District Court New South Wales Medium Neutral Citation: Hallworth v R [2013] NSWDC 286 Decision date: 30 August 2013 Before: Cogswell SC Decision: Appeals against sentence upheld. Catchwords: CRIMINAL LAW - Appeals against sentence - grounds for interference - issue regarding factual basis of lower court plea - fresh evidence admitted - oversight led to sentence being imposed rather than suspension of sentence being removed by lower court. Legislation Cited: Crimes Act 1900 (NSW), s 61. Crimes (Appeal and Review) Act 2001 (NSW), s 20. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1). Crimes (Sentencing Procedure) Act 1999 (NSW), s 50. Category: Principal judgment Parties: Bradley Hallworth (Appellant) Regina (Respondent) Representation: Counsel: S Haddad (Appellant) Solicitor: LM Crepaldi, Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2013/00004397 Judgment 1This is a case about a relationship which fell apart and which led to some very acrimonious exchanges. One of the parties found that she had to take out an apprehended domestic violence order against the other. The other then found that he not only breached that domestic violence order but he extended the acrimony beyond words to assaults. 2The case is a sentence appeal by Bradley Hallworth. He was in a relationship with Edith Hallworth from the early 1990s. They have one daughter. Mr Hallworth significantly had no criminal convictions at all until he was 35 and then he had a driving offence. But coinciding with the breakdown of the relationship with Edith Hallworth he spiralled out of control over a period of about 12 months and got himself into a lot of trouble by assaulting Edith Hallworth and by breaching the apprehended domestic violence order which she had to take out against him. He ended up regularly in the Local Court. 3When the relationship broke up it was accompanied by Bradley Hallworth being charged with assault. He got a good behaviour bond for that assault but then a year later he assaulted Edith Hallworth again and therefore contravened the order. The Local Court again gave him leniency by imposing a prison sentence but ordering that it be suspended. But then he got into further trouble a couple of months later when he assaulted his former partner yet again, this time twice. So those assaults were further contraventions of the apprehended violence order and, again, he came back to court. This time of course he had the suspended sentence which he had obviously breached. That was converted into a gaol term and, in addition. he received three gaol terms for the fresh offences. All this is set out in exhibit A which is the severity appeal instruction sheet tendered by the prosecution in Mr Hallworth's appeal against the sentences imposed by magistrates. 4The specifics about the offences and sentences are these. On 5 January 2013 Mr Hallworth committed a common assault which is an offence against s 61 of the Crimes Act 1900 (NSW). For that the magistrate imposed a sentence of 18 months on him with a non-parole period of 6 months. At the same time, for contravening a restriction in an apprehended domestic violence order - which is an offence against s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) - the magistrate imposed another sentence of 18 months. (Both of those were wrong because the earlier sentences - which had been suspended - were each 9 months. Mr Hallworth should have received at the most two sentences of 9 months.) 5The magistrate was also dealing with Mr Hallworth for other events which occurred on 31 March 2013. Again there was a common assault and again there were breaches of the restrictions in an apprehended domestic violence order. There were two of those. The magistrate imposed sentences of 18 months for each. The magistrate dated those from 7 May 2013 and dated the earlier sentences from 31 March 2013. 6When the matter first came before me, now about six weeks ago on 17 July 2013, Mr Hallworth was unrepresented. He could no longer afford legal representation. It became apparent that there may be an issue about the factual basis of his plea in the Local Court being in issue. (If I have not mentioned it, he pleaded guilty to all of the offences.) He was also in custody serving his sentences. He tendered a document which was consistent with there being an issue about the factual basis of one of his pleas. That became exhibit 2. My associate got in touch with the New South Wales Bar Association and asked whether it would provide pro bono assistance. Helpfully - and I acknowledge this help provided by the Bar Association - it did provide assistance by making available counsel on a pro bono basis. I have been ably assisted by Mr L M Crepaldi who has appeared for the Director of Public Prosecutions, the respondent to the appeal, throughout the case and by Ms S Haddad who stepped in as the pro bono counsel provided by the Bar Association. 7The conduct of the case has been somewhat tortuous. That, as Mr Crepaldi said to me this afternoon, was because Mr Hallworth disputed the factual basis of some of the allegations and also asserted that his former partner had provoked some of the behaviour. There was a good deal of uncertainty about just what he was saying or acknowledging he did. 8When a person appeals from the sentences imposed by a magistrate the District Court judge looks at the papers which were before the magistrate and any exhibits and also looks at any fresh evidence which is called before the judge. In this case I have had a good deal of fresh evidence in the form of exhibits and in the form of witnesses. I have heard evidence from Mr Hallworth himself, from his girlfriend, from his mother and from his former partner. 9The factual dispute mainly focuses on what happened on 5 January 2013 to give rise to the two charges of common assault and contravening a restriction in a domestic violence order. I accept Mr Crepaldi's submission regarding this. Mr Hallworth did plead guilty originally to those facts. But not only that, the exchange of text messages which appeared in exhibit E is consistent with Ms Hallworth's account of the kinds of threats which were made against her by Mr Hallworth. The facts record that he said "I am going to smash your head into the concrete when we leave here" and "You get back here and take me home or else I'm going to kill you. I will cut you up and gut you. I am going to go home and get my truck and run it into your house. I have a key to your home and I will come and get you." It is also asserted that when Ms Hallworth was leaving the restaurant Mr Hallworth grabbed the back of her shirt and pulled her back in the door. Ms Edith Hallworth confirmed that in the evidence which she gave today. That and the language directed at her, as Mr Crepaldi says, I accept as constituting the common assault. The contravention of the restriction in the apprehended domestic violence order was the very fact that they were together. 10I regard the assault as fairly serious. He put his hand on the victim and was violent towards her in a public place and used vicious threats against her. I do not regard the contravention of the terms of the apprehended domestic violence order as particularly serious because he and Edith Hallworth came together by agreement although she may have been a little reluctant in the first place. Nevertheless, she acknowledged in evidence today that they often saw each other despite the terms of the agreement. I can understand why the magistrate imposed a sentence of imprisonment of 9 months in respect of those offences. Unfortunately, by oversight the later magistrate converted that to 18 months which cannot of course be done. The sentences imposed were 9 months and all the magistrate was doing on the second occasion was removing the suspension. 11The magistrate in withdrawing the suspension and imposing the 18 months sentence imposed a non-parole period of 6 months. I propose to impose a non-parole period of 3 months because it bears the same relationship to the overall sentence, namely, one-third. 12I turn now to the offences which were committed on 31 March 2013. These occurred at a club. The common assault was that during an argument Mr Hallworth threw the contents of his beer glass over Edith Hallworth. There was some confusion about whether the brim of the glass came in contact with her but Edith Hallworth frankly acknowledged and Mr Crepaldi fairly conceded that that did not occur. But nevertheless it was an assault in a public place where a drunken Mr Hallworth threw beer over his former partner. 13I myself do not regard a sentence of 18 months as appropriate but because of what Mr Crepaldi points out, namely that Mr Hallworth already had a record and was on conditional liberty and had been afforded the benefit of a suspended sentence, there is no other option than a prison sentence in my opinion. I would regard an appropriate prison sentence as one of 12 months imprisonment. I would date that sentence from 31 March 2013. 14The two offences of contravening a restriction in an apprehended domestic violence order are comprised by the behaviour of Mr Hallworth going up to his former partner and saying "You Fuck off out of here" on one occasion and the other offence by him coming up to her and saying, "I want to talk to you". In the context of them seeing one another reasonably regularly and this being in a public place I do not regard those as very serious breaches at all and I propose to impose sentences of 1 month in respect of each of them. 15I propose to fix a non-parole period of 5 months in respect of the 12 month sentence. There are special circumstances for not fixing the standard ratio which would be 9 months because Mr Hallworth needs to spend time getting his life and his business back into order. 16Accordingly, the formal orders which I make in these appeals are these. 17In respect of the two offences committed on 5 January 2013, under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW) I determine these appeals against sentence by setting aside the sentences. Instead of those sentences, in respect of each offence I impose a sentence of 9 months imprisonment. It will date from 31 March 2013 and expire on 30 December 2013. There will be a non-parole period of 3 months in each case commencing 31 March 2013 and expiring on 30 June 2013. 18In respect of the contravene restriction in apprehended domestic violence order which is represented in exhibit A by the reference H51118821/1 - I should say in respect of all those three appeals, under s 20 of the Crimes (Appeal and Review) Act I set aside those sentences. In respect of the matter I have just mentioned - 821/1 - I fix a sentence of 1 month's imprisonment to date from 31 March 2013 and to expire on 30 April 2013. 19In respect of the other contravene restriction in apprehended domestic violence order - the one with the number H51118821/3 - I fix a sentence of 1 month's imprisonment commencing on 1 April 2013 and expiring on 30 April 2013. 20In respect of the common assault I fix a sentence of imprisonment of 12 months commencing 31 March 2013 and expiring on 30 April 2014. I fix a non-parole period of 5 months to commence 31 March 2013 and to expire on 30 August 2013. Under s 50 of the Crimes (Sentencing Procedure) Act in respect of that last sentence I make an order directing the release of Mr Hallworth on parole today, 30 August 2013. ********** 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: 24 February 2014