District Court New South Wales Medium Neutral Citation: R v MURPHY [2023] NSWDC 562 Hearing dates: 8 December 2023 Date of orders: 15 December 2023 Decision date: 15 December 2023 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced – see paragraphs [66]-[71] Catchwords: CRIME – assault occasioning actual bodily harm – intimidation – common assault on form 1 – need for general deterrence in domestic violence matters SENTENCE – subjective features – unenviable criminal history – breach of conditional liberty – Bugmy factors enlivened – significant history of drug abuse Legislation Cited: Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Criminal Procedure Act, 1986 Cases Cited: Bugmy v the Queen [2013] HCA 37 Cherry v R [2017] NSWCCA 150 DPP (Cth) v De la Rosa (2010) NSWLR 1 McCullough v R [2009] NSWCCA 94 Moiler v R [2021] NSWCCA 73 R v Biles (No. 2) [2017] NSWSC 525 R v Eckermann [2013] NSWCCA 188 R v Hamid [2006] NSWCCA 302 R v Hassenein Naderi [2022] NSWDC 534 R v Lloyd [2022] NSWSC 960 R v Mitchell & Gallagher (2007) 177 A Crim R 94 The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 56 NSWLR 146 Vragovic v R [2007] NSWCCA 46 Category: Sentence Parties: Rex Arthur MURPHY Representation: Counsel: Ms H Blake for the Offender Solicitors: Mr F Lawrence, Office of the Director of Public Prosecutions Mr P Keane, Alzaim Keane Legal File Number(s): 2022/276069 Publication restriction: No Judgment 1. The offender appears for sentence in respect of a number of domestic violence offences. On an amended indictment there are two charges, namely: 1. On 13 September 2022 at Ashmont in the State of New South Wales, assaulted Lillian McBride, thereby occasioning to her actual bodily harm, contrary to s 59(1) of the Crimes Act, 1900 and further 2. On 13 September 2022 at Ashmont in the State of New South Wales, did intimidate Lillian McBride with the intention of causing Lillian McBride to fear physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007. 1. The parties agree that the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty. I agree that that is the appropriate discount. 2. There was also a charge of Common Assault, contrary to s 61 of the Crimes Act that was originally on the indictment. One issue that arose at the sentence hearing was that it was apparently always the intention of the parties that the Common Assault matter be on a Form 1 document. However, when the offender was arraigned on the indictment a plea of guilty was entered to that charge. With the consent of the Crown, leave was given to the offender to withdraw the plea of guilty noting that it was then to be placed on a Form 1. The Form 1 matter attaches to the charge of Assault Occasioning Actual Bodily Harm. 3. In addition, there are two charges of Contravene Apprehended Domestic Violence Order (ADVO) attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. 4. As the pleas of guilty were entered to those offences on the first occasion that the offender was able to do so, I allow the full 25% discount for the utilitarian value of the pleas of guilty. 5. The maximum penalty for both matters on the indictment is 5 years imprisonment. Parliament has not specified a standard non-parole period in respect of either of those matters. The maximum penalty for each of the two charges of Contravene Apprehended Domestic Violence Order is 2 years imprisonment, noting that they are summary matters and not amenable to be dealt with on indictment. 6. In passing sentence in respect of the Assault Occasioning Actual Bodily Harm charge I will need to give proper regard to and apply the principles enunciated in The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146. Facts 1. One charge of Contravene ADVO (sequence 3) relates to on an ongoing course of conduct between 10 September 2022 and 14 September 2022 including the offending to which the matters on the indictment relate and the other charge of Contravene ADVO (sequence 4) relates to the conduct that occurred after the victim left the house. 2. On 21 December 2021 a final apprehended violence order (AVO) was confirmed against the offender at the Local Court naming the complainant as the person in need of protection. The order was for a period of five years and seven months and contained the following conditions that the offender was: 1. not to assault, threaten, stalk, harass or intimidate Lillian McBride or intentionally or recklessly destroy or damage to property or animals; 2. not to approach Lillian McBride except through a lawyer; 5. not to try and find Lillian McBride; 9. not to go within 2000 m of any place Lillian McBride lives or works. 1. On or about 9 September 2022 the offender contacted the victim by phone. The offender told the victim to come and stay with him at his sister's house at Ashmont, a suburb of Wagga Wagga. The offender threatened to harm the victim and her family if she did not come and stay with him. 2. Shortly after this interaction the victim's friend Berna drove the victim from Lightning Ridge to Dubbo, where the offender met the victim. The offender and victim then drove to Wagga Wagga. 3. Going now to the Assault Occasioning Actual Bodily Harm matter and the Common Assault (Form 1 matter), on Tuesday, 13 September 2022 at about 3 am the victim and the offender were in the offender's bedroom at the house. The offender went through the victim's phone and found text messages between the victim and some of her male friends. The victim told the offender that the messages were innocent in nature but the offender did not believe her. 4. The offender grabbed the victim and held her against the wall and punched her several times to the head. The victim sat down on the bed. The offender punched her with his fist to the side of her head. The victim moved to the corner of the room in an attempt to get away from the offender, however, he grabbed her by her hair and punched her multiple times to the face. The offender was wearing a ring on the hand he was using to punch the victim, which caused a laceration underneath the victim's eye. The victim screamed for help. The offender's sister and her partner and their child were at the house at the time but no one came to the victim's assistance. The offender told the victim, "Just shut the fuck up, we don't want fucking people knowing my business". 5. The offender demanded the victim read the messages on her phone, as the offender has difficulty in reading. The offender punched the complainant with force to the chest multiple times. While he continued to interrogate her about the messages on her phone the offender hit the victim hard to the side of the head with his fist, causing her to lose consciousness. The victim regained consciousness to find the offender standing over her. She felt fluid leaking from her ear. The offender grabbed the victim and yelled, "You fucking slut. Fucking tell me. Don't make me kill you right here and now". The victim began to have a panic attack. The offender spat in the victim's face and told her to die. The offender pulled the victim to her feet and punched her several more times. 6. A short time later the victim walked to the front door of the house and ran outside and away from the house. The offender saw the victim leave and chased her down. He grabbed the victim by her hair and dragged her back towards the house. The offender said to the victim words to the effect of, "Shut the fuck up or I'll stomp your head on the cement". He said that he would bash her even more if she did not "shut up". 7. The offender and victim returned to the house. At the front of the house the offender pushed and shoved the victim. They moved to the top of the veranda of the house and sat down. The offender hit the victim's head against a pole on the veranda. The offender then led the victim inside the house and into the offender's bedroom where he continued to interrogate the victim about the messages on her phone. After some time, the offender began to calm down. 8. Going to the Stalk/Intimidate charge on the Indictment, later at about 6 pm on 13 September 2023 the offender and victim visited a service station before returning to the house. The offender became angry at the victim. The offender and victim went into the laundry of the house and the offender closed the door of the laundry behind them. He then held a pair of manicure scissors to the victim's chest and said, "I should just shove these scissors into your throat and kill you so no one else can have you". 9. The offender began to calm down and a short time later he and the victim went to the offender's bedroom and lay down on the bed. Not surprisingly, the facts recite the victim was unable to sleep as result of her fear of the offender. The victim began to cry and the offender said to her words to the effect of, "I'm sorry I'm sorry". The victim replied, "Fuck you, you hit me, I don't want this shit". The offender said, "Well leave then, but you're not gonna make out of here alive. Ring the police, cause I'm pretty sure you won't make it out of here. You'll have fucking breathing tubes down your throat". He also said, "I'll break every bone in your body". Again, not surprisingly, the facts recite the victim feared for her life. 10. The charge of Contravene ADVO to which sequence 3 relates involves the conduct of contacting the victim, approaching her, finding her and going to her at Dubbo and bring her back to Wagga Wagga as well as the offending on 13 September 2022. The other charge of Contravene ADVO relates to the offender continuously calling the victim on her mobile phone and leaving several voice messages after the victim had left the house. Assessment 1. Assault Occasioning Actual Bodily Harm is generally a result offence i.e. the more serious the injury the more objectively serious the matter will be. See for example R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27]. However, McCullough v R [2009] NSWCCA 94 is authority for the proposition that the manner in which the injuries were inflicted, the reason for the infliction of the injuries and the circumstances surrounding the assault are relevant to the assessment of the seriousness of the matter. 2. The attack on the victim was vicious and sustained. It continued from the bedroom to the street, where the offender pursued the victim who was attempting to escape from him. The violence continued after the offender caught up with the victim. The injuries include fluid leaking from the victim's ear and her being rendered unconscious. There is a series of five photographs within the Crown tender bundle which indicate the victim also sustained bruising and a number of lacerations. Noting the ferocity of the attack on the victim, I am firmly of the opinion that the assault occasioning matter is above the midrange of seriousness. Counsel for the offender concedes as much in her written submissions. 3. Further, the intimidation matter is also above mid-range noting the use of the weapon, the nature of the threat while the offender was holding the scissors and the continual threats. Given what had previously occurred, the victim would have very much been in fear of the offender. 4. The Contravene ADVO matter to which sequence 3 relates is a particularly serious example of that offence. The other matter of Contravene ADVO, taken in isolation, is a typical example of that type of offence that comes before the Local Court and often enough to the District Court on appeal. In all the circumstances however in the context of this case that matter is mid-range noting that it is part of an ongoing course of conduct and the conduct of the offender by continually ringing the victim given what had previously occurred. General Deterrence in respect of domestic violence and contravene ADVO 1. The Court of Criminal Appeal in a number of cases going back to at least R v Hamid [2006] NSWCCA 302 at [86] has expressed the need for general deterrence in sentencing domestic violence offenders. Ms Blake on behalf of the offender argues that there is a causal connection between a mental condition suffered by the offender and the offending, which therefore enlivens the principles enunciated by McClellan CJ at CL in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 at [177]-[178]. I will deal with this in more detail when I deal with the subjective case, but for present purposes I do not accept there is a causal connection. General deterrence most certainly has work to do in this sentencing exercise. 2. Some of the other decisions of the Court of Criminal Appeal that speak of the need for general deterrence in matters relating to domestic violence include Vragovic v R [2007] NSWCCA 46 at [33], Hiron v R [2007] NSWCCA 336 at [32] and R v Eckermann [2013] NSWCCA 188 at [55]. In Cherry v R [2017] NSWCCA 150 at [78] Johnson J (Macfarlan JA, Harrison J agreeing) said: "…It is undoubtedly the case that the criminal law in the area of domestic violence requires rigorous and demanding consequences for the perpetrators for the purpose of protecting partners, family members and the wider community." 1. Fagan J in his remarks on sentence in R v Biles (No. 2) [2017] NSWSC 525 at [60] said: "The Court of Criminal Appeal and individual judges of this Court have repeatedly stated that crimes of domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend similarly: R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [65] – [88]; R v Mahon [2015] NSWSC 25 at [101] – [103]. Darryl Biles' sentence must be sufficient to convey clearly the Court's denunciation of his crime: R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 at [47]." 1. There have been similar pronouncements in respect of offenders who contravene apprehended domestic violence orders. Bellew J in R v Lloyd [2022] NSWSC 960 said at [20]-[21]: "The fact that domestic violence is a profoundly serious problem in our community has been the subject of previous judicial comment. Its proliferation has led to an increased necessity for Magistrates in the Local Court to make ADVOs for the purposes of protecting people such as Ms Greenwood, who find themselves in controlling and abusive relationships and who, as a consequence, fear for their safety. However, the efficacy of an ADVO depends upon the person against whom it is made strictly complying with its terms. The present case demonstrates the catastrophic consequences that may follow when such an order is breached. [21] The ADVO which was in force against the offender at the time of Ms Greenwood's murder was made by a Magistrate in the Local Court, for the specific purpose of ensuring Ms Greenwood's safety. It was not to be regarded as some empty rhetorical flourish, pronounced by a functionary in the performance of some rote administrative procedure. The pervasion of domestic violence in our community in recent years is such that the point has been reached where one thing needs to be made clear: any person who is subject to an ADVO is not at liberty to treat it as a piece of paper, containing an insignificant and inconvenient form of words, which can be ignored when it suits them, or worse still, when they wish to set about committing some nefarious and violent act against the person for whose protection the order has been made. A person who acts in breach of an order of the kind made against the offender should expect that any such breach will be treated seriously by the Courts. In the context of the present case, the offender's breach of the ADVO which was put in place for Ms Greenwood's protection is to be given full weight as a circumstance of aggravation." Criminal History 1. The offender was born on 12 April 1995 and accordingly is 28 years of age. Accordingly, in my view he can no longer be described as a young offender. He has an unenviable criminal history. For present purposes I ignore his juvenile history. However, he has been convicted of serious driving matters including drive while suspended, larceny, brake enter and steal, common assault enter dwelling with intent to steal, fail to comply with reporting obligations, damage or destroy property and domestic violence offending including stalk/intimidate. The record is such that the offender is not entitled to any particular leniency. 2. Further, I note that there are numerous convictions for failure to comply with reporting obligations. On 21 December 2021 the offender was convicted of three counts of stalk/intimidate and sentenced to an aggregate sentence of 18 months. On appeal, that sentence was confirmed and the non-parole period of 11 months expired on 31 July 2022. Accordingly, the offending for which the offender now appears for sentence was committed whilst he was subject to parole. That enlivens the factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act of committing further offences while subject to conditional liberty. My understanding of the criminal history is that there was a charge of larceny which had previously been the subject of a Community Correction Order, which was called up and was included in that sentence. 3. While the record is one that does not entitle the offender to any particular leniency, nevertheless specific deterrence has also some work to do in this sentencing exercise. I note in particular the offender was on conditional liberty for domestic violence type of offending at the time of commission of the offences for which he now appears for sentence. 4. Given the history of the offender and the breaches of conditional liberty I am quite unable to make any positive finding that the offender is unlikely to re-offend. Subjective Case 1. No oral evidence was called from or on behalf of the offender, however, a comprehensive psychological report authored by Mr Tim Watson-Munro was tendered without objection and became Exhibit 1 on sentence. 2. The report notes (page 2) a complex clinical and developmental history characterised by institutionalisation from an early age and the context of him being placed in the care of the Department of Community Services (DOCS) as a child and a history of sexual abuse whilst in the care of the state. There are also significant ongoing symptoms of depression and anxiety and trauma. 3. At page 3 of the report it is noted the offender has seven siblings. His parents are still alive although he has not been in contact with them. His father has been recently incarcerated. The offender was moved around the state while he was placed with DOCS. The offender is illiterate. At the age of 13 years he was subject to sexual abuse on one occasion. This has only been recently disclosed. The perpetrator was part of a family associated with DOCS. The offender acknowledged strong memories of the abuse, anticipatory anxiety, a loss of trust in others and flashbacks. 4. The offender has continuing symptoms of depression and anxiety and low self-esteem. He had limited formal education. 5. Clearly, as was made clear at the sentence hearing, the factors enunciated by the High Court in Bugmy v the Queen [2013] HCA 37 are enlivened to a significant extent. The offender has suffered many deprivations, in particular the lack of a proper and appropriate upbringing. The offender's moral culpability is accordingly reduced. I note what I said about what have become known as the "Bugmy factors" in R v Hassenein Naderi [2022] NSWDC 534 at [85]-[104], but in particular at [100]-[101]: "When a court in sentencing an offender takes into account what has become known as the 'Bugmy factors' the court is not simply extending sympathy to the offender because of deprivation that was endured in their formative years. As the High Court explained at [43] of the decision in Bugmy v The Queen: 'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.' [101] As I understand the principles, consideration is extended to an offender by reducing the moral culpability of an offender to whom the principles apply because the criminal law accepts that because of the deprivations and other experiences suffered or witnessed in formative years a person has a distorted or unrealistic and/or an incomplete or limited or very little if any, real understanding of what is morally wrong or unacceptable. Once it is established on the evidence that the "Bugmy factors" are enlivened it becomes a question of what weight attaches to those factors in reducing the moral culpability of the offender. 1. According to the report, the offender's work history has been intermittent. He has worked in a range of positions including traffic control, forklift driving, landscaping, bricklaying and scaffolding. He apparently is happier doing labouring in outdoor type of work. The offender has never married and has three children. He has some very limited contact with his children and their mothers let him talk to them. The lack of a physical contact with his children has apparently contributed to the symptoms of depression and anxiety. 2. Further, the offender has a significant history of drug abuse going back to an early age. He commenced using cannabis at the age of 16 years and continued using that substance until he was 18. He began using MDMA and hallucinogens at about the age of 16 years. At the age of 17 he was introduced to crystal methamphetamine, which he initially smoked before moving on to intravenous use. At his peak he was using 3.5 g of methamphetamine per day, which meant on occasions he was sleep deprived for two nights at a time with him experiencing some psychotic breaks. He has also used cocaine and it would seem also abused alcohol. 3. The offender has previously attended the Balund-a rehabilitation clinic in Casino about five years ago for a period of about five months. He remained drug-free for about two years before relapsing. The offender has been abstinent for about a month prior to the report, which is dated 6 December 2023. The offender apparently reported to the author of the report the improvement in his mood state and he expressed a strong desire to continue with psychotropic treatment. The offender has commenced treatment with Buvidal by way a depot injection. The offender reported to the author of the report that this has had a dramatic impact on his cravings which have virtually dissipated since he commenced treatment. 4. Mr Watson-Munro opines (page 7) that the offender has suffered long-standing feelings of abandonment, attendant to consistent symptoms of depression, anxiety, low self esteem and some features of post-traumatic stress, arising from a dislocated and dramatic childhood and adolescence. The author of the report noted in particular the sexual abuse while the offender was in the care of the state. 5. Further, Mr Watson-Munro opines that notwithstanding the improvements the offender remained severely depressed. He goes on to opine that the offender would benefit from a combination of cognitive behaviour therapy and support and motivational therapy. The cognitive behaviour therapy would assist in developing relapse prevention strategies and providing skills to deal with anxiety. The offender would also benefit from training to cope with impulses and to recognise trigger point preferable to potential relapse. 6. It seems that the offender is able to live with a relative in Walgett upon his eventual release. 7. Ms Blake maintains in both oral and written submissions that it is open to the Court to find a causal connection between the mental health issues and the offending by reason of what appears at page 7, para 2 of Mr Watson-Munro's report, namely: "In the absence of treatment, he drifted into a pattern of significant substance use at an early age, involving cannabis, MDMA hallucinogens, crystal methamphetamine is (ice), cocaine heroin and alcohol. It is apparent that there is a nexus between his untreated symptoms, the self-medication with illicit drugs and alcohol and his forensic history". 1. I am not persuaded that the causal connection is there. However, the history and background of the offender, including those symptoms is an important aspect of the case. Clearly, the offender was heavily using substances at the time of the offending. In this regard I note what Mr Watson-Munro says at page 4 of the report. 2. There is nothing in the report of Mr Watson-Munro that would enable me to find that the offender is remorseful. Although there are now some positive signs, such as some degree of insight and that the offender is now on the Bubvidal programme, I am not at this point able to find that there are good prospects of rehabilitation. I note in particular the breaches of conditional liberty and the convictions for failure to comply with reporting obligations. Submissions 1. Both parties have provided comprehensive and helpful written submissions. Both parties address the seriousness of the offending. I have made findings in respect of that issue. The Crown emphasises that the offender was on conditional liberty, namely parole, at the time of the offending and as much is conceded by counsel for the offender. 2. Ms Blake on behalf the offender draws heavily from the psychological report and at paragraph 20 summarises the subjective matters to which what I have already referred. Ms Blake goes on to submit that there is a causal connection between the mental health condition suffered by the offender and the offending, enlivening the principles set out at [177]-[178] of De la Rosa. A number of aspects of the report are extracted in the course of counsel's written submissions. 3. At the sentence hearing I reminded counsel of the decision of the Court of Criminal Appeal in Moiler v R [2021] NSWCCA 73, where Button J at [58]-[59] said: "Subjectively, the offence was aggravated by the conditional liberty of the applicant for a very similar offence. And abuse of prohibited drugs – pursuant to statute, not a mitigating feature – certainly played a causative role. Even so, all of that had to be seen through the prism of why it was that the applicant was leading a deprived, isolated, disturbed life in an inner-city motel, seeking relief through prohibited drugs, intermittently screaming alone in his room after midnight. The answer, in my opinion, is that his longstanding schizophrenia, if not a direct or immediate cause of the offending, was undoubtedly a significant indirect or contextual cause. [59] It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it." 1. While in the circumstances of the matter presently under consideration I am not prepared to find the causal connection argued by counsel for the offender, nevertheless I am prepared to deal with the matter that the moral culpability of the offender is reduced because of the mental conditions suffered by the offender referred to by Mr Watson-Munro in his report. As I have already said, those matters form a significant aspect of the offender's subjective case. 2. The Crown addresses the issue of totality and commencement date of the sentence in their written submissions whereas Ms Blake does not. I presume this was because she is of the view that her primary submission will prevail. The Crown sets out in the written submissions (paragraphs 24 and 25) that the offender has been in custody solely referable to this matter for a period of 9 months and 8 days as at the date of the sentence hearing, i.e. 8 December 2023. Further, he has been in custody partially referable to this matter for 5 months and 2 days. 3. I note from the custodial history that the offender went into custody on 27 September 2022 and that a sentence of 8 months that commenced on 28 October 2022 expired on 27 June 2023. I will commence the sentence in this matter from 27 January 2023 to allow for totality. 4. Clearly, there must be a reasonably generous finding of special circumstances in this matter. There is a need for an extended period of supervision to allow for intensive and extensive supervision in order to ensure the offender receives the appropriate treatment and counselling for substance abuse and his mental health conditions. The offender will also need assistance in reintegration into the community. It would also be appropriate for the offender to receive counselling and treatment for anger management and domestic violence issues. Further, there is the issue of partial accumulation of sentences. 5. This is an appropriate matter for an aggregate sentence. It will be necessary to set out what sentences would have been imposed had separate sentences been imposed. Those sentences are: In respect of the matters on the indictment: Count 1 on the indictment (Assault Occasioning Actual Bodily Harm) (H90383212 sequence 2), taking into account the form 1 document, a total sentence of 2 years 5 months indicating a starting point of 2 years 9 months; Count 3 on the indictment (Stalk/Intimidate) (H90383212 sequence 1) a total sentence of 2 years indicating a starting point of 2 years 3 months; In respect of the matters attaching to the s 166 Certificate: H90383212 sequence 3 (Contravene ADVO) a total sentence of 15 months indicating a starting point of 20 months; and H90383212 sequence 4 (Contravene ADVO) a total sentence of 9 months indicating a starting point of 12 months. 1. All matters arise out of the one ongoing episode of offending. However, the two matters on the indictment are two separate matters of serious domestic violence. There would need to be some meaningful partial accumulation to recognise the different offending. Likewise, the Contravene ADVO matters involve different offending. There would need to be some modest accumulation to recognise that offending, particularly so far the matter relating to sequence 3 relates. 2. The appropriate total sentence is 3 years 8 months with a non-parole period of 2 years 3 months. 3. Counsel for the offender argues that it would be in the community's interest to have the offender subject to intensive supervision. Further, the submission continued that the total sentence would be three years or less and that the court should order that any sentence be served by way of Intensive Correction Order. I observe, again, that since Stanley v DPP [2023] HCA 3 that has become the default submission in many sentence matters. 4. Ultimately, I have decided that the aggregate sentence in this matter will exceed 3 years. However, as the submission has been made, I will deal with the issue. Relevantly, s 66 of the Crimes (Sentencing Procedure) Act provides: Community safety and other considerations (1) 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. (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 correction 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. 1. Section 66 of the Crimes (Sentencing Procedure) Act was subject to a great deal of litigation in the Court of Criminal Appeal leading up to the decision of the High Court in Stanley v DPP. In that decision the plurality (Gordon, Edelman, Steward, and Gleeson JJ) said (footnotes omitted) at [72]-[77]: "There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety. [73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3). [74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2)gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community. [75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. [76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending. [77] While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment." 1. Since Stanley v DPP there have been two decisions in the New South Wales Court of Criminal Appeal, namely Zheng v R [2023] NSWCCA 64 and Tonga, Samuel v R [2023] NSWCCA 120. 2. In Zheng v R Gleeson JA (Hamill & Ierace JJ agreeing) said at [281]-[286]: Five points emerge from the joint judgment in Stanley. [282] First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: at [72], [75]. [283] Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: at [74]. [284] Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: at [75]. [285] Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender's risk of reoffending: at [74]. [286] Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: at [76]." 1. Given the violence of the assault on the victim and the breach of parole for domestic violence offending, the concerns about public safety are obvious. Domestic partners are members of the public. The offender was on parole for domestic violence offending and in particular Contravene ADVO at the time of the offending. In these circumstances I am firmly of the opinion that full time detention is more likely to address the issue of re-offending. The courts forward-looking view must, it seems to me, be informed to some extent by what has occurred in the past so far as the breaches of conditional liberty are concerned. Sections 66(1) and 66(2) are determined adversely to the offender. 2. I also note the Breach of Parole Report dated 22 September 2022, which is part of the Crown Tender Bundle, exhibit A on sentence. The author of the report says at p. 2: "Mr Murphy's current offences relate directly to his index offences of domestic violence against the same victim. His level of violence towards her as escalated and he demonstrates a disregard for the current non-contact ADVO conditions. His pro criminal attitude and history of anti-social behaviour places an unacceptable risk to community safety". 1. Community safety is the paramount consideration in the determination as to whether any sentence of imprisonment should be served by an ICO. While the factors set out within s 66(3) of the Crimes (Sentencing Procedure) Act are subordinate to the issue of community safety they remain a relevant consideration in the sentencing process. In particular I note the purposes of punishment are set out in s 3A of the Act. As I have already set out there is a very real issue of general deterrence in sentencing a repeat domestic violence offender. 2. For those reasons I would decline to order that any sentence be served by way of Intensive Correction Order even if the sentence was one of three years or less. 3. Further, for the sake of completeness so far as the offences of Contravene ADVO are concerned s 14(4) of the Crimes (Domestic and Personal Violence) Act, 2007 relevantly provides that "Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person." Orders 1. The offender is sentenced to an aggregate sentence of 3 years and 8 months with a non-parole period of 2 years 3 months. 2. The non-parole period will date from 27 January 2023 and will expire on 26 April 2025. The balance of term on parole (1 year 5 months or 17 months) will commence on 27 April 2025 and will expire on 26 September 2026. 3. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 4. I recommend in the strongest of terms that any release to parole be supervised by the Department of Community Corrections. 5. The sentence indicates a finding of special circumstances the reasons for which have been set out earlier in these reasons. The non-parole period is approximately 62.5% of the total sentence. The ratio is lower in this matter than what might otherwise be appropriate because of the issue of partial accumulation of sentence. 6. The total effective sentence the offender is serving commences on 27 September 2022 and expires at the expiration of the sentence I have just imposed, i.e. 26 September 2026 and is therefore 4 years. The period in actual custody dates from 27 September 2022 and presuming that the offender is released at the expiration of the non-parole period I have specified expires on 26 April 2025, which is 2 years 7 months. The period in actual custody is approximately 65% of the total effective sentence. ********** 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: 20 December 2023