R v Coffey [2012] NSWDC 282

District Court New South Wales

Medium Neutral Citation: R v Coffey [2012] NSWDC 282 Hearing dates: 4 May 2012 Decision date: 04 May 2012 Before: Nicholson SC DCJ Decision: Sentenced to imprisonment. Set a non-parole period of 2 years and a balance of term of one year and 7 months Catchwords: CRIMINAL LAW - Sentence - Assault - Recklessly cause grievous bodily harm - Domestic violence - Disinhibited assault upon partner continuing when unconscious - Poor record - Sentence of custody -imprisonment Cases Cited: Gladue v The Queen [1999] 1SCR 688 [80] R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740. Fernando (1992) 76 A Crim R 58 R v Cuthbert [1967] 2 NSWR 329, Texts Cited: (Marginal) Gneral Deterrence Does not Work and what it means for Sentencing. Mirko Bagaric and Theodore Alexander (2011) 35 Crim Law 269 Category: Sentence Parties: The Crown Leo James Coffey Representation: Director of Public Prosecutions Aboriginal Legal Service - The offender File Number(s): 2011/133231

sentence 1This is the sentence of Leo Coffey. Starting in late December 1995 Leo Coffey has been before the Local Court on twenty-three occasions for breach of an AVO or offences of physical violence. On three of those occasions police officers appear to have been his victim. On nineteen occasions it is likely his partner was the victim. 2The facts and circumstances are all too familiar. Coffey has a long history of abusing alcohol and cannabis. He drinks and smokes daily, usually until he blacks out. 3On 21 April 2011, he and his partner were both drinking heavily. He began to argue with her; he cannot even remember what started it. His predisposition to generalised violence is exacerbated when he is intoxicated. His violence in the early hours of 22 April 2011 was unremitting and brutal. He does not remember assaulting his partner Annette. When aroused by police later that morning, he saw the bedroom walls and floor were blood splattered. He remembers thinking "I hope I haven't done something stupid." 4Not only was his conduct stupid, it was seriously criminal. Today he is to be held accountable for recklessly causing grievous bodily harm to Annette. 5As sentencing judge it falls to me to determine a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court, committed by this offender, harming this victim in the community of Brewarrina, see Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender; that is called subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the Court relating to the offence and to the offender. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The tender of agreed facts does not relieve the judge from his fact finding task, it simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered that a court can only find facts from the evidence placed before it. 6Before any sentence that can be made there are likely to be technical questions relating to general deterrence, discounts, whether special circumstances are to be found, whether the offence attracts a standard non parole period and if so the length of the parole period, and finally of course the ultimate term of imprisonment to be imposed. None of those can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that sentencing should have as its primary focus, the protection of the community will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.