonment and or a fine of 50 penalty units.
Furthermore, you have consented to this Court calling up a s9 bond which was imposed on you in the Local Court on 31 January 2017 for the offence of possessing or using a prohibited weapon without a permit. That offence involves a contravention of s7(1) of the Weapons Prohibition Act. The maximum penalty for that offence in the Local Court is two years imprisonment and / or a fine of 100 penalty units.
The facts surrounding the nine principal offences, the relevant Form 1 matters, and the s166 certificate matter are contained in a well drafted statement of agreed facts and are as follows.
You and the relevant victim (Tabitha Baker) were in an intimate relationship from April 2016 to February 2019. Ms Baker had two children from a previous relationship, one aged seven, one aged five. You and Ms Baker had a child as a result of your relationship who, at the relevant time, was only one year old.
You had a prolonged history of drug abuse which had a significant impact upon your relationship with Ms Baker and was also a major cause of financial stress.
Ms Baker would, from time to time, question you about your fidelity and that was also an additional cause of conflict between the two of you.
The financial stressors, in combination with other facts, was often a catalyst for incidents of domestic violence by you towards Ms Baker. You perpetrated domestic violence offences against her regularly: assaulting her and intimidating and threatening her; and she regularly suffered bruising as a result of your repeated assaults.
The charges before the Court today are only representative charges of an ongoing course of conduct by you against Ms Baker during the entirety of your relationship with her.
You are, of course, not to be punished for matters not the subject of any charge. However, the significance of the uncharged acts is that they place in context the matters which have been the subject of specific charges and to which you have pleaded guilty.
You exhibited sudden mood changes, ranging from aggressive to emotional. This erratic behaviour reinforced Ms Baker's feeling that she had to help you through this time. When she threatened to end the relationship with you on account of your violence, you informed her of significant traumatic incidents you had been subjected to which made her feel that she could not leave you.
In about July 2016, you, Ms Baker and the 3 children moved into residential premises at Gledswood Hills.
In July 2016, you and Ms Baker apparently had a long-standing argument about her belief that you had attended premises known as Nitro Circus (the precise nature of that venue being no further revealed other than by its name) approximately two months before July 2016 with one of your ex-partners.
Between 4:00pm and 5.00pm on 17 July 2016, Ms Baker and you were returning home from Macarthur Square. You told her that you had gone to Nitro Circus - but not with an ex-partner - and this caused disagreement between the two of you.
When you arrived back at your home, Ms Baker informed you that she may end the relationship. The argument became quite heated. You said to her, "Why would I take you to meet my family if you're just going to leave me?" She said to you, "Because I've got to think about it, obviously I still want to be with you, but there is a level of distrust, I just don't know if I'm going to get past it or not."
This relatively innocuous remark caused you to become enraged. Ms Baker was standing in your walk-in wardrobe which was located in the main bedroom of the premises. You approached her and pressed your forehead against her forehead with sufficient force to push her backwards and to cause her pain. She immediately began to cry because of the pain and she said to you, "What's wrong with you?"
You then left that wardrobe and, it would seem, the room. You returned a short time later - and you were armed. You had a baton in your hand. You flicked it out to extend it and then you verbally abused Ms Baker, screaming threats and insults at her. Unsurprisingly, she was extremely scared and she pleaded with you to stop. You threatened her with the baton - she cannot now recall the precise words - and then you suddenly walked out of the bedroom. But she was afraid that you had gone to get additional weapons.
You did return a short time later without the baton, but you continued to yell at her in that bedroom.
It is this sequence of events that is the principal offence sequence 51 of using offensive weapon with intent to intimidate. For an offence of its kind, its objective seriousness is in the mid-range.
It is additionally aggravated because the offence occurred in the victim's home.
Having returned to the bedroom without the baton, you then approached Ms Baker and grabbed her by the throat. You applied enough pressure to partially obstruct her airway for a period of time. She could not catch her breath. You threw her onto the bed, after which she crawled across the bed to get away from you. She begged you to stop; you calmed down for a moment; and you and Ms Baker continued to talk about your relationship. However, when she mentioned ending it, the argument escalated again. Eventually, it stopped and you started to apologise to Ms Baker who was crying - and you were crying. You assured her that it would never happen again. You left the premises a short time later to de-escalate the situation.
During the assault when you grabbed her by the throat, Ms Baker had been wearing a silver necklace with a pendant. In the course of the assault, she sustained a small abrasion to the base of her neck and there were red marks. She also sustained bruising to her right and left arms and a small abrasion to her elbow as a result of your assault on her. According to the agreed facts, this was the first time you had been violent to Ms Baker.
It is this assault which is sequence 5 and is the relevant Form 1 matter to be taken into account with sequence 51. By having regard to the nature of the matter on the Form 1, it will result in a meaningful increase for the sentence for the principal offence.
About three weeks after this first assault, Ms Baker was driving you to a friend's house at Oran Park. Whilst driving to that location, Ms Baker confronted you about you messaging an ex-girlfriend and this led to a heated verbal argument. As a result of that argument, Ms Baker told you she intended to end your relationship, that she was going to pack her things. She immediately returned to the premises you shared with her and did exactly what she said she was going to do. She started packing her things.
About half an hour later, you returned home. Ms Baker was in the kitchen when you rushed towards her and grabbed her by her right arm and dragged her into the main bedroom. She sustained bruising to her right upper arm because of the force with which you grabbed her. Having dragged her into the bedroom, you let go of her arm and the heated argument recommenced. You and she were standing face to face in close proximity to one another.
During this argument, you became enraged and you grabbed a fistful of Ms Baker's hair with one hand and forcefully pushed her head down and pulled her towards the front door of the premises by her hair. She stumbled towards the front door while being bent over at a 90 degree angle. She struggled against you, but could not get away. The agreed facts say that she then felt a "pop" to her scalp and a lot of pain from where you had had hold of her hair.
Ms Baker sustained a lump to the back of her scalp about the size of a 50 cent piece as a result of the incident. You left the house and locked the front door behind you and her keys were locked inside as well. You left the location in a friend's vehicle which was parked nearby.
It is this assault which is sequence 6, which is also to be taken into account in relation to the principal offence, sequence 51. By having regard to the nature of the matter on that Form 1, it will result in a meaningful increase in the sentence for the principal offence.
On 27 November 2016, you asked Ms Baker to order some food from a nearby Thai restaurant. She called ahead to place the order, but was placed on hold. Whilst the phone was on hold, she went into your shared bedroom. As at 27 November 2016, Mr Ladas, Ms Baker was 12 weeks pregnant. Because of her pregnancy, she was suffering from bloating. She came out from the bedroom and your demeanour had changed. She left the premises to pick up the takeaway food. When she came home, you confronted her and accused her of sending pictures of herself to other men via Snapchat and you called her a slut. Your mother was in the premises at that time - just as she is here today.
After Ms Baker returned home, she was sitting on the lounge and you stood over her, this 12 week pregnant woman, and, using both of your hands, you grabbed her by her ears and part of her hair. Her head was pinned back against the head rest of the lounge and resulted in a piercing being pulled out of her ear. This caused Ms Baker excruciating pain. She denied sending any pictures to men and she was crying and pleading with you to stop. Your mother told you to stop and she told both you and Ms Baker to be quiet - so the neighbours would not hear. You and Ms Baker continued to argue and your mother came and stood between the two of you and tried to calm you down.
As your mother was trying to calm you down, you swung a punch at the 12 week pregnant woman and you punched her in the mouth. She felt immediate pain and the force of the punch caused a small laceration to the bottom of her lip.
As soon as you saw Ms Baker's injuries, you started to cry and apologise to her. She rushed from the house to the garage and used a remote control attached to the interior wall to open the garage door. She got into her motor vehicle and locked all the doors. She immediately contacted her friend, Ms Curry, and told her what you had done to her. She was crying and she was scared, as you and your mother went into that garage.
Ms Baker remained on the phone talking to her friend whilst you entered the garage; and your mother stood at the internal door that led from the dwelling into the garage. Ms Baker saw your mother continually pressing the button on the internal remote in an effort to close the garage door and to prevent Ms Baker from leaving. Ms Baker shouted at your mother to stop trying to close the door, but your mother continued, saying, "Let me close it so the neighbours can't hear." Ms Baker used her remote control attached to her keys to prevent your mother from closing the garage door.
Whilst this was occurring, you rolled a lawnmower behind Ms Baker's vehicle to prevent her leaving the location, and she begged with you to remove it so she could leave.
It is these facts which constitute sequence 10, assault occasioning actual bodily harm. In terms of its objective seriousness for an offence of its kind, it is above the mid range.
It is additionally aggravated because it occurred in the home of the victim.
After Ms Baker asked you to move the lawnmower, you walked to a nearby paint tub that was located next to your toolbox which was inside the garage. You took a white canvas bag out of that paint tub, and Ms Baker believed that that bag contained a firearm - she had previously seen in it a small silver handheld firearm with a barrel that spun around.
Whilst you were holding that bag, you said to Ms Baker, "I'm gunna shoot up your family, I'm going to shoot up their house, and I'm going to shoot you." This caused Ms Baker extreme fear for her safety and the safety of her family.
Ms Baker left the location and went and stayed with another person. She started to receive text messages from your mother, blaming Ms Baker for the police being called. As a result, Ms Baker began to feel fearful of repercussions to her if you were charged with any offence.
Ms Baker's family were in the process of moving interstate, which made her feel as though she had to make the relationship with you work, as she had no other family or adequate support nearby - she was unable to move interstate with her family because of a pre-existing custody agreement that she had with the father of 2 of the children.
It is the threat to shoot Ms Baker's family, their house and Ms Baker that is sequence 12, which is the matter of intimidation on a Form 1 which is to be taken into account in relation to the principal offence, sequence 10. Because of the nature of the matter on that Form 1, it will result in a meaningful increase in the sentence for the principal offence.
On 12 December 2016, you and Ms Baker went out for dinner for your birthday. When you and she returned home, there was a heated argument about the amount of presents which Ms Baker had bought for you. She said that she would take some of the presents back and started packing them away in her bedside table, which was in the main bedroom.
You and she continued to argue about the matter, and then you approached her and, using both hands, tried to shove her. However, only one hand connected with her right breast, which caused her immediate pain and bruising. As a result of that shove, Ms Baker fell to the floor and was short of breath. She stood back up, and then you hit her nose with your hand. She was stunned, fell to the floor, and was crying hysterically. By this stage she was about 15 weeks pregnant. You looked at her and you appeared upset. You asked her if she were all right, and you started crying. Ms Baker wiped her face and saw blood on her hand, coming from her nose.
This is sequence 13, which is another matter on the Form 1 to be taken into account with the principal offence, sequence 10. Because of the nature of the matter on that Form 1, it will result in a meaningful increase in the sentence for the relevant principal offence.
Between 9.00am and 11:00am on 2 November 2017, about a year after the incident I have just been referring to, Ms Baker was pregnant again. And as at 2 November 2017 she was four months pregnant. On this day, you and she had a heated argument about your drug use, your watching pornography, and the lack of money in the house because of your drug use.
During the course of the argument, you locked the front door of those premises, which was the only way in and out of the home unit. You threatened Ms Baker with these words, "I'm going to torture you all night long." Ms Baker was extremely scared and retreated to one of the children's bedroom in an attempt to get away from you. She was lying on the bottom bunk (the children were not at home on that occasion; they were with their father). You followed her in and continued to shout at her. You shoved her into the corner. Ms Baker put her hands up to shield herself from you and you slapped at her hands and her arms leaving red marks. You also grabbed her other left arm and caused bruises.
After that incident, she told you she was not happy in the relationship. You then became increasingly controlling, going so far as to take away her mobile phone so she could not contact anyone.
It is the incident on 2 November 2017 which is the principal offence of assault occasioning actual bodily harm, sequence 17. For an offence of its kind, its objective seriousness is in the mid-range.
The offence is additionally aggravated because it occurred in the victim's home and because you were on conditional liberty, namely bail.
By 28 December 2017, you, Ms Baker and the children had moved to premises at Badia.
On 28 December 2017, you came home from work and Ms Baker confronted you about your use of a Snapchat account that was previously unknown to her. This time, Ms Baker was five a half months pregnant. Two of the other children were not at home, they were with their biological father. The argument between the two of you escalated and you assaulted Ms Baker, although she cannot now remember exactly what happened.
As a result of whatever it was you did to her, this five and a half month pregnant woman left the house and slept in a park. At about 10:00pm that night, you sent her some text messages expressing your love for her. She sent you a text message which read:
"But for the attacks, the way you just attacked me, I worry that will happen when my children are here, I can't have that. This is not only affecting me, but my children, I need to do what's best for them."
More text messages were exchanged between the two of you that evening. At almost midnight, you sent text messages threatening suicide, to which she replied, "I have given you ample chances to be a decent human, yet I'm still this, I'm still that, I'm still a punching bag." There were more text messages to similar effect.
The events of 28 December 2017 are not the subject of any specific charge, but they are included in the agreed facts as context - that is to say, to put all of the other offences in their proper understanding - i.e. they were not isolated events.
On 31 December 2017 there was a New Year's Eve party at the house of one of your friends. His name was Vic.
During the party, there was an argument between Vic and someone over the phone which caused Ms Baker to look at Vic - and that was the catalyst to the incident that followed the next night.
At 1:00am on 1 January 2018 you and Ms Baker left the party and returned to where you were living. The next day, you two did not speak much to each other. But at about eight in the evening, you confronted Ms Baker about looking at Vic at that party the night before.
An argument developed (again) and, during the argument, you screamed at her and called her a slut. You were standing face to face in the bathroom. At the time, Ms Baker's eldest son, Harley, was in the bath, and you shouted at her, in front of him, "You're a slut." At the same time, you forcefully swung your arm and flicked her hard on her vagina which caused bruising and swelling. She felt immediate intense pain which she likened to being winded and she started to cry.
You then used the language to her that I am not going to repeat in Court - but the effect it was you were accusing her of sleeping with other men while you were at work, but you did not put it as benignly as that. You accused her of wanting to sleep with Vic and became increasingly enraged to a point where you turned and repeatedly punched the bathroom door with a clenched fist which resulted in damage to the front and back of that door.
These actions caused Harley to be scared and he was crying and you abused him and you called him a "little girl". Ms Baker became angry at the way you spoke to her son and she demanded that you get out.
It is the assault on her vagina which I have described which is sequence 22 which on a Form 1 and is to be taken into account with the principal offence sequence 17. Because of the nature of the matter on the Form 1, it will result in a meaningful increase in a principal offence.
At some time between 10.30pm and 11:00pm, on 22 February 2018, Ms Baker and you were at the Badia premises. You were asleep in the main bedroom having used a large amount of illicit drugs.
At this time you were using three forms of steroids - and Ms Baker was seven months pregnant.
Ms Baker had discovered that you were "talking" to women on Snapchat. She started sending you text messages about this. She went to sleep in her daughter's bedroom - as the two eldest children were with their biological father again. She woke up to you pulling her out of the bed by her ankle. You dragged her down the hallway towards the main bedroom door.
You were shouting at her. You demanded that she follow you downstairs while you had a cigarette. When she refused, you threatened to pull her down the stairs by her hair. Ms Baker did as she was told. She ran down the stairs as fast as she could. You were behind her and she was afraid that you were going to push her down those stairs.
After the incident, you made an attempt to make her sleep next to you, saying it would make you angrier if she slept away from you. Ms Baker feared the incident would escalate if she refused, so she did as you demanded. She sustained red marks to her jaw as a result of this incident.
This incident is sequence 25, which is stalk or intimidate with the intention of causing fear of physical or mental harm. In terms of its objective seriousness for an offence of its kind, it is into the upper range.
It is additionally aggravated because the offence occurred in the victim's home and because you were on conditional liberty.
At about 10:00pm on 6 March 2018, you and Ms Baker were at your premises at Badia. She was sitting in the corner on the L shaped lounge. You became angry with her and, using both of your hands, you grabbed her by her hair and pulled her into an upright position. You then threw her head back, causing her head to collide with the timber window frame. She was dizzy as a result of the impact and was immediately crying. Ms Baker was eight months pregnant when you did that to her.
You then stomped on a coffee table causing it to crack. She was cowering on the lounge with her face down in the lounge and covering her head with her hands and she felt several blows to the back of her head from a pillow that you had retrieved from the lounge.
You and she continued to argue. You grabbed her by the arms, the neck and then (in what seems to be a favourite technique of yours) you grabbed her again by the hair. You pulled her with such force that it pulled a large chunk of her hair out - and then you dragged this eight-months pregnant woman down the stairs. She sustained numerous injuries to her head and neck and bruising to her body.
It is the assault on her which is sequence 27, assault occasioning actual bodily harm. In terms of its objective seriousness for an offence of its kind, it is above the mid-range.
It is additionally aggravated because it occurred in the home of the victim and because you were on conditional liberty.
The destruction of the coffee table in the manner I have described is sequence 28 which is to be taken into account on a Form 1 in relation to sequence 27. Because of the nature of the matter it will result in a slight increase in the sentence for the principal offence.
Some weeks later, on 20 April 2018, Ms Baker discovered messages between you and another woman. In those messages you told this other woman that you had broken up with Ms Baker. Ms Baker confronted you about that assertion and there was yet another heated verbal argument.
At the time this argument had taken place, Mr Ladas, three weeks beforehand Ms Baker had had a caesarean section and she was still recovering from the surgery. She was leaning against the bed head in the bedroom, breast feeding the infant. You became angry with Ms Baker for confronting you about telling another woman that you and she had separated, and so you slapped her to the head, causing her head to hit the wall. You then slapped her in a downward motion to her face so that she collided with that child. There was then a struggle between you and Ms Baker - but her movements were restricted, because she was attempting to shield that baby. You then punched her to the back of the calf and pushed your phone into her face, leaving scratch marks along the jaw.
This is sequence 29 which is on a Form 1 to be taken into account with the principal offence sequence 27. Because of the nature of the matter on that Form 1, it will result in a significant increase for the sentence of the principal offence.
On 5 June 2018, you and Ms Baker were at your home and there was another heated verbal argument. Ms Baker's eldest children were not present, but the baby was. She was holding the baby and the baby bag as she intended to leave the premises. You grabbed her by both arms and forcefully pulled her back inside the premises. You shoved her into the small landing in front of the stairwell and she came forcefully into contact with the wall, and then you hit her across the face. You grabbed hold of her arm and pulled her down the hallway towards the lounge room. You pulled her with such force that she stumbled, losing her footing. She sustained bruises to her upper arms.
This is sequence 53, which is on a Form 1 to be taken into account with the principal offence which is sequence 36. Because of the nature of the matter on that Form 1, it will result in a meaningful increase in the sentence for the relevant principal offence.
On 19 June 2018 (and into the early hours of the morning of 20 June), you and Ms Baker were having yet another heated verbal argument. During the argument, she was standing in the main bedroom holding that newborn child. She feared that you were going to assault her and pleaded with you to allow her to put the child down. Ms Baker placed the baby on the bed and stood against the wall. You then pushed her into the wall and held her against the wall by her throat. You squeezed her throat with enough pressure to make her struggle for breath and feel dizzy. You then threw her from the wall onto the bed, which resulted in Ms Baker partially landing on that baby.
She rolled off the child and you threatened her. Having thrown her on that bed, you said to her, "You hurt my son, I'm going to fucking kill you, I'm going to put you six foot under." You demanded her car keys and, when she refused, you kicked her in the ribs. (She suffered pain to her ribs for three months.) She gave you her car keys to stop you from assaulting her. You left the premises; and there were various red marks to her throat, body and bruising. You returned a short time later where there were further assaults.
It is this incident in the bedroom which is sequence 36, the principal offence of assault occasioning actual bodily harm. In terms of its objective seriousness for offence of its kind, it is above the mid range and into the upper range.
It is additionally aggravated because it occurred in the home of the victim; it occurred in the presence of a child under 18; and it occurred whilst you were on conditional liberty.
By 10 August 2018, you, Ms Baker and the children had moved to yet different premises at Denham Court.
About 6:00am on 20 August 2018, Ms Baker pulled data from your mobile phone which revealed that you were in constant contact with numerous different women. She sent you a message about what she had discovered. Yet again, she decided to leave the relationship and began to pack her belongings. She did not attend to this with any urgency because she thought you were at work.
But 45 minutes after she sent you the text message, she heard your vehicle. She immediately grabbed the infant child and hid in a cupboard under the stairs as she believed you were going to assault her. You entered the premises and immediately went upstairs. As you went upstairs, Ms Baker crept into the garage and pressed the garage remote to open the door. You heard this and chased after her. She ran out into the street, dressed in her pyjamas and without shoes, and you chased her. You told her that if she did not hand the child over, you would knock her out in the street. She handed the child to you and you and the child returned to the premises. She reluctantly followed you, but was too scared to enter the premises as she believed she would be assaulted. You and Ms Baker were communicating by text messages whilst she was outside the premises. She sat in your motor vehicle and locked all the doors. You emerged from the premises a short time later; you were polite to her and you asked her to buy you some cigarettes, which she did.
This stand-off continued for some hours with Ms Baker remaining inside your motor vehicle for most of the day, but she would not leave the location without her son.
As the afternoon wore on, about 4.50pm, you came out from the house and walked towards the motor vehicle. You were holding a hammer. She started to record your actions on her mobile phone and then you said, "I'm going to break every bone in your body."
You saw her recording you and immediately you walked around and put the hammer down in the back of the utility. Then you came back and punched at the passenger side window. Ms Baker continued to record your behaviour. You then emerged from the premises sometime later with the child and placed him in Ms Baker's car. She tried to block the driveway to prevent you from leaving in her car with that child. You got out of her car, walked towards your vehicle and punched the driver's side window.
Eventually, you and she reached an agreement that you would leave the location and stay elsewhere for the night. Ms Baker got into her own vehicle with the child and parked around the corner, so that she could be certain that you had left the premises.
At about 11 o'clock, you sent her a text message indicating that you were going to return to the premises which caused Ms Baker to feel petrified. She packed some essential items for herself and her son, placed him in her vehicle, and left the location. She called you to find out how far away you were, and, as she pulled into Denham Court Road, she observed your vehicle travelling in the opposite direction.
It is these facts which constitute sequence 40, which is the principal offence of stalk or intimidate with intention of causing physical or mental harm. In terms of its objective seriousness for an offence of its kind, it is above mid range.
It is additionally aggravated because it occurred in the home of the victim and because you were on conditional liberty.
I mentioned that Ms Baker had seen you travelling the opposite direction to her. But then you crossed over the median strip, forcing her in her vehicle to slam on her brakes. She immediately put her vehicle into reverse. However, your vehicle collided with the front of hers. This caused the front light of the driver's side of her vehicle to be pushed in and the whole driver side, the front bar and the headlight casings were cracked.
She was still on the phone to you when this occurred and she was pleading with you to let her go. She said, "Please don't do this, I've got your son in my car."
You got out of your vehicle and approached hers. She tried to contact her friend, Ms Martinez, and inform her of the incident. You were shouting at Ms Baker, demanding to know who she was on the phone to.
You then got back into your vehicle and started reversing. Ms Baker used that opportunity to drive away. She was driving along Camden Valley Way, towards Narellan, when a police vehicle pulled out and followed her to Narellan Police Station, where she was stopped by the police for not having her headlights on. Ms Baker was crying hysterically at the time. The police asked her what was wrong, but she was too scared to tell them. She spent the night with her friend, Ms Martinez.
It is the manner of your driving which I have just described, which is sequence 43 (a s166 certificate matter), which is on the Form 1 to be taken into account with the principal offence sequence 40. By having regard to the nature of the matter on the Form 1, it will result in a slight increase in the sentence for the principal offence.
About a week after that incident, you apologised to her and you and she were reconciled.
During the afternoon of 20 October 2018, your friend Vic (whom I have already referred to in connection with a New Years Eve party) came to where you were living to see you. Ms Baker was dressed in shorts and she sat next to him, and the child was sitting on her thighs.
When Vic left, you were furious with Ms Baker, claiming that she was trying to expose herself to Vic. This caused a verbal and heated argument that continued for some hours. Fearing that she was going to be assaulted, she left the location and did not return until 4:00am on 21 October 2018.
When she did return, she placed her mobile phone on record with the intention of taking footage to your mother as proof of your behaviour. She got into the bed and you rolled over to face her. You said to her:
"Do you think you're God? I hit you because you don't listen. You aren't allowed to leave in an argument. Maybe I should just beat the shit out of you and break all your bones like a nan, just so you get the point. If you ever leave in an argument again, I will slit you from ear to ear. I will fully decapitate you and take your head to your parents' house."
This argument, which went on for a little over an hour, was recorded and during it you could be heard making numerous threats to Ms Baker, such as:
"Where I find you in two, three years, I'm gunna slit your throat. I'm gunna fully decapitate you and send it to your parents. You take off in a fucking argument again and I'm gunna slit you from ear to ear. Are we clear? We're going to go with this relationship. You're not gunna get touched. We're gunna have arguments."
From time to time, she said, "So I should put up with threats?" and you said, "I don't know which other road to take for you not to leave."
That sort of discussion continued until such time as you fell asleep.
The threats which you made to Ms Baker on this occasion caused her to feel petrified. However, she tried to remain calm as she was afraid that you would carry through your threats.
It is these matters which is sequence 45 - stalk or intimidate with intention to cause physical or mental harm. In terms of its objective seriousness for an offence of its kind, it is above and into the upper range.
It is additionally aggravated because it occurred within the victim's home and whilst you were on conditional liberty.
On 29 October 2018, Ms Baker and you again engaged in a heated verbal argument after she confronted you about your drug use and her discovery of a vibrator in the downstairs cupboard.
The argument escalated to a point where you armed yourself with a kitchen knife, which was a stainless steel serrated edge knife. You told her that she could leave, but that she had to leave your son with you. She was cornered and you slapped her across the face and told her to shut up because the neighbours could hear everything. You then took her car keys to prevent her from leaving. And then, later, during the course of the argument, you placed the keys in the front door and told her she could leave.
She started to make her way towards the door and, as she reached about halfway there, you ran at her and chased her down the hallway whilst you were still holding that knife. You ran past Ms Baker and took the keys out of the door. She was cornered on the stairs and you said, "I will stab you in your thigh if you don't walk down the hallway in front of me." She told you that she was scared and you told her that she was a variety of very unpleasant words which I am not going to repeat. But you told her, after using those grossly offensive words, that she did not deserve to live and she did not deserve to be a mother. She was petrified and she begged you to let her use the toilet.
Ms Baker had her mobile phone concealed in her bra and she used it when she was in the toilet to contact her friend. Having used the bathroom, she picked up your son and you allowed her to leave. You continued to shout at her as she pressed the button on the remote to open the garage door of the premises and then you snatched her keys from her. She told you she needed to retrieve a nappy for the child and used this opportunity to flee into the street via the garage. You followed her and, fortunately, several police vehicles arrived at the scene.
Although the agreed facts do not expressly say it, the only rational inference in the circumstances is the friend to whom she spoke in the toilet very sensibly contacted the police.
The victim stayed down the street from her premises and your mother attended a short time later. Ms Baker pleaded with you to let her leave with her son and eventually, you agreed to that and she went and stayed with her friend.
You and she kept in contact after this time, as Ms Baker was attempting to get you to move out of the premises. Eventually, you agreed to that and you went and stayed with your mother. However, you kept apologising to Ms Baker and, yet again, totally misguidedly, that young lady reconciled with you.
It is the use of that knife in the manner I have described, which is sequence 52, which is the principal offence of using an offensive weapon with intent to intimidate. In terms of its objective seriousness, for an offence of its kind, it is a mid-range offence.
It is additionally aggravated because it occurred in the victim's home and because you were on conditional liberty.
On 25 February 2019, Ms Baker and you were at home when yet another heated verbal argument erupted. Ms Baker contacted your mother to make arrangements to go and see her. You became angry and demanded to know why Ms Baker was speaking to your mother. Your mother spoke to you and told you that Ms Baker knew that you had your ex-girlfriend's number stored on your phone. You became angry that Ms Baker had been through your phone, so you slapped her across the face and screamed at her. You kept her trapped in the kitchen for about 40 minutes and continued to shout abuse at her. She was crying in fear. You slapped her again in a downwards motion, which collided with her head and her hands. She begged you to let her have a cigarette and that is what you agreed to do and she went outside and had one.
Your mother attended sometime later. You were still angry. Ms Baker informed your mother what you had done and you were asked to leave. Your mother stood between you and Ms Baker and again, you struck out at Ms Baker, causing injury to her eye.
These facts, which are sequence 49, which is on a Form 1, will be taken into account with the principal offence, sequence 52. Because of the nature of the matter on the Form 1, it will result in a meaningful increase in the sentence for the principal offence.
On 2 March 2019, yet another altercation broke out between you and Ms Baker and the police attended. Ms Baker told the police the history of the domestic violence between the two of you, but that she only wanted to report what happened on that day. Ms Baker was told by police that all of the domestic violence incidents could be investigated by police. You were charged with stalk and intimidate. You pleaded guilty in the Local Court on 5 March 2019 and received a community corrections order for 18 months.
On 5 March 2019, Ms Baker spoke to a case worker associated with Macarthur Domestic Violence Court Advocacy Service. And as a result of what she told them, a referral was made to police. Police contacted Ms Baker and she attended police and reported the history of the domestic violence.
On 4 April 2019, you were charged with contravening an AVO and then certain conditions were varied.
On 27 May 2019, you attended Campbelltown Police Station at the request of police, where you were subsequently placed under arrest. You were cautioned. The police seized your mobile phone. Whilst they were examining the phone, the police observed a text message sent by you to Ms Martinez, a friend of Ms Baker. The purpose of that message was to ask Ms Martinez to pass on a message to Ms Baker. That constituted a breach of the apprehended violence order. That is the breach matter. In terms of its objective serious, it is towards, but not at, the bottom of the range.
It is additionally aggravated by the fact that you were on conditional liberty at the time of your offending.
Your subjective circumstances were advanced to the Court through a sentencing assessment report, an expert's report, and your own oral evidence.
You are now 37 years old.
It was submitted on your behalf that you had a dysfunctional upbringing. In this regard, that submission was principally based upon the history you gave the expert, Ms Parasher, a consultant mental health practitioner - but someone who was not a psychiatrist nor a psychologist.
The details of your allegedly dysfunctional childhood and adolescence were unusually vague, and it has been difficult for the Court to form a clear assessment about that part of your life. The Crown has in fact submitted that your assertions are not proved on the balance of probabilities.
However, after some reflection and with some hesitation, I am satisfied on the balance of probabilities that your childhood and adolescence were dysfunctional, notwithstanding the lack of specificity in the expert's report, with the result that your moral culpability is reduced in the manner that the High Court of Australia has directed sentencing judges to take into account.
As a result of that dysfunctional upbringing and adolescence, you have had long term issues with drugs, i.e. illegal drugs, legal drugs obtained without prescription, and alcohol.
However, I am not satisfied that those drugs, per se, are causally related to the offending with which I am concerned. Rather, I am satisfied that the untreated anger within you as a consequence of your dysfunctional upbringing, on the balance of probabilities, is the likely cause of that criminality, possibly aggravated by your use of steroids at the relevant time.
Notwithstanding that I have found that you have had a dysfunctional upbringing with associated untreated anger management issues, you have not been diagnosed by any expert medical practitioner with any mental health illness or intellectual disability.
You have a reasonably good work history as a labourer and in associated occupations - reasonably good in terms of, more or less, continuous employment; however, because of your long-term drug issues, you have not been able to hold down any particular job for any period of length until relatively recently.
You have a criminal history which has included previous periods of imprisonment. You are not, therefore, entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. However, contrary to the submissions made by the Crown, I do not regard your criminal history as an independent additional aggravating factor.
Following your release to bail in relation to present matters, you have abstained from illicit drugs, lawful drugs not prescribed for you and alcohol. You have also commenced counselling with the person who prepared the expert's report to which I have already referred. As a result of these positive developments, you have developed some, but only limited, insight into your offending behaviour.
Notwithstanding that limited insight, on the balance of probabilities, I accept that your expressions of remorse to the author of the sentencing assessment report, the expert, and in your oral evidence are genuine.
However, because of the limited nature of the counselling to date, and especially by having regard to the nature and apparent severity of your childhood dysfunctional upbringing, I regard your prospects for rehabilitation as presently being guarded.
Domestic violence offences are matters of particular concern to Courts. Accordingly, both specific and general deterrence are fully engaged - that is, the sentences to be imposed upon you must be such as to not only deter you from re-offending, but must be sufficiently stern to deter others from similar offending. The need to encourage your rehabilitation is also fully engaged.
You entered early pleas and, accordingly, appropriate discounts of 25 percent should be extended to you. As I intend imposing an aggregate sentence, the discount of 25 percent will be applied to the indicative sentences underpinning that ultimate aggregate sentence.
As I indicated when you first appeared before me on 3 November 2020 and when I revoked your bail, I have concluded that no sentence other than a sentence of fulltime imprisonment is appropriate for these offences and that that sentence will be in excess of three years.
The aggregate sentence will, however, be backdated to take into account the period that you were initially refused period from the date of your arrest on 27 May 2019 to 11 September 2019; the time that you spent in custody since I revoked your bail at the conclusion of the sentence hearing on 3 November 2020; and the time you were on strict bail with a curfew for 13 and a half months, which I shall treat as quasi custody for four months.
In relation to the aggregate sentence, I decline to make a finding of special circumstances to vary that ratio of the head sentence to the non-parole period. The Court of Criminal Appeal has made it clear that judges of this Court too frequently make findings of special circumstances (e.g. R v GWM [2012] NSWCCA 240) and I am not persuaded that there is any matter in your case which justifies such a finding. The period of which you will be on parole in any event will be sufficient for your rehabilitation.
The indicative sentences underpinning the ultimate aggregate sentence are as follows.
In relation to sequence 51 (and taking into account sequences 5 and 6 on the Form 1), except for the discount of 25 percent, the indicative sentence would have been 6 years imprisonment; after the discount, the indicative sentence is 4 years, 6 months imprisonment.
In relation to sequence 10 (and taking into account sequences 12 and 13 on the Form 1), except for the discount of 25 percent, the indicative sentence would have been 4 years imprisonment; after the discount, the indicative sentence is 3 years imprisonment.
In relation to sequence 17 (and taking into account sequence 22 on the Form 1), except for the discount of 25 percent, the indicative sentence would have been 4 years imprisonment; after the discount, the indicative sentence is 3 years imprisonment.
In relation to sequence 25, except for the discount of 25 percent, the indicative sentence would have been 4 years imprisonment; after the discount, the indicative sentence is 3 years imprisonment.
In relation to sequence 27 (and taking into account sequences 28 and 29 on the Form 1), except for the discount of 25 percent, the indicative sentence would have been 5 years imprisonment; after the discount, the indicative sentence is 3 years, 9 months imprisonment.
In relation to sequence 36 (and taking into account sequence 53 on the Form 1), except for the discount of 25 percent, the indicative sentence would have been 5 years imprisonment; after the discount, the indicative sentence is 3 years, 9 months imprisonment.
In relation to sequence 40 (and taking into account sequence 43 on the Form 1), except for the discount of 25 percent, the indicative sentence would have been 4 years, 9 months; after the discount, the indicative sentence is 3 years, 6 months imprisonment.
In relation to sequence 45, except for the discount of 25 percent, the indicative sentence would have been 4 years, 9 months; after the discount, the indicative sentence is 3 years, 6 months imprisonment.
In relation to sequence 52 (and taking into account sequence 49 on the Form 1), except for the discount of 25 percent, the indicative sentence would have been 6 years, 6 months imprisonment; after the discount, the indicative sentence is 4 years, 10 months imprisonment.
In relation to sequence 50, except for the discount of 25 percent, the indicative sentence would have been 8 months imprisonment; after the discount, the indicative sentence is 6 months imprisonment.
In relation to the call up matter, by reference to the sentence which you will soon be subjected to, I direct that no further action be taken.
Spiros Lados, for the various offences to which I have referred, I sentence you to an aggregate term of imprisonment of 10 years.
I fix a non-parole period of 7 years, 6 months to date from 9 March 2020 and which will expire on 8 September 2027.
I fix a balance of 2 years, 6 months to date from 9 September 2027 and which will expire on 8 March 2030.
You will now go downstairs with the officers.
[2]
Amendments
08 February 2021 - Decision - Aggregate term of imprisonment changed from 7 years 6 months to 10 years. Non parole period changed from 2 years 6 months to 7 years 6 months.
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Decision last updated: 08 February 2021
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Ladas
Legislation Cited (3)
Crimes Domestic and Personal Violence Act 2007(NSW)