R v Ragg

District Court of NSW|2019-10-24

v The Queen [1998] 164 CLR 465 Wakefield (2010) NSWCCA Category: Sentence Parties: Regina Brett James Ragg Representation: Counsel: Crown: Ms K Ratcliffe Offender: Mr R Hussey

Solicitors: Crown: Ms E Brown Offender: Ms E Schoeman File Number(s): 2018/00335871 Publication restriction: Non Publication Order in respect of the victim's name or evidence that might identify her.

Judgment

Brett James Ragg appears for sentence in respect of thirteen offences in respect of the same victim, and with one exception all committed on 30 October 2018. The exception was committed on the following day, 1 November 2018.

AGREED FACTS

The facts are agreed and are as follows: 1. The offender (DOB 20/1/1990) was aged 28 years at the time of the offences. 2. The victim, AP (DOB 4/3/1988), was aged 30 years at the time of the offences. 3. The offender and the victim were in an on and off domestic relationship for approximately 12 years prior to the offences. 4. The victim has three children; all have had contact with the offender over the time of the relationship. H P-R is the biological son of the offender and the victim. 5. The victim reports the relationship from the start as being violent. The offender was physically and mentally abusive to the victim. 6. In 2018, the offender was in custody for other offences. The offender contacted the victim to pick him up from the Junee Correctional Facility on his release on the expiry of a fixed term sentence. The victim did, and the offender lived with the victim and her children at Pleasant Hills. During this time the offender was using "ice" and "pot" and the violent assaults continued upon the victim. 7. At one stage, the offender asked the victim about her sexual history. The victim lied, due to not wanting to cause a fight, and the offender stabbed her legs with a kitchen knife. 8. After this occurred, the victim and the offender moved to Hay, NSW, where the domestic violence continued as well as drug use by both parties. 9. The victim's parents removed the children from the care of the victim and the offender due to their drug use. 10. On 29 October 2018, the offender and victim stayed up all night smoking marijuana and "ice". 11. On 30 October 2018, the victim and the offender were inside the car they shared. At about 8.00am, the offender asked the victim about a story he had heard whilst he was in custody. The offender asked/accused the victim of sleeping with up to 20 men at one time. The victim denied the accusation. Sequence 4 - Common assault - s 61 Crimes Act 1900 1. The offender got angry and pulled out the scissors he had been using to cut the marijuana and grabbed the victim's hair and cut some of it off and threw it outside the car window. 2. The offender punched the victim to the face three times to the chin and lower lip area. [The victim presented to the hospital later in the evening with cuts and large bruises to her lower face area.] 3. The victim was crying due to the pain caused by the punches. 4. The victim got out of the car and sat on a nearby log and considered running away but feared he would chase after her and further hurt her. 5. The offender stayed seated in the car and called out to the victim to come back to him. The victim complied and returned to the car. The offender asked her to straddle him so they were face to face. The offender then punched the victim to the face with such force her head hit the back of the windscreen. Sequence 8 - Reckless wounding - s 35(4) Crimes Act 1900 1. The offender told the victim to get into the back seat and she complied. The offender said to the victim "Every time you lie I will stab you". 2. The offender had the scissors he had used earlier in his hand. The scissors were small and blunt, not sharp. The offender proceeded to ask questions about the victim sleeping with other men. 3. The offender stabbed the victim on her legs each time she gave an answer he did not like. [According to medical reports the victim had approximately 30 circular purple and blue bruises and approximately 4 appeared to have centrally placed puncture wounds.] 4. The offender stabbed the victim near/on the left ear and cut open her shirt exposing her breasts and stomach area. Sequence 9 - Intimidation - s 13(1) Crimes Domestic and Personal Violence) Act 2007 1. The offender said; "I am going to cut your nipples off". 2. The victim tried to cover her breasts and deflect the offender with her arms. The offender continued to stab the victim in the legs. 3. The victim was crying and pleading with the offender to stop. 4. The offender removed the victim's pants and put the scissors close to her vagina/clitoris and said; "Let's cut this off". 5. The offender had locked all windows and doors of the vehicle to stop the victim from escaping. 6. Later, the victim saw a man walk past the vehicle and look inside. The offender decided to unlock the car and open the door, asking the victim if she was okay. 7. The victim quickly ran out of the car while screaming "Help" but the man who had walked past was nowhere to be seen. The victim ran down the river bank and saw the offender get out of the car with a jerry can in his hand. 8. The victim made her way back up the river bank towards the offender. Sequence 10 - Using explosive fluid - s 47 Crimes Act 1900 1. The offender tipped the jerry can containing diesel over the victim's head and body. The diesel stung each of the cuts. The victim turned around and ran back to the river as fast as she could and hid behind a tree. 2. The offender chased the victim and walked up to her near the tree and said she needed to wash the diesel out of her hair in the water. The victim decided to comply because she knew the offender would not leave her alone. 3. The victim went to the river and got into the water and made some attempts to wash the diesel from her hair. 4. The offender was angry at the victim and said; "The cops will be coming now because of all the noise you have been making". Sequence 12 - Attempted cause grievous bodily harm to person with intent s 33 (1)(b)/s 344A(1) Crimes Act 1900 1. The offender told the victim to get back into the car and she complied. The offender got out a cigarette lighter and tried to set alight the victim's hair. 2. The victim could smell her burning hair and used her hands to pat the fire out. Sequence 15 - Attempted cause grievous bodily harm to person with intent s 33 (1)(b)/s 344A(1) Crimes Act 1900 1. The offender saw the victim put the fire out and got the lighter out again. The offender lit the victim's hair for a second and third time. The offender knew the victim was still covered in the diesel substance when he lit the victim's hair. 2. The victim requested a drink from the offender. 3. The offender continued to question the victim about her having sex with other men. The victim tried to lie about her experiences so the offender would stop hurting her. 4. The offender stopped the vehicle at Willoughby's Beach for the victim to go to the bathroom. As the offender did not have a licence they swapped drivers to go back into Deniliquin. 5. The offender said to the victim; "You're not going to drive off are you?" The victim said; "No" and the offender replied; "If you drive off, I will find you, you know that, don't you?" 6. The victim feared for her safety and complied with the directions of the offender. 7. The victim drove the pair into McDonalds at Deniliquin where the victim got a frozen drink and the offender purchased food. The offender made the victim drive to the Deniliquin Coles Supermarket. The offender left the car, warning the victim not to leave. The offender went into the shopping centre and returned with shampoo and conditioner and cigarettes. The offender is identified attending the Reject Shop, purchasing shampoo and conditioner. 8. The victim drove to the St Vincent de Paul shop and the offender purchased the victim some more clothing to cover up her injuries. 9. The pair went to the offender's friend Christian's home so the victim could have a shower. The offender showed Christian her injuries and Christian gave her a Panadol and a band aid. 10. The offender and victim left the home and got back into the car. The offender directed the victim to Gulpa road which leads to Gulpa Forest, but the entrance was shut. 11. The offender directed the victim to Old Deniliquin Road until the offender said to stop in a deserted scrub area. The offender said "Tell me the rest of the story; if you lie to me, I'm going to stab you again". 12. The victim was crying and asked to leave but there was nowhere to run and no cars passing by. 13. The offender told the victim to drive again and they went down a dirt path through the bush until they came to a clearing. The victim was attempting to tell a false story to keep the offender happy. The offender asked; "Why didn't you say it was rape? You liked it, didn't you?" 14. The victim agreed with the offender out of fear. 15. The offender said; "Right, I am going to do what they did to you." and told the victim to get into the back seat of the car. The victim complied because she was afraid of what the offender would do if she refused. Sequence 2 - Aggravated Sexual Assault - s 61J(1) Crimes Act 1900 1. Immediately following that conversation the offender and victim climbed into the back seat of the vehicle. The offender retrieved some lubricant in the car and put it on the victim's vagina and anus. The victim was lying on her back, crying, when the offender put his penis inside her vagina and had intercourse with her. The victim continued to cry as the offender was doing this. Sequence 17 - Aggravated Sexual Assault - s 61J(1) Crimes Act 1900 1. The offender then made the victim get onto her knees so she was facing away from him. The victim continued to cry. The offender put his penis inside the buttock cheeks of the victim and she tried to move away from him. The offender penetrated the anus of the victim and had intercourse with her for a short period of time. During this ordeal the offender was touching and pressing the victim's cuts from the previous stabbing causing more pain to the victim and causing her to cry out. 2. The victim was crying and told the offender "I just don't want to do this" and the offender finally stopped. 3. The offender and victim got back into the front seats of the vehicle with the car doors open. Sequence 18 - Aggravated sexual assault- s 61J(1) Crimes Act 1900 1. The victim was sitting on the passenger seat with her legs sitting outside the car. The offender went to the outside of the car and grabbed the victim's legs. 2. The victim tried to wrestle the offender without success. 3. The offender made his hand into a fist and got his entire fist inside the victim's vagina, commonly referred to as "fisting". 4. The victim was screaming in pain and begging the offender to stop. 5. The victim could see blood up to the offender's wrist. 6. During this sexual assault, the victim sustained actual bodily harm (which amounted to grievous bodily harm) in the form of vaginal injuries as outlined in paragraphs 5 (78) - (81) below and the report of Dr Bianca Wright dated 22 November 2018. Sequence 19 - Aggravated sexual assault - s 61J(1) Crimes Act 1900 1. The offender removed his fist from her vagina and said; "Now for the back". 2. The offender put the victim back on the ground and put his entire fist inside her anus. 3. The victim was screaming in pain and begging the offender to stop. 4. The victim tried to fight the offender off but the offender continued to pump his fist in and out of her anus. 5. The offender pumped his fist in and out of the victim's anus twice more before removing it. 6. During this sexual assault, the victim sustained actual bodily harm (which amounted to grievous bodily harm) in the form of anorectal injuries as outlined in paragraphs 5 (78) - (82) below and the report of Dr Bianca Wright dated 22 November 2018. 7. The victim could see blood on the ground, running down her legs and on the offender's hand. The offender used water to wash the blood from his hand and arm. He tried to wash the victim's vagina and legs with water. 8. The offender punched the victim to the throat causing her to have difficulty breathing, and said "I'm going to do that again. I meant to punch your face. I want to knock you out". 9. The offender got back into the car and said to the victim; "That's it, we are over. I'm not going to tell anyone where you are. You can find your own way back". 10. The offender drove off and the victim sat down on a log crying and bleeding from her vagina and anus. 11. The sky was starting to turn into night and the victim decided to start walking to find some help. 12. The victim went the wrong way through the bush, and saw the offender driving away. 13. The victim walked towards the main road until it was night time. The victim states she had blood pouring from her vagina and anus. She started to hallucinate and thought that her children were with her. 14. She came to a gate and was considering whether to jump it or not when a male in a ute driving past stopped to help her. It was about 6.45am on 31 October 2018 and the victim was found on Old Deniliquin Road approximately 68 km from Deniliquin and 10km from Moama. She was naked and had blood on her legs, body and face as well as dirt over her body. 15. The victim said to the driver; "My boyfriend left me out here". The man got her into the ute and drove her to the Moama Police station, which was then unmanned, so he then drove her to the Echuca Police station, arriving at 7.30am on 31 October 2018. 16. The police contacted the ambulance and the victim was urgently taken to Echuca Hospital. 17. The victim presented to the hospital with multiple injuries and reported she had been sexually assaulted by the offender and left on the side of the road. 18. Due to the injuries sustained she was transferred to the Bendigo Hospital for treatment. 19. The victim was assessed by Doctor Bianca Wright who identified the following injuries: * On the head and neck - multiple bruises to the face, chin, nose, anterior neck, lower lip. Lacerations to the left ear and lower lip. Grazes on the face and neck. The bruises to the face could be attributed to the first assaults. * Chest - Bruising to the chest and a superficial stab wound. * Abdomen - tenderness and multiple bruises; Laparoscopy revealed retroperitoneal haemorrhage bilaterally extending into both pelvic side walls (left greater than right). Small haematoma on the left side of the supper portion of the rectal mesentery. * Upper and lower limbs - multiple bruises and lacerations including 1cm stab wounds to the hands. Multiple stab wounds to the victim's legs over 1cm in length mainly in the thigh region. * Vaginal injuries: mucosal tears 1-2cm each bilaterally on the anterolateral aspects of the vaginal introitus. Tear of the posterior vaginal fourchette approx. 1.5cm. Full thickness perforation of the left posterolateral vagina, extending from the edge of the introitus at 5 o'clock, laterally on the left to the left posterior fornix of the vagina, passing to the midline and ending at the posterior edge of the cervix. The edges of the vaginal perforation were linear and there was minimal devitalised tissue. The vaginal perforation communicated with the rectal perforation. * Anorectal injuries: mucosal injury of the mid rectum (10cm), full thickness perforation of the rectum extending cranially 7-8cm from the anal verge at 11-12 o'clock, full thickness disruption of the anterior anal sphincter (internal anal sphincter and external anal sphincter), rectovaginal septum completely disrupted, posterior anal canal mucosal tear approx. 1 cm in length, tear from the anal verge extended over the perineum towards the vagina at 11 o'clock for about 1.5cm. The edges of the rectal perforation were linear and there was minimal devitalised tissue. 1. The victim underwent surgery on 1 November 2018. The surgery involved four phases: First phase: involved the initial examination of the vagina and anal areas. Second phase: to repair the rectal perforation and anterior sphincter injuries. Third phase: to repair all injuries to the vagina. Fourth phase: to attach a colostomy bag to protect the reconstruction surgeries and allow healing of the anus/rectum and vagina/genitalia. 1. The victim may suffer long term faecal incontinence and be required to have a colostomy bag for a number of months, plus surgery to remove the bag in 2019. The victim will require rehabilitation to build up the strength of her bowel function. [The Victim Impact Statement discloses that the operation to remove the colostomy bag and restore bowel function occurred approximately six months after the original surgery.] 2. The injuries suffered by the victim were consistent with penetration using blunt force trauma and significant force. 3. The injuries amount to serious/grievous bodily harm and were potentially life threatening if they had not been treated. Sequence 20 - Threaten Witness to Withhold True Evidence - 1 November 2018 - s 322(a) Crimes Act 1900 1. The victim was recovering in hospital on 1 November 2018 when the offender called, asking for her. The victim answered the call and the victim recognised the offender's voice. The victim asked; "What do you want?" 2. The offender said; "Are you going to charge me? I've got the paperwork here are you going to charge me?" 3. The victim said; "I don't know I just want to get better" 4. The offender said; "If you charge me, I will shoot your mum and dad". Sequence 3 - Section 166 -- Contravene Apprehended Violence Order -1 November 2018 - s 14(1) Crimes Domestic and Personal Violence) Act 2007 1. At the time of the final offence, sequence 20 (threaten person with intent to influence witness on 1 November 2018), the offender was subject to an Apprehended Violence Order requiring he had no contact with the victim (issued and served by police on the offender at 8.30pm on 31 October 2018). General 1. At no stage did the victim give consent to the sexual assaults or to being taken and held inside the vehicle. Arrest 1. On 1 November 2018 at about 4pm NSW Police from Hay Police station arrested the offender. 2. During the arrest the offender was asking questions like "Am I going to be charged with attempted murder?" 3. The offender said "I don't remember stabbing her 50 times. I didn't stab her that many times". The offender stated he would have gone back to get help but he did not like the police officer on duty in Hay that evening. 4. The offender was offered legal advice and the opportunity to participate in an ERISP. 5. During the ERISP the offender made reference to the stabbing and repeated he did not stab her 50 times but more like 15 - 20. The offender was agitated and blaming drug use for his behaviour. The offender said he wanted to get out of the interview and get some sleep. 6. Senior Constable McGuirk of Hay Police collected a number of clothing exhibits and the grey Santa Fe at the police station. 7. The vehicle had some panel damage and the windscreen was cracked. Inside the vehicle on the door wells and panels there was a substance that appeared to be blood. 8. The offender was asked to provide a DNA sample and he complied. 9. The head rest of the vehicle was tested by FASS and was found to have a petrol substance like diesel on it. Sequence 7 - Aggravated detention with the intention of assaulting and intimidating the victim (at the time of the detention actual bodily harm was occasioned to the victim) - s 86(2)(b) Crimes Act 1900 1. From 8am until 7pm on Tuesday 30 October 2018, the offender at all times had control over the victim through the words he used and his actions in the factual scenario above, which the prosecution relies on for detainment. The victim was told on a number of occasions that if she was to run away he would find her and hurt her. The victim attempted to run away but the offender followed her and committed further offences upon her. 2. The aggravating factor of this charge, of actual bodily harm being occasioned to the victim, is founded on the evidence outlined in paragraphs 5 (13) to (16) above.

Objective Seriousness

Of the thirteen offences before the court for sentence seven have legislated standard non-parole periods (SNPP). An assessment of objective seriousness including evaluation against a hypothetical "mid-range" is required in respect of each of those offences but not in respect of the balance of six offences. The parties have elected to make submissions in respect of each of the offences by referring to a "mid-range". In the circumstances and for convenience I will adopt the same course.
From the outset it is relevant to note that each of the offences (excluding Seq 20 - threaten/influence witness) occurred as part of a sequence of offending from the early morning to late afternoon/early evening of 30 October 2018 while the victim was detained by the offender. Within that period there were two sequences of offending separated by attendance at McDonalds, Coles Supermarket, St Vincent de Paul and the offender's friend Christian's premises. To the victim, the period separating the two sequences of offending must have appeared to be the end of offender's torment of her. Unfortunately it was merely a period of respite, and there was substantially worse to come as the offender's warped and sadistic desire to gratuitously inflict pain, dominate and terrorize overcame any empathy or concern for the wellbeing of his long-time partner, the mother of his child.
Each of the offences must be considered in the light of the overall circumstances and the nature of the individual offence.

Seq 4 - Common assault - s 61 Crimes Act 1900 - Max 2 years' imprisonment

It is accepted by both parties that, as this offence relates only to cutting a portion of the victim's hair with scissors, that it is below the mid-range of objective seriousness.
I find that this offence falls toward the low end of the range of objective seriousness.
In addition, the statutory aggravating factor s 21A(c) of the Crimes (Sentencing Procedure) Act 1999 applies - the offence involved the use of a weapon (scissors).

Seq 8 - Reckless wounding - s 35(4) Crimes Act 1900 - Max 7 years' imprisonment - SNPP 3 years

This relates to the deliberate and repeated stabbing of the victim's legs with a pair of small blunt scissors each time the offender did not like the victim's answer to his interrogation concerning her sexual history, his questions being apparently based on nothing more than prison rumour. There were approximately 30 purple and blue circular bruises as a result, but only approximately 4 appearing to have centrally placed puncture wounds. The wounds were of a relatively minor nature, not requiring significant medical intervention or lasting physical damage. The period over which they occurred is not specified, but as the offending involved approximately 30 rejected answers it is not likely to have been less than 30 minutes.
I find that this offence falls below but towards the mid-range of objective seriousness.
In addition the statutory aggravating factor s 21A(c) of the Crimes (Sentencing Procedure) Act 1999 applies - the offence involved the use of a weapon (scissors).

Seq 9 - Intimidation - s 13(1) Crimes (Domestic and Personal Violence) Act 2007 - Max 7 years' imprisonment

The offender having cut open the victim's shirt threatened to cut her nipples off with the scissors and then removed her pants and placed the scissors in close proximity to her exposed genital area and said "Let's cut this off". They were in the motor vehicle and the doors were locked. Considering what violence had already occurred and the victim's knowledge of the offender this must have been for her a truly terrifying threat of a most intimidating nature.
I find that this offence falls within the mid-range of objective seriousness.
In addition the statutory aggravating factor s 21A(c) of the Crimes (Sentencing Procedure) Act 1999 applies - the offence involved the threatened use of a weapon (scissors).

Seq 10 - Using explosive fluid - s 47 Crimes Act 1900 - Max 25 years' imprisonment

The offender tipped diesel from a jerry can over the victim's head and body, causing stinging to the previously inflicted wounds. By the plea he admits to doing so with "intent to burn, disfigure or do grievous bodily harm to her." The victim fled and hid behind a tree while being chased by the offender. However, he informed her she should wash the diesel off in the river and she attempted to do so.
I find that this offence falls at the lower end of the mid-range of objective seriousness.

Seq 12 - Attempted cause grievous bodily harm to person with intent s 33 (1)(b)/s 344A(1) Crimes Act 1900 - Max 25 years' imprisonment - SNPP 7 years

Seq 15 - Attempted cause grievous bodily harm to person with intent s 33 (1)(b)/s 344A(1) Crimes Act 1900 - Max 25 years' imprisonment - SNPP 7 years

Each of these offences is factually similar in that after the victim had endeavoured to remove the diesel he directed her to return into the car and then used a cigarette lighter on three occasions in close temporal relationship to set fire to her hair; once in respect of Seq 12 and twice in respect of Seq 15. On each occasion the victim was able to extinguish the flames (Seq 12) or her hair failed to burn as anticipated (Seq 15). Other than some consequential loss of hair there is no evidence of any significant injury or sequelae. Whether this was because the victim had removed a significant amount of the diesel or because her hair was wet and consequently did not erupt in significant and rapid flame cannot be determined, but the offender by his plea has admitted to attempting to cause grievous bodily harm to the victim by setting fire to her hair which had previously had diesel applied to it and which he must have anticipated may not have been entirely removed.
I find that these offences fall within the mid-range of objective seriousness.

Seq 2 - Aggravated Sexual Assault - s 61J(1) Crimes Act 1900 - Max 20 years' imprisonment - SNPP 10 years

Seq 17 - Aggravated Sexual Assault - s 61J(1) Crimes Act 1900 - Max 20 years' imprisonment - SNPP 10 years

Seq 18 - Aggravated sexual assault - s 61J(1) Crimes Act 1900 - Max 20 years' imprisonment - SNPP 10 years

Seq 19 - Aggravated sexual assault - s 61J(1) Crimes Act 1900 - Max 20 years' imprisonment - SNPP 10 years

Given the terror which the victim was experiencing at this time, with all that had gone before and the discomfort she was already experiencing from previous assaults and violence, the remoteness of the location and the duration of her detention Seq 2 (penile/vaginal intercourse), Seq 17 (penile/anal intercourse), Seq 18 (vaginal "fisting" intercourse) and Seq 19 (anal "fisting" intercourse) must be regarded individually as very serious incidences of this type of offence.
Each of the these offences was committed by a separate and different act of sexual intercourse as defined in s 61H (1) of the Crimes Act 1900. Each was committed as part of a single ongoing assault. Each of the individual offences is relevant to the seriousness of the other, whether committed before or after an individual offence, as are the overall circumstances of the commission of the offences.
The Crimes Act makes no distinction as to any of the defined acts of sexual intercourse being more or less serious than any other act contained within the definition.
There can be no prima facie assumption or general proposition that any one form of sexual intercourse is less or more serious than any other form. R v Hibberd [2009] NSWCCA 20 Tobias JA at [20 - 21]
"The 'heinousness' of the offending conduct depends on the facts of the case and not on the statute defining the offence." R v Hibberd Price J at [55] referring to Ibbs v The Queen (1987) 163 CLR 447; R v Allpass (1994) 72 A Crim R 561
In this matter, where the four offences are part of a continuous sequence, there is little utility or benefit in determining fine distinctions between each offence. It is the overall seriousness of the offences that is relevant. However, as between Sequences 2 and 17 and Sequences 18 and 19 there is a significant distinction to be made in respect of the intention motivating the act, the nature of the act and the consequences of the act.
As to Seq 2 (penile/vaginal) and Seq 17 (penile/anal) I find that these offences fall at the upper end of the mid-range of objective seriousness, but regard Seq 17 as more demeaning, degrading and humiliating than Seq 2.
In Doe v R [2013] NSWCCA 248, when considering an argument that two of the counts involved less serious conduct because the form of sexual intercourse was digital penetration (more than one finger/vaginal and hand/vaginal), Bellew J (Hoeben CJ at CL and Johnson J agreeing) stated at [54] - [56]: 54. To the extent that the submissions of counsel for the applicant suggested otherwise, it should be emphasised that there is no decision of this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than some other form of forced sexual intercourse. Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness. 55. The circumstances of the present case serve as a good example of both the rationale behind, and the correctness of, the approach consistently stated by this Court. The applicant's offending involved two separate instances of digital penetration of the victim. Both of those instances, on the victim's evidence, involved the insertion of more than one finger into the victim's vagina. In respect of the first, the victim gave evidence that the applicant had "shoved his hand up my vagina and moved his hand around roughly". There was evidence that the victim suffered significant injuries, including grazing of the vaginal wall and significant swelling to the left labia minora. 56. In these circumstances, to concentrate upon the fact that the offending involved digital penetration as opposed to some other form of forced sexual intercourse would be to ignore the rough manner in which it was carried out, and the injuries which resulted from it, both matters being directly relevant to an assessment of the objective seriousness of the offending. It is evident that those matters led the sentencing judge to conclude that the applicant's acts of digital penetration were not to be viewed as less serious than the penile penetration. That was a conclusion which was clearly supported by the evidence. It was also one which reflected an approach which was entirely consistent with the authorities to which I have referred."
In respect of the conduct described in the agreed facts at paragraphs 5 (56) and 5 (61) of the offender putting or getting his entire fist into the victim's vagina and anus, I accept beyond reasonable doubt that in each incident the injuries referred to in respect of the vagina and anus areas were caused by penetration of the vagina and anus by the offender's entire fist using significant force.
The injuries are described at paragraph 5 (78) under the headings of "Vaginal Injury" and "Anorectal Injury". It is accepted by the agreed facts that the injuries were life threatening in the absence of medical intervention. The injuries were substantial, and although the facts refer to four phases of surgery, there was clearly a fifth phase 6 months later to remove the colostomy bag.
To attach a colostomy bag requires major surgery to bring part of the large intestine to the surface of the body through the abdomen to form a stoma to which the bag is attached and which captures faeces. Regular at least daily changing of the colostomy bag is required. When appropriate (in this matter, after six months) further major surgery occurs to remove the stoma and re-join the intestines to resume normal functioning. Inevitably a scar will remain on the abdomen where the stoma was brought through. For six months the victim could only defecate into the colostomy bag.
As a general observation it is most frequently the case that the perpetrators of sexual offences commit such offences to obtain sexual gratification, and that there is often an overlay of a desire to also obtain psychological gratification by exercising the power of domination and control, often exercised by demeaning and degrading acts forcefully imposed on the victim. In this matter the offending commenced with various acts of violence and intimidation escalating with the passage of time. Whatever degree of sexual satisfaction that the offender obtained by penile penetration of the victim's vagina and anus at the time of those acts he was clearly obtaining psychological satisfaction from his dominance and the gratuitous infliction of pain as he was pressing on the wounds that he had previously inflicted to deliberately cause pain.
It is difficult to understand how the subsequent acts of "fisting" the victim's vagina and anus could have been for the purpose of obtaining any sexual satisfaction, except of a most perverse nature. The victim was screaming in pain and begging him to stop. He must have been aware from her conduct and the blood on his hand, the ground and her body emanating from her vagina and anus that he had caused significant injury. He had directed her to drive from Deniliquin out to a remote deserted scrub area before commencing these sexual assaults.
I find beyond reasonable doubt that the offender premeditated the further offences at the time he directed the victim to drive from Deniliquin, even if he had not determined their exact nature or the extent of the offending that would occur.
I find beyond reasonable doubt that the offender committed sequences 18 and 19 as deliberate sadistic torture from which he took pleasure in the infliction of injury and pain while exercising his power to dominate and control the victim. They demonstrate a total lack of humanity and empathy towards his partner of some 12 years and the mother of his child. His then abandonment of her, naked and bleeding, at a remote deserted bush location at night further underlines his callous disregard and contempt for her welfare as demonstrated by the offences committed at that location.
I find that sequences 2 and 17 fall at the upper end of the mid-range of objective seriousness with sequence 17 being the most objectively serious.
I find that sequences 18 and 19 fall easily within the highest range of objective seriousness.
In addition, in respect of sequences 18 and 19, the statutory aggravating factor s 21A(g) of the Crimes (Sentencing Procedure) Act 1999 applies - the injuries caused by each of the offences were substantial. An element of the offence is that the offender recklessly inflicted actual bodily harm to the victim. The injuries referred to at paragraph 5 (78) under the headings of "Vaginal injury" and "Anorectal Injury" and as referred to above substantially exceed actual bodily harm. (R v Betts [2015] NSWCCA 39)

Seq 3 - s166 Certificate - Contravene Apprehended Violence Order - s 14(1) Crimes (Domestic and Personal Violence) Act 2007 - Max 2 years

The offender was subject to an Apprehended Violence Order requiring he had no contact with the victim (issued and served by police on the offender at 8.30pm on 31 October 2018). Contrary to the order, the offender phoned the victim while she was recovering in hospital at a time between 7am and 1pm the following day, 1 November 2018, threatening to kill her parents.
This was a serious and early breach of the order, although at least only by telephone contact.
I find that it is below but approaching the mid-range of objective seriousness.
That the call contained a threat is accounted for by sequence 20 (threaten person with intent to influence witness on 1 November 2018),

Seq 20 - Threaten Witness to Withhold True Evidence - 1 November 2018 - s 322(a) Crimes Act 1900 - Max 10 years

The offender in the call threatened the victim "If you charge me I will shoot your mum and dad." He had not at that time been arrested. The victim, having been in a long term relationship with the offender and accordingly, at least in general, aware of his criminal history and with knowledge of his recent violence towards her, must have been significantly concerned that he was capable carrying out the threat.
I find that the offence falls in the mid-range of objective seriousness.

Seq 7 - Aggravated detention with the intention of assaulting and intimidating the victim (at the time of the detention actual bodily harm was occasioned to the victim) - s 86(2)(b) Crimes Act 1900 - Max 20 years

Relevant considerations in assessing the objective seriousness of an offence against s 86 Crimes Act 1900 are: * The circumstances in which the victim was detained; and * The person who was detained; and * The purpose for which he/she was detained; and * The period of detention. (R v Speechley [2012] NSWCCA 132 at [55]; R v Newell [2004] NSWCCA 183 at [32])
The victim was detained from 8am until 7pm on Tuesday 30 October 2018 in a motor vehicle. The offender at all times had control over the victim through the words he used and his actions in the factual scenario above, which the prosecution relies on for detainment. The victim was told on a number of occasions that if she was to run away he would find her and hurt her. The victim attempted to run away but the offender followed her and committed further offences upon her.
The aggravating factor of this charge, of actual bodily harm being occasioned to the victim, is founded on the evidence outlined in paragraphs 5 (13) to 5 (16) above. In short, that is a number of punches to her face causing cuts and bruising to her lower face area and forcing the back of her head to impact with the windscreen of the car.
The entire period and circumstances of the detention are to be considered in assessing the objective seriousness of the offending.
The offender began asking the victim about something he heard while he was in custody, (having been released on completion of a sentence of break, enter and steal on 22 May 2018) about her allegedly sleeping with up to 20 men at once. She denied the allegation and violence was then inflicted upon her across the period with a break of actual physical violence (but continuing detention) in the middle of the day, much of which is the subject of individual charges as follows: * The victim was detained in a locked vehicle (Seq 7); * The victim was assaulted by the offender grabbing her hair and cutting some off with scissors (Seq 4); * The offender punched the victim a number of times to the face (chin and lower lip area) and, on one occasion with such force as cause the back of her head to hit the windscreen and causing cuts and bruises to her lower face. (The actual bodily harm relied on as the aggravating circumstance in respect of this offence - Seq 7); * The victim was then stabbed with the scissors each time he did not accept or like her answer, resulting in 4 wounds and approximately 30 bruises and a laceration to her left ear (Seq 8); * The offender cut off her shirt to expose her breasts and stomach; * The offender then intimidated her by threatening to cut off her nipples, and after removing her pants, parts of her genitals with the scissors, while continuing to stab her in the legs (Seq 9); * When the victim managed to escape from the car and fled crying "Help", he pursued her with a jerry can of diesel and poured it over her head and body causing the wounds to sting (Seq 10); * The victim again managed to run from the offender and hid. He found her and encouraged her to attempt to wash off the diesel in the river. He then directed her to get back into the car, where he set fire to her hair with a cigarette lighter which she extinguished with her hand (Seq 12); * The offender twice again lit her hair, (seq. 15); * Throughout the offending, the offender continued to question the complainant about having sex with other men; * The offender, threatening "If you drive off, I will find you, you know that don't you?", then directed the complainant to drive to McDonalds (where she got a drink and he got food) and then Coles in Deniliquin (for, inter alia, shampoo for the complainant to use to shower with) as well as St Vincent de Paul (to get the complainant clothing to cover her injuries) and then to his friend "Christian's" house where she showered; * The violence recommenced when the offender told her to drive to a deserted scrub area off Old Deniliquin Road. There, the offender threatened "Tell me the rest of the story; if you lie to me I'm going to stab you again." The complainant made up a story to keep him happy, but the offender queried it saying "Why didn't you say it was rape? You liked it didn't you?" The complainant agreed out of fear and the offender responded "Right, I'm going to do what they did to you" and proceeded to sexually assault her in the most serious of ways. Penile/vaginal intercourse (seq. 2); penile/anal intercourse (seq. 17), having already inflicted actual bodily harm upon her earlier in the detention; penetration of her vagina with his entire fist (seq. 18) causing her serious genital injuries amounting to grievous bodily harm; penetration of her anus with his entire fist and then "pumping" it in and out of her anus (seq. 19) also causing her serious anorectal injuries amounting to grievous bodily harm; * The complainant's injuries would have been clearly evident to him, the blood running down her legs and, on his hand, and up his wrist to the point of him trying to rub the blood off, but rather than taking her to medical assistance, he punched her again and then left her, with the parting words "That's it, we are over. I'm not going to tell anyone where you are. You can find your own way back"; * The complainant was left to walk naked through the remote location the offender left her in. The complainant was walking towards town when she was seen by a passing motorist at approximately 6:45am on 31 October 2018 (the following morning) covered in blood and dirt.
I find that this offence falls at the upper end of the mid-range of objective seriousness - given the duration of approximately 11 hours from 8am to 7pm and the number of offences committed against the victim during the detention. When abandoned naked, injured and bleeding in the middle of nowhere, or at least significantly far from any township, the victim wandered alone and hallucinating until being observed by a passing motorist approximately 11.5 hours later.

VICTIM IMPACT STATEMENT

Ms AP read her "Victim Impact Statement" to the court. Despite a sequence of offences committed against her by her de-facto partner which must have been psychologically devastating and resulted in substantial injury, her "Victim Impact Statement" was stoically concise indicating that she has trouble sleeping and takes prescribed antidepressants while being constantly fearful and "jumpy". The smell and sight of blood, the smell of burning hair and the sight of her resultant scarring cause flashbacks to the offences.
These are the unfortunate and tragic consequences for victims of offending of this nature. There can be little doubt that these problems will continue for a significant period of time, if not for the balance of her life. There is a significant possibility that over time her mental health will be so affected as to require not only medication but professional treatment. It can only be hoped, although unlikely, that she will be able to deal with her memory of this outrageously offensive sequence of physical and mental assaults with ongoing stoicism.

THE RELEVANCE OF DOMESTIC VIOLENCE

Each of these offences was committed in the context of a long-term on/off relationship between the offender and the victim. They were each offences of domestic violence. It has long been recognized that such offences, particularly where the offender is a repeat domestic violence offender, require emphasis in sentencing on specific and general deterrence, together with the powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important (R v Hamid [2006] NSWCCA 302, per Johnson J (with whom Hunt AJA and Latham J agreed).
As observed by Wilson J in R v Archer [2015] NSWSC 1487 at [174] - [176]; "Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. Violent and non-fatal attacks by persons known to the victim are also common. That is something of which we as a community should be ashamed, and which the courts must seek to address when sentencing offenders such as Mr Archer. It is incumbent upon this Court to clearly signal the community's intolerance of domestic violence. The High Court has recently given powerful expression to the need for the courts to denounce domestic violence at [55] in Munda v Western Australia [2013] HCA 38; "A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law." (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) That principle is clearly of guidance in this matter.

Subjective Statutory Aggravating Factors of General Relevance

S 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 - At the time of the offending the offender was on conditional liberty, being bail for an offence of intimidation of his children's school teacher, Rebecca Jamieson (charge number H68969738). This offence, of which he was subsequently convicted and sentenced on 5 December 2018 to serve a 1 month fixed term from 1 November 2018 to 30 November 2018, was committed on 6 September 2018, 6 weeks prior to the instant offending. So, 6 weeks previously he was bailed for a matter of threatened violence to a school teacher, in the presence of his 6 year old child. The intimidation was a threat to "punch (her) head in" (if she had told the child to tell him to shut the fuck up) and then "No one tells me to shut the fuck up. I'd smash them. I'd smash you. I'd smash your husband". This understandably caused the victim to feel "absolutely terrified".
The breach of conditional liberty, whether bail, bond or parole has long been recognised as a significant matter of aggravation.
There is a long line of authority that this is a serious aggravating factor as expressed in R v Richards (1981) 2 NSWLR 464 by Street CJ at 465. The protection of the community from those who abuse their liberty on bail to commit further offences calls for "severely deterrent sentences" which will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence to be passed, or passed for the original offence.
There is an element of similarity between the bailed offence and the current offending although there was no actual violence in respect of the bailed offence. That similarity heightens the significance of the aggravating factor.
S 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 - which applies where the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for personal violence offences).
The offender has a significant number of antecedents for personal violence offences, some of which are for offences against another female de-facto partner, known as Ms BM (aka AJ) and described in the facts sheets tendered on sentence (Exhibit 1 Tab14): * There are 4 previous convictions for contravene prohibition/restriction in AVO (all of which are recorded as "Domestic"); * There are 5 previous convictions for stalk/intimidate intend fear of physical/mental harm (not including the juvenile charge of harass/intimidate school student attending school); * Previous convictions for common assault (DV) and reckless wounding (DV); and * Previous convictions for public justice offences, namely threaten person with intent to influence witness; act with intent to influence witness (see facts sheet for charge H95626702 - Exhibit 1 Tab 14)
The significance of these antecedents is that they demonstrate a continuing attitude of disobedience to the law and the need in the instant case for increased weight to be given to retribution, personal/specific deterrence and the protection of society, (Veen (No 2) v The Queen [1998] 164 CLR 465; R v McNaughton [2006] NSWCCA 242).
As stated in the joint judgment in Veen (No. 2), at 477 - 478, and cited with approval by the Chief Justice in R v McNaughton, at [18]: "[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: DPP v Ottewell (1970) AC 642, at p 650.
The need for personal/specific deterrence and protection of society is further emphasized by the intercepted jail call between the offender and his current female partner, tendered in these proceedings (Exhibit 1 Tab 12 & 13), as well as by the content of court-ordered reports of Community Corrections Officer Eleni Panagakis (Exhibit 1 Tab 16 - Sentencing Assessment Report dated 9 April 2020) and the joint report of Ms Heslop and Ms Higgins, psychologists, (Exhibit 1 Tab 17 - Pre-Sentence Report Consultation dated 8 April 2020), to be referred to later in these reasons.
The following material is before the court: * The offender's Criminal History; * A NSW Department of Corrective Services Conviction, Sentence and Appeals Report; * A Sentencing Assessment Report by Ms Eleni Panagakis, Community Corrections Officer, dated April 2020; * A Communities & Justice Pre-Sentence Report Consultation by Ms Wendy Heslop, Senior Psychologist, and Ms Emily Higgins, Acting Senior Psychologist, Statewide Disability Services, dated 8 April 2020; * Transcript and Audio recording of telephone call from custody on 30 October 2019 between the offender and Ms Jacqui Arnold, a friend. * Police Fact Sheets in respect of four previous offences of Contravening an Order in an ADVO (involving two different women; one in a relationship with him and one being a teacher at the school his son was attending); * Court Report by Ms Angie Murphy, Senior Clinical Consultant Community Justice Program, NSW Human Services Aging, Disability & Home Care, dated 17 March 2010; * Court Report by Chris Coffey, Senior Clinical Consultant, and Mr Wayne Zahra, A/Team Leader, Clinical Services, Community Justice Program NSW Human Services Aging, Disability & Home Care, dated 10 August 2010; * Letter "To Whom It May Concern" from Mr Ben Walker, Manager PPP Lifestyle Solutions Criminal Justice Program, dated 17 March 2010; * Further letter to "Mathew" from Mr Ben Walker, dated 17 June 2011; * Report of Dr Alex Sidorov, Consultant Forensic Psychiatrist, dated 15 August 2019; * Report of Dr Travis Wearne, Psychologist, Legal Psychology Group Australia, dated 4 February 2020. Subjective matters are drawn from that material.
The offender was 28 years of age at the time of offending and is now 30 years of age. He did not give evidence on sentence. No oral evidence was called in his case from any person. No employment or character references were tendered on his behalf; except so far as the letters from Mr Ben Walker may have some historic relevance to aspects of character, although prepared for an entirely different purpose.
He is the eldest of four siblings (Dr Sidorov) or five siblings (Dr Wearne). His parents separated when he was 10 or 11 and he stayed with his father while his siblings stayed with their mother and he visited them on weekends. FACS became involved and his father abused alcohol and drugs and on two or three occasions was violent towards the offender, knocking him out.
Mr Chris Coffey in his report (Exhibit R1) states that the offender was assessed as having a mild intellectual disability at age 7 and describes him as having reduced reasoning and problem solving, poor impulse control, impaired capacity to comprehend complex concepts and instructions, and reduced ability to make informed decisions. As a result he was deemed eligible to receive assistance from the Community Justice Program in December 2007. In the past he has had assistance of a Public Guardian to act on his behalf concerning accommodation, services, medical and dental decisions.
He reported being sexually abused by an older man at the age of 15 or 16.
The offender was born in Hay, NSW, and had speech, reading and writing problems as a child requiring one on one teaching at a special school. He dropped out of High School in Year 9 (Dr Sidorov) or was expelled half way through Year 10 (Dr Wearne) with a history of truancy and having been in trouble for fighting and not following instructions which resulted in several suspensions and being expelled on one occasion.
Since leaving school he has predominantly worked in physical labour as a "farmboy". His long history of incarceration has been a barrier to engaging in mainstream employment. He has not received any further education or training and has been financially supported for most of his adult life when not in custody by Disability Support Pension payments.
He started drinking alcohol at age 11 but ceased excessive consumption after a couple of negative experiences. He also commenced using cannabis at age 11 and reported consistent and regular daily use since then. He commenced using methylamphetamine at age 14 with consistent intravenous use since age 21, although not when in custody. He has experienced auditory hallucinations while using methylamphetamine.
He attended for rehabilitation at "Bennelong's Haven" but was "kicked out" after one week for commencing a sexual relationship with another participant.
He reported that he was diagnosed with ADHD at age 8 at Royal Far West and medicated for it before ceasing to take the medications as a teenager. In custody for these offences, he has been prescribed Avanza (depression) and Olanzapine (antipsychotic). After entering custody he cut his wrists with a razor in the light of the prospect of a lengthy sentence but has no current plans or intent of suicide or self-harm.
Dr Wearne on testing found the offender, as to his ability to hold and manipulate information in his mind, to be in the "low average" range, information processing speed to be in the "low average" range, overall intellectual functioning to be in the "extremely low" range, verbal intellectual skills to be in the "extremely low" range, nonverbal/visual skills to be "borderline". His overall intellectual functioning was found to be impaired (i.e. in the bottom 2% of the population) and satisfied the diagnostic criteria for a Mild Intellectual Developmental Disability undermining his ability to engage in effective information processing, reasoning and judgement with an inability to engage in abstract or consequential thinking and regulating his behaviour and emotions.
Dr Sidorov opined that the offender met the diagnostic criteria for: * "Antisocial Personality Disorder" of which the essential feature is "a pervasive pattern of disregard for and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood"; and * "Substance Use Disorder" - Methamphetamine and cannabis; and * "Attention Deficit Hyperactivity Disorder" as a child.
I accept that the offender's long history of emotional and behavioural dysregulation, emanating from his early adolescence, and his complex trauma background, including a history of physical and sexual abuse, loss of family stability and structure from his childhood and a lack of positive and nurturing influences, his exposure to drug and alcohol abuse has "normalised his offending behaviour and desensitised him to the anti-sociality of his crimes, particularly those violent in nature" (Dr Wearne P12 - 13). Also relevant is the offender's mild intellectual disability.
I accept that the principle referred to in Bugmy v R [2013] HCA 37; 249 CLR 571 is enlivened in this matter and that the offender's moral culpability is accordingly reduced.
However, the contents of the report from Ms Panagakis and the joint report of Ms Hislop and Ms Higgins (Exhibit 1 Tabs 16 & 17) further highlight the need in this case for significant weight to be given to specific deterrence and protection of the community, over and above any diminution of the sentence by virtue of lessened weight to general deterrence and reduced moral culpability.
Of particular importance is Ms Panagakis's report as to the offender's attitudes, namely: * he justified his violent offending by blaming the victim for her avoidance in admitting to infidelity (he suspected) whilst he was incarcerated and for the victim causing him to be re-introduced to ice; and * he did not demonstrate insight into his offending behaviour; and * he showed no compassion/victim empathy, being unable to comprehend the seriousness of the physical and emotional trauma that he inflicted on the victim, stating "she is alive isn't she?"; and * His negative attitude to suggested interventions: "… he is not willing to undertake sex offender intervention … that he 'might' participate in the SMAP Violent Offenders Treatment Program … (and) that he is not willing to undertake intervention to address his illicit substance issues" although he stated that he would not use ice again.
In addition, Ms Panagakis reports the assessment in 2016 of his risk for violent re-offending was High Range and he was assessed by her at a Medium-High risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). This is his first conviction for sexual offending and he was assessed as being at Above Average risk of sexual reoffending.
Ms Heslop and Ms Higgins in their joint report recite a disturbing history of violent threats and acts by the offender from 2008 to date, including "a significant history of hostility and aggression towards women, especially his female family members and intimate partners", including expressions of intention to kill. Of particular relevance is the history that the offender has expressed threats to kill those who he believes have cheated on or abandoned him in some way, given that was the motivation for his violent conduct towards the victim on the instant occasion. Similarly, the August 2012 intimidation offence where he allegedly said to his then partner "I love you….can't stand thinking of you being with someone else….I was going to take you out of town and kill you….".
Added to this is the telephone call between the offender and his new partner, Ms JacquI Arnold, on 30 October 2019 in which he indicates that the next time he offends in this way the victim will not survive (as referred to hereafter). (This relationship appears to be coextensive with his relationship with the victim since his release at the completion of sentence in May 2018.)
All of these matters suggest that there is a very poor prospect of rehabilitation.

Remorse

The offender entered an early plea of guilty but an early plea does not necessarily reflect remorse. In this matter the prosecution case was strong and the seriousness of the injuries "overwhelming" so that the pleas can be regarded as Ms Ratcliffe on behalf of the prosecution submits as a "concession of the obvious".
The reports of Dr Sidorov and Dr Wearne tendered on the offender's behalf are replete with the offender's expressions of remorse.
To Dr Sidorov, the offender said that "he wanted to kill himself because he was very upset about what had happened" and that he hated himself for what he had done to his ex-partner "whom he described as his best friend" and attributed his actions as "highly uncharacteristic behaviour and to having used ice".
When his antecedents and the joint report of Ms Heslop and Ms Higgins are examined, any suggestion that this conduct was "highly uncharacteristic" is wholly unsupported.
Further, his expressions of purported remorse are self-serving hearsay as he was not prepared to subject himself to cross-examination on sentence to allow the Court to make an independent assessment, and little weight if any would ordinarily be given to them for that reason (R v Qutami [2001] NSWCCA 353 at [58] - [59] as referred to by Wilson J in Imbornone v R [2017] NSWCCA 144, at [57])
In this matter, there is positive evidence to show that these representations are not genuine expressions of remorse: * the intercepted phone call by the offender to his new partner on 30 October 2019, in which the offender is heard joking about the offending and the scarring he anticipated the victim would be left with (Exhibit 1 Tabs 12 & 13); and * the report of Community Corrections Officer Eleni Panagakis, in which she reports that the offender showed no compassion or victim empathy (as already outlined).
These pieces of evidence unequivocally demonstrate a lack of genuine remorse.
Similarly with the purportedly remorseful representations made by the offender to Dr Wearne, psychologist, that "if I wasn't on ice then it wouldn't have happened…it turned me into some kind of animal…it made me someone I am not…" and that "(h)e experiences guilt and bouts of depression over what he did to his partner: 'I've gone through hell…I constantly think about it…I can't believe what I have done…I've lost my whole life…I miss [victim]…I miss my kids". (Page 4.1 - 4) Dr Wearne opines in his summary, at [23] that the offender "expressed regret for his behaviour and he appeared genuine in this regard".
Dr Wearne assessed the offender on 14 November 2019, which was a mere two weeks after the recorded phone call between the offender and his new partner in which the offender joked about the serious assaults he had committed upon the victim: he referred to a song titled "Girl like you" which was "pumpin' when I was stabbin' her" and another song which was one of his favourites, titled "Battle Scars" and joked about the fact that she'd "have plenty" of scars. There was no expression of regret or remorse in that conversation but rather a callous amusement and boastfulness, which was proximate to his assessment by Dr Wearne. The representations to Dr Wearne are also completely inconsistent with what the offender said to Ms Panagakis. This demonstrates a significant lack of veracity in what he said to Dr Wearne and accordingly no significant weight can be placed upon those representations.
In relation to the offender's assertion that "if I wasn't on ice then it wouldn't have happened", the intercepted phone call on 30 October 2019 also demonstrates that the offender still firmly holds the intention to inflict future violence upon a new female partner even at a time when, on his own admission, he is drug free: "…cause if you lie to me I promise I won't make the same mistake, you know what I mean, the next one will end up dead and probably never be found (laughs)".
The statement; "if I wasn't on ice then it wouldn't have happened" is a denial of responsibility for his offending, that is, it was the drug, not him. Other than his self-serving statements there is no evidence that he was affected by methylamphetamine at any relevant time. The facts only refer to consumption of methylamphetamine on the preceding day and only to some initial consumption of marihuana before the offending commenced.
It must also be remembered that the offender has been before the courts for sentence on a significant number of past occasions and would have developed a significant understanding of the relevant factors that might ameliorate the sentence to be determined. In any event, s 21A(5AA) Crimes(Sentencing Procedure) Act 1999 prevents self-induced intoxication from being taken into account as a mitigating factor although many offenders and their representatives continue to act as though it does. In this matter, Mr Hussey, barrister, representing the offender has appropriately accepted in his submissions that s 21A(5AA) applies.
Although, I accept that Dr Sidorov and Dr Wearne have expressed their professional opinions that the offender is genuinely remorseful, in the circumstances I am unable to find that there is any acceptable evidence of genuine remorse or contrition.

Prospect of Rehabilitation - Prospect of Reoffending

Given the above diagnoses, antecedents, the intercepted jail call and the content of the two court-ordered reports of Ms Panagakis and Ms Heslop/Ms Higgins, I find the prospect of rehabilitation is extremely poor and the risk of reoffending is medium - high.
Of particular note in this regard is Dr Sidorov's diagnosis of "Antisocial Personality Disorder" of which the essential feature is "a pervasive pattern of disregard for and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood". Dr Sidorov opined in respect of this disorder that the offender "should engage in psychological interventions to try and shift some of those entrenched antisocial beliefs and attitudes into more pro-social ones. He would benefit from engagement in vocational pursuit such as education and gainful employment." (Emphasis added)
Mr Hussey on behalf of the offender appropriately submitted that the prospect of rehabilitation was "not lost" and only to be hoped for in the context of a lengthy sentence and parole.
Dr Sidorov's opinion as to treatment can be appropriately described as a hope rather than a prediction of efficacy. Considering the offender's refusal to contemplate any appropriate intervention as indicated in the report of Ms Panagakis and his reported "poor history of compliance with supervision in the community" as set out in the report of Ms Heslop/Ms Higgins at page 7.3 ("Cooperation with Supervision") and the content of the jail call it appears to be an almost entirely forlorn hope.

Dangerousness

The offender's antecedents not only clearly demonstrate a propensity to engage in violence with domestic partners (and others), particularly arising out of suspected infidelity, but the jail call recorded on 30 October 2019 clearly evidences, in the offender's own words, that he is willing to carry out serious offending again if his current or any future partner lies to him. This clearly raises the need for addressing future dangerousness in this sentencing exercise.
In Veen v R (No. 2) (1988) 164 CLR 465, the High Court said at (476 - 7): "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is the factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."

SENTENCE

For the purposes of sentencing I have regard to section 3A of the Crimes (Sentencing Procedure) Act 1999. I must take into account such of the aggravating factors outlined in Section 21A(2) of that Act as are present and such of the mitigating factors referred to in Section 21(A)(3) as are present, and any other relevant factor as already referred to. In sentencing an offender, the sentence must reflect the objective seriousness of the offence, and the sentencing judge must fix a sentence that will ensure the time the offender must spend in custody reflects all of the circumstances of the offences including the objective seriousness and the need for general deterrence and specific deterrence, and meet the fundamental purpose of punishment, the protection of society. I am satisfied in this matter that both general and specific deterrence as well as the protection of society are important to take into account in the instinctive synthesis of determining the appropriate sentence.
The maximum sentence available as legislated and where appropriate the SNPP are also relevant as guidelines.
I am satisfied pursuant to section 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate.

INDICATIVE SENTENCES

I propose to deal with this matter by providing an aggregate sentence and am thus required to provide an indicative sentence and, where appropriate, an indicative non-parole period.
You are convicted in respect of each of the following offences Seq 4 - Common assault - s 61 Crimes Act 1900 - Max 2 years' imprisonment Indicative - 6 months' imprisonment Seq 8 - Reckless wounding - s 35(4) Crimes Act 1900 - Max 7 years' imprisonment - SNPP 3 years Indicative - 3 years' imprisonment - NPP 2 years 3 months Seq 9 - Intimidation - s 13(1) Crimes (Domestic and Personal Violence) Act 2007 - Max 7 years' imprisonment Indicative - 2 years' imprisonment Seq 10 - Using explosive fluid - s 47 Crimes Act 1900 - Max 25 years' imprisonment Indicative - 4 years' imprisonment Seq 12 - Attempted cause grievous bodily harm to person with intent s 33 (1)(b)/s 344A(1) Crimes Act 1900 - Max 25 years' imprisonment - SNPP 7 years Indicative - 3 years' imprisonment - NPP 2 years 3 months Seq 15 - Attempted cause grievous bodily harm to person with intent s 33 (1)(b)/s 344A(1) Crimes Act 1900 - Max 25 years' imprisonment - SNPP 7 years Indicative - 3 years' imprisonment - NPP 2 years 3 months Seq 2 - Aggravated Sexual Assault - s 61J(1) Crimes Act 1900 - Max 20 years' imprisonment - SNPP 10 years Indicative - 9 years' imprisonment - NPP 6 years 9 months Seq 17 - Aggravated Sexual Assault - s 61J(1) Crimes Act 1900 - Max 20 years' imprisonment - SNPP 10 years Indicative - 10 years' imprisonment - NPP 7 years 6 months Seq 18 - Aggravated sexual assault - s 61J(1) Crimes Act 1900 - Max 20 years' imprisonment - SNPP 10 years Indicative - 14 years' imprisonment - NPP 10 years 6 months Seq 19 - Aggravated sexual assault - s 61J(1) Crimes Act 1900 - Max 20 years' 'imprisonment - SNPP 10 years Indicative - 14 years' imprisonment - NPP 10 years 6 months Seq 3 - s 166 Certificate - Contravene Apprehended Violence Order - s 14(1) Crimes (Domestic and Personal Violence) Act 2007 - Max 2 years Indicative - 9 months Seq 20 - Threaten Witness - 1 November 2018 - s 322(a) Crimes Act 1900 - Max 10 years Indicative - 4 years' imprisonment Seq 7 - Aggravated detention with the intention of assaulting and intimidating the victim (at the time of the detention actual bodily harm was occasioned to the victim) - s 86(2)(b) Crimes Act 1900 - Max 20 years Indicative - 8 years' imprisonment

AGGREGATE SENTENCE

I have taken into account the principal of totality and the extent to which the criminality of each offence overlaps with the criminality of each other offence.
You are sentenced to a term of imprisonment commencing on 1 December 2018 with a non-parole period of 18 years and a balance of term of 6 years.
Accordingly, you will first be eligible for parole on completion of the non-parole period - 30 November 2036.
The balance of term of 6 years will expire on 30 November 2042.

SPECIAL CIRCUMSTANCES

It will be evident that I have not found special circumstances as submitted I should by Mr Hussey on behalf of the offender to assist in his treatment/rehabilitation or to avoid institutionalization. The 6 year balance of term is already twice the period of maximum supervision pursuant to the regulations.
I have also not found special circumstances to vary the statutory relationship of the non-parole period to the balance of term on the basis of the one month of imprisonment he has served as part of his continuous custody since 1 November 2018 as a result of the Intimidation charge that he was on bail for at the time of this offending, and subsequently sentenced in respect of on 12 December 2018, although I am fully aware of the discretion to do so, Callaghan v R [2006] NSWCCA 58. That I have not done so is not the result of "error or oversight" Dunn (2007) NSWCCA 312; Lyndon (2003) NSWCCA 152; Ibraham (2005) NSWCCA 43; Wakefield (2010) NSWCCA 12 at [26]. To do so would result only in a minor adjustment of the non-parole period and this offender should learn that breaches of conditional liberty have consequences, particularly where there is some similarity, in part, to the conduct that constituted the breach. (see R v Richards (1981) 2 NSWLR 464 Street CJ at 465)

Crimes (High Risk Offenders) Act 2006

Mr Ragg, I am required to warn you that s 25C of the Crimes (High Risk Offenders) Act 2006 applies to you in respect of sequences 2, 17, 18 and 19 as each is an Aggravated Sexual Assault. Application can be made by the State to the Supreme Court and if that Court concludes to a high degree of probability you pose an unacceptable risk of committing another serious offence if not kept in detention or under supervision then an order can be made for your continued detention or supervision than might apply as a result of the aggregate sentence that I have just imposed.
What that means is that if you wish to be released at the earliest time possible or subject only to the period of supervision represented by the parole period I have provided you need to ensure that you conduct yourself in prison as a model prisoner and take every opportunity available to you to receive assistance and treatment for your problems while in custody or on parole.
I note that since your arrest in October 2018 you have only been found in breach of prison regulations on two occasions and have twice returned negative results for drugs on urinalysis and are presently not regarded as a management problem. As Mr Hussey has opined this is "both encouraging and a welcome contrast to (your) behaviour during previous of incarceration" which have been marred by violence towards others and property, weapons, drugs, intimidation and non-compliance with directions. You need to improve and be able to demonstrate over time that you are prepared to accept assistance and have genuinely addressed your issues.

Crimes (Domestic and Personal Violence) Act 2007

I direct pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 that each of the offences of which you have now been sentenced be recorded on your criminal history as a "domestic violence offence".

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Judgment (31 paragraphs)

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Cases Cited (17)

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