R v ES [2019] NSWDC 921

District Court New South Wales

Medium Neutral Citation: R v ES [2019] NSWDC 921 Date of orders: 01 October 2019 Decision date: 02 October 2019 Jurisdiction: Criminal Before: Payne DCJ Decision: Aggregate sentence of three years, with a non-parole period of 20 months Catchwords: SENTENCING – aggravated enter dwelling-house – assault occasioning actual bodily harm – domestic violence offences Legislation Cited: Crimes Act 1900, ss 59(1), 111(2) Category: Sentence Parties: Regina (Crown) ES (Offender) Representation: Counsel: P Swaine (Offender)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2018/96306

Judgment 1. ES comes before the Court in respect of two offences. The first offence is contrary to s 111(2) of the Crimes Act 1900: on 25 February 2018, at Parkes in the State of New South Wales, did enter the dwelling house of BR situate at [address omitted], with intent to commit a serious indictable offence, namely to intimidate BR with the intention of causing BR to fear physical harm, in circumstances of aggravation namely, knowing that there were persons in the place where the offence was committed. The maximum penalty for the offence is imprisonment for 14 years. There is no standard non-parole period. 2. Count 2, on 25 February 2018, at Parkes in the State of New South Wales, did assault BR occasioning actual bodily harm to BR. This offence is contrary to s 59(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for 5 years. 3. In addition, the offender asked me to take into account an offence on a Form document. That will be taken into account in respect of count 1. It is an offence contrary to s 59(1) of the Crimes Act. It also was committed on 25 February 2018, assault occasioning actual bodily harm upon BR (hands around throat). 4. There was also an offence on a s 166 certificate. That offence is one of contravening an apprehended domestic violence order at Parkes, again on 25 February 2018. 5. He accepted his guilt in relation to that and he pleaded guilty in relation to both of the offences on the indictment and asked to have the offence on the Form taken into account. The reduction for utilitarian considerations only is 15 percent in respect of the two offences on the indictment. In relation to the s 166 certificate, again 15 percent. 6. It should be said at this point that these remarks are being given after the sentence has been announced. That was because of the time frame yesterday that counsel had travel arrangements and there was no objection from the Crown that this be undertaken. Unfortunately today the offender has absented himself voluntarily from the Court, being in the AVL area at Wellington gaol, and neither side of the bar table has any problem with me continuing with the matter. 7. The factual circumstances of the offending are found in an agreed facts document: 1. The offender, born 1990, and the victim, born 1993, were in a domestic relationship for about four and a half years prior to 25 February 2018. They have two children together, then aged two and five, as a result of their relationship. Section 166: Contravene AVO 2. On 2 May 2016, an apprehended domestic violence order was made by the Parkes Local Court to protect the victim from the offender. On 6 November 2017, the order was varied to the conditions in force at the time of the offence. The order is due to expire 10 March 2022. 3. About 11.00am on 25 February 2018, the offender attended the home address of the victim and her children and knocked on the door. The victim let the offender into the house and they had a verbal argument. The victim asked the offender to leave but he refused. The victim called her mother, RR, to come and help. The victim's mother arrived and a short time later the witness, RL, arrived and took the offender home. The victim was upset and crying. 4. The victim's mother took the older child to her home to stay the night. The victim and the youngest child stayed [at their home]. Count 1: Enter with intent 5. About 11.00pm that evening, the offender attended the victim's mother's house. He stayed outside the house yelling for the victim, saying, 'Where are you, you cunt, come out here'. The offender's son came out and told him that 'Mum's home'. RR called the police. 6. A few minutes later, the offender attended the victim's home, about 1.6 kilometres away. He walked around the back and smashed a window with a stick. He walked through an open laundry door and entered the house. 7. The offender walked into the victim's bedroom. He was angry and was shouting at the victim, who was in her bed with the two year old child. 8. The offender yelled, 'Call the cops or I won't leave'. Count 2: AOABH 9. The victim walked into the lounge room and the offender followed. The victim's child followed them into the lounge room. The victim moved towards the front door but the offender grabbed her and dragged her back into the lounge room. 10. The offender punched the victim to the side of the head, causing pain, swelling and bruising to her face and bleeding to the nose. She fell to the ground. Form 1: AOABH 11. The offender pushed her onto a lounge chair and put both hands around the victim's neck and squeezed for a second or two. This caused redness and bruising to the victim's neck. 12. The offender stood over the victim. At this time a police car pulled up at the front of the house. The offender looked through the blind and said, 'The police are here. Bye.' The offender fled out the back door. 13. The two year old child was present and observed the entire incident. He pointed to his mother whilst police were talking to her and said, 'Hurt'. Police spoke with the victim and documented the crime scene. 14. The victim did not seek medical treatment. Arrest 15. On 31 March 2018, the offender was arrested at Coffs Harbour. He was charged and refused bail. 1. The Court, it should be said at this time, had the benefit of a sentencing assessment report and a psycho-legal assessment report dated 22 September 2019. The Crown also had the benefit of written submissions from the defence and also from the Crown. 2. I convict the offender of each of the offences on the indictment.