R v Mulholland

Local Court of NSW|2023-09-26

A Crim R 179; [2006] NSWCCA 302 R v Lloyd [2022] NSWSC 906 R v Qutami [2001] NSWCCA 353 Stanley v DPP (NSW) [2023] HCA 3; (2023) 296 ALJR 107 Suksa-Ngacharoen v R [2018] NSWCCA 142 The Queen v De Simoni (1981) 147 CLR 383 The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018 Category: Sentence Parties: Police (Prosecution) Blake Mulholland (Defendant) Representation: Solicitors:

Defendant: Mr Christopher Ford Prosecution: Sergeant Sanders File Number(s): 2022/00024399 2022/00378087 2022/00364222 2022/00364165 Publication restriction: Yes - s 15A Children (Criminal Proceedings) Act 1987 (NSW) applies which prohibits the publication and broadcasting of the names of persons in a way that connects that person with criminal proceedings.

The Charges

Blake Mulholland (hereafter the defendant) has pleaded guilty to a total of 10 offences. He has also admitted to committing a further 8 offences which have been placed on a Form 1 document. All the offences were committed in a domestic context on LK (hereafter the victim) who was his partner at the time.
The 18 offences were committed during 11 discrete incidents that occurred on the 3 June 2021, 19 June 2021, 2 October 2021, 9 January 2022, 10 January 2022, 25 January 2022, 26 January 2022, 30 October 2022, 28 November 2022, 30 November 2022, and 2 December 2022. The time span between the first and the last offence is 18 months. For the purposes of sentencing, these 18 offences readily fit into two discrete groups. The first group includes the most serious offence of intentionally choking a person without consent under s 37(1A) Crimes Act 1900 (NSW) which is the principal offence on the Form 1 and 8 further offences on the Form 1. The second group of offences consist of the 9 remaining charges.
The defendant was subject to bail conditions from 27 January 2022 and, therefore, was subject to this conditional liberty during the incidents of 30 October 2022, 28 November 2022, 30 November 2022, and 2 December 2022.

Sentencing in Domestic Violence Cases

There are important sentencing principles which must be applied in a case of the type before this Court. These relate to both the nature of the offences before the court and the subjective features of the defendant. So far as the nature of the offences are concerned, the High Court accepted in The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [21], that as a result of "…changes in societal attitudes to domestic relations" (emphasis added) current sentencing practices for domestic violence offences depart from past practices. In Cherry v R [2017] NSWCCA 150 at [79], Johnson J applied principles declared by the High Court in Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54]. His Honour said: "In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence."
It has also been a longstanding position of the Court of Criminal Appeal that sentencing for domestic violence offences requires the sentencing court to attribute substantial weight to general deterrence and denunciation, and also to recognise the harm done to the victim: See R v Edigarov (2001) 125 A Crim R 551, R v Dunn (2004) 144 A Crim R 180; R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at 195-196 [86], Hiron v R [2007] NSWCCA 336 at [32]; R v Eckermann [2013] NSWCCA 188 at [55]; Cherry v R [2017] NSWCCA 150 at [79]; Kaderavek v R [2018] NSWCCA 92 at [12]; Quinn v R [2018] NSWCCA 297 at [243]-[247]; Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 at [207].
The 11 incidents and 18 offences represent a course of conduct over a long period which was threatening, controlling and abusive. The conduct caused physical and psychological harm to the victim. The sentences that are imposed on the defendant must vindicate the dignity of the victim and recognise the harm done to her by the defendant's campaign of fear and violence. The Court must also have regard to the subjective features of the case. The defendant relies heavily on a diagnosis of post-traumatic stress disorder to reduce his moral culpability as well as his limited criminal history.

The Principal Offence and Form 1 Matters

The most serious offence is the offence of intentionally choke the person without consent. The following facts are taken from the agreed facts document tendered during the sentencing proceedings. On 19 June 2021, the defendant and the victim had a heated argument about an unknown topic. During the argument, the victim called the defendant "small and weak" when she brought up the topic about hurting women. They argued about several things, according to the victim. The victim tried to leave the premises due to the defendant becoming aggressive. The defendant was being abusive towards the victim, calling her a "putrid cunt, bitch, useless, worthless" and threatening to hurt her. To de-escalate the situation the victim went and had a shower.
While the victim was showering, the defendant entered the bathroom. At that point, the victim was sitting on the shower floor, with her back to the wall. The defendant continued the argument, and the victim called the defendant "weak" again.
It was at this time that the defendant reached into the shower, put his right hand around the victim's throat, just below the jaw, and proceeded to slam the victim's head back into the tiled wall. The defendant continued to squeeze the victim's throat with increasing intensity, and then he would release. The defendant "squeezed and released a number of times". The victim was distressed, crying, and managed to say: "Please don't do this, please stop, don't kill me, think of my son, I have a son and I don't want him to grow up without a mother." The defendant squeezed tighter to the point that the victim could not talk or breathe, with her vision fading. The next thing that the victim could recall was her slumping to her left side, with the defendant slapping the right side of her face saying, "Stop faking it", before he left the bathroom.
As a result of this incident the victim had soreness and swelling at the front of her neck and under the jaw. In the days and weeks to follow, the victim found it difficult to swallow, breathe and speak properly. The day after the incident the victim attended Sutherland Hospital in the company of the defendant to have a Covid test. She could not open her mouth properly for the test to be taken due to her neck/throat injuries from the day before. The victim was directed to the Emergency Department where she was triaged. The victim disclosed to medical staff that she had been choked the evening before, however, she lied about the circumstances, saying that she was attacked in the car park of Bundeena Bowling Club by an unknown male. The victim underwent scans to her head and voice box which showed that there appeared to be no structural damage. However, the victim could not speak for 2 weeks after the incident, and it took a month for her voice to return. Four days after the choking occurred, the defendant and the victim had a text exchange about the incident.

Assessment of Objective Seriousness

The starting point in assessing the seriousness of any crime is the maximum penalty. The maximum penalty for the offence of intentionally choke a person without consent is 5 years imprisonment. The jurisdictional limit of the Local Court is 2 years imprisonment and/or a fine of $11,000. The High Court made clear in Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 at [19] that the jurisdictional limit is not a matter which the court is required to take into account in determining an appropriate sentence. It only becomes relevant if the sentence determined exceeds the jurisdictional maximum. As the joint justices put it in Park v The Queen at [19]: "… a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit". (emphasis added).
The Court must sentence the defendant by reference to the 5-year maximum penalty because it represents the legislature's assessment of the seriousness of the offence and for this reason provides an important sentencing yardstick: Elias v The Queen (2013) 248 CLR 483 at [27].
It is instructive also to set out the circumstances surrounding the 2018 enactment of the offence of intentionally choke a person without consent under s 37(1A) Crimes Act 1900 (NSW). In GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65 at [48] Payne JA (Rothman J and Harrison JJ agreeing) articulated the rationale for the introduction of the offence in 2018: "…the Crimes Legislation Amendment Bill 2018 (NSW) evinces a clear Parliamentary intention in enacting s 37(1A) to deter controlling behaviours by perpetrators of family and domestic violence. The neck, or at least that part of the neck that allows the flow of oxygen to the cardio-vascular system and to and from the brain, is a vulnerable part of the body." (emphasis added).
Payne JA at [48] then quoted the Second Reading speech introducing s 37(1A) of the Minister (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018 at 2) where the Minister said: "The Government expects that the amendment will facilitate the prosecution of more offences of choking, suffocation and strangulation, especially where it occurs in the context of domestic violence. The Government is committed to strengthening criminal justice responses to domestic violence. Domestic violence is a scourge of our society and we have to adopt a zero-tolerance approach if we are to make meaningful change. This important amendment will help hold perpetrators to account and keep victims safe." (emphasis added).
Payne JA concluded at [50]: "Section 37(1A) was designed to facilitate the prosecution of offences of choking, suffocation and strangulation in the context of a "zero-tolerance" approach to domestic violence. The section was expressly intended to fill a gap in the legislation for the choking, suffocation or strangulation of a victim of domestic violence where the victim was not rendered unconscious, insensible or incapable of resistance. The purpose of including s 37(1A) was to create an offence which responded to issues raised in the NSW Domestic Violence Death Review Team (DVDRT) report to Parliament for the period 2015-2017."

The Instant Offence

In GS v R; Director of Public Prosecutions (NSW) at [62], the Court held that an offence of intentionally choking under s 37(1A) Crimes Act 1900 must at the very least constitute conduct whereby sufficient pressure is applied that is capable of affecting in any way the breath, or blood flow to, or from, the head of a person. It is plain enough that the offence can be committed in a number of ways. The degree of violence used, the duration of the offence, the fear instilled in the victim and the harm caused by the offence are all matters which inform the assessment of the objective seriousness of a given offence.
The offence committed by the defendant as set out above is a very serious form of the offence. The offence was committed in a domestic context in the confined space of a shower where the victim was sitting down and trapped. It was committed with a high degree of violence which included the defendant slamming the victim's head back into the tiled wall and the defendant later squeezing the victim's neck to the point that she could not talk or breathe, with her vision eventually fading. The offence was committed over a long duration. The defendant continued to squeeze the victim's throat with increasing intensity and then he would release. The defendant "squeezed and released a number of times". Such was the ferocity of the attack that the victim thought she was about to be killed. She managed to say amongst other things "please stop, don't kill me". The offence is also serious because of the physical harm to the victim. She received short term and medium-term injuries. The injuries included soreness and swelling to the front of her neck and under the jaw. In the weeks after the offence, she found it difficult to swallow, breathe and speak properly. She could not open her mouth up for a Covid test a day after the offence. She was told to go to the Emergency Department for a medical assessment. The damage to her voice box was serious. She could not speak for 2 weeks after and according to the facts it took a month for her voice to return.
It is not necessary for the Court to make an explicit finding as to where the offence fits in the range of offending such as "low range", "mid-range" or "high range". In R v Eaton [2023] NSWCCA 125 at [57], the Court of Criminal Appeal affirmed earlier authority (See FL v R [2020] NSWCCA 114 and PK v R [2012] NSWCCA 263 at [24]-[27]) which noted that it is unnecessary to do so. What the Court is required to do is "…to fully identify the "facts, matters and circumstances" which bear on the assessment of the gravity of the crime" (emphasis added): FL v R [2020] NSWCCA 114 per Wilson J at [60]; R A Hulme and Hamill JJ agreeing. In this case, when all the circumstances are considered, the intentional choking offence committed by the defendant is a very serious form of the offence. It was a vicious, cowardly and callous attack on a person who was physically trapped in a shower and vulnerable and which ended with the defendant telling the victim to "Stop faking it".

The Form 1 Offences

The 8 offences on the Form 1 are set out in the facts tendered and are summarised using Roman numerals to avoid confusion:

(i). Common assault 26/01/21 Seq 1:

The victim was 17 weeks pregnant at the time of the incident. The defendant would not let the victim go home to her residence. He insisted on her staying and having dinner with him at his residence. During the course of the argument, the defendant pushed the victim backwards and the argument carried out onto the street. The victim yelled out for help. The defendant grabbed the victim over her mouth and said, "don't yell again". He covered the victim's mouth but not her nose. However, as the victim had been crying, she could not breathe, and she was concerned things would escalate. The victim tried to run away but the defendant chased her. She did not get far and ended up on the ground. As a result, she sustained graze like injuries to both of her elbows and her right knee from the fall. The defendant was concerned about the victim's elbow and wanted her to go back to his house so that he could have a look. The victim asked to use the bathroom because she said she had pregnancy cramps. The defendant allowed the victim to go to the bathroom, however, he stood at the door and watched her. Shortly after, the defendant had to go to the bathroom and at this time the victim took this as a chance to leave. She ran out the front door and ran to a fence. The victim heard the defendant run past her to locate her, so the victim jumped the fence. The victim ended up at Sutherland Hospital after the incident due to her having pregnancy cramping. The victim had blurred vision and was feeling faint when she stood up. At the hospital the victim was treated for this condition, and she was also treated for her graze injuries as a result of the incident.

(ii). Intimidation 19/06/21 Seq 4:

The conduct constituting this charge is the same as the intentionally choke without consent offence set out above. The intimidation charge clearly relies upon the instillation of fear of physical and mental harm evidenced by the victim saying during the course of the incident "Please don't do this, please stop, don't kill me, think of my son, I have a son and I don't want him to grow up without a mother".

(iii). Intimidation 10/01/22 Seq 8:

This offence occurred during the course of an incident when the victim was assaulted. The victim wanted to go to bed because she said she was tired. The defendant said to her "why do you want to make everything shit, come to the lounge room otherwise all night I'll be thinking about caving your fucking head in, do you want that?" The defendant later said, "come and sit in the lounge room or things will get worse."

(iv). Intimidation 25/01/22 Seq 10:

This offence occurred during the course of an incident where the victim was assaulted. The defendant was suffering a sore eye and was agitated. He said to the victim "I should fucking throw this plate of dinner across the room" making the victim feel uncomfortable. She got up and took her meal to the kitchen table where she sat to eat it. The defendant followed her and said, "I should smash you into this plate". The victim became terrified and said, "if you hurt me, I'll stab you with my fork, you don't need to keep hurting me". The defendant yelled "threaten to stab me again cunt, you'll see what happens". The defendant grabbed a chair the victim was seated on and kicked her sideways onto the floor. The victim landed hard on her back and scooted backwards in an attempt to get away from the defendant. He stood over the top of the victim yelled "Why do you fucking do this?" The victim put the chair between her and the defendant and said, "stop get away from me". The victim got to her feet, but the defendant blocked her path and grabbed the victim around the chest area. It was at this time that the defendant bit the left index finger of the victim and said, "I'll fucking bite it off cunt". The defendant took the victim's fork out of her hand and said, "you're lucky I don't fucking stab you now." The victim called out for help, however, no one responded to her cries for help. Shortly after the defendant said: "you deserve to be hurt because you always ruin my dinner". The victim replied, "just do it then, just kill me". The defendant responded by saying "not straight away, I [sic] make sure it takes a while and is painful". The victim started cramping due to the stress of her unborn baby.

(v). Contravene apprehended violence order 30/10/22 Seq 12:

The conduct constituting this charge is a breach of condition 1 of the apprehended violence order and described as offence 7 below. The defendant and victim had an argument whilst they were in bed concerning whether the defendant had cheated on the victim. When the defendant did not respond, the victim gave him a light tap on the left side of his face to get his attention. The defendant responded swiftly by grabbing the victim's jaw using his right hand and squeezing hard for about 15 seconds. This caused the victim pain, and she had severe soreness to both sides of her jaw and could not eat for a number of days without pain. The breach of the apprehended violence order was done with violence.

(vi). Contravene apprehended violence order 30/10/22 Seq 14:

The conduct constituting this offence relies upon an intimidation charge and a breach of condition 2 of the apprehended violence order. The defendant was subject to strict bail conditions during the time of the offence. After the defendant had been released from custody, he went to the victim's property, banged on the door and began to yell and abuse the victim. This contact with the victim was in direct breach of condition 2 of the apprehended violence order. The victim attempted to settle the defendant down by asking whether he would like to see their son. The defendant indicated that he did, and he placed the child into the pram which was outside the front door. The defendant said, "I'm taking him, you're coming to my place." The victim told the defendant that she did not want to because of all the police involvement. The defendant replied, "I don't give a fuck, I'll fucken kill you and myself and it'll be your fault." He then wheeled the pram down the driveway and the victim asked him to stop. To keep the child safe the victim agreed to go with the defendant to his residence. Throughout the evening the defendant continued to yell abusively at the victim, calling her "a stupid fucking cunt", "A stupid fucking bitch cunt". The aggressive behaviour of the defendant caused fear to the victim.

(vii). Contravene apprehended violence order 28/11/22 Seq 1

The conduct constituting this offence relies upon an intimidation charge committed on the same day. The victim had returned home after dropping a child at day care. The defendant and the victim became involved in an argument during which the accused said: "I will kill you and I will kill myself and will leave the kids without parents." At the time of the offence the defendant was prohibited from contacting the victim under condition 2 of the apprehended violence order.

(viii). Contravene apprehended violence order 02/12/22 Seq 1:

The conduct constituting this offence occurred when the defendant spoke to the victim outside court. This was a 60 second conversation on the court precinct at Sutherland. The conduct breached condition 2 of the apprehended violence order.

The Use of the Form 1

Something must be said about the use of the Form 1 in this case. Section 32(1) Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides: 32 Prosecutor may file list of additional charges (1) …the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
Section 33(2)(b) Crimes (Sentencing Procedure) Act 1999 provides that a court may take into account an offence on a Form 1 "if, in all of the circumstances, the court considers it appropriate to do so" (emphasis added). During sentencing proceedings, the Court raised the issue of whether it was appropriate to take into account 8 additional domestic violence offences on a Form 1. More particularly, whether the court's sentencing discretion could be properly exercised given that: firstly, the principal offence was serious and had a maximum penalty of 5 years and the court had only a jurisdictional limit of 2 years imprisonment; and secondly the nature and circumstances of the 8 additional domestic violence offences were also serious and included: a serious assault when the victim was 17 weeks pregnant and fled the premises; 3 offences of intimidation with repeated threats to kill; and 4 offences of contravene an apprehended domestic violence order. The Court of Criminal Appeal has made it clear that breaching an order: "…should ordinarily be separately punished from any offence that occurs at the same time, always having regard to the requirements of the totality principle" (emphasis added): Suksa-Ngacharoen v Regina [2018] NSWCCA 142 at [132] Wilson J with whom Leeming JA and Bellew J agreed at [21].
The Court also raised the issue of the sheer magnitude of the offences on the Form 1 because the Court of Criminal Appeal has held that it is a relevant consideration as to whether it is appropriate to utilise a Form 1. Bathurst CJ said in the 5-judge bench decision of Abbas v R [2013] NSWCCA 115 at [26]: "There may be cases in which it is not possible to properly take Form 1 offences into account by reference to the additional need for punishment and retribution in respect of the convicted offence. This will generally only occur in cases where the gravity of the Form 1 offence is far in excess of those for which the offender is being sentenced, or when the magnitude of the offences on the Form 1 make it impossible to take them into account in sentencing for the convicted offence. In these circumstances the Court should decline to take the Form 1 offences into account." (emphasis added).
Mr Ford, on behalf of the defendant, submitted that the plea agreement was settled on the day of the hearing. He relied on the matters articulated by Spigelman CJ in the guideline judgment of Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. He submitted that, although the Form 1 had several charges, there was a substantial utilitarian value in the admission of guilt by the defendant. It saved court resources and spared the victim from giving evidence. It also promoted the objective of rehabilitation by providing an opportunity for an offender to emerge with a "clean slate" following sentencing for the principal offence. Mr Ford submitted that there were areas of real contest on the day of the hearing between the parties, and that the defendant was prepared to have the charges disposed on a Form 1. Further, there was sentencing scope for the court for the remaining charges which were not placed on the Form 1. Mr Ford submitted that the expression in s 33(2)(b) Crimes (Sentencing Procedure) Act 1999 "all of the circumstances" should not be limited, but rather, include circumstances surrounding the plea agreement.
The prosecutor, Sgt Sanders, also pressed the Court not to decline the use of a Form 1. He submitted that the matter was a domestic violence matter and that the victim had accepted the plea agreement. The prosecution had also filed a certificate with the Form 1 document as is required by s 35A of the Crimes (Sentencing Procedure) Act 1999 and clause 8 of the Crimes (Sentencing Procedure) Regulation 2017 (NSW) verifying the matters referred to in s 32 Crimes Act 1900 (NSW). The victim had agreed with the course taken by the prosecution.
The submissions of both parties appeared to indicate that there was a real fragility to the plea agreement. The Court came perilously close to declining to accept the Form 1 on the basis that the sentence imposed for the principal offence may not adequately reflect the seriousness of the totality of the appellant's conduct. However, the arguments for accepting the Form 1 prevailed.
The power of the Court to decline to accept a Form 1 is unusual given the longstanding common law position that the prosecutor has a discretion to select the charge and the forum. That discretion is not susceptible to judicial review. As French CJ, Hayne, Crennan, Kiefel and Bell JJ explained in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [20]: "It is well established [fn 12 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46. See also Likiardopoulos v The Queen [2012] HCA 37; (2012) 86 ALJR 1168 at 1171 [2]- [4]; [2012] HCA 37; 291 ALR 1 at 3; [2012] HCA 37; Elias v The Queen (2013) 87 ALJR 895 at 904 [34]-[35]; 298 ALR 637 at 647-648; [2013] HCA 31] that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences."
The selection of the forum of the Local Court by the prosecutor - which is not susceptible of judicial review - had the consequence that almost no additional punishment could be imposed beyond the sentence for the principal offence. In that sense, the problem of the magnitude of the Form 1 was closely related to the choice of forum. The prosecution had chosen to file a list of further offences in an approved form, and the victim had been properly consulted under s 35A Crimes (Sentencing Procedure) Act 1999 . It was appropriate to permit the use of the Form 1 given the apparent fragility of the plea agreement and the fact that the matter would then be finalised. The administration of justice would not be brought into disrepute by this Court proceeding to sentence with the Form 1: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [67].

Sentencing Approach Where a Form 1 is Utilised

In Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Spigelman CJ set out the correct sentencing method where a Form 1 is utilised: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." (emphasis added).
In Abbas v R [2013] NSWCCA 115 the Court returned to the issue and sat a 5-judge bench. Chief Justice Bathurst said at [22]-[23]: "Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences."
The fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges, means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors.
The defendant has admitted his guilt under s 33(2)(a)(i) Crimes (Sentencing Procedure) Act 1999 to four further offences of contravene an apprehended violence order. The defendant's admission of repeatedly breaching the apprehended violence order requires the court to apply the sentencing principle of deterrence. It goes without saying that the apprehended domestic violence order had been put in place to protect the victim from the defendant. As Johnson J explained in Cherry v R [2017] NSWCCA 150 at [80]: "These were not offences committed in breach of conditional liberty simpliciter. They were in breach of a form of conditional liberty designed to protect the same victim from further attacks by the Applicant. The repeated commission of domestic violence offences in breach of an ADVO attracted a need for specific deterrence, general deterrence and denunciation in this case: Browning v R [2015] NSWCCA 147 at [4]-[9]."
Wilson J in Suksa-Ngacharoen v Regina [2018] NSWCCA 142 at [131]-[132] also articulated the seriousness of breaching an ADVO: "The criminality of breaching an ADVO rests in the complete disregard for an order of a court, conduct which has the practical effect of undermining the authority of the courts, and preventing the courts from extending effective protection to persons at risk of harm from another. The legislative intent of the scheme for apprehended domestic violence orders is to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship. If the authority of the courts in making these orders is simply ignored, as the applicant did when he attacked Ms Sripho, the law and the courts are diminished, and the capacity for the courts to protect vulnerable individuals is impeded."
Similarly, Bellew J said in R v Lloyd [2022] NSWSC 906 at [21]: "…any person who is subject to an ADVO is not at liberty to treat it as a piece of paper, containing an insignificant and inconvenient form of words, which can be ignored when it suits them, or worse still, when they wish to set about committing some nefarious and violent act against the person for whose protection the order has been made. A person who acts in breach of an order of the kind made against the offender should expect that any such breach will be treated seriously by the Courts".
The other offences on the Form 1 of common assault and three offences of intimidation were committed in a domestic violence context. The magnitude of the offences and the circumstances in which they were committed also require that substantial weight be attributed to personal deterrence, general deterrence, retribution, and denunciation consistent with the guideline judgment. The sentence for the principal offence will be longer because of the application of those additional matters and the totality of the offending.

The Remaining Nine Offences

The following sets out the facts and circumstances of the remaining 9 offences. For clarity they will be numbered 2-10 below.

(2) Assault occasioning actual bodily harm 3/06/21 Seq 2:

This offence occurred during an argument between the defendant and the victim, where the defendant brought up the victim's ex-partner. The defendant was saying jealous comments about him. At one point, the victim was standing in the doorway of the bedroom when the defendant walked up to the victim and shoved her with both hands to the chest area. This caused the victim to stumble backwards into a washing basket. As a result of the impact, the victim had sustained a large cut of about 10 cm to the front of her left leg. The victim took a photo of the injury on a mobile phone which she provided to police.

(3) Intimidation with intent to cause fear of physical or mental harm 02/10/21 Seq 5:

This offence occurred at the defendant's residence after the defendant had brought up the topic of the victim's ex-partner. The defendant got worked up into a rage and took a large knife, threatening to go off and kill the victim's ex-partner. The defendant and the victim were standing between the bedroom and the kitchen. The victim was close to the defendant and attempted to calm the defendant down. At the time, the defendant had the knife behind his back. The knife slipped from the defendant's hand, falling blade down, where it connected with the victim's foot. As a result, the victim sustained an approximate 1 cm laceration to her right foot between the 2nd and 3rd toe, about 1 cm below the webbing.

(4) Intimidation with intent to cause fear of physical or mental harm 09/01/22 Seq 6:

This offence occurred whilst the victim was at the defendant's residence. She was in the kitchen cleaning and the defendant started criticising her about what she was doing. The victim did not argue back, and just kept apologising. Eventually, it got too much for the victim, and she told the defendant: "stop, just stop, I hate the way you treat me." The defendant then yelled, "then why the fuck are you having my kid… You really think you're having that kid if you're not with me, try and I'll fucking kill you both, I'll fucken kill you and the kid". This threat caused the victim to be terrified.

(5) Common assault 10/01/22 Seq 7:

This offence occurred during the course of an incident where the defendant intimidated the victim. The victim told the defendant that she wanted to go to bed because she was tired and pregnant with their son. The defendant followed the victim into the bedroom. The victim was sat centred on the bed with her meal of noodles. The defendant insisted that the victim sit in the lounge room otherwise things would get worse. The victim refused. The defendant tried to pick up the victim by the waist while she was still holding the noodles. The victim told the defendant to stop. The defendant pulled the victim harder, and she consequently fell off the bed, landed on the floor and hit the back of her head. The impact caused pain to shoot through from the back of the victim's head to her eyes, causing an instant headache. The victim also sustained a golf ball size lump on the back of her head. It is timely to state that the injury referred to cannot be taken into account by this Court because it constitutes actual bodily harm. Any consideration would be a breach of the principle in The Queen v De Simoni (1981) 147 CLR 383 at 389.

(6) Common assault 25/01/22 Seq 9:

This offence occurred during an incident in which the defendant intimidated the victim. See the description of the 8th offence of the Form 1 offences. During the course of the incident, the victim was tipped sideways off her chair onto the floor and landed hard on her back. The victim got her feet, but the defendant blocked her path and grabbed the victim around the chest area. It was at this time that the defendant bit the left index finger of the victim and said: "I'll fucking bite it off cunt".

(7) Common assault 30/10/22 Seq 11:

The conduct constituting this offence is referred to in the description of the 5th Form 1 offence of contravene an apprehended violence order. It occurred during an argument where the defendant grabbed the victim's jaw using his right hand and squeezed hard for about 15 seconds. This caused the victim pain, and she had severe soreness to both sides of her jaw and could not eat for a number of days without pain.

(8) Intimidation with intent to cause fear of physical or mental harm 09/01/22 Seq 13:

The conduct constituting this offence is referred to in the 6th Form 1 offence of contravene an apprehended violence order. After the defendant was released from custody, he went to the victim's property, banged on the door and began to yell and abuse the victim. The defendant said of his child: "I'm taking him, you're coming to my place." He insisted that he take the baby to his place and that the victim come with him. The victim did not want to go with the defendant because of what she described as police involvement. The defendant replied, "I don't give a fuck, I'll fucken kill you and myself and it'll be your fault." He then wheeled the pram down the driveway while the victim asked him to stop. To keep the child safe, the victim ultimately agreed to go with the defendant to his residence. Throughout the evening, the defendant continued to yell abuse at the victim, calling her "a stupid fucking cunt" and "A stupid fucking bitch cunt". The aggressive behaviour of the defendant caused fear to the victim.

(9) Intimidation with intent to cause fear of physical or mental harm 26/01/22 Seq 2:

The conduct of this offence is referred to in the first Form 1 offence of common assault described above. The victim was 17 weeks pregnant at the time. The victim yelled for help. The defendant grabbed the victim over her mouth and said: "don't yell again". The victim ran away from the defendant, but he chased her. The victim fell as she tried to run away and grazed her elbows and knee. She went back inside the residence, went into the bathroom, and was watched by the defendant. It was only when he went to the bathroom that she managed to flee.

(10) Intimidation with intent to cause fear of physical or mental harm 28/11/22 Seq 2:

The conduct of this offence is described in the 7th Form 1 offence. The defendant and the victim became involved in an argument during which the accused said, "I will kill you and I will kill myself and will leave the kids without parents".

Subjective Considerations

The defendant is 31 years old. The defendant pleaded guilty on the day of the hearing. It is appropriate that he receive a 10% discount for the utilitarian value of the plea applying s 22 of the Crimes (Sentencing Procedure) Act 1999 and the decision of R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. Although the offences before the Court were committed over an 18-month period, the defendant has a very limited criminal history overall.
A report authored by a psychologist, Kerry Watson, was tendered on sentence. It disclosed that the defendant had a long-standing history of poly-substance abuse. It noted that during his relationship with the victim, he would consume alcohol heavily, almost every day, to a point of intoxication. The report states that the defendant's developmental history is indicative of emotional dysregulation - particularly anger, frustration, and rage in the face of any perceived stressors.
The defendant was a victim of a violent kidnapping 13 years ago when he was 18 years old. He managed to escape, but before that he was bound and beaten by his captors. He sustained significant injuries. The defendant's psychologist opines that this was a pivotal experience in his life because, thereafter, there was a significant decline in his mental stability. The experience caused what is described in the report as a trauma symptomatology characterised by "persistent re-experience of intrusive distressing recollections" that have continued without resolution. The defendant told his psychologist that he experienced a persistent depressed mood. He was treated by Dr Bahl for PTSD, anxiety and depression and was prescribed medication. He was referred to Enough is Enough clinic whilst on bail but ceased participating after 6 sessions. He completed a domestic violence course whilst in custody.
The defendant's psychologist Kerry Watson opined that the defendant's presentation is undoubtedly demonstrative of a Major Depressive Disorder with Anxious Distress "Severe" and a Post-Traumatic Stress Disorder which has been complicated by a Poly Substance Use Disorder. She noted that these conditions served to compromise the defendant's ability to exercise judgment, restraint, and that they impaired his impulse control and frustration tolerance It was further noted that the conditions obscured the defendant's logical thinking and "certainly contributed to the commission of his offending conduct" at p 10 (emphasis added). Kerry Watson doubted whether the defendant's recent abstention from drugs and alcohol would be sufficient enough to overcome his addiction problems. She recommended intensive mental health support and substance abuse rehabilitation, engagement with a psychiatrist and regular psychological counselling.
A sentencing assessment report dated 27 September 2023 was prepared for the proceedings by a Community Corrections officer who interviewed the defendant. Overall, the report is not favourable to the defendant.
The author of the report concluded that the defendant accepted limited responsibility for his actions and appeared to apportion blame to the victim. And although the defendant acknowledged that he "threatened to kill the victim", he also said the victim had embellished some of the facts. He accepted that he was a controlling and jealous partner, but he denied that he was aggressive person.
The author of the report also concluded that the defendant "appeared to demonstrate minimal insight into the impacts of his offending but was able to identify how his actions have affected himself." The defendant took no responsibility for the intentionally choke person without consent offence. He told the author of the report that the offence "was committed consensually during sexual intercourse." This representation is a prime example of an out-of-court self-serving statement made in a report by an offender. It is hearsay evidence, and although the report was admissible on sentence, the defendant's statement will be treated with caution and considerable circumspection. It contradicts the plea agreement. Given that there was no attempt by Mr Ford, on the defendant's behalf, to ventilate the issue at the hearing, it deserves little or no weight: See Munro v R [2006] NSWCCA 350 at [17]-[19] and Imbornone v R [2017] NSWCCA 144 at [57]. It is a clear attempt to minimise his criminality. The circumstances are set out in an agreed facts document which is not in dispute: R v Qutami [2001] NSWCCA 353 [58]-[59] and [79].
The author of the sentencing assessment report chronicles a lengthy history of poly substance abuse which included the defendant using both cannabis and drinking alcohol excessively daily during the offending period. He told the author that he had ceased drug and alcohol use. Drug screening tests tendered at sentence showed that in February, March, and May 2023 he tested negative for the presence of drugs and alcohol.
It bears repeating that the defendant took no responsibility for the intentionally choke offence. Given the defendant's general poor insight into his offending and his tendency to apportion blame to the victim, his prospects of rehabilitation are poor at this stage. His self-induced intoxication at the time of the offending cannot be taken into account as a mitigating factor: s 21A (5AA) Crimes (Sentencing Procedure) Act 1999.
The multitude of conditions suffered by the defendant are said to "have contributed to the commission of his offending conduct" at pg. 10. The author of the psychological report has, unfortunately, employed a catch-all expression of "his offending conduct" for all the 18 offences committed over an 18-month period. It is a very general description. It does not explain or translate how the multitude of conditions caused him to act the way he did, in any specific instance. For example, there was no analysis of how or why a person in the defendant's position would commit the intentionally choke offence in the violent and callous way it was committed.
The Court is being asked to accept that the defendant's PTSD, Anxious Distress and Poly Substance Use Disorder caused him to act in an unhinged, cruel, and violent fashion when he is faced with stressors. These conditions may reduce moral culpability, however this is distinct from the objective seriousness of the crimes: DS v R; DM v R [2022] NSWCCA 156 at [77], [82]-[88]. In this case, applying the High Court decision of Muldrock v The Queen (2011) 244 CLR 120 at [53], general deterrence, retribution, and denunciation will be attributed less weight, but they are certainly not eliminated as sentencing factors. Their application may be moderated by the court, but each still has a role to play in the sentencing exercise. The countervailing view is that because the defendant has several largely unaddressed conditions, he remains a risk to the victim and to any future partner. See Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] where McClellan CJ at CL said "…it may be that because of a person's mental illness, they present more of a danger to the community." (emphasis added). I am unable to conclude that the defendant is unlikely to re-offend.

Determining the Sentences

The Court is required to determine an appropriate sentence for the intentionally choke offence and the Form 1 offences without regard to the jurisdictional limit. The first step in determining an appropriate sentence involves deciding whether there are any alternatives to the imposition of a sentence of imprisonment. The Court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate: s 5(1) Crimes (Sentencing Procedure) Act 1999. In this case, the custody threshold is met for the intentionally choke offence even without any additional punishment for the Form 1 offences. As explained above, it was a very serious form of the offence. And when the 8 Form 1 offences are considered, the additional punishment must, as far as is possible, be significant because of the magnitude and nature of the offences.
Mr Ford, on behalf of the defendant, made the appropriate concession that no other penalty other than imprisonment was appropriate. However, he submitted that the Court could consider imposing an intensive correction order against the defendant. The prosecution, on the other hand, submitted that full-time imprisonment must be imposed in this case.
The Court must have regard to the subjective features of the case, the utilitarian discount of 10% and taking into account the maximum penalty of 5 years, the objective seriousness of the principal offence, Parliament's intention to "deter controlling behaviours by perpetrators", the fact that the victim was trapped in a confined space, the long duration of the offence, the degree of violence used, the fear instilled in the victim, the short and medium term physical injuries suffered by the victim and the need to increase the sentence on account of the 8 Form 1 offences by applying the principles of personal deterrence, denunciation, retribution and totality. The appropriate term of imprisonment is a sentence of 3 years 2 months and a non-parole period of 2 years.
Clearly, the sentence determined without reference to the jurisdictional limit is beyond the relevant jurisdictional limit of the Local Court for a single offence. Therefore, in accordance with the High Court decision of Park v The Queen, the court must revisit the sentencing exercise. In the circumstances of this case, an appropriate sentence is a term of imprisonment of 2 years. In the result an indicative sentence will be imposed as part of an aggregate sentence of full-time imprisonment.

Determining the Sentences for the Remaining Nine Offences

For the remaining 9 offences (numbered 2-10), having regard to the objective and subjective features of the case, I find the custodial threshold has been met in relation to all those offences except one. For the offence, Intimidation with intent to cause fear of physical or mental harm 28/11/22 Seq 2, I impose a Community Corrections Order for 3 years with supervision.
The reason why the custodial threshold has been met for Offences 2, 5, 6 and 7, is because each assault was committed with a high degree of violence and aggression in a domestic context. Offence 2 involved a forceful shove in the chest where the victim collided with a washing basket and sustained a 10 cm cut to her leg. Offence 5 involved controlling behaviour where the defendant insisted the victim sit in the loungeroom and when she refused, the defendant forcefully pulled the victim off the bed where she landed on the back of her head on the floor. Offence 6 involved the defendant tipping the victim sideways off a chair landing on her back, being bitten on her finger and threatened by the defendant. Offence 7 involved a real degree of force whereby the defendant grabbed the victim's jaw and squeezed hard for 15 seconds.
The reason why the custodial threshold has been met for Offences 3, 4, 8 and 9 is because of the nature of each act of intimidation and the level of fear experienced by the victim. Offence 3 involved the defendant going into a rage, arming himself with a large knife, threatening to kill the victim's ex-partner and dropping the knife. Offence 4 involved a threat to kill the victim and the baby she was carrying during which the victim was filled with terror. Offence 8 was committed just after the defendant had been released from custody and an involved a threat to kill the victim and himself whilst wheeling the baby away in a pram. Offence 9 occurred when the victim was 17 weeks pregnant. She yelled for help and was desperately trying to get away from the defendant. It is another example of the defendant's controlling behaviour which included later obsessively watching the victim in the bathroom to ensure that she did not leave the premises.
The aggregate sentence that will be imposed is more than 3 years and, therefore, an intensive correction order is not an available sentencing option. An intensive correction order must not be made if "…the duration of the term of imprisonment imposed for all the offences exceeds 3 years": s 68(3)(b) Crimes (Sentencing Procedure) Act 1999.
Putting aside that statutory prohibition, even if a view was taken that the aggregate sentence should be 3 years or less, there are compelling reasons why an intensive correction order should not be imposed in this case. The defendant remains a clear risk to the safety of the victim and to anyone he might have a relationship with. Section 4B of the Crimes (Sentencing Procedure) Act 1999 (NSW) is headed Domestic violence offenders - protection and safety of victims. It provides: 4B Domestic violence offenders - protection and safety of victims (1) An intensive correction order must not be made in respect of - (a) a sentence of imprisonment for a domestic violence offence, or (b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason) (emphasis added).
In Stanley v DPP (NSW) [2023] HCA 3; (2023) 97 ALJR 107 Gordon, Edelman, Steward, and Gleeson JJ pointed out at [67] that s 4B "…restricts the making of an ICO in respect of a domestic violence offender" and accepted that the prohibition in s 4B, like others in the Act, "…are conditions upon the sentencing court's jurisdiction to make an ICO so that non-compliance with those provisions is a jurisdictional error of law". (emphasis added).
The defendant has been assessed in the sentencing assessment report as being a medium risk of reoffending. He has not taken responsibility for the course of his offending conduct. He claims the intentional choking offence was part of a consensual sexual act. His insight into his repeated offending is poor and it is clear, on the facts, for 4 of the Form 1 offences that he admitted to repeatedly contravening the apprehended violence order and breached bail conditions imposed from 27 January 2022. All of those court orders and bail conditions were designed to protect the victim. The victim would not be adequately protected if an intensive correction order was made given the defendant's persistent attitude of disobedience to the apprehended violence order. The defendant has made marginal progress in relation to addressing his mental health issues in circumstances where his PTSD diagnosis emanates from an event 13 years ago. Applying the express terms of s 4B Crimes (Sentencing Procedure) Act 1999, the Court is not satisfied that the victim of these 18 domestic violence offences or any future partner of the defendant would be adequately protected by an intensive correction order.
Moreover, it may also be doubted whether an intensive correction order is an available sentencing option for a sentencing court when a defendant has been refused bail for an unrelated offence of supply prohibited drug which is being dealt with on indictment in the District Court. A defendant in that position cannot serve an intensive correction order in the community and be supervised in the community or comply with the required two additional conditions: See s 73A(1) Crimes (Sentencing Procedure) Act 1999. An intensive correction order commences on the day it is imposed: s 7 Crimes (Sentencing Procedure) Act 1999. In a practical sense, it would be a sentencing order without effect and of limited utility. It is doubtful whether any of the statutory schemes for intensive correction orders could apply including the machinery provisions concerning breaches of intensive correction orders in ss 163,164 Crimes (Administration of Sentences) Act 1999 (NSW). The word "available" must be given its natural meaning. There is a statutory assumption in ss 7, 66 Crimes (Sentencing Procedure) Act 1999 that when an intensive correction order is imposed that the offender will be actually released into the community. Section 7(1) expressly provides that a court "…may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community." (emphasis added). In short it is not possible for the defendant to be "intensively" supervised in the community.
When a court imposes an aggregate sentence of full-time imprisonment it must have regard to the principle of totality: Burgess v R [2019] NSWCCA 13 at [40]. The sentence must reflect the totality of the criminality. However, as R A Hulme J explained in Aryal v R [2021] NSWCCA 2 at [46] with reference to Bell v R [2019] NSWCCA 251, there is a lack of utility in explaining an aggregate sentence by reference to the common law principles concerning concurrency and accumulation: "…while the principle of totality has operation, the principles of sentencing concerning accumulation and concurrency at general law have no application when an aggregate sentence is imposed. I agreed with Johnson J [in Bell v R [2019] NSWCCA 251] and added that there is no actual accumulation of indicative sentences when an aggregate sentence is imposed. A sentencing judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending".
The offences were committed during 11 discrete incidents over an 18-month period. Given that the sentence for the intentional choking offence had a Form 1 attached with a further 8 offences, there is limited scope for additional punishment. I set out the indicative sentences for each offence which attracted full time imprisonment.

Aggregate Sentence Offence Indicative Sentence 1.Intentionally choking without consent 2 years 2. Assault occasioning actual bodily harm 3/06/21 Seq 2 12 months 3.Intimidation with intent to cause fear of physical or mental harm 02/10/21 Seq 5 10 months 4. Intimidation with intent to cause fear of physical or mental harm 09/01/22 Seq 6 10 months 5. Common assault 10/01/22 Seq 7: 9 months 6. Common assault 25/01/22 Seq 9 9 months 7. Common assault: 30/10/22 Seq 11 10 months 8. Intimidation with intent to cause fear of physical or mental harm 09/01/22 Seq 13 10 months 9. Intimidation with intent to cause fear of physical or mental harm 26/01/22 Seq 2 12 months

The defendant has been refused bail for an unrelated offence of supply prohibited drug which is being dealt with on indictment in the District Court. The defendant has been refused bail on two matters. The parties accepted that the sentence should be backdated to 14 August 2023.
Applying the principle of totality, the defendant is sentenced to an aggregate sentence of 3 years 6 months which will commence on 14 August 2023 and expire on 13 February 2027. I impose a non-parole period of 2 years 2 months which will commence on 14 August 2023 and expire on 13 October 2025. The defendant will be eligible to be released to parole. The Court has found special circumstances and varied the statutory ratio referred to in s 44(2B) Crimes (Sentencing Procedure) Act 1999 based on the defendant's need for rehabilitation as set out in the Sentencing Assessment Report and the report tendered by his psychologist Kerry Watson.

Amendments 25 June 2024 - Amended the publication restriction field. 08 July 2024 - Amended formatting. 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: 08 July 2024

Crimes (Sentencing Procedure) Regulation 2017(NSW)

(2022) 107 NSWLR 618

(2021) 106 NSWLR 154

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