Elwood v R

THE COURT: The applicant seeks leave to appeal against a sentence that was passed on him in the District Court for domestic and personal violence offences, property offences and offences against police, committed by him at a residential property in Bourke early on the morning of 29 December 2021. The applicant was arrested sometime after 8:30 am on 29 December 2021 at the conclusion of a protracted violent incident that had lasted about 3½ hours. The applicant entered pleas of guilty to all charges in the Local Court on 25 August 2022 and he was sentenced by his Honour Judge J Smith SC on 15 September 2022. An aggregate sentence of 5 years’ imprisonment with a non-parole period of 2 years and 6 months was imposed. The commencement of the sentence was backdated to the date of the applicant’s arrest.

The sole ground of appeal for which leave was sought was that the sentence was manifestly excessive. After hearing the application on 14 August 2023 this Court made the following orders:

The applicant is a young indigenous man who was aged 23 years at the time of the incident that gave rise to the charges. In 2015 he commenced an intimate relationship with the principal victim of the offending, Ms Ella Boyd. Ms Boyd is slightly older than the applicant but both of them were 17 years old when they commenced their relationship. The first child, a boy, ZE, was born in 2017 and was aged 4 years at the time of the incident. Their second child, NE, was born in 2020 and was aged seven months at the time.

Up to June or July 2021 the applicant and Ms Boyd lived together in Bourke. Their relationship was volatile and the applicant’s conduct towards Ms Boyd became violent, resulting in convictions for the following offences:

From 2 November 2020 a final apprehended domestic violence order was in place for the protection of Ms Boyd, containing prohibitions against the applicant assaulting, threatening, harassing or intimidating Ms Boyd or intentionally or recklessly damaging her property. The order prohibited the applicant from approaching or being with Ms Boyd within 12 hours of drinking alcohol.

In mid-2021 Ms Boyd ended the relationship and moved to Orange with their two children, the younger of whom was then only about two months old. The applicant remained living in Bourke. In December 2021 Ms Boyd returned to Bourke to stay with the applicant’s sister, Nakia Cahill, and Ms Cahill’s children.

At about 5:00 am on 29 December 2021 the applicant arrived at Ms Cahill’s house heavily affected by alcohol and holding the neck of a broken beer bottle with a jagged edge. He and Ms Boyd commenced arguing. His attendance at the house in the circumstances constituted sequence 3, breach of apprehended domestic violence order, s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The applicant directed Ms Boyd to go into her bedroom. She saw the broken bottle in the applicant’s hand and, in fear, followed his direction. The younger child, then aged 7 months, was asleep on the bed. The applicant demanded to know with whom Ms Boyd had been sleeping. They both lay down, Ms Boyd trying to calm the applicant’s agitated state. When the applicant put the bottleneck on the bed, Ms Boyd threw it on the floor. The applicant retrieved it, threatened to kill either himself or Ms Boyd, and slashed and stabbed her with the sharp glass edge. Subsequently at Bourke Hospital her injuries were recorded as deep lacerations, in each case penetrating the dermis, epidermis and adipose tissue, to her left wrist, left lower forearm (>7cm) and left lower leg (>7cm). Photographs were in evidence showing the deep, irregular wounds: seq 12, reckless wounding, s 35(4) of the Crimes Act 1900 (NSW).

In the course of struggling with Ms Boyd on the bed at this time, the applicant bit her left breast, leaving a bruise that was also identified at the hospital and recorded in a photograph: seq 11, assault occasioning actual bodily harm, s 59(1) of the Crimes Act.

Ms Boyd tried to persuade the applicant to leave. Ms Cahill, who had been sleeping, came out of her bedroom and also told the applicant to leave. He threatened to kill Ms Boyd and anyone who got in his way, including a direct threat that he would kill Ms Cahill and that he would smash a house: seq 6, intimidation, s 13(1) of the Crimes (Domestic and Personal Violence) Act.

The applicant took a child’s scooter outside the house and threw it through the kitchen window, shattering the glass. He threw bricks at the house and struck it with a long metal pole, smashing a hole in the external fibre board cladding. He threw numerous objects through the broken window, including a metal pole, a large piece of timber and terracotta pots. The applicant turned to a car that was parked on the property, belonging to a former resident. He struck it repeatedly with the brick, denting every panel then breaking every window including the front and back windscreens. The combined damage to the house and to the vehicle constituted seq 5, recklessly damage property, s 195(1) of the Crimes Act.

The two women locked themselves and their children in the bedroom to shelter from this sustained attack. They called the emergency number and requested the attendance of police. They said that the applicant was in the house and trying to get into the bedroom. Two senior constables arrived in a marked vehicle at 8:30 am. They could hear the women screaming and crying in the house. The applicant was standing in the front yard continuing to smash the motor vehicle. Ms Cahill appeared at the front door more than once and on each occasion the applicant turned to face her and she retreated.

The police officers announced themselves, in response to which the applicant said, “I’m going to fucking kill you” and threw a brick in their direction. He then picked up another heavy object, prompting one of the officers to get back into the passenger seat of their vehicle and use the radio to call for backup. The applicant threw a brick through the rear passenger window of the police vehicle, smashing it. The officer climbed across the centre console and exited via the driver door. Both officers took cover behind the vehicle, drew their firearms and ordered the applicant to lie on the ground. He walked away, picked up a large metal pole, held it aloft like a weapon and repeated his threat, “I’m going to fucking kill you”. He then walked towards the house. When the officers followed he turned towards them, brandishing the weapon: seq 7, use offensive weapon with intent to prevent lawful apprehension, s 33B(1)(a) of the Crimes Act; seq 8, recklessly damage property, s 195(1) of the Crimes Act.

The applicant’s brother arrived and was able to calm him sufficiently for the police officers to be able to approach safely and make the arrest.

The learned sentencing judge nominated the following indicative sentences:

The sentencing judge made the following findings favourable to the applicant concerning his subjective case:

The learned judge accepted the opinion of a psychologist that the applicant’s disadvantaged background and early life experiences had given rise to diagnosable disorders that significantly impacted his ability to make informed decisions and to exercise appropriate judgment.

The fact that the offences were committed while on conditional liberty was taken into account. On the other hand the learned judge accepted that the applicant’s remorse was genuine and that he had reasonably good prospects of rehabilitation, subject to his ability to control his alcohol abuse. While noting the applicant’s criminal record, including past instances of violence against Ms Boyd, his Honour fairly recognised that there had been “relatively long periods in the offender’s life without offending”. A discount of 25% was allowed for the applicant’s pleas of guilty. His Honour found special circumstances on the basis, first, that the applicant was at a critical point in taking control of his life and needed extended time under supervision to assist with that; secondly, that his time in custody on remand had been onerous due to Covid-19 restrictions and the lack of access to rehabilitative resources in prison; thirdly, that this is his first time in custody and an extended period on parole for reintegration into the community would be desirable.

In considering whether the aggregate sentence was excessive we note the following salient features of the case, most of which were expressly addressed by the learned judge in his remarks. First, the applicant’s past domestic violence against Ms Boyd was dealt with in the Local Court at Bourke with considered and graduated penalties, designed to bring home to the applicant the gravity of his behaviour while at the same time affording him the opportunity to reform under the guidance of Community Corrections supervision. The applicant’s violent eruption of 29 December 2021 proved these past orders to have been an insufficient encouragement to him to refrain from violence towards his former partner and made a term of full time custody, of some length, necessary – for the protection of the victims, for both general and specific deterrence, for denunciation of the conduct and for punishment.

Secondly, the renewed violence of the applicant was obviously terrifying for Ms Boyd, from the moment he arrived armed with the broken bottle and as he inflicted serious wounds upon her, threatened to kill her and put her and the other occupants of the house under siege.

Thirdly, the events must also have been terrifying to the very young children who were present. This was an escalation of the domestic violence that had taken place on and off over more than three years, all of it having the capacity to cause lifelong psychological damage to the applicant’s children, thus carrying on into the next generation the same trauma that the applicant pleads as having marred his own life.

Fourthly, the personal violence was not only directed to Ms Boyd but also to the applicant’s sister, whom he threatened and intimidated. The terror of the experience would have been felt by her children.

Fifthly, the wanton damage done by the applicant to the home in which Ms Boyd, Ms Cahill and their children were residing and to the vehicle on the property, belonging to yet another victim of this rampage, would necessarily constitute a significant economic impact. It is apparent from the photographs that the home is a modest one and there is no reason to think that any of the victims could readily absorb the cost of the damage.

Sixthly, the actions of the applicant towards the attending police were serious and dangerous. The police were there to intervene for the protection of vulnerable women and children. The arrival of police should have brought the applicant to his senses but instead he responded with further violence that threatened their safety and resulted in significant damage to their vehicle.

Having regard to the number of victims affected, in different ways and to different degrees, and the extremity of the applicant’s actions throughout the episode, a significant degree of notional accumulation was called for in arriving at the aggregate sentence. The accumulation reflected in the sentencing orders made by the learned judge was well justified. The applicant’s submissions on the leave application concentrated upon his disadvantaged background, his relatively young age, his lack of previous experience of full-time custody, his expressed desire to improve himself and the support that he apparently enjoys from members of his extended family. Full recognition of those subjective factors is reflected in the sentence that that the judge imposed, particularly in the shortening of the non-parole period and the consequent opportunity for 2 years and 6 months of supervision in the community, if the applicant is of good behaviour and is able to secure release to parole at the earliest date upon which he will be eligible.

In our view the head sentence of 5 years’ imprisonment with a substantial allowance for special circumstances, resulting in a non-parole period of only 50% of the full term, was not manifestly excessive.