District Court New South Wales Medium Neutral Citation: R v McDonald [2022] NSWDC 620 Hearing dates: Monday 12 September 2022 Date of orders: Monday 12 September 2022 Decision date: 12 September 2022 Jurisdiction: Criminal Before: Tupman DCJ Decision: (1) The offender is convicted. (2) Sentenced to a term of imprisonment of 12 months. (3) Pursuant to s 39(1A) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I order a final ADVO. Catchwords: CRIME — Violent offences — Common assault — One count following finding of guilt in Judge alone trial — Maximum penalty 5 years — Offender is 43 — Complainant and offender have a child together but are not in a domestic relationship — Objectively at the top of the range of these types of offences — Offender came to the home of complainant where incident took place — There is a strong correlation between the offenders use of drugs and his offending behaviour — Offender has lengthy criminal record commencing in 1995 — Prospects of rehabilitation are guarded. Legislation Cited: Crimes Act 1900 (NSW): s 61 Crimes (Domestic and Personal Violence) Act 2007 (NSW): ss 16, 39(1A), 51C. Crimes (Sentencing Procedure) Act 1999 (NSW): s 5. Category: Sentence Parties: Regina (The Crown) Dwain McDonald (The Offender) Representation: Crown Advocate: Ms. J. Jayasuriya (The Crown) Counsel: Mr. W. Tuckey (The Offender) Solicitors: Ms. M. Lewis (The Crown) Ms. J. Fahd (The Offender) File Number(s): 2020/00265808 Judgment 1. HER HONOUR: The offender is before the Court for sentence following a verdict entered today of guilty on one count of common assault. It was count 4 in an indictment. The matter proceeded before me by way of judge alone trial. I acquitted the offender in relation to the remaining counts in the indictment. The maximum penalty for common assault in this Court is 5 years imprisonment. The only reason that the matter is before me in this Court is because he was committed for trial on more serious offences, and in particular the offence which constituted count 3 in the indictment. Otherwise, this matter would, without doubt, have been dealt with in the Local Court where the jurisdictional limit would have been 2 years' imprisonment. The Facts 1. The relevant facts were as I found in the judge alone trial. The background is that the offender is the father of the complainant's child. He has never lived with the child, and as I apprehend the evidence, has never really lived with the complainant. I did not accept her evidence that he has had such limited contact with her as she initially contended. I accept that for a period of time leading up to this offence there had been contact permitted by her so that he could have some contact with his daughter. However, they were not strictly in a domestic relationship. However, this offence occurred in her home, and it seems to me that it is appropriate to view it as something at least akin to a domestic violence offence in the circumstances. 2. What occurred is that on the evening of 31 July into the morning of 1 August the offender came to the complainant's house. There were ongoing attempts by him to be allowed into the premises earlier on in the evening. At 2am he was inside the premises. I accept more probably than not he was there because of some misguided belief that he had some right to see his daughter at that time of day. He was, I accept, more probably than not significantly under the influence of drugs at the time, probably Ice. He shouted and expressed threats immediately before committing the offence for which I found him guilty. 3. What he said to the complainant was tendered as part of the trial to prove the element of intimidation relevant for count 3. It was not necessary to make a finding about that because the first element was not proved beyond reasonable doubt. There was an argument in any event that the mental element for intimidation was not proved, because his behaviour alternatively might have been seen as the ramblings of a person exhibiting some form of psychosis, probably drug induced psychosis at the time. They were, however, aggressive words that he uttered. This occurred when the complainant was in her bedroom holding their child who was an infant. The offender approached her. He put his hands near her neck in a way that she described as half strangling, pushing her windpipe. She also described it as 'scruffing' or pulling on her collar. It was very brief, approximately 30 seconds and then he stopped. 4. There was a small and faint red mark visible when the police attended about an hour afterwards. That was the only evidence, namely a photograph taken immediately afterwards. There is no evidence of any ongoing injury or any further photographs taken in relation to the complainant. The police attended. They were not aware at the time that any such event had occurred and so he was allowed to leave, and he was ultimately arrested on 13 September in relation to this, and as I understand it, other matters. Objective Seriousness 1. It is objectively an incident of common assault at the top of the range for offences capable of being charged under s 61. There was actual physical contact. It was done whilst speaking in an aggressive tone and using aggressive terms. It was a physical assault in the vicinity of the complainant's neck. She was holding her child at the time, it was in her own home in her own bedroom and it had the hallmarks of a domestic violence assault. That informs the objective seriousness. It did however last for a very short period of time and it is, at the end of the day, a common assault only and not a more serious criminal offence. 2. His offending is rendered more serious because at the time he was on parole for a series of offences including receiving property, a number of counts of dishonestly obtaining property by deception, goods in custody, police pursuit and drive whilst disqualified. He had been sentenced to 2 years and 6 months with 18 months non-parole period which expired on 18 March 2020. His parole was not due to expire until 11 March 2021. That parole was revoked after he came into custody and he served 5 months and 27 days for the balance of parole, which expired on 11 March 2021. He was also sentenced to a term of 4 months imprisonment for an offence of intimidating a police officer in the execution of his duty, which was ordered to be served concurrently with the balance of parole. 3. He has been bail refused for this matter only since 11 March 2020. He has a lengthy criminal record commencing in Children's Court in 1995 and extending for most of his life. He has spent a number of periods in prison. He has been convicted of a number of assault offences, including domestic violence offences. He has been sentenced for breaching apprehended violence orders. His criminal record causes concern in relation to his real prospects of rehabilitation. He went to trial on this offence and therefore is not entitled to any discount. However, that does not and should not increase the appropriate penalty. The Subjective Case of the Offender 1. He is now aged 43. As I said, he has been in custody for a great deal of his life. He is an indigenous Australian man. He has regrettably the sort of record that this Court unfortunately sees all too often for indigenous Australians. There is a very significant correlation between his offending and his use of illegal drugs. The parole breach report makes that clear. He did not take great advantage of parole, although it indicates that he maintained satisfactory contact during the supervision period, but he continued to use illicit drugs. One can only hope that that has not been the case since he went into custody two years ago, although the Court is aware that drugs are available within the prison system. 2. I am told from the bar table that since being in custody he has taken advantage of what has been made available to him, and in particular he has been operating in a mentorship role, particularly in relation to other indigenous inmates and has risen through the ranks to a senior delegate position in that capacity. He has family available to him in Sydney to assist with his rehabilitation and I am told that one of his daughters is on her way to Bathurst to collect him because he is to be released today. He is the father of seven children, six of whom he sees regularly. He does not have contact with the daughter of the complainant in this matter, and presumably there is an AVO still in place. If there is not, I am obliged to order one today following the conviction for this matter. I will deal with that in due course. The Sentence 1. There is very little more that needs to be said in relation to this sentence. He has spent two years in custody in all, some of which was for other matters, but 18 months in custody now in relation to these matters only, in relation to which I have acquitted him on three. 2. The objective seriousness of this offending, which in my view is in the top half of offences capable of being charged as assault, means that a term of imprisonment is appropriate and that the s 5 threshold has been crossed. However, in the overall circumstances it seems to me that the appropriate term of imprisonment should be 12 months. It would not be appropriate for the Court to simply order a term of imprisonment of 18 months because that is the length of time that he has spent in custody. It is still necessary for the Court to order the appropriate term of imprisonment, not just take into account the time he has spent in custody. 3. Because it is necessary to backdate it to either the date he went into custody or some later date which is appropriate, this will mean that he has spent some six months in custody more than the relevant term of imprisonment. This Court can do nothing about that. It is a function of the time involved in having the matter come on for hearing, some of the delays in the past because of change of legal representation on the part of the offender himself. 1. For those reasons I make the following formal orders: 1. He is convicted of count 4. 2. He is sentenced to a term of imprisonment of 12 months commencing 11 March 2021 and expiring 10 March 2022. 1. NB: I decline to set a non-parole period as the sentence has expired. 2. I direct that he be released forthwith. 1. I am satisfied that this offence, contrary to s 61, is a domestic violence offence to which the provisions of s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) apply, which requires the Court to make a final apprehended violence order for the protection of the complainant and those with whom she has a domestic relationship, unless the Court is satisfied that it is not required, for example, where there has already been a final apprehended violence order made. That is not the case here. I will mark as exhibit B on sentence the provisional apprehended violence order. 2. EXHIBIT #B PROVISIONAL APPREHENDED VIOLENCE ORDER TENDERED, ADMITTED WITHOUT OBJECTION 3. There is no final order in place. That provisional order is stated to continue either until it is revoked or until there is a further order made by the Court. Section 39 mandates the making of an order in circumstances that are before me. This is a case in which a sentence of full-time imprisonment has been made. The provisions of s 39(2B) require that the apprehended domestic violence order be made for a period including the term of imprisonment, together with an additional term of at least two years. But the Court is given a discretion to order a different period if there is good reason to do so. 4. It is the clear intention of the legislature in my view that following a term of imprisonment for a domestic violence offence, any existing apprehended domestic violence order remain in place for at least a period of 2 years. In those circumstances, whilst the term of imprisonment in fact expired in March this year, there are good reasons to order that the ADVO continue for 2 years from today. 5. I am informed from the bar table by the prosecutor, who has had contact with the complainant's support worker, that she is requesting a continuation of the ADVO, that she continues to be afraid for her safety and welfare once the offender is released, and I accept that to be the case. In any event the provisions of s 39 mandate the making of an order and it is not necessary for the Court, it seems to me, to inquire of the complainant her views about this. For those reasons then I will be making an ADVO pursuant to s 39(1A). 6. I make the the following further order: 1. Pursuant to s 39(1A) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I order a final ADVO in the same terms as apply to the current provisional ADVO dated 1 August 2020, which is exhibit B on these sentence proceedings, specifically paragraphs 1, 2 and 9. 2. It will be an ADVO with the protected person nominated as Jyda Chewenta Bayles. ********** 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: 09 December 2022