R v Francis [2012] NSWDC 306

District Court New South Wales

Medium Neutral Citation: R v Francis [2012] NSWDC 306 Decision date: 25 October 2012 Before: Cogswell SC DCJ Decision: Two of five appeals against sentence allowed. Sentences varied. Catchwords: CRIMINAL LAW - appeals against sentence - non-parole period - 80% of overall sentence - no special circumstances found - sentences varied - non-parole period reduced to just below 75%. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 20(2). Crimes (Sentencing Procedure) Act 1999 (NSW) s 9. Category: Principal judgment Parties: Jason Francis (Appellant) Regina (Respondent) Representation: Solicitors: Aboriginal Legal Service (NSW/ACT) (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): DC 2011/00276668; 2012/00190954

Judgment 1Jason Francis has a long criminal record. He has offended again. In the sentence he received, the non-parole period was over 80% of the overall sentence. He argues that the non-parole period should be reduced. 2He is before me because he was in the Local Court at Bourke on 3 September 2012. He had been charged with assaulting Tracey Kelly and intimidating her and also contravening a domestic violence order. These were three separate offences. Not only that, late last year he had received two suspended sentences for assaulting and intimidating the same person. 3The more recent offences were in May this year. The earlier offences were in August last year. So when he came before the magistrate, his Honour was not only sentencing him for later offences but had to deal with the breach of the bond connected to the suspended sentences for the offences in August last year. His Honour revoked the bonds and imposed a sentence of 6 months gaol for the assault and 8 months gaol for the intimidation. His Honour dated both sentences from 18 June 2012. So far as the later offences were concerned, for the common assault and for the intimidation his Honour sentenced Mr Francis to 9 months imprisonment. He commenced those sentences at the expiry of the earlier sentences, namely on 17 February 2013. Both overall sentences expired on 16 November 2013. For those two 9 month sentences, his Honour fixed non-parole periods of 6 months which expired on 16 August 2013. In commencing the sentences on 18 June 2012, his Honour had taken into account the fact that Mr Francis had been in custody since that date. 4I can well understand the overall sentences imposed by his Honour. Mr Francis has a long criminal record which includes many assaults, affrays, offences against police and instances of contravening apprehended domestic violence orders. He has received fines, community service orders, suspended sentences and bonds. I should add, that reminds me, that for the contravene domestic violence order, his Honour Magistrate McRobert imposed a good behaviour bond for 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The victim of many of his offences was the same person, Tracey Kelly. I should briefly recount what happened on each occasion. 5On 21 August 2011, they were both at home in Angonia when they started arguing. Mr Francis pushed Ms Kelly in the back. He took hold of her throat. He then got a hammer and threatened her with the hammer. She fled the scene. On the second occasion (relying upon the findings of his Honour Magistrate McRobert made in resolving a factual dispute in a sentencing proceedings) Mr Francis was at their house when Ms Kelly asked him to leave. He responded to this by brandishing a hammer and saying "I'm going to break both your legs". He assaulted her by that gesture and further intimidated her by the use of the hammer. 6The combination of his criminal record and the accounts given of the violence he has inflicted on his partner, leave me with no doubt that the overall sentence, which amounted to 17 months, was appropriate. However the effective non-parole period which his Honour fixed amounted to some 14 months. That is about 82% of the overall sentence. 7I myself would be inclined to fix the non-parole period envisaged as the normal one by the Crimes (Sentencing Procedure) Act namely 75%. I would reduce the nonparole period to 12 months, which is just a little below the 75%. Mr DJ Pheeney who appeared for Mr Francis urged me to reduce it further but the only special circumstances he could point to were his client's need for drug and alcohol counselling and his age. He is 35 and has plenty of opportunities from the courts to rehabilitate himself. I therefore propose to allow his appeal and to fix the effective non-parole period at 12 months. HIS HONOUR: Yes; so Ms Siriwardana and Mr Pheeney I probably need to reduce the non-parole period from 6 months to 4 months so it expires 16 June. SIRIWARDANA: That would be the perhaps simplest way of addressing it your Honour rather than-- HIS HONOUR: Or 17 June. SIRIWARDANA: --try and take off time on each matter. HIS HONOUR: Sorry? SIRIWARDANA: That would be the simplest way to do it rather than altering every one of them. HIS HONOUR: Okay. In the formal orders which I make are these. 8In respect of the appeals from both sentences imposed for the offences on 21 August 2011, under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW), I determine those appeals against sentence by dismissing the appeal. In respect of the appeal from the sentence imposed for contravening the domestic violence order on 22 May 2012, I determine that appeal against sentence by dismissing the appeal. In respect of the two appeals from the sentences for common assault and intimidation committed on 22 May 2012, I determine those appeals against sentence by varying the sentences. In each case I fix the non-parole period as 4 months to commence 17 February 2013 and to expire on 16 June 2013. HIS HONOUR: Is that right, have I got it right? SIRIWARDANA: Yes your Honour. HIS HONOUR: Mr Pheeney? PHEENEY: Yes I will just look at it - yes your Honour, yes. SIRIWARDANA: And does your Honour, formally for the record, uphold the sequence 3 section 9 bond for 2 years? HIS HONOUR: I dismissed the appeal, so the appeal is dismissed. So that stands, that stands, as do the three sentences stand and two of them are varied. SIRIWARDANA: Thank you your Honour. HIS HONOUR: Anything else? PHEENEY: No your Honour, thank you.