District Court New South Wales Medium Neutral Citation: R v Phillip Michael SUMMERFIELD [2019] NSWDC 126 Hearing dates: 5 April 2019 Date of orders: 16 April 2019 Decision date: 16 April 2019 Jurisdiction: Criminal Before: His Honour Judge Lerve Decision: Sentenced Catchwords: CRIMINAL – sentence – intimidation – assault occasioning actual bodily harm – sexual intercourse without consent Legislation Cited: Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Criminal Procedure Act, 1986 Road Transport Act, 2013 Cases Cited: R v Biles (No 2) [2017] NSWSC 525 R v Borkowski [2009] NSWCCA 102 Brown v R [2014] NSWCCA 215 Bugmy v The Queen [2013] HCA 37 Collins v R [2010] NSWCCA 13 Cherry v R [2017] NSWCCA 150 Church [2012] NSWCCA 149 Eckermann [2013] NSWCCA 188 Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 Hamid [2006] NSWCCA 302 Hili & Jones v The Queen [2010] HCA 45 Hiron [2007] NSWCCA 336 Marinellis v R [2006] NSWCCA 307 Munda v Western Australia (2013) 249 CLR 600 Quinn v R [2018] NSWCCA 297 Stanford v R [2007] NSWCCA 73. Veen v The Queen No. 2 (1988) 164 CLR 465 Vragovic [2007] NSWCCA 46 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Sentence Parties: Director of Public Prosecution (Crown) Phillip Michael Summerfield (Offender) Representation: Counsel: Mr M Pincott (for the Crown) Mr R Keller (for the offender) Solicitors: File Number(s): 2017/150225, 2018/384329 Publication restriction: No publication of the name of the victim or anything that would tend to identify her. REMARKS ON SENTENCE 1. The offender was committed for trial in respect of a number of offences including those to which pleas of guilty were ultimately entered on 14 February 2018. On 16 March 2018 the offender pleaded guilty to three charges, the pleas to which were accepted by the Crown in full satisfaction of the indictment, those charges to which pleas were entered being: 1. That (he) on or about the 10th day of May 2017 at Leeton in the State of New South Wales, did intimidate NS with the intention of causing her to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007; and further 2. That (he) on or about the 10th day of May 2017 at Leeton in the State of New South Wales, did assault NS thereby occasioning to her actual bodily harm, contrary to s 59(1) of the Crimes Act, 1900 and further 3. That (he) on or about the 10th day of May 2017 in Young in the State of New South Wales, did have sexual intercourse with NS without her consent and knowing that NS had not consented to the sexual intercourse, contrary to s 61I of the Crimes Act. 1. The pleas of guilty were not entered at the earliest opportunity. However, the pleas in respect of counts 1 and 2 were entered soon after committal for trial and in circumstances where a trial date had not been fixed. In the circumstances, noting the decision of R v Borkowski [2009] NSWCCA 102 especially at [32] per Howie J, at the risk of erring on the side of generosity I allow 20% discount for the utilitarian value of the pleas of guilty. The plea of guilty to count 3 was entered on the day fixed for trial. Again, at the risk of erring on the side of generosity I allow 10% for the utilitarian value of the plea. 2. The maximum penalty for the charges of Stalk/Intimidate and Assault Occasioning Actual Bodily Harm if dealt with on indictment is five years imprisonment. There is no standard non-period attaching to those matters. Those charges would ordinarily be dealt with the Local Court. However, in the circumstances of this matter, given the third matter on the indictment, it would entirely inappropriate to have them dealt with other than on indictment. 3. The maximum penalty for the charge of Sexual Intercourse Without Consent is 14 years imprisonment. Parliament has specified a standard non-parole period of 7 years in respect of that matter. As the matter carries a standard non-parole period I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period. 4. In addition there is a charge of what is commonly or shortly known as Drive While Suspended, contrary to s 54(3)(a) of the Road Transport Act, 2013 attaching to a certificate pursuant to s 166 of the Criminal Procedure Act, 1986. The maximum penalty for that offence is one of 6 months imprisonment and/or a fine of 30 penalty units. 5. The offender also asks that when passing sentence I also deal with a severity appeal lodged by the offender himself in respect of a sentence imposed at the Local Court at Wagga Wagga on 18 March 2019. An aggregate sentence of 26 months with a non-parole period of 15 months was imposed in respect of the offences of Threaten to Cause Injury to a Person as a Witness in Judicial Proceedings contrary to s 326(1)(a) of the Crimes Act and what is commonly or shortly known as Contravene Domestic Violence Order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act. That offending was committed while the offender was on bail for the other offences for which the offender appears for sentence. FACTS 1. I will go initially to the sentence matter. The facts are before the court by way of Agreed Facts within the Crown tender bundle exhibit A on sentence. The victim had been in an intimate domestic relationship with the offender commencing in 2014 for about 2 years, during which time the offender lived on-and-off with the victim at her home in Leeton. The relationship was violent and characterised by frequent arguments. 2. After about 12 months, after an episode of domestic violence, the offender was asked to leave the house. The incident was reported to police and an apprehended violence order was made in favour of the victim. After about 2 months the offender moved back in with the victim but his violence and aggressive behaviour did not change. He was jealous and became angry when he thought that the victim was talking to other men. The victim was afraid to stand up to the offender as she was of the opinion that to do so would only aggravate the situation. In the middle of 2016 she terminated the relationship with the offender. 3. In early 2017 the victim reconnected with the offender and lived with him for about four weeks at an address in Young. The offender remained in Young as he was working casually picking fruit. On 1 April 2017 while attending a birthday party the offender attacked the victim with a baseball bat after which she moved back to Leeton. Although afraid of the offender, the victim said that she would remain in contact with the offender. 4. On 10 May 2017 the victim and the offender had been exchanging text messages for most of the day with the offender repeatedly requesting to see the victim telling her that he had money for a motel room and that he really wanted to see her. The offender told the victim that he "had gear" and asked the victim whether she had money for "pot and drinks". It was agreed that the offender would collect the victim from Leeton on his way from Griffith to Young while he was taking a friend "Gumby" to Young. The victim was collected at about 8pm. 5. Immediately upon setting off the offender began shouting at the victim about a man named Adam, saying, "Who the fuck is Adam, who the fuck is Adam". The offender continued to shout abuse at the victim. The victim opened the door of the moving car and the offender braked suddenly and stopped the vehicle. After stopping and getting out of the vehicle the offender grabbed the passenger's door, opened it and punched the victim in the face five or six times resulting in blood pouring out of her nose and on to her clothes. The offender continued to shout, "Who the fuck is Adam" while punching the victim. This is the conduct to which the charge of assault occasioning actual bodily harm relates. 6. In an effort to stop the offender, the victim made up the name "Deakin" to which the offender said, "You better fucking prove it. Show me on Facebook". The offender said to the victim, "There's fucking toilet paper back there. Clean your fucking face". The victim was crying uncontrollably. He yelled at her to get back in the car and being too scared to move the victim complied. The offender slammed the door and continued to shout at the victim. "Gumby" said to the offender, "Just let her go, You don't want this, just let her go". 7. While seated in the rear seat the victim dialled 000 on three separate occasions hoping that the operator would hear what was going on. The victim remained in the back seat of the car. They arrived at Young at about 11pm after which "Gumby" was dropped at his home. The offender drove the victim to the address in Young. The offender told his housemate that he was collecting some belongings and he would be taking the victim back to Leeton. 8. The victim sat on the offender's single bed with her head facing down toward her legs. She remained silent hoping that he would collect his things and drive her home. While collecting his things the offender said, "I'm sorry babe" and then kissed the victim, who was crying, and apologised. The offender continued to kiss and then touch the victim who realised that the offender wanted to have sex with her. She did not want to but was too scared to say no. 9. The offender undressed himself and then removed the victim's track pants. He performed cunnilingus on the victim. The victim was unable to be aroused and she did not wish to engage. The offender inserted his penis into the complainant's vagina and continued to have intercourse with her for about 20 minutes after which the offender said, "Nah, you're not enjoying it. I'm trying to get you to enjoy it but you won't even do that". The penile/vaginal intercourse is the conduct to which the charge contrary to s 61I of the Crimes Act relates. The Crown case relating to the lack of consent is based on recklessness. 10. The Stalk/Intimidate charge relates to the ongoing threatening and other violent behaviour of the offender towards the victim. 11. The victim still had blood on her from the earlier assault in the car. She cleaned the blood off her face, hands and body. The offender gathered his things, they walked out and got into the car. The victim remained silent for the entire journey to Leeton. The offender kept on saying, "I'm sorry, you know I didn't want anything to happen…I messed up, I didn't mean it". The victim was dropped off at her home in Leeton. 12. The offender was arrested at the Young address on 18 May 2017. He agreed to be interviewed and made admissions to assaulting the victim. In respect of the sexual assault the offender told police that he knew the victim "wasn't into it" and that looking back he recognised that the victim would have felt that she had to do it otherwise she would not have been taken home. Assessment 1. The assault occasioning actual bodily harm involves multiple punches to the face but involves injuries on the agreed facts that were limited to bleeding. On the material before the court the court cannot find other than that the victim has fully recovered. Assault Occasioning Actual Bodily Harm is an offence of violence and a "result" offence – see McCullough v R [2009] NSWCCA 94. The circumstances in which the assault was committed are relevant to the assessment. The assault was committed in contravention of a domestic violence order and was a particularly nasty and cowardly assault committed as it was on the roadside. I understood counsel for the offender to submit that the matter was in the lower end of the mid-range. My note and memory is that the Crown Prosecutor relied on the decision of SC v R [2019] NSWCCA 25 at [104] and submitted the matter was above mid-range. I understand the point the Crown Prosecutor was making, particularly the issue of the relationship between the offender and the victim. Mr Keller in submissions in reply emphasised the decision in SC v R at [106] in that the pre-existing relationship was one of many factors to be taken into account. The injuries on the agreed facts were limited to bleeding. The matter is within the mid-range. 2. The Stalk/Intimidate charge, involving as it does an ongoing course of violent and aggressive threats and conduct also in contravention of an apprehended violence order, is a serious example of that charge. Counsel for the offender submitted that the matter was in the low end of the mid-range. Given the circumstances, being in the car, on the roadside and in particular the extended and ongoing nature of the conduct the matter is above mid-range but not significantly so. 3. The act of sexual intercourse upon which the charge is based was immediately preceded by another act of intercourse. Given what had occurred during the day, in particular the violence and the victim's reaction it must have been quite obvious to the offender that the victim was not consenting. This too was committed in contravention of a domestic violence order. 4. Mr Keller submits that the sexual assault is within the lower band of the mid-range. My note and memory is that the Crown Prosecutor submitted that this matter too was in the upper end of the mid-range. In all the circumstances, noting in particular the circumstances in which the assault was committed, I am of the opinion that the matter is within the mid-range. The appeal matters 1. The facts were before the court by way of a Police Fact sheet. As pleas of guilty were entered and there is no apparent alteration to the Fact Sheet, I proceed on the basis that that facts are also agreed facts. Those facts recite that on 19 September 2018 the offender entered pleas of guilty in the Wagga Wagga District Court in respect of the sexual assault and related offences and that bail was continued. 2. A provisional apprehended domestic violence order was finalised and an order for the protection of the victim was made for a period of five years. The conditions imposed and to which the offender was subject were that the offender must not assault, molest, harass, threaten, intimidate or stalk the victim, that he must not intentionally or recklessly destroy any of her property, he must not contact the victim except through a lawyer, he must not go into any place where the victim lives or works and was not to enter the township of Leeton. 3. The facts then go on to recite that in July and August 2018 the victim maintained contact on her mobile phone and by Facebook with the offender while she was completing a voluntary rehabilitation programme. Upon completion of the programme she began to distance herself from the offender and once the victim attempted to end their contact the behaviour of the offender changed and he commenced sending her a number of threatening and intimidating messages. 4. From 21 November 2018 to 5 December 2018 the victim received numerous text messages that were abusive and degrading calling her names such as dickhead, idiot, oxygen thieving parasite, gutless dog and dumb cunt. 5. The messages included a text message sent on 29 November 2018 saying (as set out in the fact sheet): "U really are dumber than I actually thought aye, seriously [NS], u really need to stop and talk to me and be totally honest, do you have any idea what your doing? I'm not fukn joking, why can't you fukn prove anything, ur lying again because if you did u would show me proof to get me worried so there's a broken jaw. U wont answer anything and text other pieces of shit, so there's snapped fingers. U can't be honest about cheating, so there's a special inserted suppose, u will hate it…U tell everyone else about everything and add lies, etc to ur storey like a pathetic drama queen, so there's a broken neck…U think I'm joking, etc, and nothing will happen, so that's snapped legs, u are totally retarded if you think nothing is going to happen to u, honestly have no idea, u really should stop cheating on me too, why cant you just talk without any crap and be totally honest, it will take about half an hour, U dumb inbred cunt…fukn pull ur head in before it leterally gets caved in, don't think I wont". 1. At 8.26am on 4 December 2018 there was another message sent by the offender which read, again as set out in the fact sheet: "Get up idiot, fuck u, it's not going to be a good day for u, u don't have a choice, u really should've talked, I don't care what u do, ur fukd, let's play u gutless dog". 1. Another message was sent on 5 December 2018 by the offender part of which reads, "Just think…Someone out there someone is thinking of you. Trying to figure out how to make your death look like an accident", with another comment, "True that, but I don't care if it look like an accident or not truthfully". 2. Not surprisingly, the victim became extremely scared for her safety. She was aware that the offender was wanted by police and was fearful that he would attend her address and seriously harm her. 3. The offender failed to appear at the Wagga Wagga District Court on 7 December 2018 and a Bench Warrant was issued for his arrest, which was effected on 13 December 2018. 4. The offender was taken to the police station and voluntarily participated in a record of interview in which he made full admissions to sending the text messages to the victim. On multiple occasions during the interview the offender said that he would kill the victim if he got his hands on her. He also said to police, "She better leave the country so I don't get her". 5. Given the multiple number of messages, the violent content of those messages and what was said to police in the interview the offence contrary to s 326(1)(a) of the Crimes Act is within the mid-range, noting that the section also contemplates the actual doing of acts as well as the making of threats. The offence of Contravene Domestic Violence order is also a serious example of that offence. 6. Mr Keller, counsel for the offender, appropriately conceded at an early stage of the sentence hearing that the appeal objectively had little or no merit. With respect, counsel's assessment of the matter is entirely correct. General Deterrence 1. The sentence matters in my opinion can all appropriately be seen as serious examples of domestic violence. The offending to which the appeal relates was committed in contravention of an apprehended domestic violence order. Of recent times the High Court and the Court of Criminal Appeal have made pronouncements on the need for general deterrence in matters involving domestic violence. 2. Some of the decisions of the Court of Criminal Appeal relating to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at 32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]. 3. Fagan J in his remarks on sentence 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. In Munda v Western Australia (2013) 249 CLR 600 the plurality said at [55]: "…A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the State to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law" 1. There is also the decision of Cherry v R [2017] NSWCCA 150 where Johnson J (Macfarlan JA, Harrison J agreeing) said at [80]: "All of the offences committed by the applicant against NR were in breach of an ADVO which had been put in place to protect her from the applicant. These were not offences committed in breach of conditional liberty simpliciter. They were in breach of a form of conditional liberty designed to protect the same victim from further attacks by the applicant. The repeated commission of domestic violence offences in breach of an ADVO attracted a need for specific deterrence, general deterrence and denunciation in this case: Browning v R [2015] NSWCCA 147 at [4]-[9]." 1. More recently, in Quinn v R [2018] NSWCCA 297 Hoeben CJ at CL (White JA, Fagan J agreeing) at [244] said: "One aspect of the protection accorded by the law to persons, particularly women in a domestic relationship who wish to end that relationship, is explained by Adamson J (Bathurst CJ and Leeming JA agreeing) in Patsan v R [2018] NSWCCA 129 at [39] where her Honour said: '39 … The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant's conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths.'" 1. There must be an element of general deterrence factored in to the sentence in this matter. 2. It is also appropriate to note that one of the matters included in the appeal from the Local Court is a public justice offence. There is also a real issue of general deterrence to be addressed in any sentence imposed in respect of that matter as well. The Legislature and the courts have always regarded public justice offences as serious offences requiring condign punishment. Two authorities are Marinellis v R [2006] NSWCCA 307 at [10] and Church [2012] NSWCCA 149 at [46] and [55]. The offending in those matters was quite different to the offending on which I am passing sentence however the matters of general principle are equally applicable. That offence too was committed in breach of a Domestic Violence Order. Criminal History 1. The offender's criminal history is lengthy. The offender is now 44 years of age and was 42 at the time of the offending for the sentence matters and 43 at the time of the offending to which the appeal matters relate. The offender has been convicted of numerous traffic offences including drive while licence cancelled and PCA, damage to property, a number of assault matters including assault occasioning actual bodily harm, firearms offences, contravene domestic violence order, drive conveyance taken without consent of owner, steal motor vehicle, stalk/intimidate, and intimidate a police officer. 2. As I observed in the course of the sentence hearing no reasonable criticism could be levelled at the Crown if a submission was made to the effect that the principles enunciated in Veen v The Queen No. 2 (1988) 164 CLR 465 were enlivened. The Crown ultimately did not make that submission. 3. As counsel for the offender sets out in the outline of submissions, MFI 1 on sentence, there were no offences committed between 2006 and 2012 and there was a period November 2013 to January 2015 to this offending where the offender did not commit any serious offending, but he was convicted of a PCA offence. 4. This is the first time the offender has been before the court for a sexual offence. The offender has a record that does not entitle him to any particular leniency. The offender needs to be aware however that he is getting perilously close to his record being held against him as an aggravating factor. 5. The Crown submitted that although the record does not entitle the offender to any particular leniency, the sentence imposed should reflect an aspect of specific deterrence. I agree with the Crown in this regard. The Crown also submitted that the Court in passing sentence should give proper regard to s 3A(c) of the Crimes (Sentencing Procedure) Act, 1999 and have regard to the protection of the community. The Crown in the course of this submission referred to the significant number of convictions for matters of violence and domestic violence recorded against the offender. The provisions of that section are always part of the instinctive synthesis process of determining the appropriate sentence. To specifically make some other or extra allowance for protection of the community however, seems to me to be uncomfortably close to invoking Veen No. 2. 6. The matters to which the appeal relate were committed while the offender was subject to conditional liberty, i.e. bail in respect of the sentence matters. This is a factor of statutory aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act so far as the appeal matters are concerned. Subjective Case for the offender 1. No oral evidence was called by or on behalf of the offender. However, reliance was placed on two Sentence Assessment Reports, the first dated 14 March 2019 and the second dated 1 April 2019. Exhibit 1 on sentence includes discharge notes from the Young District Hospital but they go only to the offender being prescribed medication. Exhibit 2 on sentence, is titled CSNSW/GEO Psychology Service Progress Notes, which are very comprehensive. Exhibits 3 and 4 are respectively a certificate of completion of a course while in custody and a letter from a prison chaplain. 2. Exhibits 3 and 4 can be dealt with quite quickly. Mr Keller on behalf of the offender submitted that those documents show some "glimmer of hope" that the offender is now engaging at least to some extent with agencies that might be able to assist. I agree, but it just a faint glimmer. For the glimmer to become brighter the offender will continue to engage in a meaningful fashion. These are very early days so far as the offender's engagement is concerned. 3. The psychological progress notes, Exhibit 2 on sentence, indicate that the offender is the youngest of four siblings. The offender reported to the service that he had multiple traumatic experiences in childhood. There is no real expansion on that but at page two of the notes it appears that the offender self-reported that he was diagnosed with post-traumatic stress disorder and that during his incarceration he self-referred to psychology with sleep disturbance in the context of trauma-related symptoms. The notes go on to record that the offender indicated a willingness to engage in psychological treatment for childhood trauma. 4. On this issue, the first of the Sentence Assessment Reports (SAR) sets out on page three that the offender indicated a willingness to engage in intervention to address drug use, anger related offending and to resolve childhood sexual abuse related trauma. The same comment is made at p 3 of the second SAR. The second SAR also sets out at p 2 that the offender attributed his history of alcohol and polysubstance use to unresolved childhood abuse. The psychology notes (exhibit 2) has a notation (p 2) that the other (the first being violence) relevant areas of need include his chronic drug use and experiences of childhood trauma. 5. Counsel for the offender put in oral submissions that there were present some potential "Bugmy" factors, this being a reference to Bugmy v The Queen [2013] HCA 37. Much of this material comes from the offender "self-reporting" to the authors of the reports and the psychology notes. There is a paucity of actual evidence of these matters relied upon to ground the submission. However on careful review of all of the material, I am prepared to make a finding that the principles enunciated by the High Court in Bugmy are enlivened to some limited extent. I say limited extent because of that paucity of evidence. Counsel for the offender puts in the outline of submissions (MFI 1 on sentence) that the offender was sexually assaulted at the age of seven. I cannot find any more precise details of this beyond what I have already set out. However, on the material available I accept that the offender had difficulties in his formative years including the suicide of his father when the offender was aged 12. 6. The offender was admitted to bail in order that he could attend a full time residential rehabilitation facility. The offender was in the Wayback Ltd Rehabilitation facility from 1 March 2018 until 19 October 2018 when he was discharged because of non-compliance with the requirements of the facility. The court file reflects that the offender did not appear as he was required to do so on 7 December 2018 and a warrant for his arrest then issued. The psychology notes (exhibit 2) set out (p 2) that the offender returned to a pattern of daily meth-amphetamine and cannabis use and was living in his car after his exclusion from the rehabilitation facility. 7. At tab 8 of exhibit A (Crown tender bundle on sentence) is the discharge letter to the offender from the Chief Executive Officer of Wayback Ltd in which it is set out that the offender struggled in engaging in the programme, the offender's drug use showed little change, he had not been fully compliant with the requirements of the programme, he was placed on probation, that leniency was given to afford the offender every opportunity to engage, he failed to attend a number of group sessions, he failed to declare drug use and he acquired a significant number of demerit points. The offender was required to vacate the establishment. 8. However, the period in residential rehabilitation was as counsel for the offender submitted quasi-custody. The submission was put and I accept that the offender must get some allowance for this by way of either reduction of sentence or back-dating of the sentence. While I accept the submission given the unsatisfactory performance of the offender while in that facility he is not entitled to the "one day for every two spent at rehabilitation" which is widely accepted as being appropriate. I did not understand the Crown to dispute that the offender is entitled to some consideration for the time spent in quasi-custody. In the circumstances of this case I am prepared to allow one day for every four spent in quasi-custody while in rehabilitation. On my calculations the offender was in the rehabilitation facility for 33 weeks and one day making a total of 232 days, which means an allowance of 58 days or two months with some very minor rounding up in favour of the offender. 9. The author of the first SAR notes at p 3 of the report that the offender's performance on his most recent supervision in 2016 was substandard because of his reluctance to address his anger and poor reporting attendance. The psychology notes (exhibit 2) include a notation (p. 2) to the effect that despite extensive history of contact with criminal justice services the offender does not appear to have engaged in any interventions to address his use of violence. The notation continues that this remains an outstanding area of treatment need, which places him at increased risk of violent re-offending in the future. 10. Mr Keller in his outline of submissions, which were amplified in oral submissions, put that I could find that there were guarded prospects of rehabilitation. It would appear from exhibits 3 and 4 that there is a slight glimmer of hope that the offender is now engaging. Much will depend on whether and how the offender continues to engage with the appropriate programmes. According to page 1 of the second SAR the offender has some family support. However, at this stage, on the material before, me I am not prepared to find that the prospects of rehabilitation are anything but minimal. I certainly could not be satisfied on balance that there are good prospects of rehabilitation. 11. The author of the psychology notes (exhibit 2) sets out (pp 2-3) that given the nature and circumstances of the current and historical offences the violent offenders treatment programme (VOTP) may be more appropriate in addressing the offender's risk factors. The programme is residential and involves a wide range of professionals. The author goes on to explain that the sexual violence and domestic violence would be addressed in the context of the VOTP. In the circumstances I am of the opinion that it would be appropriate to recommend that the offender undertake this course. It seems from exhibit 2 however that the offender must apply to participate and his suitability is then assessed. The authors of both SARs indicate that the offender has indicated a willingness to engage in intervention to address his issue of violence. One can only hope that the offender is sincere in this indication. 12. According to the psychology notes, exhibit 2 on sentence, the offender's risk of sexual re-offending was assessed using the STATIC-99R, actuarial risk assessment tool. The offender was assessed as being in the above-average risk range. This is recounted in the second SAR. The author of the first SAR at p 3 sets out that the offender is assessed at a high risk of re-offending. I also note the significant offending while on conditional liberty to which the appeal matter relates. In all of the circumstances I could not be satisfied on balance that the offender is unlikely to re-offend. 13. Mr Keller submitted that given the need for ongoing supervision beyond the offender's release that there was some scope for a minor variation in the statutory ratio between the non-parole period and the total sentence. The Crown submitted that there was no basis for a finding of special circumstances. Given the nature of the offending the period on parole would be substantial even with the statutory ratio applied. There is the complicating feature of the appeal. Initially it seemed that I could include that in any aggregate sentence I impose. However, that is a separate matter and specific orders will have to be made in respect of the appeal. The issue of partial accumulation of sentences is a justification for a finding of special circumstances. I will return to the issue of partial accumulation later in these remarks. Otherwise there is little to support a variation in the statutory ratio but given the length of the sentence the offender will need ongoing supervision to ensure appropriate reintegration into the community which justifies a very minor variation in the ratio. 14. The author of the first SAR notes (top p 3) that the offender struggled to empathise with the victim, given his belief that she had engaged in antagonistic and deceitful behaviour towards him. The author of the second SAR notes under the heading "attitudes" that the offender appeared to abdicate responsibility for his violence and sex offending, rather he blamed the victim and his ice use as antecedents. Further, the second SAR notes that the offender justified his escalated behaviour against the victim by consistently outlining flaws in her character throughout the interviews. He further attributed the offences relating to non-consent to the victim being a compulsive liar. Clearly, I am utterly unable to find that the offender is remorseful. 15. Mr Keller made a submission to the effect that usually the offences of Assault Occasioning Actual Bodily Harm and Intimidation are dealt with to finality in the Local Court. In the circumstances of this matter I am firmly of the opinion that it was entirely appropriate to have those matters dealt with on indictment. I note in that regard the authority Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [70]-[120] per Johnson J and at [138]-[139] per Rothman J. See also for e.g. the decisions of Collins v R [2010] NSWCCA 13 and Stanford v R [2007] NSWCCA 73. 16. Mr Keller also provided the statistics kept by the Judicial Commission in respect of the offences for which the offender appears for sentence. Counsel makes some observations on those statistics within MFI 1 on sentence, the outline of submissions. I have read and considered those statistics. However, I warn myself about the use of those statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J. 17. I return to the issue of partial accumulation. Both counsel submitted that the court could impose an aggregate sentence including the matters to which the appeal from the Local Court relate. That however is a separate matter and a separate determination will need to be made. I am firmly of the opinion that given the offending, noting that it was committed while on conditional liberty with the record of the offender and the need for general and specific deterrence, the appeal should be dismissed and the sentences imposed by the Local Court confirmed. Given what must be a substantial aggregate sentence in respect of the sentence matters it is appropriate for the offender to commence serving the sentence for the appeals matters first in time and the aggregate sentence should then be partially accumulative upon that sentence. In respect of the three matters for which the offender appears for sentence it is appropriate to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. The final result would have been no different had the appeal matter been included in an aggregate sentence. 18. The Crown Prosecutor in the course of the sentence hearing adopted my expression that there would need to be some "meaningful" partial accumulation to recognise the offending involved in the matters to which the appeal relates. Further, in respect of the three offences for which the offender appears for sentence, if separate sentences were imposed there would need to be a sufficient amount of partial accumulation to recognise the ongoing nature of the Intimidation charge and the separate criminality involved in each of the offences. Mr Keller on behalf of the offender put in his brief submissions in reply that any partial accumulation would not be significant. 19. In passing sentence I must of course give proper regard and effect to ss3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the nature of the offending, the maximum penalties provided, the fact that general and specific deterrence are issues in the sentencing exercise and the standard non-parole period in the case of the sexual assault offence no other sentence than imprisonment is appropriate. No contrary submission was made. 2. According to the Crown Sentence Summary Sheet the offender had been in custody referable to the sentence matters for 401 days, i.e. one year, one month and five days as at the date of the sentence hearing which was 5 April 2019. This means that the sentence would commence on 28 February 2018. There is also the allowance of two months for the quasi-custody for reasons enunciated earlier in these remarks. To give effect to this allowance I will back date the commencement of all sentences by two months having the practical effect of the first sentence commencing on 28 December 2017. There must be a finding of special circumstances because of the issue of partial accumulation. 3. In respect of the sentence matter involving the offences of Assault Occasioning Actual Bodily Harm, Intimidation and Sexual Intercourse Without Consent I invoke s 53A of the Crimes (Sentencing Procedure) Act, 1999 and impose an aggregate sentence. These remarks have been reduced to writing and each party will receive a hard copy upon the pronouncement of sentence. It will be necessary to indicate what sentences would have been imposed had separate sentences been imposed. The sentences that would have been imposed had separate sentences been imposed are: 1. In respect of the charge of Drive While Suspended that attaches to the Certificate pursuant to s 166 of the Criminal Procedure Act a fixed term of 3 months imprisonment. 2. In respect of the charge of Assault Occasioning Actual Bodily Harm a total sentence of 1 year and 7 months indicating a starting point of 2 years with some minor mathematical rounding down in favour of the offender; 3. In respect of the charge of Intimidation a total sentence of 2 years indicating a starting point of 2.5 years; 4. In respect of the charge of Sexual Intercourse without Consent contrary to s 61I of the Crimes Act a non-parole period of 4 years and 4 months with a balance of term of 1 year and 6 months making a total sentence of 5 years and 10 months indicating a starting point of 6.5 years with some very minor mathematical rounding down in favour of the offender. Orders In respect of the appeal on file 2018/00384329 1. The appeal is dismissed. The convictions are confirmed. I agree with the findings of the learned Magistrate that if separate sentences were imposed the appropriate total sentence for the offence contrary to s 326(1)(a) of the Crimes Act is 2 years imprisonment and the total sentence for the offence contrary to section 14(1) of the Crimes (Domestic and Personal Violence) Act is 11 months imprisonment. 2. The aggregate sentence of 26 months with a non-parole period of 15 months is confirmed. 3. The non-parole period will commence on 28 December 2017 and expire on 27 March 2019. The balance of term of 11 months will commence on 28 March 2019 and will expire on 27 February 2020. Sentence matters – file 2017/00150225 1. In respect of each of the matters to which the offender has pleaded guilty he is convicted. 2. The offender is sentenced to an aggregate sentence of 7 years and 4 months with a non-parole period of 5 years. 3. The non-parole period is to commence on 28 December 2018 and will expire on 27 December 2023. The balance of term of 2 years and 4 months is to commence on 28 December 2023 and will expire on 27 April 2026. 4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 5. I recommend that while in custody the offender participates in the Violent Offenders Treatment Programme. 6. Although it is a matter for the parole authorities I recommend that any release to parole be supervised by the Department of Community Corrections. 7. The total effective sentence is one of 8 years and 4 months with a period in actual custody of 6 years. The ratio of the time in actual custody to the total effective sentence is 72%. ********** Amendments 17 April 2019 - Anonymising 17 April 2019 - Anonymising 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: 17 April 2019