R v Van Drunen

District Court of NSW|2019-07-09

SENTENCE

Warren Van Drunen (38 years) appears for sentence in relation to the following offences: 1. Reckless wounding (section 35(4), Crimes Act). The maximum prescribed penalty for this offence is 7 years imprisonment. There is a prescribed standard non-parole period of 3 years; 2. Assault occasioning actual bodily harm (section 59, Crimes Act). The maximum prescribed penalty for this offence is 5 years imprisonment. There is no prescribed standard non-parole period. 3. Destroy or damage property (section 195 (1) (a), Crimes Act). The maximum prescribed penalty for this offence is 5 years imprisonment. There is no prescribed standard non-parole period.
The offender pleaded guilty on 23 November 2018 at the Gosford Local Court. Having regard to the timing of the plea, I propose to allow discount on sentence of 25%.
The offender has spent 4 days in custody in relation to these offences in 2018 and has been bail refused since being arrested for a breach of bail on 11 July 2019. Accordingly, the sentence imposed today will be backdated to 7 July 2019.

Assessment of objective seriousness

Those facts clearly disclose very serious objective criminality. 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 Endigarov (2001) 125 A Crim R 551 at 558, Woods CJ at CL 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 personal and general deterrence."
Recently, in Majzoub v R [2019] NSWCCA 94 Hidden AJ (with whom Hoeben CJ at CL and Garling J agreed) stated as follows at [26]: "On a number of occasions this Court has emphasised the seriousness of domestic violence and the need for denunciatory and deterrent sentences (while giving appropriate weight to the offender's subjective circumstances and prospects of rehabilitation). The Court recently restated its approach in Patsan v R [2018] NSWCCA 129. At [41]-[43], Adamson J (with whom Bathurst CJ and Leeming JA agreed) observed: "41. The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to: "the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community." 42. Recently the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that: "current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence."
In assessing the objective seriousness of the offence of reckless wounding, I have had regard to the following factors: 1. The offending occurred in the context of a domestic relationship. 2. The nature and extent of the violence inflicted upon the victim. For the purposes of sentencing, the Court has viewed the CCTV footage from the front of the house which shows this offending (Exhibit B). In the footage the offender can be seen delivering multiple blows to the head of the victim after she has fallen from a veranda into trees. The violence continues for approximately 3 minutes. There are at least 3 forceful blows to the head of the victim. The CCTV footage shows a callous and brutal attack upon the victim. 3. The nature and extent of injuries sustained by the victim, namely 2 deep lacerations to the victim's head one requiring 10 sutures the other requiring 3 sutures. 4. A mobile phone was used as a weapon to inflict the injuries.
Having regard to those factors, I assess objective seriousness of this offence is being in the middle of the range. Whilst the injuries may well not be regarded as the most serious with respect to an offence of wounding, the circumstances in which they were inflicted, namely in the context of a domestic relationship elevates the overall level of objective seriousness.
In assessing the objective seriousness of the offence of assault occasioning actual bodily harm, I have taken into account the following factors: 1. The offending occurred in the context of a domestic relationship. 2. The nature and extent of the violence inflicted upon the victim. The offender grabbed the victim by the throat and started choking her and, at the same time, the offender began hitting the victim on the head. 3. The choking caused red marks and 3 bruises to the neck and associated tenderness of the larynx. Those injuries are depicted in 3 photographs (Exhibit C)
Having regard to those factors, I assess the objective seriousness of this offence as being in the middle of the range.
In relation to the offence of destroy or damage property, I regard that offending as at the lower end of objective seriousness having regard to the nature and extent of the damage sustained namely, damage to the frame and lock of the door. There is no evidence before the Court in relation to the monetary value of that damage.

Victim impact statement

The victim has prepared a detailed victim impact statement. She describes not only the fear she felt at the time of the offending, but also the emotional betrayal in circumstances where the offender was someone with whom she had had a relationship.
The victim also describes the significant ongoing impact upon her daily functioning including the following: "My social life has contracted to virtually non-existent since the assault, and, apart from a shared lunch with friends and family for my birthday whilst my mother was visiting from Canada, the solitary social outing that I have had in the 16 months following was made possible only by my friend driving up to collect me and take me home again so we could go out to lunch together. I regularly experience feelings of hopelessness and suicidal ideation, as the optimism with which I used to approach life with has been decimated by the cruelty of the attack from someone that I used to love, trust and care for. My faith in the concept of love has been shattered, and I want nothing whatsoever to do with anything even vaguely resembling personal involvement with another human being. I distrust most of humanity, view life with extreme scepticism, and don't want to know about anyone's involvement with significant others."
In my view, this description eloquently identifies the significant emotional impact of this domestic violence offending. It was accepted on behalf of the offender that the victim has suffered emotional harm, including post traumatic stress disorder as a consequence of the offending. However, it was submitted that this offending was not the cause of all the vicitm's psychological problems in circumstances where she had been under psychological care since 2015.
Having regard to the victim impact statement together with the reports of Dr Henson and Anne Keniry, psychologist (exhibit E), I am satisfied that this offending has had a significant impact upon the victim that extends well beyond what would ordinarily be expected from such offending.
The court is hopeful that with ongoing support and professional assistance the victim is able to look forward to a more positive future.
One of the purposes of sentencing is to recognise the harm done to the victim (section 3A (g), Crimes (Sentencing Procedure) Act).

Aggravating features

I am satisfied the following aggravating features are established. Firstly, the offending occurred in the home the victim. Secondly, significant emotional harm has been caused to the victim.

Subjective circumstances

The offender is 38 years old.
He has a criminal history commencing as an adult in 2003 when he was dealt with for offences of damage property by fire. He was sentenced to a three-year section 9 bond.
In that same year he was dealt with for an offence of drive whilst disqualified and sentenced to 6 months periodic detention. On appeal, the sentence was reduced to 3 months periodic detention. He was also dealt with for an offence of drive while licence suspended and sentenced to 100 hours community service.
In 2004 he was dealt with for a further offence of drive whilst disqualified and sentenced to 9 months imprisonment. On appeal, he was sentenced to periodic detention for 9 months with a non-parole period of 3 months.
In 2008 he was dealt with for the offences of assault (domestic violence), assault occasioning actual bodily harm (domestic violence) and destroy property. In respect of each of those offences he was sentenced a section 9 bond for 12 months.
In 2009 he was dealt with for an offence of assault and was sentenced to a section 9 bond. He was also dealt with for an offence of drive whilst disqualified and sentenced to a suspended sentence for 7 months.
In 2018 he was dealt with for an offence of contravening and apprehended the violence order and fined.
He has also been dealt with for further driving offences.
Having regard to the offender's criminal history, I am satisfied that it disentitled him to any leniency on sentence. Also, specific deterrence is an important consideration in circumstances where he has previously been dealt with for domestic violence offences.
The following material was tendered on behalf of the offender during the sentence proceedings:

Exhibit 1 - report of Emma Hubner, psychologist 16 May 2019;
Exhibit 2 - letter under the hand of Dr K Hensen Metta Clinic 23 March 2018;
Exhibit 3 - sentencing statistics;
Exhibit 4 - defence written submissions.

The offender's background is outlined in the report of Ms Hubner (Exhibit 1) and the Sentencing Assessment Report (exhibit A).
Ms Hubner assessed the offender for 2 and half hours on 22 March 2019.
The offender reported that he was born in Foster. He is the youngest of 3 children. At 4 years of age his family moved to Ryde.
He reported that his mother was an alcoholic. Ultimately, this resulted in his father leaving the family home when he was 10 years old. The offender remained living with his mother.
Ms Hubner stated as follows: "He maintained that his mother experienced bouts of depression and once threatened suicide in front of him. He recalled that they also struggled financially and went without food and basic necessities."
The offender reported that he moved to the Hawkesbury to live with his father when he was 13 years old. His father drove a ferry on the Hawkesbury River and he enjoyed spending time with him.
At 15 years of age the offender started a four-year relationship which was described as turbulent. He indicated his partner suffered from poor mental health and smoked cannabis. After that relationship ended, he moved to Foster after being threatened by his ex-partner's new boyfriend.
The offender reported a number of subsequent relationships between the ages of 19 and 26 years that were all problematic.
The offender's father passed away in 2015.
The offender met the victim of the current offences at his father's funeral in 2015.
Ms Hubner noted as follows: "He said the relationship was "great" until he suffered a bout of heatstroke at work. He reportedly lodged a Workers Compensation claim and had ongoing problems with his employer. His mental health declined, and conflict arose in his relationship. He maintained that Ms Blackburn was responsible for the paperwork associated with this claim and that she frequently delayed completion of the necessary documentation. This reportedly contributed to his frustration and created animosity between them."
The offender reported that his mental health continued to deteriorate up until he committed these offences on 15 February 2018.

Education / employment

The offender attended school until year 10. He left part way through year 10. He reported some academic difficulties.
At 16, he commenced employment as a crane driver. He was in this employment the 10 years. The offender's mental health declined in 2008 and he received a disability support pension until 2012.
In 2012, the offender gained employment as a marine mechanic. He reported that whilst in this employment he was the victim of workplace bullying by his boss. He made a workers compensation claim regarding this conduct. That claim was denied in February 2016.
The offender had a re-emergence of mental health difficulties after the alleged problems with his boss and he recommenced receiving a disability support pension in 2017.
At the time of the offending in 2018 the offender was working casually with his neighbour mowing lawns.

Medical history

The offender's medical notes indicated he sustained a head injury as a result of a motor vehicle collision in 2003.
Ms Hubner stated as follows: "He had "cognitive changes in memory difficulties", a tendency to anger, and mood fluctuations. Mr Henson recommended a detailed assessment to determine whether Mr Van Drunen's cognitive abilities or personality characteristics have been affected by the accident. There was no indication of whether such an assessment was ever conducted."

Mental health history

The offender saw Dr Henson, consultant psychiatrist between 2008 and 2010. It was noted that the offender required psychotherapy and help recovering from depression and "psychological difficulties". He was prescribed antidepressants and tranquilizers to be used for anxiety.
He also saw Dr Henson in 2015 after the passing of his father.
In 2016, the offender was diagnosed with major depression, anxiety disorder and post-traumatic stress disorder. He was prescribed medication.
Later in 2016 the offender was diagnosed with chronic adjustment disorder with features of depressed mood and anxiety.
In 2017, the offender continued to experience symptoms of major depression with suicidal ideation and sometimes intentions, anxiety disorder and post-traumatic stress disorder. The offender was taking antipsychotic medication and antidepressant medication.
Ms Hubner states as follows: "Mr Van Drunen was taking antipsychotic, Seroquel 300 MG and antidepressant, Sertraline (brand-name Zoloft; 50 MG man) when he met with Dr Jones in 2018. He reported episodes when he became aggressive "over everything falling apart". He also reported functional impairment such as social withdrawal, disrupted sleep due to intrusive worry, and decreased appetite and energy levels. Dr Jones confirmed chronic adjustment disorder with depressed and anxious mood, it perpetuated by further legal action and non-resolution, ongoing financial stress and ongoing symptoms."
Ms Hubner noted that on 19 February 2018 (4 days after the offending) the offender was assessed by Dr Jones, psychiatrist and was diagnosed with chronic adjustment disorder with depressed and anxious mood. She further noted that the offender also saw Dr Henson on 23 March 2018 and "described episodes of absence that Dr Henson felt might be dissociative episodes within the context of major depression and anxiety".

Drug and alcohol history

The offender reported a history of alcohol, amphetamine and heroin use. However, he denied any problematic use at the time of the offences.

The current offending

The offender told Ms Hubner as follows: "Mr Van Drunen said, "I can recall holding her over the couch and sitting on her in the garden". He added, "there were times she'd poke me, trying to get me to snap", "I'd get so angry, and she'd stop me from leaving", and "I was very weak at the time, emotionally broken, life had destroyed me". Mr Van Drennan claimed that he committed the index offences while under the influence of his alternate personality Roy. He maintained that he had no recollection of the offences until Roy emerged during the assessment for his pre-sentence report. He said that it was then that Roy "showed me" what happened."

Psychological assessment

After cognitive testing, Ms Hubner assessed the offender as being in the average range of intelligence.

Mental health at the time of offending

Ms Hubner provided the following opinion: "Given the information available, it is probable that at the time of the index offences Mr Van Drunen's capacity to effectively deal with complex problems such as relationship discord may have been reduced due to his symptoms of chronic adjustment disorder with depressed and anxious mood and possible alcohol use disorder."

Treatment recommendations

Ms Hubner recommended cognitive behavioural therapy to address the offender's aggressive tendencies together with interpersonal therapy to address his relationship issues. She also recommended relapse prevention strategies such as the EQUIPS domestic abuse program. Ms Hubner noted that the offender had below-average motivation for treatment on the basis of results obtained from the Personality Assessment Inventory.

The evidence of the offender during the sentence proceedings

The offender told the court that he currently lives at Foster. In relation to his mood in the period prior to the offending, he indicated that due to his life circumstances he was extremely depressed, he was suffering from post-traumatic stress disorder, he was not coping being outside and described himself as being "in a really bad way". He indicated he was seeing a psychiatrist and his GP at the time.
Since the commission of the offences he has received treatment. Specifically, in 2018 he attended appointments at a Mental Health clinic at Foster. He finished those appointments at the beginning of November 2018.
In relation to his current circumstances, he indicated he is setting up a business as a mobile marine mechanic and becoming part of the local community. He said he works in the business every day. He said he has a home, family and friends.
In relation to his ongoing treatment, he indicated he had been attending Alcoholics Anonymous until late 2018. Since that time, he had made the decision to focus on work. He is still seeing a psychiatrist and a psychologist and had future appointments organised.
In relation to the offending, he said having watched the CCTV, "it makes me feel sick, it hurts my chest, it is hard to watch".
In cross-examination, it was suggested to the offender that "Roy" was a recent invention and the offender was trying to shift the blame for his behaviour and not taking full responsibility. The offender acknowledged that he was accepting full responsibility for his behaviour.

The relevance of mental health on sentence

Having regard to the report of Ms Hubner, I am satisfied the offender has mental health issues.
In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] McClellan J summarised the principles relating to an offender suffering from mental health issues as follows: 1. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence; 2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed; 3. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced; 4. It may reduce or eliminate the significance of specific deterrence; and 5. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
His Honour stressed that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity, it may nevertheless be appropriate to moderate the need for general or specific deterrence.
It was submitted on behalf of the offender that, having regard to the opinion of Ms Hubner, the offender's mental health contributed to the offending (through limiting his ability to deal with complex problems such as relationship discord) so that the offender's moral culpability is reduced and also, it renders him a less suitable vehicle for general and specific deterrence. Further, it was submitted that the offender's mental health would render his time in custody more onus.
Having regard to the evidence of Ms Hubner, I accept those submissions in circumstances where I am satisfied that at the time of the offending the offender would have had some difficulty with regulating his emotions. I am also satisfied that his time in custody will be more onerous. Accordingly, I propose to moderate the otherwise appropriate sentence.

The relevance of the offender's background on sentence

It was submitted on behalf of the offender that in circumstances where the offender has described a childhood of deprivation and neglect that the offender's moral culpability is reduced (see Bugmy v The Queen [2013] HCA 37 at [42] to [44]).
I am satisfied having regard to the offender's experiences in childhood that some moderation of the otherwise appropriate sentence is appropriate in circumstances where he was deprived of the moral and emotional guidance ordinarily provided to children by their parents.

Remorse

Whilst there is evidence that the offender expressed remorse to the Community Corrections Officer during the preparation of the Sentencing Assessment Report, it was the opinion of the Community Corrections Officer that the offender minimised the extent of his responsibility for his actions (in circumstances where he claimed he was not psychologically present during the offence and attributed blame to an "alter-ego").
In the offender's evidence during the sentence proceedings, he did acknowledge that he does accept responsibility for the offending. In those circumstances, I am satisfied he is remorseful.

Prospects of rehabilitation

Having regard to the offenders long-standing mental health issues in respect of which he remains under treatment and the history of domestic violence offences, I am satisfied that any view of his prospects of rehabilitation must necessarily be guarded. It is positive that he has been able to gain employment whilst in the community and that he continues to pursue treatment.
At this stage, I am unable to find that he is unlikely to reoffend. I note that in the Sentencing Assessment Report the offender was assessed as a medium risk of reoffending.

Special circumstances

It was submitted on behalf of the offender that the court would find special circumstances having regard to firstly, that this would be the offender's first period of full-time imprisonment, secondly, he is currently serving his time in custody in the Special Management Area Protection, and thirdly, the need for supervision of the offender to address his mental health issues, alcohol use and anger issues upon release.
I am satisfied special circumstances are established and I propose to vary the statutory ratio between the non-parole period and the parole period pursuant to section 44 (2B), Crimes (Sentencing Procedure) Act.

Submissions on penalty

It was submitted on behalf of the Crown that a full time custodial sentence was required given the serious nature of the offending.
It was submitted on behalf of the offender that, whilst a custodial sentence was appropriate in all the circumstances, the court could properly consider an intensive corrections order in circumstances where any aggregate sentence is likely to be 3 years or less. It was submitted that a number of issues in relation to the offender namely, anger management, psychological treatment and alcohol use could properly be addressed in the conditions of such an order.
The court is first required to consider the term of any sentence and then determine how that sentence is to be served.

Totality

In circumstances where the court is dealing with the offender for more than one offence, I have had regard to the question of totality.
The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation: see Cahyadi v R (2007)168 A Crim R 41.
I am satisfied that, in circumstances where there is separate and distinct criminality in respect of the offence of reckless wounding and assault occasioning actual bodily harm, some partial accumulation is required to fully reflect the total criminality.

Determination

In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s3A, Crimes (Sentencing Procedure) Act.
Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence of reckless wounding and assault occasioning actual bodily harm (section 5(1), Crimes (Sentencing Procedure) Act). I propose to impose a non-custodial sentence to the offence of destroying or damage property.
I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties, the offender's subjective circumstances and the prescribed standard non-parole period for the offence of reckless wounding in accordance with s 54B(2) of the Crimes (Sentencing Procedure) Act.
In respect of the offence of assault occasioning actual bodily harm, I have also taken into account that that offence is a Table 2 offence and would have ordinarily been dealt with in the Local Court had there not been an accompanying offence of reckless wounding. The jurisdictional limit on the maximum penalty available in the local Court is 2 years imprisonment.
I propose to impose an aggregate sentence pursuant to section 53A (1), Crimes (Sentencing Procedure) Act.
The indicative sentences pursuant to section 53A(2)(b), Crimes (Sentencing Procedure) Act are as follows: 1. Reckless wounding - starting term 3 years - less 25% for the plea of guilty, leaving a total term of 2 years and 3 months with a non-parole period of 1 year and 4 months. 2. Assault occasioning actual bodily harm - starting term of 16 months - less 25% for the plea of guilty, leaving a total term of 12 months.
I consider the appropriate aggregate sentence is a total term of 2 years and 9 months.
In circumstances where the aggregate sentence is less than 3 years, I have considered the submission made on behalf of the offender that the sentence could be served by way of an intensive corrections order.
In determining whether an intensive corrections order is appropriate, I have taken into account section 66, Crimes (Sentencing Procedure) Act which is in the following terms: 1. community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive corrections order in relation to an offender. 2. when considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. 3. when deciding whether to make an intensive corrections order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
In my view, in circumstances where the offences are domestic violence offences and having regard to the objective seriousness of each offence of reckless wounding and assault occasioning actual bodily harm, I am satisfied that the only appropriate sentence is one of full-time imprisonment.

Orders

In relation to each offence the offender is convicted.
In respect of the offences of reckless wounding and assault occasioning actual bodily harm the offender is sentenced to a total aggregate sentence of 2 years and 9 months to date from 7 July 2019 and expire on 6 April 2022 with a non-parole period of 1 year 7 months to date from 7 July 2019 expire on 6 February 2021.
I direct the offender be released to parole on 6 February 2021.
I have found special circumstances and varied the statutory ratio between the non-parole period and the parole period pursuant to section 44(2B), Crimes (Sentencing Procedure) Act.
In respect of the offence of destroy or damage property the offender is ordered to comply with a Community Corrections Order for a period of 12 months pursuant to section 8 of the Crimes (Sentencing Procedure) Act to commence 6 August 2019 and expire on 5 August 2020.
The Community Corrections Order is subject to the following standard conditions: 1. you must not commit any offences. 2. you must appear before the court is called upon to do so during the term of the order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2019

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