R v Saunders

[2021] NSWDC 530

District Court of NSW|2021-03-26

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-03-26

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Judgment

David Saunders, 52 years of age, appears for sentence in relation to the following four offences:

Count 1 - Intentionally choke and render unconscious and being reckless as to rendering unconscious (the victim being Sarah Foote), an offence pursuant to s 37(1), Crimes Act 1900 (NSW). The maximum prescribed penalty for this offence is 10 years imprisonment. There is no prescribed standard non‑parole period.
Count 4 - Assault occasioning actual bodily harm (the victim being Sarah Foote), an offence pursuant to s 59(1), Crimes Act. The maximum prescribed penalty for that offence is 5 years imprisonment. There is no prescribed standard non‑parole period.
Counts 3 and 5 - Each offences of intimidation with intent to cause fear of physical or mental harm (the victims being Sarah Foote and Peter Fernance), an offence pursuant to s 13(1), Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum prescribed penalty for that offence is 5 years imprisonment. There is no prescribed standard non‑parole period.

When dealing with the offender for Count 1, the Court is taking into account on a Form 1, two further offences as follows: 1. Intentionally choke, render unconscious and be reckless as to rendering unconscious (the victim being Sarah Foote), an offence pursuant to s 37(1), Crimes Act; and 2. Intimidate with intent to cause fear of physical or mental harm (the victim being Peter Fernance), an offence pursuant to s 13(1), Crimes (Domestic and Personal Violence) Act.
The victim Ms Foote is the offender's former partner. Their relationship had broken down in early 2017. All the offences involve either Ms Foote or her new partner Mr Peter Fernance.
The offender pleaded guilty on 1 February 2021 which was the first day of the trial. Having regard to the timing of the plea, I propose to allow a discount on sentence of 5%.
I note that the offender was rearraigned today in relation to Counts 1 and 5 in circumstances where there was an amendment to each of those counts.

[6]

Complaint and arrest

Ms Foote and Mr Fernance attended Wyong Police Station on 7 November 2017. Photographs of the injuries from the incident on 4 May 2017 were provided to police.
On Friday 9 November 2017, the offender attended Wyong Police Station at the request of police. He was arrested and cautioned, he was offered the opportunity to participate in a record of interview which he declined.
Those facts clearly disclose very serious objective criminality. The offender's use of violence caused the victim Ms Foote to become unconscious on two separate occasions before he struck her to the face. He then made threats to her safety and her new partner's safety. There was also separate conduct directed towards her new partner Mr Fernance.
There is no doubt that the offender's conduct towards Ms Foote would have been wholly terrifying in circumstances where there was no reasonable prospect of her being able to retaliate, having regard to the degree and type of force used against her.
Important factors in sentencing for domestic violence offences are specific and general deterrence, denunciation of the offending conduct and protection of the community.
In R v Edigarov (2001) 125 A Crim R 551 at [558], Wood CJ stated as follows: "…such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished and that sentences are handed out which have a strong element of both personal and general deterrence."
Recently, the High Court in R v Kilic (2016) 259 CLR 256 said as follows: "…current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of the change in societal attitudes to domestic violence.
Domestic violence is so debilitating for victims because they often suffer enduring emotional harm. Domestic violence undermines the victim's sense of safety and wellbeing. Sentences imposed for such conduct must also reflect the harm done to the victim.

[7]

Assessment of objective seriousness

In assessing the objective seriousness of Count 1 (intentionally choke person, rendering the person unconscious and being reckless as to so rendering the person unconscious), I have taken into account the following factors: 1. The degree of violence. There was a significant degree of violence used in circumstances where the offender squeezed the complainant around the throat until she became unconscious. I regard the rendering of the complainant unconscious as a more serious example of this offence, disclosing a higher level of objective seriousness in circumstances where the offence is also made out if a person is rendered insensible or incapable of resistance. I regard each of those circumstances as demonstrating a lower level of objective seriousness. I am satisfied that the offender demonstrated recklessness of a very high order. 2. The offending occurred in an isolated location where it was highly unlikely that the victim would be able to raise the alarm about the offender's behaviour. Exhibit F was tendered in the sentence proceedings, showing the location. 3. Whilst the Crown submitted that the Court would find that there was some planning in relation to the offending in circumstances where the offender remained at the property despite telling the victim he would be in Newcastle, I am not satisfied of this fact beyond reasonable doubt in circumstances where the offender gave evidence during the sentence proceedings that he was leaving the property when the victim arrived (T 14, 26 March 2021). 4. The offending was an episode of domestic violence.
The Crown submitted that the objective seriousness for this offence was above the mid-range. It was submitted on behalf of the offender that the objective seriousness was below mid-range.
I assess the objective seriousness as being in the middle of the range. An important factor in that assessment is that the offending is an episode of domestic violence.
In assessing the objective seriousness of Count 4 (assault occasioning actual bodily harm), I have taken into account the following factors: 1. The degree of violence used. The offender struck the victim Ms Foote to the face. 2. The actual bodily harm occasioned was bruising around the victim's eye. I accept that the actual bodily harm occasioned is towards the lower end of objective seriousness. By those remarks, I am not intending to minimise the criminality, but rather place it in the context of a spectrum of actual bodily harm that can be caused by this type of offence. 3. Again, the offending was an episode of domestic violence.
Having regard to those factors, I assess the objective seriousness of this offence as below the middle of the range.
In assessing the objective seriousness of Count 3 (Stalk, intimidate intending to cause fear of physical or mental harm) (the victim being Sarah Foote), I have taken into account the following factors: 1. The nature of the threat made, namely the offender told Ms Foote that he was going to harm her, Mr Fernance and then himself. 2. There are no particulars provided of the words used by the offender that constitute the offence. 3. The context in which the threats were made, specifically the offender had choked Ms Foote, rendering her unconscious on two occasions before the threats were made. In such circumstances, Ms Foote would have expected that the offender was capable of carrying out the threats. 4. Again, the offending was an episode of domestic violence.
Having regard to those factors, I assess the objective seriousness of this offence as being below the middle of the range.
In assessing the objective seriousness of Count 5 (Stalk and intimidate intending to cause fear of physical or mental harm) (the victim being Mr Fernance), I have taken into account the following factors: 1. The nature of the threat, namely the offender pointed to a sledgehammer and threatened to "knock" Mr Fernance out. 2. The context in which the threat was made, that is, in circumstances where Mr Fernance could see the sledgehammer and he would have expected that the offender was capable of carrying out the threat. 3. Again, the offending occurred in the context of a domestic relationship and was being directed at Mr Fernance because he was the new partner of Ms Foote.
Having regard to those factors, I assess the objective seriousness of this offence as below the middle of the range.

[9]

Victim Impact Statement

The victim Ms Foote provided a victim impact statement to the Court. She stated as follows: "I thought I was going to die that day. As his hand tightened around my neck and I felt the life draining from my body, I thought this is it, I'm 29 years old and this is how my life will be taken from me. I had never been so terrified. I then found myself apologising to him for what he had just done. He made me feel responsible for his actions, like I was to blame for what he had done. I had pushed him that far just because I left him. As I write those words, it is so clear to me now that that is not right, but that is how manipulated I was."
She described the ongoing impact upon her in the following way: "His actions showed me that his threats carry meaningful intent and I live in a constant state of fear. I can't remember the last time I slept through the night. Nightmares that startle me awake. For a long time, I would check every room when he would come home or before we would go to sleep. I was constantly waking Pete up because the house would creak through the night or I would hear a noise outside or Ellie would bark. I was putting him through hell not letting him sleep. Now, to give him peace, I leave our bed and lay on my loungeroom floor with my eyes glued to the security camera screens, searching for movement. Every time the lights of a car shine through my bedroom window, I have my ears strain to hear that it keeps driving. This is what my nights consist of now. I never even used to lock my doors before. I was never scared of what might be in the dark or being alone at night. I never understood people with that fear until now. It is a sad fact that, although I'm now in a loving and caring relationship, I'm only ever fully relaxed when we are away from our own home."
She also describes her hypervigilance in the following way: "My mind was never wired to constantly worry and think the worst. Now it's not just me that I worry about when it comes to David's violence. I feel I have unintentionally put Pete at risk and that breaks my heart. He helped me get out of a violent situation and I had thanked him by bringing unpredictable chaos to his life. I hope he knows how sorry I am for that."
Ms Foote concludes as follows: "I'm proud of myself for seeing this through and although I am still terrified of what might happen in the future, I hope that myself, the police and everyone else involved in holding David accountable for his actions may save another young woman from going through what I went through. And I thank all those people for everything they have done."
It is clear that Ms Foote has shown considerable courage in being able to report the offending to police. It is also clear to the Court that the offending has had a significant impact upon her life, not only at the time the offending was committed but because of the ongoing emotional difficulties that impact on her day to day life. The Court is hopeful that with the ongoing love and support of her family and friends, she is able to look forward to a more positive future.
One of the purposes of sentencing, as I already indicated, is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act 1999 (NSW)).

[16]

Other evidence tendered on behalf of the offender

Exhibit 2 is a letter prepared by Kim Saunders, the offender's former partner. She has known the offender since 1987. She described she was shocked by the offending and regarded it as out of character. She had never known the offender to be violent towards women. She described the offender as a "really hard worker, well liked with lots of friends and very generous". She also described him as a good father and grandfather.
She is concerned for her daughter Holly should the offender go to custody, in circumstances where she expects her anxiety and depression will be exacerbated. She is also concerned about the impact on the offender's new partner's children.
Exhibit 3 is a letter from Mikayla Morris, the offender's current partner. Ms Morris currently lives with the offender. They have lived together for two years. She has two children aged 4 and 6 years. She describes the offender as a genuine person who is respectful towards her and her children. She has never seen him being aggressive.
She also describes the assistance the offender provides to his parents. She indicated she will be unable to financially support the mortgage should the offender receive a custodial sentence. She will live with her parents. She also describes the impact on their children.
Exhibit 4 is a letter prepared by Justine Fernance. Justine Fernance is the former partner of the victim Peter Fernance. She has known the offender since 1999. Her three sons aged 17 and 16‑year‑old twins have been close to the offender, who has ongoing involvement in their lives. She outlined in detail his ongoing commitment to her children.
She described the offender as extremely generous and a compassionate man. She was concerned about the mental wellbeing of her sons should the offender be sentenced to a custodial sentence. She described the offender's new relationship in positive terms and his business as successful. She indicated the offender had expressed to her that he was "very sorry" for what he did. She believed the conduct was completely out of character.
Two of her sons, Zane and Chad Fernance, both provided letters to the Court (Exhibits 5 and 6). They both confirmed the important role that the offender plays in their lives. I note that each of those persons who had provided a letter to the Court was present in Court during the sentence proceedings.
Exhibit 7 is a report prepared by Ms Wojciechowski, psychologist. Ms Wojciechowski assessed the offender on 7 April 2021 for approximately 50 minutes. She administered the following tests, an alcohol use disorder checklist, depression anxiety stress scale and personality assessment inventory. The offender did not report any alcohol or drug issues. In the opinion of Ms Wojciechowski, the personality assessment inventory was entirely within normal limits.
In relation to the question of depression and anxiety, Ms Wojciechowski stated as follows: "It seems likely that Mr Saunders experienced a period of low mood as a stress response to the demise of his relationship".
In her opinion, his symptoms are consistent with a diagnosis of major depressive episode, however he is no longer depressed and the depression would "seem to be confined to a single episode".
In relation to a causal link between the offender's depression and the offending, Ms Wojciechowski stated as follows: "While a causal link between mental health and his offending is not able to conclusively demonstrated, the matters currently before the Court may be far better accounted for by Mr Saunders' likely depression during the breakdown of his relationship, rather than inherent criminality."
In relation to the offender's attitude to the offending, Ms Wojciechowski noted that the offender described the breakdown of the relationship in terms as follows, he reported he was not angry with his former partner, but with Mr Fernance for "breaching his trust".
It is difficult to reconcile his expression of an absence of anger with respect to the victim Ms Foote, having regard to the offending that can only be described as an extremely physically violent act directed towards her. The offender reported that he experienced extreme distress after Ms Foote left their house.
Ms Wojciechowski noted the following: "Mr Saunders reported that after the female victim finally left the home, he experienced extreme distress. He was unable to go to work or leave the house. He reported insomnia, early morning waking, feelings of extreme sadness, poor personal functioning and a feeling of being overwhelmed. He lost interest in his business, in his home and in the activity which he usually enjoyed."

[25]

Determination

In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.
Having considered all possible alternatives in relation to Counts 1 and 4, I am satisfied that no penalty other than imprisonment is appropriate, pursuant to s 5(1), Crimes (Sentencing Procedure) Act.
I am not satisfied that the custodial threshold has been crossed in relation to Counts 3 and 5 and I propose to impose community correction orders.
In determining the appropriate sentences, I have had regard to the objective gravity of each offence, the relevant prescribed maximum penalties and the offender's subjective circumstances.
I propose to impose an aggregate sentence for Counts 1 and 4 in accordance with s 53A(1), Crimes (Sentencing Procedure) Act.
In accordance with s 53A(2)(b), the indicative terms are as follows:

Count 1, taking into account the Form 1 matters - A starting term of three years, less 5% for the plea of guilty, leaving a total term of two years and ten months.
Count 4 - A starting term of 6 months discounted by 5% for the plea of guilty, leaving a total term of 5 months.

I propose to impose an aggregate sentence of 3 years imprisonment.
In determining whether that sentence can be served by way of an intensive correction order, I have had regard to s 66, Crimes (Sentencing Procedure) Act.
Section 66(1) provides that community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.
Section 66(2) provides that the court, when considering community safety, must assess whether making the intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.
Subsection 3 requires the court, when deciding whether to make an intensive correction order, to also consider the provisions of s 3A, that is, the purposes of sentencing and any other relevant common law sentencing principles.
Whilst I accept that an intensive correction order would be more likely to reduce the offender's risk of reoffending, in my view only a full-time custodial sentence can properly address the need for punishment, denunciation, the need for general deterrence and to recognise the harm done to the victim.

R v Saunders

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Judgment (27 paragraphs)

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