R v MJ [2016] NSWDC 272

District Court New South Wales

Medium Neutral Citation: R v MJ [2016] NSWDC 272 Hearing dates: 12 May 2016 Date of orders: 12 May 2016 Decision date: 12 May 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: An aggregate sentence consisting of a non-parole period of 10½ years with a head sentence of 14 years is imposed. For each of the 3 offences of drive while disqualified the offender is disqualified from driving for 2 years to be served accumulatively Catchwords: CRIMINAL LAW – Sentence – Serious domestic violence offences – Assault occasioning actual bodily harm – Sexual intercourse without consent – Common assault Category: Sentence Parties: The Crown MJ Representation: Counsel: Ms Moan – The offender

Solicitors: Prime Lawyers – The offender Director of Public Prosecutions File Number(s): 2014/39186 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify her, including the name of the offender.

SENTENCE 1. HIS HONOUR: Of recent times, more attention is being paid to the enormous problem of domestic violence in our community. It may be that offences of domestic violence have not been treated as seriously as they should have been in the past. In truth, such offences cause enormous harm, both to the individual victims of such offending and to the wider community generally. Women, and it is usually women, too often find themselves subjugated to the demands of their partners, who seem to regard it as entirely acceptable for them to control and manipulate someone with whom they are in a relationship through violent and degrading means. 2. The offender MJ is now to be sentenced for a large number of domestic violence offences committed in the latter part of 2013 and the early part of 2014 when he was in a relationship with a young woman named DM. He pleaded not guilty to these offences, and he is not to be punished for doing so, but not surprisingly, given the strength of the case against him, he was found guilty by a jury on 27 November 2015 after a trial. 3. In addition, he is to be sentenced for a number of more minor matters to which he pleaded guilty, such matters being related charges appearing on a s 166 certificate, and on two offences for which he received s 9 bonds, he having breached those bonds by the commission of these offences. 4. As the Crown case unfolded, one thing was very clear. That was that the offender had a sense of entitlement and ownership over Ms M and that he blamed her for his violent behaviour. He manipulated Ms M, using violence and protestations of love. So effective was his manipulation that Ms M did not leave the relationship, even after being repeatedly beaten and raped. It was only after she received counselling that she saw the relationship for what it was, and was finally able to escape the offender. 5. He is now to be sentenced for ten separate offences appearing on the indictment presented against him. They are of varying seriousness but all arise in the context of the relationship I have just described. Remarkably, some of those offences were witnessed by independent observers. Too often, offences such as I am about to describe occur behind closed doors and, too often, victims of such violence are not believed. Fortunately, so brazen were the offender's actions that there was substantial support for Ms M's evidence on a number of the counts I will now describe. 6. Count 1 concerns an assault occasioning actual bodily harm which occurred when the offender and Ms M had driven to Dixon Beach. The assault was witnessed by a bystander, Mr Harten, who gave evidence about what he saw. Ms M said that while they were in the car the offender became angry with her after she asked him to repay some money that she had lent him. He told her, she said, to get out of the car and then he punched her in the face, splitting her lip. He then dragged her out of the car and drove away. 7. Count 2 is clearly the most serious offence on the indictment. It occurred when the offender had sexual intercourse with Ms M without her consent. At some stage in the relationship, after they had just had consensual sexual intercourse, the offender became angry about her texting her daughter's aunt Annalise. Her evidence was that he accused her of wanting to go out and sleep with someone else. She gave evidence that he was physically violent towards her, including by scratching at a tattoo that she had recently required, before he grabbed a breadknife, which he put up to her chest, and said that he was going to kill her, she said, in a low, deep, meaningful voice. He then seemed to calm down and let her go to the bedroom, where she put her underwear on, before the offender pushed her onto the bed, pinned her down and forced his penis into her vagina, having sex with her without her consent, until he ejaculated. 8. This was a particularly degrading and humiliating abuse of Ms M by the offender. It is a very good example of the domination which he felt he was able to exercise over her. The offender is to be sentenced for an offence of aggravated sexual intercourse without consent, the circumstance of aggravation being that immediately before the sexual intercourse he threatened to inflict actual bodily harm upon Ms M by means of the knife. 9. Count 3 occurred after the offender had been to a show called "Tits On Toast" at the Royal Hotel. In case the nature of such a show is not obvious from its name, it is a strip show performed at breakfast time. Ms M's evidence was that when he got home he was angry at her because she had rung Aaron, her daughter's father. He expressed his anger by showing her a photo on his phone of the stripper he had just been watching, which caused her to say, "You have the hide to go on about me but you are out there doing that stuff"; quite a reasonable response, one might have thought. She said that the offender became really angry again and he started to attack her by punching her in the face and in the body, and that he grabbed a coffee table and smashed it over. At one stage the table hit her hard on the shin, which caused it to bleed. Thus, the offender is to be sentenced for another offence of assault occasioning actual bodily harm. 10. This was another offence where there was some independent support for what Ms M said. Her next door neighbour gave evidence that she had heard Ms M calling out, asking that police be called. 11. The police did come, and Ms M made an initial complaint to the police. Quite clearly, the offender was concerned about this complaint having been made, because he began to put considerable pressure on Ms M, including, of course, threats of violence and actual violence, to persuade Ms M to write out a statutory declaration in which she asserted that her complaint to police was false. 12. Count 5 is an assault which occurred as the offender and Ms M, together with her daughter, were coming back from Tanilba Bay. Ms M gave evidence that as she was driving the offender was telling her that she needed to do the stat dec so that he would not get locked up. She said that he was yelling at her and he punched her in the face, causing her to almost swerve off the road. She stopped the car and got out. She started to run away but had to return when he threatened to drive away, with her daughter with him. He continued to hit her once she got back into the car, hitting her around the head with his fist. This is an offence of common assault. 13. Count 6 occurred soon afterwards as they were driving into Stockton. This is yet another incident where there was independent support. Ms M said that the defendant drove her in to an area near the water, that he was yelling at her, and so she got out of the car. He also got out of the car and kept punching her. She described what the offender did. "He kept booting me and he just kept booting me continuously and hitting me." She heard someone call out, yelling, "Leave her alone. Leave her alone," which apparently caused the offender to stop hitting her, run back to the car and drive away. 14. That good Samaritan turned out to be a man named Peter Haggart, who gave evidence that he had heard a woman yelling out for help, as a result of which he picked up a big stick, ran to where the voice was coming from and saw a male get into a car and drive away. He took Ms M inside his home and, because the offender had taken Ms M's phone and handbag when he drove away, Mr Haggart kindly gave her some money to get home. 15. Count 7 occurred at Waratah Village in a context of the offender wanting Ms M to take the stat dec to Waratah police station and hand it in. The offender was yelling at her because she did not want to do what he was asking. When she told him that she did not want to hand in a false document, he threatened to hit her in the face with his fist, as a result of which she did in fact go to the police station and hand in the stat dec. This is another offence of common assault. 16. Count 8 is the first of two offences which occurred at the Molly Morgan Motel at East Maitland. Ms M injured her ribs after the offender threw her onto the bed. This was after she had had an argument with the offender over him having a Facebook account, but him telling her that he did not want her to have Facebook and communicating with anyone on it. Later medical evidence revealed that Ms M was diagnosed with a musculoskeletal injury to her ribs. This is another offence of assault occasioning actual bodily harm. 17. Count 9 was the other offence at the Molly Morgan Motel. On this occasion the offender was anxious, agitated and angry, apparently because Ms M was not getting ready as quickly as the offender would have liked. He called her a "gronk" and began hitting her to the face with his fist. She grabbed a knife, which she swung in front of her, telling the offender to stay away from her, but that somehow he managed to get the knife off her and threw her around, saying he was going to kill her. She ran out the front door, where she noticed that the offender had cut her across the arm. She still has the scar on her arm, which she displayed while giving evidence. 18. Through his counsel, the offender raised a defence of self-defence. This was clearly rejected by the jury. No doubt they accepted the Crown's argument that, as the initial aggressor, all the offender had to do to prevent himself from being harmed was to cease acting aggressively. This is another offence of assault occasioning actual bodily harm. 19. Count 10 is an offence which occurred on the first night Ms M and the offender moved into a new home at Lemon Tree Passage. The offender became angry when he could not find something he was looking for. Ms M said that he ran at her and she could remember him strangling her. She said she felt like she was going to die. She also remembers him hitting her. This is another offence of common assault. 20. Count 11 was another offence which occurred in the context of the offender's concern that police might still take action against him for what Ms M had earlier complained about. While they were at East Maitland, he told her that she had to go to Waratah police station and complain that Senior Constable Candy was harassing her. When Ms M objected to this, the offender said, "No. You're fucking going to go in there. I'm not getting locked up." She told him she did not want to be in a relationship with him anymore, and this made the offender really angry. He started to punch her in the face and kick her really hard. She put her hands out to stop him hitting her, and he kicked her on the hand, causing her to feel extreme pain straight away. Some teenagers ran over to assist her, but she told them to go, so that they did not get hurt themselves. She went to the Mater Hospital the next day, where she was diagnosed as having torn ligaments and a broken bone in her hand. 21. That completes my description of the ten counts on the indictment. 22. The matters arising on the s 166 certificate to which the offender pleaded guilty arise from the conduct of the offender which I have just described. He should not have been driving when he committed counts 1, 5 and 6 because he was a disqualified driver. Counts 5, 7, 9, 10 and 11 represent breaches of the AVO, not only because he was with Ms M in contravention of that AVO, but also because he assaulted her in the way I have described, as the jury found he had done. 23. Finally, there are the two breaches of the s 9 bond. One is another offence of driving whilst disqualified. The other one is another offence of contravening an apprehended violence order. That one occurred when the offender, whilst in the company of police, contacted a person he should not have contacted. He did this by telling police he wanted to make a call to his Aunty Belle, but he did not really. He contacted the person with whom he was then in a relationship, JMc. While on the phone, he was heard to say: "I'm fucking locked up in gaol. I'm fucking cold. I'm fucking hungry. You know what to do. Are you going to fucking help me or what? You fucking know what to do." 1. It was not innocent contact between the offender and the person in need of protection at all on that occasion. 2. So those are the offences for which MJ must be sentenced. 3. Let me deal with the impact of those offences on Ms M. Given the range of offences committed by the offender, it is no surprise to learn that the consequences for Ms M included both physical and psychological injury. She has nightmares, she has scars, she has ongoing pain in the hand, she has a lack of confidence, and she has difficulty showing affection; all directly resulting from the offender's abuse of her. These are entirely foreseeable consequences which must be reflected in the sentence I impose. 4. I should mention the maximum penalties at this stage. Each offence of common assault has a maximum penalty of two years imprisonment. Each offence of assault occasioning actual bodily harm has a maximum penalty of five years imprisonment. The offence of aggravated sexual assault carries a maximum penalty of twenty years imprisonment with a standard non-parole period of ten years. I have taken the maximum penalties and the standard non-parole period into account in determining the sentence to impose. My reasons for not imposing the standard non-parole period for the sexual assault matter appear in these remarks on sentence. 5. I hope it will be obvious from my description of the offender's crimes just how serious they were. She was assaulted in her home on occasions. Many of the offences of violence occurred in the context of the offender's demands that Ms M withdraw a complaint she had made to police about the offender's abuse of her. There are some disturbing similarities between the way the offender acted in this matter and the way he acted with a previous partner, demanding that she too help him get out of gaol after she had made an allegation of assault against him. 6. A number of the offences occurred in the presence of Ms M's daughter. At times she was pleading with the offender, saying things such as, "Stop hurting my mummy. Leave my mummy alone." 7. Many of the offences of violence represented breaches of an apprehended violence order, and demonstrated that the offender thought nothing of his obligations under that court order. 8. Further evidence of the offender's attitude can be found in the circumstance that the offender was on a bond to be of good behaviour after having been sentenced for driving whilst disqualified and, remarkably, breaching an earlier AVO relating to a previous partner. Even more remarkably, the offender was on bail at the time of these offences, having been charged with a number of offences committed against his previous partner, offences for which he was later convicted. 9. I will, of course, note that given that I will be sentencing the offender for breaching the AVO on five occasions when I deal with the s 166 certificate, it is important that I do not double-count by also treating those breaches as aggravating circumstances on the relevant counts on the indictment. 10. I have said this many times but it is worth repeating: Not all of us have the same choices in life. We make the choices which we make influenced by our backgrounds. In one particular respect, the offender's background was severely damaging. His mother and his brother gave evidence before me today. They established quite clearly that the offender's natural father, JJ, is a person who has caused enormous damage through his violent behaviour. 11. The offender's mother, RC, was married to JJ. Whilst pregnant with the offender, he left, but came back again. She largely raised her two sons, the offender and his brother TC, on her own. But JJ's violent behaviour was a distinctive feature of the offender's life. His father would come back to live with Ms C on occasions and would be violent towards her, to the offender and his brother. Fortunately, he eventually left Ms C for good, although his damaging involvement with the offender continued. But after he left, Ms C formed a relationship with a man named PC who became a stepfather to the offender and his brother. In contrast to JJ's behaviour, Mr PC has been a valuable role model. 12. The offender was diagnosed with ADD at about eleven, but then, sadly, spent some time with his father when he was about that age. His behaviour changed, as it would after spending time with his father in years to come. He began to use drugs. He began to mix with many undesirable elements. He used so many drugs that at one stage he was admitted to John Hunter Hospital suffering from a psychotic episode. Ms C believed that she had lost her son to drugs at that stage, but his behaviour improved. She saw three or four years when he was law-abiding and happy. In that period, the offender had a relationship and a son was born. He is now eight and lives with the offender's mother. For a significant period, he was the sole father to his son. He was a good father. He did not take drugs and he cared for his son well. 13. He suffered a setback in 2010 when he had a motorbike accident. That not only caused him a lot of pain but caused him to lose his job. His mother said he became disenchanted and became upset that he could not do what he wanted to do, and, worst of all, he began to see JJ again. Once again, he began to use illicit drugs and, once again, he went off the rails. 14. The offender's brother T spoke of the way JJ would relate to him, and I have got no doubt he acted in a similar way towards the offender. There would be a pattern of violence towards his sons, following which there were expressions of remorse and protestations of love, but they were only short lived before, once again, violence would erupt. It is remarkable how similar that behaviour described by TC matches very closely the behaviour described by Ms M. 15. In the lead-up to the trial, the offender has achieved a large measure of rehabilitation in so far as his use of drugs and alcohol is concerned. He went to residential rehabilitation, firstly The Glen and then Benelong's Haven. He passed and completed the programmes. He took over his stepfather's aerial installation business and did a good job and, most importantly, of course, he was not using any illicit drugs leading up to the jury's verdict, despite a couple of setbacks; one when his grandfather died and one when his unborn child died. 16. So the offender was a person where domestic violence was a feature of his early life, but it is certainly not a case where the offender grew up thinking that such behaviour was normal and acceptable. As I have mentioned before, PC, the offender's stepfather, appears to have been the exact opposite of JJ, providing a good role model for the offender. 17. Nevertheless, I have to bear in mind that the choices which the offender made about his conduct towards Ms M could not have failed to be influenced by the offender's father's violent and disgraceful behaviour. He was the sort of person who would belittle Ms C, the offender's mother, in the presence of her children. He would make unreasonable demands on her and become violent when those demands were not met. The offender saw this too when his father formed a new relationship. JJ would yell and hit and abuse the offender's stepmother as well. The impression I get of JJ is that he is a very violent and disturbed man, even to the extent of burning his sons with a cigarette, demanding that they fight each other, and worse on occasions. 18. The offender has spent a great deal of time with JJ over his teens and later years, all of which was damaging to the offender. Ultimately, however, when assessing the moral culpability of the offender, I come back to the idea of personal choice. The offender knew well how wrong his conduct was because he had seen his father behave that way towards his mother. I repeat what I said at the outset of these remarks on sentence. He was demanding towards Ms M and displayed a sense of entitlement. He blamed her for his outrageous criminal behaviour, when nothing could be further from the truth. He bears responsibility for what he did, and will be sentenced accordingly. 19. Despite the rehabilitation that the offender appears to have achieved leading up to the jury's verdict, there still is a need for specific deterrence. The offender's history, and it is a history, of acting in a violent way towards partners is of great concern. True it is that he has not always done that; indeed, some of the people with whom he was in relationships with have spoken positively about him in references tendered to the Court today. But much more important than specific deterrence is, of course, general deterrence. Again, I go back to what I said at the beginning of these remarks on sentence. Offences such as these cause enormous harm, both to the individual victims concerned and to the community generally. Offenders who commit crimes such as I have described, particularly after they have been subject to apprehended violence orders, put in place to protect their partners from precisely such conduct, need to be given in sentences which will deter others who may be tempted to act in a similar way. Most fundamentally in assessing the relevant sentence to impose upon the offender is, of course, the objective gravity of what he has done. 20. The references do speak of a different person to the one described in evidence by Ms M. That demonstrates how a person, the same person, can act differently on some occasions to other occasions. The references, of course, can only speak about what they see of the offender. What they do not see is what the offender does in private. There are other problems with some of the references too. One says that MJ is incredibly remorseful. This must be referring to something else other than the offences for which I must sentence him because he pleaded not guilty to those. 21. A certificate suggested that he had successfully completed an anger management programme in October 2013. The fact that he would commit these offences so soon afterwards does demonstrate that rehabilitation is not guaranteed. That is not to devalue the substantial efforts that the offender has put into getting himself off drugs and improving the way he behaves. I will take into account not only the rehabilitation the offender has achieved but also the circumstance that he spent some period in quasi custody; 82 days at The Glen and 145 days at Benelong's Haven. The sentences will be less than they would otherwise have been to reflect that quasi custody. 22. There are no special circumstances in this case. That is not to say the offender will not benefit from a period of supervision on parole, but I have not found special circumstances for two reasons. Firstly, the period of eligibility for parole which I will announce is sufficient to deal with the needs for the offender to be supervised and, secondly, the non-parole period I will shortly announce is the least which adequately reflects the objective gravity of his conduct. 23. I will impose an aggregate sentence. Were I not to do so, I would have imposed the following sentences. For the drive whilst qualified the subject of the s 9 bond, imprisonment for six months; for the contravene apprehended violence order matter the subject of the s 9 bond, imprisonment for one year. For the matters on the 166 certificate, sequences 12 and 20 were drive whilst disqualified matters, six months imprisonment on each; sequence 9, the breach of an AVO related to count 5, one year imprisonment; sequence 25, breach of the AVO related to count 7, one year imprisonment; sequence 1, breach of the AVO related to count 9, eighteen months imprisonment; sequence 7, breach of the AVO related to count 10, fifteen months imprisonment; and sequence 5, breach of the AVO related to count 11, eighteen months imprisonment. 24. As I have sentenced MJ for three matters for driving whilst disqualified, I should also announce at this stage that he is disqualified from driving on each of those matters for two years, to be served accumulatively. 25. I will now turn to the offences on the indictment and the sentences I would have imposed had I not imposed an aggregate sentence. Count 1, two years imprisonment; count 2, ten years imprisonment with a non-parole period of seven and a half years; count 3, two years imprisonment; count 5, fifteen months imprisonment; count 6, fifteen months imprisonment; count 7, twelve months imprisonment; count 8, two years imprisonment; count 9, two and a half years imprisonment; count 10, eighteen months imprisonment; and count 11, three and a half years imprisonment. 26. I impose an aggregate sentence consisting of a non-parole period of ten and a half years with a head sentence of fourteen years to date from 22 October 2015. This means that MJ is eligible to be released to parole on 21 April 2026.