Contents

Table of Contents

New South Wales

Court of Criminal Appeal

R v VR [2024] NSWCCA 91 (7 June 2024) — New South Wales Court of Criminal Appeal

‘Appeal against sentence’ - ‘Manifestly inadequate’ - ‘Extensive history of domestic violence’ - ‘Coercive control’ - ‘Sexual and reproductive abuse’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Rape’ - ‘Economic and financial abuse’ - ‘jealousy’ - ‘intimate images’

Proceedings: Appeal against sentence.

Charges: Rape x 12; inciting the commission of an act of indecency x 1.

Facts: In June 2023, the male respondent was found guilty by a jury of offences committed over 17 years against three victims, two of whom were the respondent’s ex-wives and the other an intimate partner. The offending was extremely violent, characterised by a high degree of degradation and humiliation that was partly demonstrative of the respondent’s jealousy and coercive control. [9]–[34]

Grounds of Appeal: The prosecution appeal on the sole ground that the sentence was manifestly inadequate.

Decision and Reasoning: Appeal allowed. Sentence quashed. Respondent re-sentenced to an aggregate sentence of 14 years and 6 months’ imprisonment.

Hamill J (with whom Mitchelmore JA and Wright J agreed) emphasised that prosecution appeals against inadequate sentencing ‘should be rare’ and only upheld where there is an identifiable error. [63]–[64]

For Justice Hamill, the identifiable error was the unreasonable and manifestly inadequate sentence imposed by the sentencing judge. It fell below the level of sentence necessary to or capable of reflecting the objective gravity of the ‘particularly egregious facts of the case’: [72]

The sentence fails to vindicate the dignity of the three separate victims, or to reflect the grave objective seriousness of offences spanning over a period of 17 years, or to capture the overall criminality involved [73]

In determining sentence, Hamill J noted the respondent’s lack of remorse and insight into the harm he has perpetrated. [82]

Habambo v R [2023] NSWCCA 328 (15 December 2023) – New South Wales Court of Criminal Appeal

‘Appeal against conviction’ - ‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Factual error’ - ‘Physical violence and harm’ - ‘Intimidation’ - Strangulation/choking’ - Property Damage’ - ‘Evidence’ - ‘Admissibility’ - ‘Objective seriousness’ - ‘History of domestic and family violence’

Proceedings: Appeal against conviction and sentence.

Charges: 15x common assault, 15x intimidation, 1x assault occasioning actual bodily harm, 1x malicious damage, 2x intentionally choke with recklessness

Facts: The male applicant was convicted for 28 counts of domestic violence offences against his former wife (the complainant). The applicant’s conduct including strangling the complainant with a plastic bag [20], slapping her across the face [29], intimidation [40] and pushing the complainant while pregnant [55] on several distinct occasions across multiple years. The applicant was sentenced to a total aggregate sentence of 10 years imprisonment and a 2 year conditional release order. [2]–[3]

Grounds of Appeal: The applicant appealed his conviction and sentence on several grounds. With respect to conviction, the applicant appealed the admissibility of two forms of evidence (ie, a record of text messages and a record of WhatsApp messages). With respect to sentence, the applicant argued that the aggregate sentence was manifestly and that the sentencing judge erred in their determination of certain counts as serious offending.

Decision and Reasoning: Leave to appeal conviction refused and leave to appeal sentence granted and dismissed.

With respect to the conviction appeal, the Court (Ward P, Rothman J and Davies J) first regarded the text messages as both ‘admissible and relevant’. The messages were specifically relevant ‘to the circumstance where there was a dispute raised as to the complaint made by the complainant to the applicant’s sister, Ms Harb’. [222] These messages were not relied upon as opinion evidence, but rather to demonstrate Ms Harb’s credibility. [223] Accordingly, the admission of the text messages did not ‘cause manifest or unfair prejudice to the applicant’. [226]

Second, the Court held that the WhatsApp messages to equally be admissible. The Court dismissed the applicant’s argument that these messages were inadmissible: they formed a substantial component of the applicant’s evidence/cross-examination: ‘[I]t cannot be said that there was not a rational forensic decision open to defence counsel not to seek an earlier ruling as to the admissibility of the text messages; and complaint cannot now be made at the fact that defence counsel did not do so’. [296]

With respect to the sentencing appeal, the Court held first that the sentencing judge’s assessment of counts 3 and 11 (intimidation by strangulation/choking) as objectively high in gravity was appropriate. [322]; [324] In each instance, the applicant intimidated the complainant by effectively depriving her of oxygen, either manually (using his hands to cover her mouth and nose) or with a plastic bag. Accordingly, the behaviour ‘could be said to amount to suffocation’. [322]

Similarly, with respect to a count of common assault, the Court upheld the sentencing judge’s treatment of the conduct as falling at the ‘mid-range’ of objective seriousness:

The offence constituting count 34 was not the first time the applicant had assaulted the complainant. It was, in fact, part of the final episode of intimidation and violence inflicted upon the complainant by the applicant, following nine years of domestic violence. The fact that it occurred at the complainant’s home and in front of the children were both aggravating factors. The assault was far more serious than some of the previous assaults including the two others committed in this final episode. The assault involved the applicant jamming the complainant in the door, having just threatened to throw her off the balcony he was preventing her from leaving. The extent of the complainant’s distress from the episode including count 34 can be seen in the police BWV which was Exhibit P [334]

Lastly, the Court held that the aggregate sentence of 10 years, though ‘stern’, was not manifestly excessive:

The offending involved domestic violence over a nine year period. Two of the offences were suffocating or choking offences contrary to s 37 of the Crimes Act, 15 of the offences were intimidation offences contrary to the CDPV Act, two of which involved acts of suffocation, and a number of other offences of common assault. The applicant received a generous adjustment to the statutory ratio from 75% to 60%. The aggregate sentence is not plainly unjust [377]

Elwood v R [2023] NSWCCA 200 (17 August 2023) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Manifestly excessive’ – ‘Factual error’ – ‘Physical violence and harm’ – ‘Damaging property’ – ‘History of domestic and family violence’ – ‘Prevention order’ – ‘Exposing children to domestic and family violence’ – ‘threats to police’

Proceedings: Appeal against sentence.

Facts: The male applicant was sentenced to 5 years’ imprisonment for domestic and personal violence offences, property offences and offences against police. The applicant and the female complainant (the applicant’s estranged partner) were in a ‘volatile’ relationship over six years. [4] In December 2021, the applicant contravened a prevention order, recklessly wounding the complainant with a jagged edge of a broken bottle while intoxicated. The applicant threatened the complainant’s sister, doing so in the presence of his children. The applicant subsequently threatened police that arrived at the scene. [1]; [5]–[14]

Grounds of Appeal: The applicant appealed the sentence on the sole ground that the aggregate sentence imposed was manifestly excessive. [2]

Decision and Reasoning: Leave to appeal granted and appeal dismissed.

The Court (Adamson JA, Wright and Fagan JJ) acknowledged the ‘salient features’ of the case; notably, the ‘applicant’s past domestic violence against [the complainant]’, the ‘renewed violence of the applicant’ in the presence of children and towards both the complainant and her sister, the ‘wanton damage’ done to the complainant’s property and the violence towards the police. [19]–[24] In lieu of these features, the Court held the head sentence of 5 years was not manifestly excessive.

DS v R [2023] NSWCCA 151 (23 June 2023) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Manifestly excessive’ – ‘Factual error’ – ‘Physical violence and harm’ – ‘Damaging property’ – ‘History of domestic and family violence’ – ‘Prevention order’ – ‘Exposing children to domestic and family violence’ – ‘Animal abuse’ – ‘Sexual and reproductive abuse’ – ‘Rape’ – ‘motor vehicle’

Proceedings: Appeal against conviction.

Charges: 2x assault occasioning actual bodily harm, 2x use of an offensive weapon with intent to commit an assault, 1x aggravated sexual intercourse without consent, 1x attempted sexual intercourse without consent, 2x sexual intercourse without consent in circumstances of aggravation (recklessly inflict actual bodily harm), 1x sexual intercourse without consent

Facts: The male applicant was found guilty of domestic violence offences, committed against his female former partner (the complainant), and sentenced to 7 years and 6 months’ imprisonment. [4] The male applicant punched the complainant multiple times in the face, dragged her in front of a vehicle and started the engine, before dragging her to a dog kennel and having non-consensual sexual intercourse. Finally, the applicant dragged and assaulted the complainant while in the presence of children. [11]–[32]

Grounds of Appeal: The applicant appealed the sentence on two grounds, both of which turn on whether a miscarriage of justice was occasioned:

1.

Miscarriage of justice — error in refusing the application to severe counts 4 and 5 (aggravated sexual intercourse and attempted sexual intercourse without consent with the family dog’s penis) from the indictment prior to the commencement of a trial;

2.

Miscarriage of justice — error in refusing the application to discharge the jury once the Crown had elected to “no bill” count 5 [5]

Decision and Reasoning: Leave to appeal against conviction granted and appeal dismissed.

With respect to ground one, Yehia Y (with whom Beech-Jones CJ and Weinstein J agree) held that the refusal of the trial judge to sever the indictment or discharge the jury was neither an error or irregularity in the trial. The conduct informing counts 4 and 5 was bestiality. The applicant submitted that the evidence relating to these counts was so ‘depravingly different’ rendering their linkage to other counts on the indictment unfair. [70]–[71] Justice Yehia dismissed this ground, holding the ‘whole of the applicant’s alleged conduct’ to be ‘unpleasant and of a violent and humiliating character’ [89]:

I am not persuaded that the applicant has demonstrated error on the part of the trial judge in refusing to sever counts 4 and 5 on the indictment. The trial judge, when considering the application for severance, observed that there is always a consideration of some prejudice in a trial where there are a number of counts in the indictment. In determining whether the applicant would be prejudiced or embarrassed in his defence by reason of the evidence constituting counts 4 and 5, her Honour identified, correctly in my view, that the other allegations on the indictment were of an extremely violent nature [88]

With respect to ground two, Yehia J accepted the force of the applicant’s submission that ‘the jury should have been discharged after count 5 was no billed and in circumstances where only some of the evidence relating to the dog was to be relied on by the Crown to prove count 4’. [110] However, the verdicts of the jury demonstrated careful and conscientious consideration of the evidence such that there was clearly no prejudice against the applicant. [121] Accordingly, Yehia J held that the applicant ‘failed to demonstrate that a miscarriage of justice was occasioned either as a result of the refusal to sever counts 4 and 5 and/or as a result of the refusal to discharge the jury after count 5 was no billed’. [121]

Giacometti v R [2023] NSWCCA 150 (23 June 2023) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Assault occasioning actual bodily harm’ – ‘Inconsistent evidence’ – ‘Intentional choking without consent’ – ‘Manifestly excessive’ – ‘Moral culpability’ – ‘Paraphilic disorder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Psychiatric evidence’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Sexual assault’ – ‘Strangulation’ – ‘Subjective circumstances’ – ‘Wounding’

Charges: Sexual intercourse without consent x 1; Attempted sexual intercourse without consent x 1; Intentional choking so as to render unconscious x 2; Assault occasioning actual bodily harm x 2; Reckless wounding x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant was sentenced to 14 years imprisonment with a non-parole period of 9 years and 9 months, after entering a late plea of guilty to seven offences against his then female partner.

The sentencing judge found that the applicant’s personal history and mental health diagnoses cited in psychiatric reports were inconsistent. The sentencing judge was not satisfied of the accuracy or reliability of the history provided by the applicant and disregarded most of the applicant’s subjective circumstances [51].

Grounds:

1.

The sentencing judge erred in declining to consider evidence of his subjective circumstances; and

2.

The sentence was manifestly excessive.

Reasoning and decision: Hamil J (Mitchelmore JA and Davies agreeing) found error in ground 1 but dismissed the appeal.

Ground 1: The court held that the sentencing judge erred in declining to consider evidence of the applicant’s subjective circumstances. The sentencing judge was correct to find the applicant’s alcohol abuse did not explain his conduct [97] and the judge was entitled to be suspect in accepting the accuracy of his history [102].

However, the sentencing judge was not justified in rejecting almost all of the applicant’s subjective circumstances. The applicant was entitled to have his relative youth, lack of prior convictions, sexual abuse, neglect, and diagnosis of a paraphilic disorder considered. These factors were largely consistent and should not have been rejected [107].

Ground 2: This ground was rejected. The court held the applicant’s course of conduct represented sexual and violent offending of an extreme and depraved kind [111]. The applicant’s childhood experiences, and mental health conditions only had a modest impact on his moral culpability [119]. The Court found that the aggregate sentence and non-parole period would have been of at least the same magnitude as the sentence imposed in the District Court [139].

R v Sharrouf [2023] NSWCCA 137 (16 June 2023) – New South Wales Court of Criminal Appeal

‘Allegations of infidelity’ – ‘Assault’ – ‘Coercive control’ – ‘Financial abuse’ – ‘Jealousy’ – ‘Lack of planning and mitigation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Rape’ – ‘Spiritual abuse’ – ‘Strangulation’

Charges: Sexual assault without consent x 8; aggravated sexual intercourse without consent x 1; indecent assault x 1; attempted choke with intent to commit an indictable offence (intimidation) x 1; use offensive weapon with intent to commit an indictable offence x 2; assault occasioning actual bodily harm x 5; common assault x 6.

Proceedings: Crown appeal against sentence.

Facts: The respondent was sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 5 years after a judge alone trial after pleading not guilty to 40 offences and was found guilty of 24 charges. All offences were committed against his then-wife (they were “married” in an Islamic ceremony which was not officially recorded) between 2007-2008 shortly after their marriage. The victim made a statement to police in 2009 but did not proceed to make a formal statement until July 2019. Expert evidence was led of the respondent’s schizophrenia and melancholic depression. The respondent had been exposed to family violence as a child. The offending included multiple counts of penile-vaginal and penile-anal rape. The respondent demanded that the complainant behave in a manner contrary to her religious beliefs, he assaulted the complainant as punishment for “hiding” things from him or seeking advice in relation to his financially controlling behaviour, he punched the complainant to the face breaking her nose and rendering her unconscious and deliberately caused injuries to the complainant’s legs and feet such that she had difficulty walking as punishment for perceived misdeeds on her part.

The respondent conceded grounds 2 and 3 but argued that the court should exercise its residual discretion to decline to intervene.

Grounds:

1.

The sentencing judge erred in his assessment of the objective seriousness of counts 9, 16 and 26;

2.

The sentencing judge erred in imposing convictions with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) in relation to counts 2, 10, 36 and 38; and

3.

The aggregate sentence is manifestly inadequate.

Decision: Sentence quashed (Price, Wilson and Dhanji JJ), resentenced to an aggregate term of 14 years imprisonment with a non-parole period of 9 years (Price and Wilson JJ).

Ground 1: The sentencing judge understated the objective seriousness of 9, 16 and 26 [171]. Re counts 16 and 26 (sexual assault without consent), the sentencing judge emphasised the spontaneity and lack of planning of these offences in assessing their objective seriousness. Price J (Wilson J agreeing) observed:

[167] How in these circumstances could the lack of planning reduce the objective gravity of the offending? As Adamson J (as her Honour then was) observed in Kennedy v R [2022] NSWCCA 215 at [51]:

“... it is typical of offences of domestic violence committed by persons such as the applicant that they are not “premeditated”. Thus, the lack of planning in this context is of negligible, if any significance.”

[168] This Court has observed that the short duration of a sexual assault would not ordinarily be considered as a factor which mitigates the objective seriousness of the offence: R v Daley [2010] NSWCCA 233 at [48]; Cowling v R [2015] NSWCCA 213 at [16]. In the present case, where the respondent’s sexual offending was a repetitive feature in a violent domestic relationship, the short duration of an offence could not amount to a mitigating factor.

[169] In the passage quoted at [151] above, the judge said that the offending in count 16 “was not associated with particular additional violence of the kind that characterised some of the offending.” It is unclear to which offences his Honour was referring, however, the infliction of actual bodily harm at the time of, or immediately before or after the sexual assault would have amounted to an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW).

Re count 9, neither the spontaneity or its short duration could reduce the objective seriousness of the offence, which involved chasing the victim, punching her to the face with a closed fist, causing her to fall to the ground, unconscious with a broken nose [170].

Ground 2: In finding that the sentencing judge erred in applying s10A CSP Act to impose no conviction for counts 2, 10, 36 and 38 Price J (Wilson and Dhanji JJ agreeing) observed:

[188] I recognise that the recording of a conviction may have serious consequences for an offender. However, general sentencing principles apply to the operation of the section. Where an offence is objectively serious and general deterrence, denunciation, and the protection of the community are of importance, the scope for the use of the section must necessarily be substantially diminished. I acknowledge that current sentencing legislation does not prohibit the application of s 10A to a domestic violence offence. Nevertheless, the appropriate use of s 10A in a domestic violence offence must be rare.

In addition no reasons were given for departing from a sentence of full-time detention or a supervised order as required by s4A(2) CSP Act.

Ground 3: Price J (Wilson and Dhanji JJ agreeing) held the aggregate sentence of 10 years imprisonment and non-parole period of 5 years is “so manifestly inadequate that it does not reflect the totality of the criminality involved in the respondent’s offending.”

Residual discretion to decline to intervene:

In agreeing with Price J’s refusal to exercise the residual discretion, Wilson J noted:

[269] This is not a matter in which the residual discretion should be exercised. The courts must ensure that those who seek to brutally dominate a domestic partner, and violently impose a claimed gender superiority on another, are held to account. The aggregate sentence proposed by Price J is one that achieves that aim, whilst giving proper ameliorative weight to the respondent’s subjective case.

Waldron v R [2023] NSWCCA 128 (9 June 2023) – New South Wales Court of Criminal Appeal

‘Accused case not glaringly improbable’ – ‘Application for leave to appeal against conviction’ – ‘Circumstantial evidence directions’ – ‘Directions apt to reverse onus of proof’ – ‘Error in jury direction’ – ‘Female alleged perpetrator’ – ‘Intent to cause grievous bodily harm’ – ‘Jury direction’ – ‘Male complainant’ – ‘Miscarriage of justice’ – ‘Misdirection’ – ‘No rational inference direction’ – ‘No substantial miscarriage of justice’ – ‘Onus of proof’ – ‘Perpetrator misidentification’ – ‘Proper directions’ – ‘Proviso’ – ‘Re-trial’ – ‘Rebutting self-defence’ – ‘Self defence’ – ‘Tendency evidence’ – ‘Uniform evidence law’ – ‘Use of tendency evidence’ – ‘Victim as (alleged) perpetrator’ – ‘Wounding’

Charges: Wounding with intent to cause grievous bodily harm x 1.

Proceedings: Application for leave to appeal against conviction.

Facts: The female accused was charged with wounding her male former domestic partner. At trial she claimed she acted in self-defence in wounding the complainant when he arrived at her home angry and in the company of a companion and initiated a physical altercation between them. The female accused is physically much smaller than the male complainant. Her case included evidence of the complainant’s past offending against a former female domestic partner:

[29] A tendency notice served pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW) identified the tendencies of the complainant the applicant sought to establish:

(a)

To make threats to kill to ex-partners;

(b)

To threaten or to bash them in front of friends/family;

(c)

To call ex-partners ‘slut’ or ‘dog’ ‘cunt’; and

(d)

To threaten to or actually visit ex-partner’s homes with the intention to commit violence.

[30] The notice identified a variety of evidentiary sources that were said to be capable of establishing these tendencies. The Prosecutor objected to the evidence, but Judge English accepted that the evidence had significant probative value and was admissible.

In relation to the adduced tendency evidence, which included a statement of agreed facts (s 191 Evidence Act 1995 (NSW)) that the complainant had admitted and been convicted of the offences of Use carriage service to menace/harass/offend and stalk/intimidate intend fear physical or mental harm against [the victim] in relation to a former partner. The statement included text messages and telephone calls heard by police containing threats to kill and bash the victim and calling the victim a “slut” and “cunt”, and that the accused was apprehended while actually causing damage to the victim’s home.

In directing the jury, the trial judge identified the nature of the evidence and tendency the applicant sought to establish:

Part of the defence case is that the complainant has a tendency to have a particular state of mind, namely, to become angry to an extreme towards ex-partners. It is also part of the defence case that the complainant has a tendency to act on that state of mind by making threats to kill ex-partners, threatening to bash them in front of family and/or friends, calling ex-partners words such as a ‘slut’, or a ‘dog’, or a ‘cunt’, or threaten to – or actually – visit ex-partner’s homes with the intention to commit violence. [34]

The applicant submitted and the respondent conceded that parts of the following direction were erroneous:

Whether you reason in the way argued by the defence, or the Crown is entirely a matter for you. You will need to be very careful about drawing the inference asked of you by the defence, and I will direct you to consider whether there be any alternative explanations for that evidence, and I direct you that you should not draw any inference from the direct evidence unless it is a rational inference in the circumstances. Very shortly I will give you a general direction about drawing inferences when you are considering this part of the defence case. But if you find the complainant did have the tendency alleged by the defence, then you can use that fact in considering whether it is more likely than not that he acted in the way alleged by the accused on 19 July 2020. That is, that he was the aggressor on this occasion. [Emphasis added.] [36]

Grounds:

1.

Her Honour erred in directing the jury that it should not draw the inference that the complainant had a tendency to act in a particular way unless it was the only rational inference in the circumstances.

2.

Her Honour erred in directing the jury that it could take into account a tendency of the complainant to act in a particular way in considering whether it is more likely than not that he acted in the way alleged by the applicant.

Reasoning and decision:

1.

Leave to appeal granted.

2.

Appeal upheld.

3.

Quash the applicant’s conviction.

4.

Order that there be a new trial.

5.

List the matter for call-over on 8 June 2023 at the District Court sitting at Newcastle.

6.

The Court directs that, pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that the commencement date of the aggregate sentence for H82562810 (court file 2021/00297170) imposed on the applicant at Toronto Local Court on 28 March 2022 be varied from 14 March 2024 to 14 March 2022.

Hamill J (Button and Sweeney JJ agreeing) observed:

[38] The applicant was correct to submit, and the respondent was correct to concede, that parts of that direction were erroneous. There were at least three flaws in the direction.

[39] First, the jury should not have been directed that it should be “very careful about drawing the inference asked of you by the defence”. There was nothing wrong with directing the jury that the process of drawing an inference should be a rational one, but it will rarely be appropriate for a jury to be warned that it needs to be “very careful” about drawing an inference favourable to an accused in a criminal trial. That is because the accused, except in unusual cases, bears no onus.

[40] Secondly, the direction introduced a standard of proof – “whether it is more likely than not” – that the alleged victim acted in accordance with the tendency on the day of the offence. This cast an onus on the applicant to establish that the complainant acted “in the way alleged by the accused on 19 July 2020”. The direction had the capacity to, and perhaps did, reverse the onus of proof. Other directions made it clear that the prosecution bore the onus and emphasised the high standard it was required to meet. Even considered in that context, the direction represented a significant legal error in the summing up.

And:

[43] Her Honour drew no distinction between drawing an inference of guilt against an accused person – where all other reasonable inferences must be excluded – and drawing an inference favourable to the applicant as part of her circumstantial case based on the tendency evidence.

[44] It is, by now, well established that tendency evidence is a species of circumstantial evidence and there is no requirement that it be proved to any particular standard, let alone (as these directions were want to suggest) that it must be proved beyond reasonable doubt

In rejecting the respondent’s arguments that the despite the misdirection no substantial miscarriage of justice occurred, and that the applicant’s account was “glaringly improbable”, Hamill J (Button and Sweeney JJ agreeing) was not persuaded that self-defence was eliminated beyond reasonable doubt.

Lawrence v R [2023] NSWCCA 110(24 May 2023) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Criminal history’ – ‘Driving’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical harm and violence’ – ‘Protection order’ – ‘Sentencing’ – ‘Threats to kill’ – ‘Weapon’

Charges: Intimidation x 1; Aggravated kidnapping x 1; Contravention of a protection order x 6.

Proceedings: Application for leave to appeal against sentence.

Facts: The male offender accosted and detained his former de facto wife, contravening a protection order which protected her. For 9 hours, the offender drove the victim at a high speed and in an erratic manner, while abusing, threatening, and assaulting her. The period of detention ended when the victim ran from the car, despite the offender’s threats that he would kill her if she escaped.

The offender was sentenced by the District Court to 6 years and 6 months imprisonment with a non-parole period of 4 years, affording a 10% discount for late pleas.

Grounds:

1.

The sentencing judge erred by aggravating the offending by reason of the applicant’s criminal history;

2.

the sentencing judge erred in her assessment of the objective seriousness of the offending without reference to the applicant’s reduced moral culpability and mental health conditions;

3.

the sentencing judge erred in finding that the applicant’s drug use from an early age did not amount to a mitigating factor;

4.

the sentencing judge erred in double counting the presence of the knife in Count 1, both in determining where on the scale of seriousness the offending sat and also by counting it as an aggravating factor; and

5.

the sentencing judge erred in imposing a sentence that was manifestly excessive.

Reasoning and decision: Wilson J (Gleeson JA and Davies J agreeing) dismissed the appeal.

Ground 1: It was held there was no error in the conclusion that the offender’s criminal history was an aggravating factor. It was a feature relevant to the overall determination, but not used to elevate the objective gravity of the offences [58].

Ground 2: The sentencing judge was correct to treat the offender’s moral culpability distinct from the objective gravity of the offences. The offender’s deprived background or mental health impairment are features that affect the weight to be given to considerations of moral blameworthiness and general deterrence [79].

Ground 3: The sentencing judge appropriately gave weight to the offender’s drug addiction as a manifestation of his deprived background. There was no need to have further regard to it [85]; Wilson J stated ‘it will be a rare case in which a drug addiction, of itself and standing alone, can be treated as a mitigating factor, no matter what age an offender was when the addiction commenced’ [85].

Ground 4: The sentencing judge did not err by double counting. Double counting is not established by the number of times a feature is mentioned, but the use of the feature [90].

Ground 5: The sentence was not excessive, if anything, it was lenient [101].

Liu v R [2023] NSWCCA 30 (24 February 2023) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Causing grievous bodily harm with intent to murder’ – ‘Failure to properly consider the offender's advanced age in sentencing’ – ‘Jealous behaviour’ – ‘Older people’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence’ – ‘Principles in gulyas v western australia’ – ‘S27 crimes act 1900 (nsw)’ – ‘Severity’ – ‘Weapon’

Charge: Causing grievous bodily harm with intent to murder.

Proceeding: Application for leave to appeal against sentence.

Ground: The sentencing judge had failed to apply the principle regarding advance aged in determining the sentence.

Facts: The appellant and victim were married in 2014 and living with the widower of a woman the victim had cared for. The appellant had become jealous of the attention the victim gave to the widower.

The applicant attacked his wife with a meat tenderising mallet and stabbed her before cutting his own wrists and hers, leaving her with very serious injuries. At the time of the attack the appellant was 81 years and 6 months old and was 82 years and 8 months old at the time of sentencing.

The appellant pleaded guilty to causing grievous bodily harm with intent to murder (s 27 Crimes Act 1900 (NSW)) and was sentenced to 12 years imprisonment with a non-parole period of 7 years and 3 months.

Reasoning and decision: Leave to appeal, appeal dismissed.

Campbell J (Adamson JA [1]and McNaughton J [50] agreeing) emphasised that the general principles regarding advanced aged and sentencing expressed by Steytler P in Gulyas v Western Australia [2007] WASCA 263 are nuanced and not to be mechanically applied or seen as automatically leading to a lesser sentence than the objective circumstances require [40].

The appellant had no age-related mental impairment. Similarly, imprisonment would not necessarily be more arduous for him as he was found to enjoy generally good health and was not struggling with age-related frailty. The impact of advanced age on sentencing is subject to proportionality: the punishment must fit the crime.

The sentencing judge’s regard to age as a special circumstance had a real and direct effect in reducing the minimum time that the appellant was to serve. No error in the previous judgement was found, as the appellant’s advanced age had not been treated as peripheral.

Thorp v R [2022] NSWCCA 180 (31 August 2022) – New South Wales Court of Criminal Appeal

‘Applicant pleaded guilty to aggravated detain and breach of apprehended domestic violence order (advo)’ – ‘Application for leave to appeal against sentence’ – ‘Criminal law’ – ‘Double punishment’ – ‘Manifestly excessive’ – ‘Sentence’ – ‘Whether both charges arose from same incident’ – ‘Whether sentencing judge erred in imposing wholly consecutive sentences’

Matter: application for leave to appeal against sentence.

Facts:  The applicant was convicted of:

1.

Aggravated detain for advantage contrary to s 86(2)(b) Crimes Act 1900 (NSW); and

2.

Breach of an ADVO contrary to 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)

The applicant was sentenced to 3 years and 3 months imprisonment on the first charge; and 2 months on the second charge, to be served wholly concurrently.

The applicant had prior convictions for domestic violence and other offences.

The applicant and the victim had been in an on-off relationship for three years. At the time of the offences, the applicant was subject to an ADVO which included a requirement not to come within 200 m of the victim. The Victim and applicant were in the applicant’s car and both knew there was an electric stock prod in the car. The victim was driving while the applicant read through her phone messages. He became angry that she had texted a friend, yelled at her and threatened to break her legs so she couldn’t run away. The victim drove to the carpark of a restaurant, got out of the car, and started running away from the applicant, screaming for help. The applicant caught up to the victim and started dragging her back to the car, injuring her knees, arms and hands. An employee appeared from the restaurant, saw what was happening, and returned shortly with three other men. They yelled at the applicant who dropped the victim. One of the men helped the victim and the applicant drove out of the carpark, nearly hitting the other two men.

Grounds:

1.

[The sentencing judge] erred by doubly punishing the applicant for his breach of the [ADVO], such double punishment manifesting in:

(a)

the assessment of the objective seriousness of the detain offence including the fact that it constituted a contravention of the ADVO; and

(b)

an entirely consecutive sentence being imposed for the contravene ADVO offence.

2.

The sentence imposed for the detain offence was manifestly excessive.

Held: Leave granted; appeal against sentence dismissed.

Ierace J, with whom Bell CJ and Bellew J agreed, dismissed the appeal on the first ground, holding at [71]:

the sentencing judge clearly explained that the contravention of the ADVO contributed to the seriousness of the detain offence but also warranted discrete punishment for contravening the court order by an act of violence. The relatively short sentence of 2 months fixed term imprisonment is consistent with it reflecting primarily the criminality of the breach of a court order.

His Honour also dismissed the appeal on the ground of manifestly excessive sentence. While the second case cited by the applicant in support of his manifest excess argument was similar, the difference in sentence imposed (three months more in the case at hand) was ‘not so much as to reflect a misapplication of principle’ [89]. Moreover, the ‘protection of society and the safety of the victim were of particular importance’ so a ‘significant total sentence and a ratio of the overall non-parole period to the balance of term of 56 per cent was the means of achieving that result’ [90].

GS v R; DPP v GS [2022] NSWCCA 65 (1 April 2022) – New South Wales Court of Criminal Appeal

‘Choking, suffocation or strangulation’ – ‘Crime’ – ‘Intentionally chokes’ – ‘Meaning of 'intentionally chokes'’ – ‘People with mental illness’ – ‘Residual discretion not to remit for trial’ – ‘Threat to kill’ – ‘Weapon’

Charges: intentional choking x 1; assault occasionally actual bodily harm x 1.

Proceedings: Appeal against directed acquittal; appeal against conviction; appeal against sentence.

Facts: The DPP appealed against a directed acquittal on the charge of intentionally choking contrary to s 37(1A) Crime Act 1900 (NSW).

The defendant GS appealed against a conviction on a charge of occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.

GS also appealed against his sentence for the above conviction. He was sentenced to 20 months’ imprisonment with a non-parole period of 15 months. However, he had served 29 months’ imprisonment by the time the sentence was imposed.

GS and the victim JC were in a relationship. The charges arose from GS’ conduct over 24 hours. According to JC, GS returned home at 5am, work up JC and began punching her. The punching continued in different parts of her body throughout the day. JC also threw three objects at her, causing bruising. At around 8 or 9am he armed himself with a knife which he kept with him throughout the day in case she tried to run away and threatened to cut her throat if she didn’t stop lying to him. JC said that GS jumped on her while she was on the bed, kept his hands around her neck for about one minute, after which she managed to slide her head out of his hands. This caused bruising to her neck, which was ‘really sore’ for a couple of days, but she did not specifically mention that her breathing or blood flow was affected. The next day, GS forced JC to accompany him to the fruit shop and then home again. After GS said he was going to have a shower, JC ran to the train station. GS followed her and put her in a headlock. A witness called police. GS said he did not commit any of the offences alleged and was trying to restrain JC from jumping in front of a train. JC had a mental illness. GS was found not guilty of three related charges and two ‘backup’ charges.

Decision and Reasoning:

DPP v GS:

1.

Set aside the order for the acquittal of GS on the charge of intentionally choking contrary to s 37(1A) of the Crimes Act 1900 (NSW);

2.

Declare that “intentionally chokes” within the meaning of s 37(1A) of the Crimes Act 1900 (NSW) means “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head”;

3.

In the exercise of the residual discretion, decline to remit GS to the District Court for a re-trial.

GS v R:

1.

Dismiss the appeal against conviction and sentence.

Payne JA, with whom Rothman and Harrison JJ agreed, declared that ‘intentionally chokes’ means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to and from the head.’

His Honour reached this conclusion by undertaking statutory interpretation of s 37(1A) Crimes Act 1900 (NSW). He referred to the context and structure of s 37 as a whole [49]. He said at [50]:

Section 37(1A) was designed to facilitate the prosecution of choking, suffocation and strangulation offences in the context of a “zero tolerance” approach to domestic violence. The section was expressly intended to fill a gap in the legislation for the choking, suffocation or strangulation of a victim of domestic violence where the victim was not rendered unconscious, insensible or incapable of resistance. The purpose of including s37(1A) was to create an offence which responded to issues raised in the NSW Domestic Violence Death Review Team report to Parliament for the period 2015-2017.

DS v R [2022] NSWCCA 55 (21 March 2022) – New South Wales Court of Criminal Appeal

‘Agreement to punishment’ – ‘Application to extend time to appeal’ – ‘Consent’ – ‘Culturally and linguistically diverse people’ – ‘Delay in reporting’ – ‘Evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual abuse’ – ‘Sexual assault’

Charges: Sexual intercourse without consent x 21.

Proceedings: Application to extend time to appeal.

Facts: The appellant and victim were married for 17 years and had two children. The appellant was convicted of 21 charges of sexual intercourse without consent, which the appellant used to ‘punish’ the victim whom he falsely believed was having an affair [4]. The offending included ‘fellatio, fellatio with urination in the complainant’s mouth, digital/vaginal penetration, vaginal penetration with a “sex toy”, and attempted anal penetration with that toy’ [4].

The defendant sought leave to appeal on the following grounds:

1.

Unreasonable, or cannot be supported by the evidence.

2.

His Honour misdirected himself on the elements of the offences (negation of consent).

3.

Relationship evidence had no probative force on the question of consent.

Decision and Reasoning: The application was dismissed.

The trial judge found that ‘the complainant’s agreement to sexual intercourse was not freely and voluntarily given in circumstances where she was “subjecting herself to the punishment he had imposed”’. Furthermore, ‘consent was negated under s 61HA(4)(c) where the complainant had been “assaulted multiple times and was scared that this would occur again”’ [58]. In response to these findings and in support of his second ground of appeal, the appellant submitted that ‘the complainant agreed to participate in the various sexual acts to “manipulate” him so that he would stay in the relationship against his wishes’ and ‘that she participated because she was prepared to do whatever was necessary to remain in the relationship with him’ [60]. The Court affirmed the trial judge’s finding that the victim did not give free and voluntary consent and rejected the appellant’s submission on the probative value of the relationship evidence. The Court explained that ‘the complainant did not regard herself as having any choice, because of her situation and her need to protect her children, but to accept and “agree” to’ the appellant’s ‘punishments’. Furthermore, ‘the complainant’s evidence… describes her as being “scared” and the sexual activity variously as “dangerous”, “aggressive”, “unbearable”, “brutal”, “painful”, “rough”, “hurting” and “bruising”. The evidence suggests no sensible explanation for why the complainant would have freely and voluntarily subjected herself to that conduct. Finally, the sequence of events leading to the complainant jumping off the carport roof… is consistent with the sexual activity which preceded it not being consensual’ [88]-[92]. The trial judge’s findings ‘demonstrate the probative value of the evidence in relation to the issues of consent and delay in making any complaint’ and ‘do not involve or include any tendency reasoning’ [67]. Finally, the Court found that evidence of the victim’s fear, both generally and in response to threats made by the appellant, provided a ‘reasonable justification for her’ delay in reporting the offending [90].

Nguyen v R [2021] NSWCCA 118 (18 June 2021) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Damaging property’ – ‘Financial abuse’ – ‘Following, harassing and monitoring’ – ‘Kidnapping threat’ – ‘Physical violence and harm’ – ‘Pregnant people’ – ‘Separation’ – ‘Sexual and reproductive abuse’ – ‘Suicide threat’ – ‘Technology facilitated abuse’ – ‘Threats to kill’

Charges: Aggravated entry with intent to steal; Steal property in dwelling house; Intimidation; Form 1 offences attached to sequence 6 (Damage property, contravene Apprehended Violence Order); Section 166 Certificate (Dishonestly obtaining financial advantage by deception).

Proceedings: Application for leave to appeal against aggregate sentence.

Facts: The male applicant and the female complainant had been in a relationship, which had ended prior to the offending. While the complainant was at the hospital giving birth to their child, the applicant entered her home, damaged her car, ransacked her room, and stole her laptop. He sent her many threatening messages via text, WhatsApp and email (threats to kill, violent sexual assault, stalking, removal of child, suicide etc), including breach of a provisional Apprehended Violence Order (AVO). He also used the complainant’s laptop to access her personal MyGov account and make two fraudulent tax returns in the complainant’s name causing payments to be made to the applicant’s own bank account. The applicant was sentenced to an aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years 11 months.

Grounds of appeal:

1.

The sentencing judge erred by failing to give proper practical effect to the finding of special circumstances.

2.

The sentencing judge erred by taking into account the incorrect offence when dealing with the second offence on Form 1.

3.

The aggregate sentence was manifestly excessive.

Held: Application for leave to appeal granted, appeal dismissed.

Ground 1: It was evident from the sentencing judge’s remarks that he gave proper effect to his finding of the basis for special circumstances by varying the statutory ratio downwards to 70%.

Ground 2: It was clear that the sentencing judge nominated the incorrect offence at a point in his reasons. However, while the Crown’s submissions focused on whether the error vitiated the sentencing discretion, the true question in the circumstances here was whether the error was an inadvertent misstatement that did not affect the sentence imposed. The slip that occurred could not properly be characterised as a material error capable of vitiating the sentence imposed.

Ground 3: The aggregate sentence was not manifestly excessive in light of the fact that the applicant’s criminality encompassed offences of a different nature and varying degrees of seriousness with multiple complainants. Relevant matters in relation to the sequence 6 offence (aggravated entry with intent to steal and the Form 1 offence) included at [107]:

•

The offences were committed in the context of a relationship marred by domestic violence. The applicant twice threatened to kill the applicant and had also threatened her with violent sexual assault and removal of her newborn baby.

•

It was significant that the applicant purposefully chose the complainant’s home and attended at a time he thought she would be asleep and near to her giving birth.

•

The offence was not less serious because the duration of the entry was short.

•

The objective seriousness of the sequence 6 offence was at the middle of the range, noting the persons present were inherently vulnerable and the offence was not impulsive.

•

The offences involved an abuse of trust.

•

The applicant was a young man who had a prior record including offences of domestic violence perpetrated against the same complainant, which disentitled him to leniency, pointed to an increased need for specific deterrence and contributed to a finding that his prospects of rehabilitation were poor or guarded.

•

The need for general deterrence and the protection of the community.

•

The statistics did not point to the indicative sentence for sequence 6 being manifestly excessive.

The aggregate sentence was also appropriate in light of the circumstances of the other offending including at [108]:

•

The stealing offence was assessed as “falling slightly below the middle range of objective seriousness but not by much”, due to the non-monetary value of the laptop which could be expected to contain personal information.

•

The intimidation offence was assessed as at the middle end of the range of objective gravity noting the conduct was premeditated and designed to instil further mental harm on the complainant, when the applicant was aware she had just given birth.

•

The sentencing judge found the dishonesty offences fell slightly below the middle range of offending given the multiple victims (the ATO and the complainant), and the applicant having exploited his possession of the complainant’s laptop (subject of the stealing offence) to perpetrate the fraud.

•

No challenge was made with respect to accumulation.

•

The two offences on the Form 1, particularly contravene AVO, required an increase to the penalty for the principal offence (sequence 6), to ensure personal deterrence and extract retribution.

•

The applicant showed little or no insight into the complainant’s perspective and was not genuinely remorseful.

•

The applicant represented a medium risk of re-offending.

•

The challenge to a limited adjustment to the sentencing ratio for special circumstances was rejected.

•

There was no double counting.

McFarland v R [2021] NSWCCA 79 (23 April 2021) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Factors relevant to sentencing’ – ‘Manifest excess’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Past domestic and family violence’ – ‘Physical violence and harm’ – ‘Strangulation’

Charges: Aggravated take and detain a person with intent to obtain advantage (aggravation being actual bodily harm, advantage being psychological gratification) plus a Form 1 for common assault x 1; Assault occasioning actual bodily harm x 1; Driving with a high range content of alcohol in blood x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant and female victim were in a de facto relationship. The intoxicated applicant assaulted the victim, punching and strangling her. He forced her partially into the car and drove 2.9 km, leaving her legs dragging along the gravel. The victim’s injuries were described by sentencing judge as “horrific” and representing the most serious form of actual bodily harm. The applicant pleaded guilty and was sentenced to an aggregate term of 7 years imprisonment, with a non-parole period of 4 years and 4 months.

Grounds of appeal: The sentence was manifestly excessive.

Held: Application for leave to appeal against sentence was granted. Appeal dismissed. The sentence was not manifestly excessive in light of the following factors:

•

Aggravated take and detain offence was assessed at above the mid-range of objective seriousness. The maximum penalty of 20 years imprisonment is an important legislative guidepost.

•

Assault occasioning actual bodily harm offence was assessed at the mid-range of objective seriousness. It carried a maximum penalty of 5 years imprisonment.

•

Applicant’s subjective case was not powerful, even taking account of his genuine remorse.

•

No evidence to support a finding that the applicant’s moral culpability was anything but high or that he was not an appropriate vehicle for general or specific deterrence.

•

Self-induced intoxication is not a mitigating factor.

•

Applicant’s prior conviction for domestic violence offending against his previous female domestic partner disentitled him to leniency.

•

Although the offending was unplanned, it was not fleeting. The totality of the offending involved relatively sustained violence.

•

Harm suffered by the victim was described by the sentencing judge as “horrific”.

•

It was necessary the sentence reflected specific deterrence, general deterrence, recognition of the human dignity of the victim and the community’s legitimate interest in the denunciation of alcohol fuelled domestic violence.

Cooper v R [2021] NSWCCA 65 (14 April 2021) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘History of abuse’ – ‘Mercy killing’ – ‘Murder’ – ‘Substance misuse’

Charges: Murder x 1; Form 1 offences (stalking/intimidating with intent and contravening an apprehended domestic violence order, ADVO).

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant injected the deceased, his partner, with a lethal dose of heroin intending to cause her death. The sentencing judge accepted that this was a “mercy killing” at the deceased’s request. After a 25% reduction for his guilty plea, the applicant was sentenced to a term of imprisonment of 13 years and 6 months with a non-parole period of 10 years. There was a history of domestic violence (including an ADVO in place) and substance abuse.

Grounds of appeal:

1.

The Court did not take into account the applicant’s deprived background and early introduction to substance abuse in determining his moral culpability for the offending.

2.

The sentence was manifestly excessive.

Held: Appeal dismissed.

Ground 1: There was no dispute that the applicant’s deprived background and early introduction to alcohol and substance abuse was a highly relevant factor in considering the applicant’s moral culpability: Bugmy v The Queen; R v Millwood. However, the sentencing judge did take these principles into account, setting out in detail the applicant’s troubled background and early association with drugs and alcohol and referring with approval to the forensic psychiatrist’s assessment of the applicant’s mental condition. These conclusions formed part of the context for a finding of the applicant’s low moral culpability ([68]-[72]).

Ground 2: Notwithstanding the tragic circumstances surrounding the killing and the applicant’s low moral culpability, it could not be said the sentence was unreasonable or plainly unjust. It had to be remembered that: (1) This was a deliberate killing of another human being by the injection of an illegal drug; (2) It took place whilst the applicant was on conditional liberty and in direct breach of his bail conditions and the ADVO; (3) Although not a significant issue in sentencing, offences on a Form 1 needed to be taken into account; and (4) Despite the applicant’s mental illness reducing the need for the sentence to reflect denunciation and general deterrence, specific deterrence remained of importance ([82]-[86]).

Rogers v R [2021] NSWCCA 61 (9 April 2021) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against conviction’ – ‘Defence relied upon at trial’ – ‘Extreme provocation’ – ‘Murder’

Charges: Murder x 1.

Proceedings: Appeal against conviction.

Facts: The male appellant suffocated his wife during a physical altercation and attempted to commit suicide. The appellant had discovered his wife had formed a relationship with another man. There was evidence that the deceased kicked the appellant during the struggle. At trials in 2018 and 2019, the appellant relied upon the partial defence of substantial impairment by abnormality of mind under s 23A Crimes Act 1900 (NSW). The jury rejected the partial defence and convicted the appellant of murder. No application was made at trial for the partial defence of extreme provocation to be left to the jury.

Grounds of appeal/Issues: Application for leave to rely upon the ground of appeal pursuant to Rule 4 Criminal Appeal Rules (NSW).

Ground: A miscarriage of justice resulted from the failure to leave the partial defence of extreme provocation under s 23 Crimes Act 1900 (NSW) to the jury.

Held: Leave to rely on the ground of appeal refused; leave to appeal against conviction refused.

Issue 1: As Bathurst CJ observed in ARS v R, the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial. In any event, the appellant had not lost a real chance of a verdict of not guilty of murder, but guilty of manslaughter, because extreme provocation was not left to the jury: ([166]-[167]).

Issue 2: Properly constructed, s 23 provides that the conduct of the deceased to which the accused person responded (s 23(2)(a)), and which caused the accused person to lose self-control (s 23(2)(c)), and which was capable of causing an ordinary person to lose self-control (s 23(2)(d)) must be conduct which constituted a serious indictable offence (s 23(2)(b)). Omitting the words “in the position of the accused” in the 2014 amendment means s 23(2)(d) now significantly departs from the common law. “[T]he ordinary person test now contained in s 23(2)(d) assumes a calm ordinary person and that it is not relevant that the accused person was particularly sensitive to the situation or was experiencing a depressive disorder” (see [92]-[104]).

The critical and determining aspect of the appeal concerned the objective element in s 23(2)(d). It was accepted that the notional ordinary person may act in unreasonable ways but “the reaction must still be within the range of possible reactions of an ordinary person as assessed by the Court when considering the threshold question of law involved.” In the context and factual circumstances of the case, the reaction of the appellant was “not within the range of possible reactions of an ordinary person. The partial defence of extreme provocation ought not to have been left to the jury” ([141]-[163]).

Taylor v R [2020] NSWCCA 355 (20 December 2020) – New South Wales Court of Criminal Appeal

‘Animal abuse’ – ‘Application for leave to appeal against conviction’ – ‘Past domestic and family violence’ – ‘Significant probative value’ – ‘Tendency evidence’

Charges: Breaking and entering into dwelling and committing serious indictable offence, namely, intimidation with intent of causing fear of physical or mental harm, knowing that persons were inside x 1 (Count 4); Intimidation with intent of causing fear of physical or mental harm x 1 (Count 6); Possession of an implement of housebreaking without lawful excuse x 1 (Count 8); Entering dwelling with intent to commit serious indictable offence, namely, intimidation with intent of causing fear of physical or mental harm, knowing that persons were inside x 1 (Count 9).

Proceedings: Application for leave to appeal against conviction.

Facts: The applicant man and the complainant woman were in an on-off relationship for about two years prior to the alleged offences. Following a trial by jury in the District Court of New South Wales, the applicant was found not guilty on Counts 1-3, but guilty on Counts 4, 6, 8, 9, 11 and 12.

In relation to Count 9, the Crown’s case required the applicant to have gained external access to the complainant’s fourth floor apartment of a five storey building, despite there being no means for the applicant to access the balcony externally.

In relation to Counts 1-10, the Crown relied on tendency evidence, namely, a signed statement of agreed facts from 2010 used in sentencing the applicant for a charge of recklessly occasioning grievous bodily harm to his former wife on 25 October 2008. The facts concerned acts of violence and threats towards his former wife of 30 years, and their pet, during the breakdown of the relationship. The signed statement of agreed facts also included a statement that there was a history of domestic violence in the relationship.

Grounds of appeal:

1.

The verdict on Count 9 was unreasonable as there was no direct evidence, or no proper inference from direct evidence, that there were persons in the premises at the time of entry, and that element of the offence was not capable of proof; and

2.

Evidence in relation to conduct committed in 2008 ought not to have been admitted as tendency evidence.

Held: Ground 1 upheld, ground 2 dismissed; applicant re-sentenced to an aggregate term of imprisonment for 14 months, with a non-parole period of 10 months.

Ground 1: It was not reasonably open to the jury to have been satisfied beyond reasonable doubt that the applicant had accessed the balcony externally. There was no evidence how the applicant could have gained external access.

Ground 2: The appeal on ground 2 was dismissed by majority (Beech-Jones J, with Walton J agreeing). First, the tendency evidence relied upon had “significant probative value”. The evidence strongly supported proof that the applicant possessed the alleged tendency (to be violent/threatening towards women with whom he was in/had an intimate relationship) as at the time of the alleged charges (March 2018). There was no relevant difference in this context between the violent breakdown of the 30-year relationship and the 2-year relationship (Beech-Jones J at [140]-[155], Walton J agreeing at [136]).

Further, the probative value of the tendency evidence substantially outweighed its prejudicial effect. The submission that the admission of the tendency evidence would lead to the jury having an “adverse emotional response” was rejected. The trial judge’s direction specifically warned the jury in that regard (Beech-Jones J at [156]-[157], Walton J agreeing at [136]).

Droudis v R [2020] NSWCCA 322 (10 December 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Coercive control’ – ‘Family court matters’ – ‘Female perpetrator’ – ‘Immolation’ – ‘Murder’ – ‘Past domestic and family violence’ – ‘Step-children’ – ‘Victim as perpetrator’ – ‘Weapon’

Charges: Murder x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The female applicant was the partner of Man Haron Monis (who was the perpetrator of, and died during, the Lindt Café siege in December 2014) ([6]). Prior to meeting Monis, the applicant had not been involved in any criminal conduct ([5]). It was accepted that Monis exercised a significant degree of influence/psychological persuasion and a measure of control over the applicant, fortified by a level of physical abuse, and she was prepared to act at his behest ([9], [37], [38], [39]).

Man Haron Monis planned the murder of his former wife (the victim, with whom he had two children). But he was not prepared to carry out the killing himself, planning with the applicant that instead she would carry out the murder. Part of the applicant’s motive included the desire to form a “single family unit” with Man Haron Monis and the children ([29(h)]; [69]).

The applicant stabbed the victim 18 times before dousing her with petrol and setting her alight. The applicant was convicted of the murder of the victim following a judge alone trial. She was sentenced to 44 years imprisonment, with a non-parole period of 33 years.

Grounds of appeal:

1.

The sentencing judge erred in his assessment of the significance of the death of Man Haron Monis to the applicant’s risk of re-offending and prospects of rehabilitation.

2.

The sentencing judge erred in his application of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which deals with the power of the court to reduce penalties for facilitating the administration of justice.

3.

The sentence was manifestly excessive.

Held: Leave to appeal granted, ground 1 upheld. The applicant was re-sentenced to a term of imprisonment of 35 years with a non-parole period of 26 years and 3 months. Grounds 2 and 3 dismissed.

Ground 1: The sentencing judge failed to take into account the death of Monis, and the removal of his ongoing influence on the applicant, as relevant factors in determining future dangerousness, the need for personal deterrence, and the prospects of rehabilitation ([68]-[72]).

Ground 2: The sentencing judge gave proper consideration to the nature of the assistance given ([99]). Section 22A did not require a two-stage approach to sentencing (as opposed to taking the matter into account as part of the “instinctive synthesis approach”), nor impose a legal requirement to quantify the extent to which the sentence was reduced ([100]-[104]). While it would provide further transparency to the sentencing process if the court specifies the penalty that would be imposed but for the assistance provided, a failure to quantify the discount does not by itself establish error ([105]).

Ground 3: The sentencing judge did not err in his conclusion that the psychological persuasion of Monis, and physical abuse, did not give rise to “a form of non-exculpatory duress such as to reduce the applicant’s moral culpability”. The sentencing judge was also correct in his finding of the objective gravity of the offence, and in concluding there was no evidence of contrition or remorse (but there was limited evidence of remorse/ rehabilitation on appeal) ([118]-[119]).

In re-sentencing, despite the relevance of the death of Monis to the applicant’s prospects for rehabilitation and re-offending, the Court noted that the offence was serious and retribution/general deterrence were significant ([120]-[129]).

Bussey v R [2020] NSWCCA 280 (16 November 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Rape where parties formerly in intimate relationship’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’

Charges: Indecent assault x 1; Sexual intercourse without consent x 1; Aggravated sexual assault without consent (deprivation of liberty) x 2.

Proceedings: Application for leave to appeal against conviction and sentence.

Facts: The applicant man and female victim had remained in contact following the end of their relationship as they were in a music band together. The victim refused the applicant’s request to revive the relationship. The applicant strangled her until she passed out. When he then asked whether she “was going to fight him”, she said “no and reluctantly gave in to intercourse”.

The victim reported the incident to her friends and the police. The victim identified prior sexual practices between the applicant and herself, including regular consensual choking, physical restraint, being thrown onto a bed, role playing and “rough sex”. The defence case was that all sexual contact between the applicant and the victim was consensual. The applicant was found not guilty on Counts 1, 2 and 4, and guilty on one charge of aggravated sexual assault without consent (Count 3).

Grounds of appeal:

1.

The verdict was unreasonable, as it was inconsistent with the not guilty verdicts on the other three counts.

2.

The sentence was manifestly excessive.

3.

The sentencing judge erred by not having sufficient regard, or giving weight, to the historical extent and nature of the prior sexual experience between the applicant and the victim.

Held: Appeal dismissed (per Harrison J, Hoeben CJ and Bellew J agreeing).

Ground 1: In a case where there are mixed verdicts of guilty and not guilty, and the complainant’s evidence is the only evidence of an accused’s guilt, a court may (but not must) conclude the verdicts are factually inconsistent: citing MFA v The Queen, R v Markuleski, and Mackenzie v The Queen. The court held that the verdicts of not guilty on Counts 1, 2 and 4 were explicable without leading to the conclusion that the jury formed an adverse impression about the victim’s credibility. As such, the guilty verdict on Count 3, dependent on the jury’s acceptance of the victim’s credibility, was not inconsistent and unreasonable ([62]-[70]).

Grounds 2 and 3: The seriousness of the offending was not mitigated by the prior sexual relationship between the applicant and the victim. Harrison J (Hoeben CJ and Bellew J agreeing) held at [87]-[88]:

“Mr Bussey maintained that, but for his Honour’s failure to have sufficient regard to the fact that he and RM had, until only a relatively short time before the commission of the offence, been in a close and enthusiastic personal relationship, he would have concluded that Mr Bussey’s objective criminality was reduced and would have imposed a less severe sentence. In this sense, it is said that his Honour allegedly failed to have regard to a relevant consideration:

In my opinion, that submission falls foul of the principle that just because it may be possible to contemplate more serious examples of the same offence does not mean that the particular offence being considered is for that reason less serious.”

And at [95]-[97], with Hoeben CJ and Bellew J particularly noting their agreement with these remarks:

“The cases reveal a consistent and commendable emphasis upon the need to consider each offence of sexual assault upon a woman by her partner or former partner with special and particular regard to the circumstances of the case. However, there has in my view been a regrettable tendency in some cases to refer to the fact that the assault occurred within, or following the breakdown of, a relationship as something that might “mitigate” the seriousness of the particular offence. This type of language has the unfortunate potential erroneously to dilute the significance of the offence under consideration. Put simply, the objective seriousness of sexual intercourse without consent cannot be reduced because of factors such as a prior sexual history between an offender and his victim without making unjustified and impermissible assumptions about the effect upon the victim. It depreciates the notion that no means no, whatever other factors may be involved. To accept that a prior relationship can ever operate to mitigate the seriousness of the offending completely abandons that uncontroversial wisdom and reverts to the type of attitude that once saw domestic violence treated as less culpable than other assaults. It also proceeds upon the implicit and unsafe adoption of non-consensual sexual intercourse with a stranger as the default position.

I cannot accept that a statement such as “the violation of the person and the defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a longstanding sexual relationship” is now or could ever have been an acceptable, far less correct, summary of the law or that it should continue to influence this Court in the determination of cases such as the present. Violation and defilement of the victim are quintessential aspects of the offence and the victim’s familiarity with an assailant can have no bearing upon that fundamental circumstance. Indeed, such an assault, committed by a person with whom the victim may have had a formerly close and respectful relationship, is potentially more likely to exacerbate the seriousness of the offence than otherwise. I cannot accept the proposition that there can be varying degrees of violation and defilement. Such a concept appears to derive from the offensive notion that a man should in certain circumstances be entitled to raise his prior relationship with the victim as some kind of limited excuse for disregarding the absence of consent to an act of intercourse with him to which activity the victim had historically consented.”

As I have indicated, Mr Bussey’s submissions implicitly rely upon the proposition that the offence of which he was found guilty could have been more serious. The fact that one can imagine the commission of more serious offences of this type is not controversial. It does not, however, mean that the sentence imposed by his Honour for the offence committed by Mr Bussey should somehow be assessed by reference to that fact. It certainly does not mean that the objective seriousness of Count 3 is diminished or reduced because Mr Bussey and RM had previously been in a consensual sexual relationship. Once it is accepted that no means no, that should be the end of the matter.”

Yaman v R [2020] NSWCCA 239 (25 September 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Separation’ – ‘Stalking’ – ‘Weapon’

Proceedings: Application for leave to appeal against sentence.

Charges: Aggravated break and enter, commit assault occasioning actual bodily harm, breach ADVO.

Facts: The male applicant was in a domestic relationship with the female victim which ended due to ongoing domestic violence. The offender breached a protection order by calling the victim 48 times and attending the victim’s residence. As the victim unlocked her front door the applicant ‘collided’ with her, and they fell into her apartment. He put his foot on her head to hold her down screaming ‘how dare you ignore me’ and ‘who are you to tell me it’s over’ [23]. The applicant took a knife from the kitchen, pushed the victim onto a couch. The victim told the applicant ‘If you’re gunna pull a knife on me do it’ which caused him to back off and leave the premises. The victim had several small lacerations to the backs of her hands [27].

Grounds of Appeal:

1.

The sentencing judge was in error in finding that the aggravated break and enter involved ‘some significant planning’;

2.

(2A) The sentencing judge erred in finding the applicant’s criminal history was ‘aggravating on sentence’; (2B) The sentencing judge failed to give reasons as to how the applicant’s history ‘aggravated’ the sentences imposed’

3.

The sentencing judge erred in characterising the objective seriousness of the aggravated break and enter offence as ‘mid-range offence’

4.

The sentence imposed for the aggravated break and enter offence is manifestly excessive

Decision and Reasoning: Leave to appeal granted on grounds 1,2 and 4 and refused leave to appeal on ground 3. The appeals were dismissed.

Fullerton J held there was ‘more than sufficient factual foundation’ to support a finding that the offence involved significant planning. He found the phone calls indicated the applicant’s determination to confront the victim [5].

Wilson J regarded the phone calls, the offender’s presence in the stairwell and the speed he ran to the victim as evidence that it was open to the court to find the only reasonable conclusion was that there was some planning [96].

Wilson J held that the applicant’s characterisation of the offence “significantly minimised the gravity of his crime” [117]. He found that because of the telephone calls the victim had already received, she was already in a state of fear before the confrontation. His Honour found that just because applicant did not use the knife to inflict injury, did not make the incident less serious. That the applicant waited for the victim to be home before charging at her and propelling them both through the doorway heightened the gravity of the crime [119].

Le v R [2020] NSWCCA 238 (23 September 2020) – New South Wales Court of Criminal Appeal

‘Appeal’ – ‘Assault occasioning bodily harm’ – ‘Coercive control’ – ‘Credibility’ – ‘Emotional and psychological abuse’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘People affected by substance misuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Unreasonableness’ – ‘Women’ – ‘Young people’

Charges: 2x counts of assault occasioning bodily harm, with a third alternative charge that was not pressed.

Proceedings: Appeal against conviction on 1 count of assault occasioning grievous bodily harm.

Facts: The female victim and male offender were in an intimate relationship for 15 months. On the relevant night, the offender and the victim had consumed cocaine. The offender hit the victim multiple times after the victim had continued talking after sex. Critically, the offender stomped or kicked the victim’s hip, which fractured her femur and required a hip replacement. The victim did not go to the hospital or report the incident immediately. About two weeks after the injury, she called the police, following an argument where the offender did not hit her but she feared that he would hit her again. Over the next few weeks, she subsequently went to hospital, discovered the seriousness of her injury and gave a recorded statement to police.

Issue: Whether appeal against conviction should be allowed on the ground that the verdict of the jury was unreasonable.

Decision and reasoning: Leave to appeal against conviction was granted. However, the appeal was dismissed by a majority of 2:1.

Hoeben CJ would have allowed the appeal. He considered that there were objective deficiencies in the account of the victim: [30]. She was inconsistent in her account of how she sustained the injury: [53]. This also extended to the circumstances of the injury and the nature of the fight: [45]–[47]. She told a series of lies, admittedly in relation to trivial factors like drug use or the injuries of the accused: [96]–[98]. Further, there was little evidence to support that there had been months of physical abuse prior: [102]. These inconsistencies were so significant that the jury ought to have had a reasonable doubt about the guilt of the offender: [24].

Adamson and Davies JJ, writing separately but agreeing with each other, did not consider that the verdict of the jury was unreasonable. Adamson J, providing primary reasons, accepted that the victim was at times inconsistent but noted that juries can accept parts of what witnesses say, while rejecting other parts: [202]. Recapping the evidence, Adamson J reiterated that the question is whether it was open to a reasonable jury to find that the Crown had established its case beyond reasonable doubt: [205]. In this case, the jury only needed to be satisfied that the offender had stomped or kicked the victim in the left hip and this caused her hip to fracture: [205]. Given the evidence, Adamson J did not have a doubt and, further, any such doubt would be the kind of doubt that was resolved by the jury’s advantage in seeing and hearing the evidence: [226].

Davies J, providing additional reasons, added that, even though this was primarily a single-witness case, the fact the victim sustained a fractured femur was significant objective evidence: [112]. The expert evidence suggested that a fall was an unlikely cause of an isolated injury to the hip: [117], [121]. This was so despite aspects of the victim’s evidence being unreliable: [124]. The defence case that the victim may have fabricated charges following the break up was inconsistent with the victim’s reluctance to provide statements to the police: [128]–[130]. It was open to the jury to reject the applicant’s case but it was also open to accept that the hip fracture occurred in the way that the victim said: [132]. Therefore, the appeal ground was not made out.

Ebsworth v R [2020] NSWCCA 229 (11 September 2020) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘De Simoni issue’ – ‘Intent to kill’ – ‘Strangulation’

Charges: Breaking, entering and committing a serious indictable offence in circumstances of aggravation x 1; Using an offensive weapon with intent to assault x 2; Intimidation x 5; Recklessly damaging property x 1; Contravening a DFV protection order x 5.

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant man and female victim were in a domestic relationship. After an argument, the applicant was told to leave the victim’s premises and did so. Later, he returned when the victim was absent and cut up most of her clothes. As a consequence of that incident, an protection order was issued. Following this the applicant committed a number of offences including threatening to kill the victim, sending abusive and threatening messages, breaking into the victim’s house and assaulting the victim, including strangling her and threatening to kill her while holding a knife. The victim was able to run from the house, but the applicant chased her with the knife, grabbed her hair and punched her repetitively in the face. In response to the victim’s cousin intervening to protect the victim, the applicant threatened to stab both the victim and her cousin. Afterwards, the applicant continued to send abusive and threatening messages to the victim, including threatening to shoot her and her family. The applicant is of Aboriginal heritage.

Grounds: (2) Whether the sentencing judge erred by taking into consideration a more serious offence contrary to the principles in De Simoni.

Decision and reasoning: Leave to appeal granted. Appeal dismissed.

The applicant argued that the sentencing judge considered that the applicant had a state of mind to kill or inflict serious injury upon the victim at the time of committing charge 1. As such, the applicant submits that the sentencing judge was sentencing the applicant in relation to a more serious, uncharged offence (i.e., strangulation with intent of committing murder under s 29 of the Crimes Act). The difficulty with this submission is that the strangling of the victim would have to have been done for the purpose of killing the victim to fall under s 29 of the Crimes Act.

[58] If a choking occurs, which choking does not kill the victim, the offender does not commit an offence under s 29, unless there was an intention to kill. The sentencing judge referred to threats to kill or inflict grievous bodily harm for which the choking was an act following through on those threats. But the sentencing judge did not conclude that the “following through” by choking was done with an intent to kill. It could have been done to inflict really serious injury. The requirement in s 29 of the Crimes Act to commit an act of strangling “with intent … to commit murder”, requires the offender to have an intention to kill; not one that may be to inflict really serious injury. On the other hand, if a strangulation occurs which does, in fact, cause death, then an intention to cause really serious injury is sufficient to give rise to the crime of murder.

…

[63] The prohibition based upon the principles established by the High Court in De Simoni should not be overstated. The principles disentitle a sentencing court from inflicting punishment or aggravating an offence for which a sentence is to be imposed, because conduct has occurred which otherwise would be a more serious offence.

Nothing in the circumstances of this case give rise to the principles described in De Simoni.

Romeo v R [2020] NSWCCA 221 (31 August 2020) – New South Wales Court of Criminal Appeal

‘Administration of justice’ – ‘Application for leave to appeal against sentence’ – ‘Family law dispute’ – ‘Soliciting to murder’

Charges: Soliciting to murder x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant contravened a protection order protecting his former wife. The applicant arranged a third party to murder the victim before his next appearance in court, paying the third party $30,000. The third party planned to defraud the applicant and informed police of the applicant’s intention to murder his former wife. An undercover police operative posing as the person who would carry out the murder met with the applicant and was instructed to get the victim to write a letter to her son to explain the victim’s disappearance. The original sentence was 9 years and 9 months commencing on 18 November 2016 and expiring on 17 August 2026 with a non-parole period of 6 years expiring on 17 November 2022.

Grounds: (1) The sentencing judge erred in finding that the offending fell within the middle of the range of seriousness; (2) the sentence was manifestly excessive.

Decision and reasoning: Leave to appeal granted. Appeal dismissed.

(1) The assessment of the objective seriousness of the offence as falling within the middle range was open to the judge.

[88] In the present case, the offence was motivated at least partially by the applicant’s wish to have his former wife murdered before he was due to attend court on 29 November 2016 for the AVO. As this Court has emphasised, an offence of solicit to murder is seriously aggravated where the motive is to interfere with the administration of justice.

Citing Efthimiadis v R (No 2) [2016] NSWCCA 9 (9 February 2016) at [85]-[86] of that decision:

[85] Personal and general deterrence are important considerations in the sentencing exercise for the reasons previously given and as the offence of soliciting a person to murder another is a heinous crime …

[86] In my mind, there is another reason that general deterrence has significance in the present case. All too often partners in a domestic relationship resort to violence. The community cannot tolerate violence in any domestic setting, but the community’s abhorrence of a crime intended to secure the custody of a young child by the murder of the mother needs to be expressed in the sentence to deter persons who might be like-minded to commit such a crime.

(2) The sentence was not manifestly excessive.

Samandi v R [2020] NSWCCA 217 (27 August 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against conviction and sentence’ – ‘Application to withdraw guilty plea’ – ‘Guilty pleas after commencement of trial’ – ‘Manifestly excessive’ – ‘Systems abuse’

Charges: Assault occasioning actual bodily harm x 6; Assault x 3; Intentionally damaging property x 1; Making a false accusation knowing that persons are innocent of an alleged offence x 1; Contravention of a protection order x 1.

Proceedings: Application for leave to appeal against conviction and sentence.

Facts: When the applicant was originally committed for trial the Crown also alleged four counts of sexual intercourse without consent (also domestic violence offences). The Crown accepted a plea arrangement where the applicant pled guilty to all other counts and the Crown would not proceed further on the four counts of having sexual intercourse without consent. The applicant signed instructions agreeing to the plea deal. The trial judge set out the scale of the offending, namely that between December 2015 and February 2017, the male applicant repeatedly assaulted his female partner. The trial judge highlighted that ‘A common feature of the assaults upon the victim was the quite unnecessary use of force in response to minor matters’, as well as the applicant giving ‘false explanation[s] to the police’ to cover up his conduct [71]. The trial judge noted that domestic violence offences are ‘serious matters … worthy of exemplary sentences in the context of giving proper weight to the purposes of sentencing that reflect the need to send a message to the wider community’ [96]. The trial judge took into account mitigating factors such as the guilty plea.

Issues: (1) Whether a miscarriage of justice will occur if the applicant is not permitted to withdraw their guilty plea; … (4) Whether the sentence was manifestly excessive.

Decision and reasoning: Application for leave to appeal against conviction refused. Application for leave to appeal against sentence granted. Appeal against sentence dismissed.

(1) The applicant has not established that a miscarriage of justice will result from him being held to the pleas of guilty that he entered.

The Applicant’s pleas of guilty were entered freely and voluntarily, and were the subject of written instructions from the Applicant to his lawyers. There was no intimidation, improper inducement or fraud which led to the Applicant’s pleas of guilty. This was an informed decision by the Applicant to plead guilty to the charges for which sentence was passed [123].

(4) The aggregate sentence was not manifestly excessive. The Court endorsed the judgment in Cherry v R [2017] NSWCCA 150 that:

[155]: ‘[78] … current sentencing practices of ‘offences involving domestic violence’ [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community. [79] In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence’.

[156]: The applicant’s offences reflected his exercise of control and domination over the victim with these being common features of domestic violence offences [76]-[77]… Specific and general deterrence were important factors on sentence in this case together with the requirement for powerful denunciation by the community of such conduct and recognition of the harm done to the victim as a result of these offences: Cherry v R [76].

[157]: It is important to keep in mind, as well, the serious public justice offence committed by the applicant contrary to s 314Crimes Act 1900 … the applicant’s s 314 offence involved the making of false allegations against police officers designed to protect the applicant himself from prosecution for domestic violence offences against his partner. The applicant caused injuries to himself which he falsely attributed to police. As his Honour [the sentencing judge] observed, the applicant did not carry through with further reports. However, this was a serious public justice offence which warranted the indicative sentence of imprisonment for two years which was itself a significant component of the aggregate sentence imposed upon the applicant.

[158]: There is a continuing and deep-seated lack of insight on the part of the applicant concerning his domestic violence offences.

AK v Regina [2020] NSWCCA 194 (5 August 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘People affected by mental illness’ – ‘Sexual violence’ – ‘Step-child in the family’ – ‘Suicide threat’ – ‘Threat to kill child’

Charges: Detained wife with the intent to obtain an advantage (psychological gratification) x 1; Detained stepchild with the intent to obtain an advantage (psychological gratification) x 1; Doing an act intending to influence a witness to withhold evidence/procure an acquittal x 1; Sexual intercourse without consent x 1; Contravention of a protection order x 1; Common assault x 2; Intimidation/Stalking x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant entered his wife’s home premises in contravention of a protection order, intending to intimidate her. The wife returned home with her child, PC, and was scared when she saw the appellant. She yelled to PC to open the door and the appellant told PC that if she opened the door of the room, he would kill PC. Over a number of hours, the applicant spoke with his wife about an impending court case and threatened to kill himself if she called the police. The wife told the applicant she would ‘say whatever the offender wanted her to say in court’. The applicant detained his wife locked in a bedroom for approximately two hours during which time the applicant said, ‘I’m sorry I hit you, I love you’ and then had sexual intercourse with the victim without her consent. The applicant told the victim he had sent his brother $3000, so that if anything happened to the offender, his brother would kill her and he re-iterated his threat that if she called the police he would commit suicide.

Ground: (1) The sentencing judge erred by failing to properly consider the mental health of the applicant.

Decision and reasoning: Application for leave to appeal granted. Appeal dismissed.

No error has been demonstrated. Ground 1 dismissed.

The sentencing judge made specific reference to the context of domestic violence citing the High Court in Munda v Western Australia [2013] HCA 38 at [54]-[55]:

‘the longstanding obligation of the of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’.

Reference was also made to The Queen v Kilic [2016] HCA 48, recognising the:

‘societal shift in relation to domestic violence and that current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category offence, because of changes in societal attitudes to domestic relations’ [15].

Aggravating factors included the actual or threatened use of violence, the presence of children, the commission of offences in the home of the victim, ‘a place where they are entitled to expect to be safe and free from this type of conduct’, and the breach of bail and a protection order [16]. The sentencing judge took into account medical reports that indicated that the offender’s mental condition may have ‘contributed to the commission of the offending in a material way’. The sentencing judge weighed up the relevant factors on the evidence before him, including:

[40] …a background of repeated, violent offending, where an AVO and bail conditions in place seem to have made no difference to this offender’s willingness to attack, detain, humiliate, terrorise and rape his partner in the presence of her children.

Samandi v DPP (NSW) [2020] NSWCCA 102 (9 June 2020) – New South Wales Court of Criminal Appeal

‘Application for bail pending appeal’ – ‘Protection order’ – ‘Reasonable prospects of success’

Charges: Assault x 3; Assault occasioning actual bodily harm x 6; Intentionally damaging property x 1; Contravening a DFV protection order x 1.

Proceedings: Application for bail pending application for leave to appeal.

Facts: The male applicant plead guilty to offences committed against his wife and has now lodged an application for leave to appeal against convictions and sentences, contending his instructions to withdraw his pleas were not followed. The Crown case against the applicant was ‘very strong’. The applicant also contends that his lawyers failed to inform the sentencing judge about issues related to his health.

Issues: Whether special exceptional circumstances justify the grant of bail.

Decision and reasoning: Special or exceptional circumstances established. Application for bail granted subject to conditions.

The applicant has not established that he has reasonable prospects of success on his conviction appeal. However, the applicant’s contention that the consideration of additional medical evidence could result in him being resentenced is ‘reasonably arguable or … at least [has] some reasonable prospects of success’ on appeal [34]. Further, although the applicant’s submission that being in custody prevents him from properly preparing for appeal as an unrepresented litigant does not ‘qualify as special or exceptional circumstances standing alone’ [33], it can be considered as part of a combination of factors.

Vaughan v R [2020] NSWCCA 3 (6 February 2020) – New South Wales Court of Criminal Appeal

‘Application for extension of time for leave to appeal’ – ‘Controlling and obsessive behaviour’ – ‘Following, harassing and monitoring’ – ‘Motor vehicle’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Visa’ – ‘Weapon’

Charges: Causing grievous bodily harm with intent to murder; Wounding with intent to cause grievous bodily harm

Case type: Application for extension of time for leave to appeal against aggregate sentence

Ground of appeal: His honour erred in the notional accumulation of indicative sentences in determining the aggregate sentence

Facts: The applicant man and female first victim met shortly after she moved from Columbia in 2011 and they married in 201. They had separated having had ‘relationship difficulties’ at the time of the offences. After a series of arguments, the first victim moved out of the marital home at his demand. A few days later, the applicant began texting her and her friend, then when asked not to text her emailed the first victim’s sister (copied to the victim) and accused the first victim of fraudulently obtaining a visa and of trying to steal money from him and his family. He also stated that he "hope[d] [the victim] were to die in a car accident and that she has to fly home the body" [20]. The first victim subsequently made several statements to police leading up to the offending "in case something happened to [her]" and that she felt vulnerable and ‘unsafe to go outside’ and she was worried about what the applicant would do "because he is very controlling" [21-2]. The Applicant was also found to have searched for the first victim online, her place of work and the phrase ‘carotid artery neck’ [26]. This search history was relied upon by the Crown to contend that the offences were premediated and that the "Applicant armed himself with a knife intending to cut the victim’s carotid artery in her neck with an intention to kill" [26].

On the day of the offence, the Applicant had waited for the first victim to arrive at work. When she arrived, he approached her, produced a knife from his pocket and "lunged at the victim’s head and neck area, stabbing her in the forehead, the left-chest area and the left arm which she had raised to protect herself" [32]. One of her colleagues approached the Applicant and told him to stop. The Applicant then stabbed the colleague in the skull, causing immediate bleeding and a bone fracture. The Applicant then ran to his vehicle and accelerated quickly towards the first victim, who had collapsed on the ground, and crushed her between the bumper bar of his vehicle and another parked vehicle before driving away.

The first victim suffered abrasions and bruising, multiple fractured ribs, fractures to the left scapula, several vertebrae and pelvis. She had stab wounds to her chest and arm and a laceration to her left forehead. She was hospitalised for two weeks, a number of days in intensive care and required surgery for several injuries. The second victim required sutures for a laceration as a result of the stab wound to the top of her head and the injury caused a mildly displaced fracture of the skull.

The Applicant admitted that he brought the knife with him "intending to cut [his] throat in front of [the victim]" but instead "completely lost it" during a police interview. He had a major depressive illness but no evidence of psychosis or hallucinations and there was expert evidence he was capable of forming and intention to kill, wound and/or do grievous bodily harm.

The applicant had no prior criminal history. He pleaded guilty and was sentenced to an aggregate sentence of 21 years comprising a non-parole period of 14 years commencing on 19 August 2015 and expiring on 18 August 2029, with a balance of term of seven years commencing on 19 August 2029 and expiring on 18 August 2036 [4]. The sentencing Judge gave the following sentence indications:

(a)

Count 1 - the offence under s.27 Crimes Act 1900 of causing grievous bodily harm with intent to murder - imprisonment for 17 years and six months with a non-parole period of 12 years;

(b)

Count 3 - the offence under s.33(1)(a) Crimes Act 1900 of wounding with intent to cause grievous bodily harm - imprisonment for 11 years and three months with a non-parole period of eight years.

The applicant lodged his Notice of Intention to Seek Leave to appeal in time on 1 May 2019 and it was extended until 1 February 2019. Notice of Application for leave to Appeal was not lodged until 30 August 2019. The Crown submitted that the extension of time should not be granted as there was not merit in the ground of appeal.

Held: The ground of appeal lacked sufficient merit to warrant and extension of time to bring an application for leave to appeal against sentence [114]. Johnson J (Macfarlan JA concurring) provided that "the Applicant’s submission in support of [the] ground of appeal are based upon a misconception concerning the operation of the statutory provisions providing for aggregative sentencing in this State" [87]. "The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court."[91] The sentencing judge was found to have correctly complied with the statutory provisions as well as to have taken a "detailed, careful and balanced approach in reaching sentence in this case" [113].

Field v R [2020] NSWCCA 105 (1 May 2020) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Jealous behaviours’ – ‘Manifestly excessive’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Substance abuse’ – ‘Weapon’

Offences: Causing grievous bodily harm with intent to cause grievous bodily harm

Proceedings: Appeal against sentence

Grounds:

1.

The sentencing judge’s assessment of the objective seriousness of the offence as "just below midrange" was not open to her.

2.

The sentencing judge erred in her approach to general deterrence by failing to have regard to the individual circumstances of the offence and offender.

3.

The sentencing judge erred by failing to give effect to his findings of special circumstances in relation to the overall effective sentence.

4.

The sentence is manifestly excessive.

Facts: The male victim was in a relationship with Ms Crowther (‘C’), who was also in a relationship with the appellant, an Aboriginal man. After staying at C’s house overnight, the victim sent C text messages (which were consistent with someone who was in an intimate relationship) but C did not reply so the victim waited for C at her house while consuming alcohol. The victim fell asleep on the front veranda and was awoken by the appellant opening the front door. The victim punched the appellant in the face, causing him to stagger backwards. The victim then went inside and remonstrated with C. He then felt a blow to his stomach and realised he had been stabbed, so he went to the kitchen to escape. He applied paper towel to his stomach and the appellant said, "Come out and I’ll finish ya". C left to collect her daughter from school and the appellant also subsequently left. The victim was left by himself and called 000. He underwent a number of surgical procedures over the following months.

The appellant was convicted and sentenced to six years’ imprisonment with a non-parole period of four years. In sentencing the appellant, the judge found that the appellant was raised in an extremely violent and dysfunctional environment [18]. Furthermore, he left school in year eight, was illiterate [19], had been using drugs since he was 16 [20] and suffered from longstanding mental illnesses [21].

Judgment: The court dismissed the appeal. Regarding Ground 1, the court held that the assessment of objective seriousness was open to the sentencing judge, taking into account the serious injuries and harm suffered by the victim, that the appellant used a knife capable of inflicting serious injury or worse, and that the offence was committed spontaneously as part of an excessive and disproportionate mode of self-defence [54].

The court also held that Ground 2 had not been made out. The court found that the comments made by the sentencing judge regarding general deterrence had direct application to the facts of the case and did not constitute some generalised "motherhood statement", from their context and content [74]. The sentencing judge did not downplay or ignore the appellant’s mental illness [74] because the mental illness aspect of the appellant’s claims "appear[ed] to be unrelated to his criminality generally and this offence in particular" [70].

In holding that Ground 3 had not been made out, the court stated that the "fact that the applicant was subject to conditional liberty at the time of the offences operates as an aggravating factor by virtue of its existence at the operative time and not because of its capacity to rationally affect the criminality of the offence" [86].

The court held that Ground 4 had not been made out and therefore that the sentence was not manifestly excessive because:

1.

The sentence has to be considered against a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. These are significant guidelines.

2.

The applicant received the benefit of a finding of special circumstances such that the non-parole period is 67 per cent of the total sentence.

3.

Having been found guilty by a jury after trial, the applicant was not entitled to any utilitarian discount.

4.

The offence properly fell just below the midrange of objective seriousness for the reasons advanced in relation to appeal ground 1. Although the applicant’s offence was found to involve a spontaneous act of excessive self-defence, those actions also involved a significantly disproportionate response to the perceived threat. This response involved the use of a knife which caused severe ongoing physical and emotional harm to the victim.

5.

The applicant’s criminal history disentitled him to the leniency to which a person with no criminal history may have been entitled.

6.

The applicant was subject to conditional liberty at the time of the commission of the offence.

7.

The applicant’s sentence was backdated in a manner favourable to the applicant to 18 April 2018. This backdating subsumed the entirety of his time in custody for six other unrelated offences for which he had received sentences of imprisonment ranging from 3 to 6 months.

Goodbun v R [2020] NSWCCA 77 (23 April 2020) – New South Wales Court of Criminal Appeal

‘Breach of advo’ – ‘Guilty plea - history of domestic violence - lack of remorse’ – ‘Manifestly excessive’ – ‘Murder’ – ‘Separation’ – ‘Whether aggregate sentence imposed was unreasonable or plainly unjust’ – ‘Whether unnecessary to make a finding of special circumstances’

Charges: Murder x 1; Contravening an apprehended domestic violence order x 1; Using an unregistered firearm x 1; Assault occasioning actual bodily harm x 1.

Case type: Appeal against sentence

Facts: The applicant man pleaded guilty to the murder of his wife (the victim), and to three related offences, namely, contravening an apprehended domestic violence order, using an unregistered firearm, and assault occasioning actually bodily harm. The victim was shot dead by the applicant. They had been married for 40 years and had 2 adult children. The applicant was sentenced to an aggregate sentence of 41 years 6 months imprisonment, with a non-parole period of 31 years and 1 month. He was born in 1956 and, if alive, would be 91 at the time of eligibility for parole.

The sentencing judge described the murder as a "chilling and deeply shocking crime which, without hyperbole, could be described as an execution" ([46]). Her Honour stated that while the applicant did not have a lengthy criminal history for domestic violence, the incident occurred in the context of a history of significant domestic violence ([63]). It was against this background that the sentencing judge found the applicant to be motivated by hatred to kill the victim as she was instrumental in the issue of an ADVO and the bringing of associated criminal charges. She also highlighted the need for specific and general deterrence, "describing domestic violence as a profoundly serious problem in the community, extending not infrequently to the murder of a spouse or partner" ([64]). Her Honour did not make a finding of special circumstances and emphasised that the "principle consideration is to ensure that the minimum period of incarceration reflects the crime and the subjective case".

Issue: The applicant sought leave to appeal against the aggregate sentence on two grounds:

•

The sentencing judge erred in determining that it was unnecessary to make a finding of special circumstances because of the length of the sentence that she proposed to impose and the ordinary statutory ratio that applied;

•

The sentence was manifestly excessive.

Held: Appeal Ground 1: It was submitted that the sentencing judge erred in determining that it was unnecessary to make a finding of special circumstances, having regard to the applicant’s age, health, lack of experience in prison and risk of institutionalisation ([70]). All judges dismissed the first ground of appeal. Bathurst CJ held that the sentencing judge did not err in reaching her conclusion that the non-parole period was the minimum period of incarceration appropriate, as she took into account the applicant’s age, the nature of the case and the applicant’s subjective circumstances ([77]). Fullerton J added that the sentencing judge was justified in declining to make a finding of special circumstances, as she gave "extensive consideration" to matters relevant to determining the minimum period of incarceration, including, but not limited to, the objective gravity of the totality of the offending, and the lack of evidence of genuine remorse or prospects of rehabilitation ([125]). Similarly, Bellew J found that just because a sentence may have the practical effect of amounting to a sentence of life imprisonment, it does not mean that a sentencing judge has erred. The objective seriousness of an offence is a fundamental principle that should be reflected in a sentence, even where adherence to such a principle may impose a life sentence on an offender of middle to advanced age ([215]).

Appeal Ground 2: Bathurst CJ dissented on the second ground of appeal. His Honour found that the indicative sentence of 40 years and 6 months imposed after a discount for the guilty plea was extremely high. He noted that the sentence appeared to be inconsistent with legal principle in sentencing for this type of offence ([112]). Further, he found that the aggregate sentence was substantially imposed for the murder offence, and as a consequence, it was manifestly excessive and should be set aside ([114]-[115]). As this was a dissenting judgment, it was not necessary for his Honour to re-sentence the applicant ([116]).

Fullerton and Bellew JJ, on the other hand, dismissed the second ground of appeal. After taking into account the sentencing judge’s sentencing remarks and giving due weight to "the applicant’s calculated and brazen determination to kill his wife in an act of callous and unbridled revenge", Fullerton J was not satisfied that the aggregate sentence was "unreasonably or plainly unjust" ([132]-[133]). Before concluding that the sentence imposed was not unreasonable or unjust, Bellew J set out the circumstances of the offending which indicated that it was towards the very top of the range:

•

The commission of the offences in the context of domestic violence, and in the context of a breach of an ADVO, were circumstances which called for the need for specific and general deterrence, and denunciation ([261]);

•

Another important part of the background to the offending was the fact that the applicant made a number of statements prior to the offending in which he expressed an intention to kill the deceased ([262]);

•

The applicant’s planning of the murder was significant - he travelled a considerable distance to the victim’s home, and arrived in the early morning at a time when he knew that she would likely be asleep ([263]-]264]);

•

The offending was in the nature of an execution and involved gratuitous cruelty towards the victim ([265]).

•

The offending was in breach of the ADVO and the applicant’s conditions of bail ([266]).

Amante v R [2020] NSWCCA 34 (11 March 2020) – New South Wales Court of Criminal Appeal

‘Arson’ – ‘Domestic violence offences’ – ‘Judicial notice’ – ‘People affected by substance abuse’ – ‘Photographic evidence’ – ‘Property damage’ – ‘Protection orders’

Charges: Destroying or damaging property x 1 (domestic violence offence).

Case type: Application for leave to appeal against sentence

Facts: This is an application for leave to appeal against the sentence imposed by Colefax DCJ in R v Amante [2019] NSWDC 222. The applicant, whilst under the influence of ice, threatened his estranged partner and subsequently set fire to her Department of Housing unit causing significant damage, potential danger and hardship to other residents ([11]). The applicant was sentenced to 3 years and 9 months imprisonment, with a non-parole period of 2 years.

Issue: The applicant sought leave to appeal against his sentence on two grounds. Firstly, he contended that the sentencing judge erred in taking "judicial notice" of the fact that the fire in the roof cavity "posed a serious structural risk to the integrity of the building". Secondly, he alleged error in the way in which the sentencing judge dealt with the applicant’s mental health issues, specifically in finding that they were "largely untreated and largely unresolved".

Held: The application for leave to appeal was granted, but the appeal was dismissed.

Beech-Jones J acknowledged the sentencing judge’s remarks at [46]-[48]. The applicant had a dysfunctional upbringing, which reduced his moral culpability. Moreover, he was genuinely remorseful and his rehabilitation prospects were found to be reasonable provided that he "receive appropriate treatment". The sentencing judge also found special circumstances and varied the statutory ratio accordingly.

The first ground was a challenge to the factual finding of the sentencing judge. The applicant contended that the sentencing judge erred in taking judicial notice of the fact that the spread of the fire to the roof cavity "posed a serious structural risk to the integrity of the building". The applicant argued that he had found this fact to be an aggravating factor, and as such was required to be satisfied of it beyond reasonable doubt. The applicant warned of the dangers of relying on photographic evidence, and contended that it was "somewhat remarkable" that the sentencing judge purported to take judicial notice of the structural integrity of the building, whilst also noting the lack of expert evidence in relation to the fire ([52]). N Adams J (Payne JA concurring) found that Ground 1 had not been established. She treated Ground 1 as a challenge to the factual conclusion of the sentencing judge and in submissions counsel for the applicant accepted that the relevant test was whether the conclusion was open to His Honour (R v O’Donoghue (1988) 34 A Crim R 397) [55]. Beech-Jones J agreed the matter should be considered by reference to evidence available to support His Honour’s conclusion. Her Honour found that the sentencing judge drew an inference that was open to him based on both the agreed facts that the fire went into the roof void, as well as the photographic evidence which showed that the wooden beams in the roof were burnt ([62]). She was also not satisfied that the sentencing judge found the fact as an aggravating factor, as he had not stated anything to this effect ([64]).

In relation to the second ground, it was submitted that his Honour denied the applicant procedural fairness by finding that considerations of specific deterrence and the need to protect the community were "fully engaged" in the applicant’s case because of his "largely untreated and largely unresolved" mental health issues. The applicant submitted that his mental health issues were being treated with medication and that his major depressive disorder was in remission. Ground 2 was also not established. N Adams J (Payne JA and Beech-Jones J concurring) found that it was open to the sentencing judge to find that the applicant’s mental health issues were unresolved, given his poor history ([82]-[83]). This case is a "classic example" of how sentencing judges may be required to make "individualised discretionary decisions" based on the available material. The sentencing judge "ameliorated the sentence on the basis that no rational person would react to a break-up by setting fire to their ex partner’s house threatening the lives of other people", however, specific deterrence became a relevant consideration as the applicant’s mental health and drug issues was found to have led him to commit the offence ([85]).

Consequently, the appeal against sentence was dismissed.

Elwood v R [2019] NSWCCA 315 (20 December 2019) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘History of jealous, obsessive and stalking behaviour’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Past domestic violence’ – ‘People with intellectual disability’

Offences: Sexual intercourse without consent; Contravene Apprehended Domestic Violence Order (‘ADVO’)

Proceedings: Application for leave to appeal against sentence

Grounds:

1.

The sentencing judge erred in the assessment of the objective seriousness of the sexual offence.

2.

The sentencing judge erred in his approach to the applicant’s intellectual disability.

3.

The sentencing judge erred by failing to give effect to his findings of special circumstances in relation to the overall effective sentence.

4.

The sentence is manifestly excessive.

Facts: The male applicant and female victim had been in a relationship for six years and lived with the applicant’s parents (as they were only 18 and 20 years old respectively). At the time of the offending, the applicant was subject to an ADVO not to assault, molest, harass, threaten or otherwise interfere with his partner. The order did not prohibit contact or cohabitation with her. The applicant and victim were having consensual intercourse when the applicant started touching the victim’s bottom without her consent. He then inserted his finger into her anus with force, causing the victim to scream so loudly that the applicant’s mother called out to them. The applicant responded by pushing the victim away from him with both fists. The victim immediately complained to the applicant’s mother and asked her to notify the police.

The applicant plead guilty and was sentenced to four years and six months’ imprisonment with a non-parole period of three years, after the sentencing judge took into account an offence of common assault on a Form 1.

Judgment: The court granted leave and allowed the appeal, upholding Ground 3, and resentenced the applicant to three years and two months’ imprisonment with a non-parole period of one year and eight months. The court found that the sentencing judge was satisfied that a number of circumstances, both personal to the applicant (such as his compromised level of cognitive functioning) and features of the sentencing process itself, supported a finding of special circumstances [50]. Having made such a finding, the sentencing judge was required to determine the extent or the degree to which the statutory ratio should be reduced, both in the appointment of the aggregate sentence and after accumulation in the ultimate sentencing order [54]. Where a finding of special circumstances is not based solely on the fact of accumulation (as occurred in this case), the sentencing judge is required to carry that finding into effect on accumulation or give an explanation for why it was not done [61]. The court accepted the applicant’s contention that the judge’s discretion miscarried because the sentencing judge did not indicate that he intended that the effective non-parole period would not reflect the finding of special circumstances that had been given effect to in the appointment of the aggregate sentence [55].

While the court endorsed the sentencing judge’s finding that there was an attenuation of the applicant’s moral culpability for the sexual offending by reason of his compromised level of intellectual functioning, the court also found that the applicant was, for that reason, an inappropriate vehicle for general deterrence [67]. Furthermore, the court accepted that the applicant had been convicted of multiple charges of assault and offences of stalk and intimidate in a domestic context, both as a juvenile and as an adult, none of which attracted a sentence of imprisonment [28].

The court rejected Ground 1, finding that the sentencing judge made the correct assessment of the objective seriousness of the offence (in the low and middle range) [40], [41]. The court also rejected Ground 2, finding that no sentencing error was committed because the sentencing judge failed to make mention of the impact of the applicant’s intellectual or cognitive functioning on the question of either general or specific deterrence [48]. Based on its finding in regards to Ground 3, the court found it unnecessary to consider Ground 4.

Ross, Christopher v R [2019] NSWCCA 314 (20 December 2019) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘Children’ – ‘Coercion’ – ‘Controlling behaviour’ – ‘History of abuse’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Specific considerations’ – ‘Stalking’ – ‘Threats to kill’ – ‘Victims as (alleged) perpetrators’

Charges: Stalking or intimidation with intent to cause fear or physical or mental harm x 2; aggravated detain for advantage x 1; common assault x 1; influence witness x 1

Case type: Application for leave to appeal against sentence

Facts: The applicant man was sentenced with respect to 5 offences involving domestic violence against his female de facto partner (complainant), including one offence of seeking to dissuade her from giving truthful evidence. He was sentenced to an aggregate term of 6 years’ 6 months’ imprisonment, with a non-parole period of 4 years 8 months. The applicant and complainant had known each other since childhood, and their relationship commenced in 2016. At that stage, the complainant had 5 children living with her. The Department of Community Services took the children into care as both parties were using drugs. The relationship soon became dysfunctional with constant arguments and pushing and shoving by each party.

The applicant had intimidated the complainant on several occasions by making threats to kill. One incident involved the use of a syringe to intimidate, and another involved the complainant threatening to take her own life ([5]-[7]). The applicant also detained the complainant without her consent with an intention to obtain an advantage, namely psychological satisfaction, and caused actual bodily harm ([10]]-[11]). On another occasion, the applicant pushed the complainant, causing her to fell particularly frightened ([13]). Whilst the applicant was shopping, the complainant ran to a nearby police station, claiming to have been kept hostage by him and fearful for her life. He was later arrested, charged and refused bail. The police also gave an ADVO for the complainant’s protection, prohibiting the applicant from contacting her. While in custody, the applicant contacted the complainant and pressured her to give false evidence by making a statutory declaration which described her allegations as false and misleading ([17]). She did so, and the applicant was released on bail. He continued to commit further offences against the complainant. He was arrested again and charged with contravening the ADVO, assault occasioning actual bodily harm, common assault, intentionally choking a person with recklessness, and escaping police custody ([18]-[19]).

Grounds: The aggregate sentence was manifestly excessive

Held: The application for leave to appeal against the aggregate sentence was granted; the appeal was dismissed. The Appeal Court was unable to conclude that the sentencing judge failed to apply the relevant principles such that there was an error in the sentence imposed ([42]-[45]). The sentence was not manifestly excessive ([56]).

It was submitted inter alia that the sentence did not reflect the factual findings made by the judge as to his disadvantaged background and the genesis of his drug dependency ([2]).

The sentencing judge emphasised the need for the court to provide full protection to domestic violence victims, because such conduct involves a violation of trust and the use of physical strength to control and subordinate the other party to an intimate relationship ([28]). The sentencing judge found that the offence of influencing a witness involved overtones of domestic violence in that the applicant, although in custody, continued "to exert the power, influence and control that he had established over the complainant, as a result of her dependency upon him" ([34]).

The applicant’s subjective circumstances included that: his father was murdered, he grew up in a household which involved alcohol and drug use, and violence, and he began using drugs and alcohol himself at an early age ([40]). The sentencing judge noted that although his deprived upbringing and early onset of drug and alcohol abuse served to ameliorate his level of moral culpability, he nevertheless had a substantial level of moral culpability ([41]). The Appeal Court considered cases like R v Fernando and Bugmy v The Queen, which discussed the role of alcohol abuse and alcohol-fuelled violence in Aboriginal communities. Wood J in Fernando recognised that both of these problems are endemic in some Aboriginal communities, and considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised, it should be taken into account as a mitigating factor. In Munda, the Court addressed the tension between accepting a reduction in moral culpability due to the offender’s disadvantaged background, and the need to provide the victim of violence with "such protection and vindication as the criminal law can provide."

Wood v R [2019] NSWCCA 94 (19 December 2019) – New South Wales Court of Criminal Appeal

‘Absence of planning’ – ‘Apprehended violence order’ – ‘Gratuitous cruelty’ – ‘Intoxication’ – ‘Manifestly excessive’ – ‘Misuse of alcohol’ – ‘Murder’ – ‘Past domestic violence’ – ‘Strangulation’ – ‘Weapon’

Charges: Murder x 1; Contravention of an Apprehended Violence Order x 1.

Proceedings: Appeal against sentence.

Facts: The applicant sought leave on the following grounds:

•

The sentencing judge erred in having regard to the applicant’s record of previous convictions as a matter that aggravated the offence;

•

The judge erred in taking into account the fact that the applicant was on conditional liberty as a factor that aggravated the offence;

•

The judge erred in failing to have regard to the lack of planning in assessing the objective seriousness of the offence;

•

The judge erred in failing to take into account the applicant’s disadvantaged background as a factor relevant to his moral culpability;

•

The sentencing judge erred in finding that the applicant’s intoxication aggravated the applicant’s offending;

•

The judge erred in find that the Crown had proven beyond reasonable doubt that the applicant’s offending involved gratuitous cruelty; and

•

The sentence was manifestly excessive. [5]

The applicant and the deceased had been in an ‘on again/off again relationship’ characterised by domestic violence for three years [9]. He pleaded guilty and was sentenced to a non-parole period of 19 years 1 month with a balance of term of 6 years and 5 months. The applicant violently killed the deceased, stabbing her with a knife, when both were intoxicated, the applicant having come home an hour earlier than the deceased. At the time of the murder he was subject to a s 20(1)(b) Crimes Act 1914 (Cth) recognisance for 18 months, commencing 17 May 2017 and expiring 16 November 2018 and a s 9 Crimes (Sentencing Procedure) Act bond for 18 months, commencing 17 May 2017 and expiring 16 November 2018.

Decision and reasoning: The application for leave to appeal was granted in respect of grounds 3 and 6, the appeal allowed substituting a sentence of 24 years’ imprisonment with a non-parole period of 18 years.

Regarding the third ground, the court found that the absence of planning is a ‘consideration which goes to the objective seriousness of the offending and was wrongly taken into account by the sentencing judge when considering the applicant’s subjective case’ [108]. This ground of appeal was made out.

Hoeben CJ held that the sixth ground was made out as on the evidence available to the sentencing judge it was not possible to conclude that the injuries were inflicted at a time other than of the killing.

Moore v R [2019] NSWCCA 264 (4 November 2019) – New South Wales Court of Criminal Appeal

‘Manifestly excessive’ – ‘Physical harm and violence -threats to kill’ – ‘Separation’ – ‘Suicide threat’ – ‘Weapon’

Charges: Grievous bodily harm with intent x 1; Detain with intent to obtain an advantage and immediately beforehand occasion actual bodily harm x 1; use offensive weapon with intent to commit an indictable offence x 1.

Proceedings: Appeal against sentence.

Facts: The applicant sought leave to appeal on grounds that the sentencing judge erred in his assessment of the objective seriousness of the counts, failed to accurately assess the applicant’s prospects of rehabilitation and likelihood of reoffending and the sentence imposed was manifestly excessive (12 years imprisonment, non-parole period 9 years). The accused ‘ambushed his ex-partner outside her house, beating her around the head and body with an improvised metal pole. He then forced the victim into her own car, which he proceeded to drive around to [surrounding suburbs], all the while making threats to kill himself, or to kill them both’. When the victim tried to escape the applicant pulled her back into the car by her hair. The victim was trapped in the car for four hours before the applicant crashed into a telephone pole.

Grounds of appeal:

•

The sentencing judge erred in his assessment of the objective seriousness of the counts;

•

The judge failed to accurately assess the applicant’s prospects of rehabilitation and likelihood of reoffending;

•

The sentence imposed was manifestly excessive.

Held:

Ground 1: The sentencing judge did not err in his assessment of the objective seriousness of Count 1 because the seriousness of the offence was increased by factors including planning, duration, brutality, infliction of pain, lack of provocation, and that it occurred in a context of a domestic relationship. In relation to Count 2, it was found that the magistrate did not err in his assessment as the offence occurred spontaneously.

Ground 2: The court found that it was open on the evidence for the judge to approach the issues relating to the establishment of mitigating factors in the way he did.

Ground 3: ‘Given the gravity of the applicant’s offending and the findings of the judge as to objective seriousness, with full recognition of the mitigating factors that stood in the applicant’s favour’, Hulme J was of the view that the sentence imposed was not manifestly excessive

Majzoub v Regina [2019] NSWCCA 94 (8 May 2019) – New South Wales Court of Criminal Appeal

‘Accumulation of sentence’ – ‘Legal representation and self-represented litigants’ – ‘Obstruct justice’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: The applicant was arraigned on an indictment containing 17 counts. Counts 1 to 11 charged various offences of violence and of detaining for advantage (including common assault); while counts 12 to 15 alleged that the applicant attempted to influence the complainant not to give evidence against him.

Case type: Application for leave to appeal against sentence.

Facts: Norton DCJ sentenced the accused to an aggregate term of imprisonment for 12 years with a non-parole period of 9 years. That sentence was partly accumulated upon an aggregate sentence for other offences imposed on him by Bennett DCJ. The applicant pleaded guilty to offences, such as common assault and attempting to influence the complainant not to give evidence made directly by him and through one of his sisters. He was found guilty of possession of an offensive weapon with intent, reckless wounding, two counts of assault occasioning actual bodily harm, and two counts of detaining for advantage.

The applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive. He sought a lesser non-parole period, and argued that there should be greater measure of concurrency in the indicative sentences ([14]). Although the application was outside the limitation period, there was no objection by the Crown that an extension of time should be granted ([6]).

Issue: Whether, in any event, the aggregate sentence is manifestly excessive.

Held: The Court granted leave to appeal, but would dismiss the appeal.

Personal circumstances:

The applicant was born in Lebanon, his father used to assault his mother under the influence of alcohol, he left school in year 8 and had very little employment since. He began to use drugs at the age of 14. At the time of his arrest, he was using ice on a daily basis ([11]). Notably, the applicant had an extensive criminal history, including drug offences, stalking and intimidating and contravening apprehended violence orders. The present offences were committed while he was on some kind of conditional liberty ([10]).

Non-parole period:

The Court noted that Norton DCJ needed to find special circumstances before departing from the 9 year non-parole period that was the statutory norm in accordance with section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was open her Honour to decline to make a finding of special circumstances ([16]-[18]).

Accumulation/concurrence:

The Crown noted that the total of the indicative sentences for the present offences was 29 years and 10 months, so that the aggregate sentence of 12 years would demonstrate a substantial measure of concurrence. The Court held that Norton DCJ’s determination in that respect, and her decision as to the measure of the accumulation of the aggregate sentence upon the sentence imposed by Bennett DCJ, demonstrated an exercise of discretion consistent with established principle ([23]).

Manifestly excessive:

A sentence will only be manifestly excessive if it is ‘unreasonable or plainly unjust’ ([25]). The Court stated that the offences constituted a pattern of domestic violence of considerable gravity, and noted the seriousness of domestic violence and the need for denunciatory and deterrent sentences. Their Honours found that Norton DCJ fairly described the applicant’s subjective case as ‘far from compelling’, and held that the aggregate sentence, including the non-parole period, were well within the legitimate bounds of the exercise of her discretion. Therefore, the sentence was not shown to be unreasonable or plainly unjust ([28]-[29]).

SC v R [2019] NSWCCA 25 (15 February 2019) – New South Wales Court of Criminal Appeal

‘Breach of trust’ – ‘Children’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’

Charges: Nine counts, including assault occasioning actual bodily harm, sexual intercourse without consent and armed with intent to intimidate.

Case type: Application for leave to appeal.

Facts: The applicant and the complainant were married with three children. The applicant was tried by a jury on nine counts, which included various sex offences and assaults. The complainant alleged that the applicant had punched her in the face and mouth, forcibly held her down and raped her, forced anal intercourse on two instances, pushed her head against a laundry wall, threw her out of a door, and grabbed a knife and threatened physical harm. The jury found the applicant guilty on Counts 6, 7 and 8 and not guilty on Counts 1-5 and 9. The sentencing judge imposed an aggregate sentence of 10 years with a non-parole period of 7 years and 6 months ([92]).

Issues: The appellant sought leave to appeal against the conviction on the grounds that (1) there was a miscarriage of justice as the trial judge failed to discharge the jury following the admission of unfairly prejudicial evidence (ground 1); and (2) the verdict in respect of Count 6 was inconsistent with the not guilty verdicts on Counts 1-5 and 9, and could not otherwise be supported by the evidence at trial (ground 2). The appellant further sought leave to appeal against the sentence on the grounds that (1) there was an error by the sentencing judge in the assessment of the gravity of Count 6 (ground 3); and (2) the indicative sentences for Counts 6, 7 and 8 were excessive and that the level of accumulation was too great (ground 4).

Decision and reasoning: The Court granted leave to appeal against the conviction and sentence. Ground 1 related to an application to discharge the jury on the basis that the jury may have heard the word ‘pistol’. The trial judge refused to discharge the jury and directed them at [78]. The Court held that the trial judge was entitled to assume that the jury understood and complied with his direction. Their Honours were not satisfied that there was any miscarriage of justice ([85]). As to ground 2, the Court held that there was no inconsistency between the jury’s verdicts of not guilty and guilty ([69]). With respect to ground 3, their Honours held that the sentencing judge did not err in finding the offending in Count 6 to be ‘above the mid-range’, and that the indicative sentence for Count 6 was not excessive ([109]). In order to establish ground 4, the applicant was required to show that the sentence imposed was unreasonable or plainly unjust ([111]). The Court did not regard any of the indicative sentences as excessive, having regard to the sentencing judge’s findings and assessment of their seriousness. All three counts involved a grave breach of trust and were aggravated by having occurred in the complainant’s home. Count 7 was further aggravated by having been committed in the presence of their eldest child ([112]).

Viavattene v R [2018] NSWCCA 197 (5 September 2018) – New South Wales Court of Criminal Appeal

‘Bail’ – ‘Evidence’ – ‘Self-represented litigants’ – ‘Unacceptable risk and best interests’

Charges: Stalking or intimidation with intent to cause fear of physical or mental harm x 9; Knowingly contravene an apprehended violence order x 1; Using a carriage service in a manner that was menacing, harassing or offensive x 4.

Appeal type: An application pursuant to s 49 of the Bail Act 2013 NSW for release on bail pending the hearing of an appeal to the District Court against convictions recorded in, and sentences imposed by, the Local Court.

Facts: The applicant applied for release on bail pending the hearing of an appeal to the District Court against convictions recorded in, and sentences imposed by, the Local Court. The applicant was charged with nine offences of stalking or intimidation with intent to cause fear of physical or mental harm, one charge of knowingly contravening an apprehended violence order and four charges of using a carriage service in a manner that was menacing, harassing or offensive.

Issues: Whether bail should be ordered.

Decision and reasoning: Bail was refused as the Court was not satisfied that cause was established by the applicant. At the time of sentencing, the applicant was 49 years old. He also had health difficulties and family responsibilities. However, the Court noted that the evidence led by the prosecution, his prior criminal record and the Presiding Magistrate’s comments suggested that he was a substantial menace to the community. Evidence of the difficulties that the applicant was experiencing in custody was inadequate ([27]). His Honour nevertheless accepted that the applicant’s family was experiencing hardship as a result of his absence, and that he was experiencing some problems in custody. To the extent that the matters relevant to unacceptable risks can inform whether a show cause was established, the Court noted that there was not any proper bail proposal put forward to the Court which would alleviate the risks to the various persons who experienced the applicant’s behaviour in previous years.

Suksa-Ngacharoen v Regina [2018] NSWCCA 142 (10 August 2018) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Concurrent sentences’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Grievous bodily harm by the explosion of a substance x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and the victim were in a relationship. In 2013, the applicant was charged with common assault and an apprehended domestic violence order (‘ADVO’) was imposed upon him. In 2014, the applicant doused the victim with methylated spirits and set her alight.

District Judge Syme imposed a sentence of 18 years’ imprisonment with a non-parole period of 13 years and 3 months. The applicant was also sentenced to: 18 months’ imprisonment for the charge of contravening an apprehended domestic violence order; seven months’ imprisonment for breach of bond in relation to the charge of contravening an apprehended domestic violence order; and three months’ imprisonment for breach of bond in relation to the charge of common assault.

Issues: Appeal against sentence on 7 grounds.

Decision and Reasoning: The appeal was allowed.

Leeming JA and Bellew J agreed with Wilson J’s reasoning with respect to grounds 1-6. However, their Honours held that ground 7 (the sentence was manifestly excessive) was established. The applicant had participated in courses, had expressed remorse, had not used drugs in custody, had no other criminal records, and experienced language and cultural difficulties in custody owing to his Thai heritage. Whilst these factors did not detract from the objective seriousness of the offending, they suggested that there was an unarticulated error of principle on the part of the sentencing judge. Their Honours quashed the sentence and imposed a total sentence of 17 years imprisonment, with a non-parole period of 12 years.

Wilson J held that the appeal should be dismissed. Her Honour dismissed ground 4 (failure to properly assess the applicant’s evidence of remorse) on the basis that the applicant had not made reparation and blamed his drug use for the commission of the crime. Accordingly, Wilson J considered that the applicant’s expression of remorse was no more than ‘the often ritual incantation’, easily uttered, whether sincerely or otherwise ([116]).

Her Honour dismissed ground 6 (error by partly accumulating the sentence for the substantive offence on the related offence of contravene ADVO) on the basis that offences committed in breach of an ADVO and the offence of breaching an ADVO, involved separate and distinct criminality which warranted the imposition of distinct sentences for each offence ([131]). Wilson J said at [132]:

‘The criminality of breaching an ADVO rests in the complete disregard for an order of a court, conduct which has the practical effect of undermining the authority of the courts, and preventing the courts from extending effective protection to persons at risk of harm from another. The legislative intent of the scheme for apprehended domestic violence orders is to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship… Conduct which involves deliberate disobedience of a court order must be treated as serious, and should ordinarily be separately punished from any offence that occurs at the same time, always having regard to the requirements of the totality principle as set out in Pearce v The Queen (1989) 194 CLR 610.’

Her Honour disagreed with the majority with respect to appeal ground 7. The applicant's crime was extremely serious, and the consequences for the victim were devastating and long-term. The gravity of the crime warranted a stern sentence representing condign punishment. Accordingly, the sentence imposed was not manifestly excessive ([145]).

Director of Public Prosecutions (NSW) v Al-Zuhairi [2018] NSWCCA 151 (27 July 2018) – New South Wales Court of Criminal Appeal

‘Evidence’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Safety and protection of victims and witnesses’ – ‘Victim experiences of court processes’

Charges: Assault occasioning actual bodily harm x 1

Appeal type: Appeal on the case stated; Appeal against acquittal

Facts: The respondent was convicted of assault occasioning actual bodily harm for assaulting the brother of his ex-partner (the complainant). The complainant’s evidence-in-chief was a recorded statement pursuant to s 289F(1) of the Criminal Procedure Act (NSW). The recording was not tendered in evidence. The transcript did not set out the content of the recorded statement.

On appeal, Colefax SC DCJ held that the recorded statement was required to be tendered as an exhibit. He set aside the respondent’s conviction.

Issues: Whether, in a proceeding for a ‘domestic violence offence’, a recorded statement by a complainant must be formally tendered in the Local Court for the contents of the recorded statement to be put into evidence.

Decision and Reasoning: The Court of Appeal (Payne JA, Hulme and Fagan JJ) quashed the orders made by the District Court, and remitted the matter to the District Court for re-hearing. The Court held that the playing of the recording in the Local Court was sufficient to render it evidence for the purpose of an appeal to the District Court.

The significance of the decision is that recorded statements given by complainants in domestic violence offences can be accepted as evidence as if the contents were given by the complainant in person, notwithstanding that the contents were not recorded on the Local Court transcript or admitted formally as an exhibit.

R v Patsan [2018] NSWCCA 129 (29 June 2018) – New South Wales Court of Criminal Appeal

‘Dynamics of domestic violence’ – ‘Physical violence and harm’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Recklessly causing grievous bodily harm x 1.

Case type Application for leave to appeal against sentence.

Facts: The applicant sought an extension of time for leave to appeal against a sentence of 2 years and 3 months imprisonment, with a non-parole period of 1 year and 4 months, for recklessly causing grievous bodily harm to which he pleaded guilty. A further charge of assault occasioning actual bodily harm was taken into account in the sentence.

Issue: The applicant sought to appeal against the sentence on the ground that it was manifestly excessive.

Held: The Court was not persuaded that the sentence imposed was unreasonable or plainly unjust, and consequently, refused leave to appeal against the sentence ([47]-[48]). Importantly, the Court acknowledged the special dynamics of domestic violence. Their Honours rejected the applicant’s submission that the sentencing judge used him as a scapegoat for the prevalence of domestic violence offences. ‘While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them’. In most cases, the conduct will involve an attack by a male who is in a position to inflict considerable harm to his victim because of his superior physical strength, and where there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths ([39]-[40]).

Glynn Kaderavek v R [2018] NSWCCA 92 (11 May 2018) – New South Wales Court of Criminal Appeal

‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Strangulation’ – ‘Systems abuse’

Charges: Assault x 1; Recklessly causing grievous bodily harm x 1; Perverting the course of justice x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and complainant lived together and had two children. The assault charge occurred when the applicant choked the victim and chased her around the backyard with a wooden stick. The grievous bodily harm charge occurred when the applicant punched the victim, breaking her jaw. The offender then smashed walls with a tow bar and broke belongings in the house. The offender gave a false statement to police alleging that there was a home invasion ([8]).

The chronology of sentencing was ‘unusual’ ([7]). The present offences were committed in August 2013, but the complainant did not report them to the police until July 2014 because of emotional abuse from the applicant ([8]). In March 2014, the applicant committed further offences against the complainant and was sentenced for those offences. At the time of sentencing for the present offences, the applicant was still in custody for the March 2014 offences ([7]). The judge made a finding of special circumstances to recognise the applicant’s mental health issues. The sentencing judge stated that he would reduce the non-parole period so that the offender could be appropriately supervised when released into the community ([27]).

The applicant was sentenced to an aggregate sentence of 7 years’ imprisonment with a non-parole period of 5 years. The sentence was ordered to commence on 7 July 2015 ([5]), the date of expiry of the total sentence (non-parole period and the balance of the term) for the March 2014 offences ([7]).

Issues: The applicant argued that the sentencing judge erred in wholly accumulating the sentence on earlier sentences because the judge failed to take into account:

•

a period of pre-sentence custody;

•

the effect of the earlier sentences on the total ratio between the non-parole period and total sentence; and

•

the principle of totality ([6]).

Decision and Reasoning: The first ground was upheld because Hamill J (Beazley P and Schmidt J agreeing) found that the sentence should have commenced on 7 April 2015, the expiry date of the non-parole period for the March 2014 offences. Hamill J dismissed the second and third grounds of appeal because there was no error in wholly accumulating the sentences or the judge’s application of the principle of totality ([23]-[24]).

Hamill J held that the total impact of the sentence negated the judge’s finding of special circumstances. This was because the when the entire period of imprisonment was taken into account, there was no decrease in the non-parole period ([28]).

Hamill J considered that he needed to exercise the sentencing discretion afresh, in accordance with Kentwell v The Queen [2014] HCA 37 ([30]). Hamill J imposed the same head sentence. His Honour commenced the sentence on 7 April 2015 and reduced the non-parole period to 4 years and 6 months to reflect the finding of special circumstances ([31]).

Ussher-Clarke v The Queen [2018] NSWCCA 61 (13 April 2018) – New South Wales Court of Criminal Appeal

‘Factors affecting risk’ – ‘Impact on consent and disclosure’ – ‘Pregnancy’ – ‘Systems abuse’ – ‘Women’

Charges: Recklessly cause grievous bodily harm x 1; Intending to procure a witness to give false evidence x 1.

Appeal type: Application for leave to appeal against conviction.

Facts: The appellant kicked his partner, the complainant, in the abdomen. The complainant was 12 weeks pregnant, and she miscarried the following morning ([10]). There were conflicting opinions given by experts as to the likelihood that the kick could have caused the miscarriage (see [17]-[44]).

The complainant gave statements to the police immediately after the incident indicating that the appellant had kicked her. In the weeks after the incident, the appellant made a number of phone calls to the complainant to encourage her to lie to the police. In a subsequent statement and in her evidence at trial, the complainant claimed that the appellant had not assaulted her ([8]).

The appellant pleaded guilty to the charge in relation to influencing a witness. The applicant was convicted of the recklessly cause grievous bodily harm charge and was sentenced to a head sentence of 5 years and 6 months with a non-parole period of 4 years.

Issues: Whether the conviction was unreasonable and unable to be supported by the evidence.

Decision and Reasoning: Leave to appeal was refused. The Court discussed the principles governing granting leave to appeal against conviction ([59]-[60]). The Court noted that the Crown had to prove that the kick was a significant cause of the miscarriage, not that that it was the sole cause ([60]-[61]). The Court concluded that it was open to the jury to accept the experts’ evidence, while conflicting, as supporting the conclusion that the kick caused the miscarriage ([89]).

Diaz v The Queen [2018] NSWCCA 33 (14 March 2018) – New South Wales Court of Criminal Appeal

‘Aggravated kidnapping’ – ‘Damaging property’ – ‘General deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Specific deterrence’ – ‘Women’

Charges: Aggravated kidnapping x 1; Sexual intercourse without consent x 1; Destroying or damaging property x 4; Assault occasioning actual bodily harm x 1; Common assault x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and victim had been in a relationship for approximately 5 months. The assault and destroying property charges were in relation to arguments where the applicant pulled out some of the victim’s hair, and smashed her phone, a vase and a television set ([13]-[15]). The aggravated kidnapping and sexual intercourse without consent charges occurred when the applicant pinned the victim onto a bed ([17]). He digitally penetrated her, became angry about the contents of her Facebook and text messages ([18]) and punched her approximately 20 to 30 times ([19]-[20]). This continued for about 5 hours ([21]). The applicant had a ‘disturbing’ criminal history including two similar domestic violence offences where the applicant detained the victim in her apartment ([28]-[31]). The applicant was on parole for those sentences at the time of this offence ([33]).

The applicant was sentenced to a head sentence of 7 years and 9 months imprisonment with a non-parole period of 4 years and 6 months ([10]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Acting Justice Hidden at [47] endorsed the trial judge’s characterisation of the manner in which the applicant detained the victim “by instilling fear and control over her… by his conduct, demeanour, words and assault” (at [39]).

It was significant that the offences were committed while the applicant was on parole. The domestic violence context of these offences was also important, with Hidden AJ quoting from Johnson J’s judgement in R v Hamid [2006] NSWCCA 302 at [86]:

In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.

Justice Garling added: ‘[in] R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41] of violent attacks in domestic settings this:

Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth, such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

Armstrong v R [2017] NSWCCA 323 (15 December 2017) – New South Wales Court of Criminal Appeal

‘Conviction’ – ‘Exposing children to violence’ – ‘Humiliation’ – ‘Sentencing’ – ‘Sexual abuse’ – ‘Tendency evidence’ – ‘Women’

Charges: Assault x 1; Sexual assault x 2; Aggravated sexual assault x 2.

Appeal type: Appeal against conviction and sentence in relation to the two counts of aggravated sexual assault.

Facts: The appellant and complainant were in a relationship. In the presence of the complainant’s son, the appellant punched and bit the complainant, held her down while she was screaming and pushed his fingers into her vagina and anus ([15]).

The prosecution sought to adduce tendency evidence ([8]). CCTV footage showed the appellant dragging the complainant by her hair ([13]). The Crown relied upon the CCTV evidence to argue that the appellant had a tendency to be violent towards the complainant ([8]). The tendency evidence was admitted, and the appellant was found guilty of the two counts of aggravated sexual assault and was sentenced to a head sentence of 8 years and 9 months’ imprisonment with a non-parole period of 5 years and 9 months.

Issues: Whether the tendency evidence) should have been admitted; and whether the sentencing judge erred in determining the objective seriousness of the offences by not taking into account the fact that they were not committed for sexual gratification.

Decision and Reasoning: The appeal against conviction was dismissed and leave to appeal against sentence was refused. In relation to the appeal against conviction, the Court (Meagher JA, Rothman and Button JJ) stated that tendency evidence need not directly establish the elements of an offence charged, but should make one or more of the facts in issue significantly more likely ([20]). The Court at [19] quoted the majority of the High Court in Hughes v The Queen [2017] HCA 20 (14 June 2017) at [40]:

The test posed by s 97(1)(b) [of the Evidence Act 1995 (NSW)] is as stated in Ford [(2009) 201 A Crim R 451 at [125]]: ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. [emphasis in original]

Since the appellant’s case was that he was acting in self-defence, the Court held that the trial judge did not err in admitting the CCTV footage. The footage was sufficiently probative of the appellant’s propensity to act violently towards the complainant ([21]).

In relation to the appeal against sentence, the Court held that the trial judge did not err, Meagher JA stated that: ‘there is nothing to commend the proposition that engaging in sexual intercourse without consent to gratify oneself is in any sense more objectionable than doing so to humiliate and physically dominate another’ ([35]). Thus, the trial judge did not err in measuring the objective seriousness of the offence.

R v Evans [2017] NSWCCA 281 (21 November 2017) – New South Wales Court of Criminal Appeal

‘Aggravating circumstances: breach of bail and protection order’ – ‘Assault’ – ‘Fair hearing’ – ‘People with children’ – ‘Power and control’ – ‘Sexual abuse’ – ‘Strangulation’ – ‘Systems abuse’ – ‘Text messages’ – ‘Women’

Charges: Indecent assault x 1; Common assault x 2; intentionally destroy property x 1; Contravene apprehended domestic violence order x 1; Do act with intent to influence witness x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and complainant had been in a relationship and had three children ([10]). The common assault charges occurred when the applicant grabbed the complainant’s throat and forced her against the wall, onto the bed and onto the ground ([11]-[14], [22]-[24]). The indecent assault charge occurred when the applicant forced her onto the bed and placed his fingers in her vagina ([15]-[18]). The ‘do act with intent to influence witness’ charge occurred when the applicant asked the complainant over text message to drop the charges on at least 16 occasions ([33]). For example, one of the text messages said, ‘you will be left with the kids full time with no break so I couldn’t handily [sic] going away so that’s why I want you to drop the charges’ ([33]).

After a plea of guilty, the applicant received a head sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months ([3]). For the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 3 years and 2 months’ imprisonment ([4]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. Adamson J, with whom Hoeben CJ at CL and Davies J agreed, held that the sentence was manifestly excessive.

In relation to the ‘do act with intent to influence witness’ charge, Adamson J at [38] quoted the sentencing judge:

[the charge] reveals a course of conduct that I regard as being particularly serious. It was repetitive and was clearly designed to emotionally manipulate and blackmail the complainant to discontinue the charges against him. It was also conduct that was in breach of his bail conditions as well as another court order, namely an interim ADVO. These are aggravating features.

Adamson J similarly commented at [46] on the importance of the charge (s 323(a) of the Crimes Act 1900 (NSW)) in the context of domestic violence offences:

It is within the common experience of courts that many charges of domestic violence cannot be prosecuted because the defendant manages to persuade the complainant, including by threatening violence, not to give evidence against him. Conduct of this nature against complainants is inimical to the interests of justice and the administration of justice. The perpetrators of domestic violence may, by committing offences under s 323(a) of the Crimes Act, effectively immunise themselves from prosecution.

However, his Honour considered that the text messages were not as serious compared to other possible offences under s 323(a) of the Crimes Act, such as bribing a witness or threatening violence (see [48]-[51]). Therefore, the sentence of 3 years and 2 months was manifestly excessive, and led to the head sentence being manifestly excessive ([51]).

The applicant was re-sentenced to an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years ([61]). On the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 1 year imprisonment (after applying the 20% reduction for his plea of guilty) ([59]).

DPP v Darcy-Shillingsworth [2017] NSWCCA 224 (13 September 2017) – New South Wales Court of Criminal Appeal

‘Aggregate sentence’ – ‘Community interest’ – ‘General deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Suspending an aggregate sentence’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Reckless wounding x 1; kidnapping x 1; assault occasioning actual bodily harm x 1; reckless grievous bodily harm x 1.

Case type Appeal against sentence.

Facts: The respondent was sentenced to 150 hours of community service for reckless wounding, and an aggregate sentence of 21 months imprisonment, which was suspended upon the offender entering into an 18 month good behaviour bond for assault occasioning actual bodily harm and recklessly causing grievous bodily harm. The assaults were committed against the respondent’s partner, with whom he had 3 children, and her father. The respondent, his partner and their children lived in a small town with a largely Aboriginal population.

The respondent struck his partner, causing her to fall to the ground (Count 1). Later that evening, he drove her around the neighbourhood doing burnouts in his vehicle (Count 2). The respondent also hit her in the face while she was still in the car, pulled her from the car and hit her again, knocking her to the ground (Count 3). He also punched his partner’s father a few times (Count 4).

Issue: The issue for the Court was whether to allow the appeal against the sentences.

Held: The Court held that the sentences imposed did not adequately reflect the community interest in general deterrence ([85]). Their Honours allowed the appeal against the sentences, and resentenced the respondent to an aggregate sentence comprising a non-parole period of 15 months, with a balance of term of 15 months, giving a sentence of 2 years and 6 months.

General deterrence is a matter of some importance in cases of domestic violence ([82]-[85]). Citing The Queen v Kilic [2016] HCA 48, the Court noted that ‘…current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. This statement has been understood by the Court as reflecting the current response of the criminal law in relation to domestic violence as requiring ‘rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community’ ([83]-[84], see also Cherry v R [2017] NSWCCA 150 at [78]).

Further, it did not appear on the evidence that the respondent expressed any remorse in relation to his attack on his de facto partner. In the absence of any finding of remorse or significant insight into the behaviour which led to the offending, specific deterrence should have been a key sentencing consideration ([82]). The violence to his partner occurred in a remote community which was not close to any police presence. Importantly, Count 3 took place in the presence of his partner’s father, who tried to stop the attack. The Court held that her father did not escalate the violence or take the law into his own hands. He simply warned that he was calling the police. This act ought to have caused the respondent to come to his senses and cease the violent behaviour, but instead he started to attack the victim’s father, causing grievous bodily harm. Therefore, in light of the statutory purposes of sentencing and the role of criminal law in redressing violence of this nature, the Court held that offences of such gravity cannot be dealt with as leniently as was done in this case ([107]-[108]).

Cherry v R [2017] NSWCCA 150 (28 June 2017) – New South Wales Court of Criminal Appeal

‘Contravention of a domestic violence order’ – ‘Escalation of violence’ – ‘People affected by substance misuse’ – ‘Strangulation’

Charges: Assault occasioning actual bodily harm x 3; Assault x 4; Breaking and entering x 1; Contravening domestic violence order x 4.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant and complainant had been in a relationship since 2013 ([12]). The applicant committed a series of assaults, including striking the complainant with his hands ([16]) and car keys ([13]), touching her with a hot pipe used to smoke ice ([27]), and choking her, once until she was nearly unconscious ([14], [20], [25]). The applicant also entered the home of the complainant’s friend, assaulted her and stole her mobile phone ([34]). The applicant pleaded guilty, and was sentenced to 6 years’ imprisonment with a non-parole period of 4 years ([6]).

Issues: The applicant appealed on three grounds: first, that the judge erred in finding that the offending was in the mid-range of objective seriousness; second, that the sentence accorded insufficient weight to the prospects of rehabilitation; and third, that the sentence was manifestly excessive ([9]).

Decision and Reasoning: The appeal was dismissed.

Justice Johnson briefly dismissed the first and second grounds of appeal ([60, [68]). On the third ground, His Honour discussed the importance of general and specific deterrence and denunciation in domestic violence cases (see [74]-[80]).

His Honour observed: “It is correct to characterise the Applicant’s course of conduct towards NR as one involving escalating violence. His act of choking NR in Count 4 had the potential for very grave consequences. Although not applicable to the Applicant in this case, it is noteworthy that in the second reading speech in support of the Crimes Amendment (Strangulation) Act 2014, which amended s.37 Crimes Act 1900, the Attorney General, Mr Hazzard, observed that strangulation “is prevalent in domestic violence incidents” (Hansard, Legislative Assembly, 7 May 2014)” [75].

He further noted: “In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54].” [79]

The applicant’s regular use of the drug Ice was a relevant factor but not a of itself a mitigating circumstance.[81]

This case concerned repeated offences of escalating violence, in breach of a domestic violence order ([80]). Having regard to these considerations, the sentence was not manifestly excessive ([83]).

Xue v R [2017] NSWCCA 137 (21 June 2017) – New South Wales Court of Criminal Appeal

‘Cultural considerations’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Starting point’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Wounding with intent to cause grievous bodily harm x 1.

Case type Appeal against sentence.

Facts: The applicant pleaded guilty to one count of wound with intent to cause grievous bodily harm, and was sentenced to 6 years imprisonment with a non-parole period of 4 years. The applicant received a discount of 25% for his guilty plea.

The applicant and victim were husband and wife and had been married for 30 years. The witnesses to the incident were the applicant’s son and daughter-in-law. There had been some history of domestic violence. The applicant started accusing the victim of having an affair, and began to violently threaten and assault her with a knife. Their son intervened and drove his mother to the hospital where she was admitted for her injuries. The applicant said that he had argued with his wife and had accused her of having an affair. He also said that it was very shameful for a man if his wife had an affair in Chinese culture.

Issue: The issue for the Court was whether the sentence was manifestly excessive. The applicant submitted that allowing for the 25% discount for an early plea of guilty, the starting point for the sentence must have been 8 years, which in the circumstances was excessive. The applicant also argued that the 4 year non-parole period was above the majority of sentences imposed for this offence.

Held: The appeal against sentence was refused. The applicant’s circumstances at the time of the offending and his genuine belief that the victim may have been having an affair could not justify or ameliorate the seriousness of the offending. The catalyst of domestic violence is often a genuine, albeit irrational, belief of being wronged in some way by the victim. A resort to violence in such circumstances is unjustifiable, even if the offender’s belief is correct. The court regarded the sentencing judge’s remarks about the courts’ and the community’s concern at the level of domestic violence in the community as ‘timely and appropriate’ ([53]).

Further, the Court found that the notional starting point was not manifestly excessive as no evidence was put before the Court to establish that such a starting point was excessive in the circumstances. In considering whether a sentence is manifestly excessive, approaching the case from a hypothetical starting point diverts attention from the question as to whether the sentence actually imposed was unreasonable ([50]). However, where there is no dispute over whether the discount was excessive, justice demands that the focus be on the starting point ([4], see also TYN v R [2009] NSWCCA 146 [33]-[34]).

Hurst v R [2017] NSWCCA 114 (31 May 2017) – New South Wales Court of Criminal Appeal

‘Delay’ – ‘Objective seriousness’ – ‘Physical violence and harm’ – ‘Sexual violence’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Assault x 2; aggravated detain for advantage x 1; incite another to commit an act of indecency x 1; maliciously inflict grievous bodily harm with intent to do grievous bodily harm x 1; use offensive weapon with intent to commit the indictable offence of assault occasioning actual bodily harm x 2; aggravated sexual intercourse without consent x 1; assault occasioning bodily harm x 1;

Case type Appeal against sentence.

Facts: The applicant pleaded guilty to 9 offences, relating to physical and sexual violence against his then girlfriend (the complainant), with whom he commenced an intimate domestic relationship in 2005. The sentencing judge imposed a total effective sentence of 18 years imprisonment, with a non-parole period of 12 years. His Honour had regard to the delay in prosecution and noted that the delay was largely due to the complainant’s decision not to proceed against the applicant at the time that the offences occurred.

Issue: The applicant appealed against the sentence on various grounds, including that the sentencing judge erred by failing to make an assessment of the objective seriousness of the offence of aggravated detention for advantage (Ground 1), and that he did not take into account the delay in prosecution and the prejudice suffered by the applicant on sentence (Ground 3).

Held: The Court granted leave to appeal against the sentence, but dismissed the appeal.

Objective seriousness:

The Court was not satisfied that Ground 1 was established on the evidence ([105]-[110]). When a sentencing judge has made it clear from his or her findings that they regard the offence as serious, little more is required ([105]). While he did not expressly determine the objective criminality of the offence of aggravated detain for advantage, he gave due consideration to the nature of the conduct and the circumstances in which it occurred ([109]). Further, the evidence of the applicant’s conduct made a conclusion of significant seriousness self-evident ([109]).

Delay:

Hoeben CJ at CL (with Price and Longergan JJ agreeing) noted that a common aspect of domestic violence related offences is that there may be a considerable delay between the occurrence of the offence and the complaint being made. However such delay should not be held against the victim. It is a direct product of the nature of the offending itself, and it would be incongruous if an offender could gain a benefit from such delay ([132]). Where there is unexplained considerable delay during which there has been steps taken towards rehabilitation, and/or a change of circumstances that increases the hardship brought about by a custodial sentence, it may be appropriate to impose a sentence that would otherwise be considered to fall below the range of an appropriate sentence ([133], see also Hughes v R [2013] NSWCCA 129 at [58]).

The Court noted the significant difference between delay that can be attributed to a police failure to charge and what occurred with the complainant. She was a victim of ongoing domestic violence which involved extremely controlling behaviour, and she chose not to proceed with those charges at the time. It appeared that she did not feel ready and able to address these matters for many years ([138]). The applicant did not make any attempt to rehabilitate in the lengthy period between offending and sentencing. It was open to the sentencing judge to take into account the lack of evidence that the applicant suffered any anxiety as a consequence of concern that he would be prosecuted in connection with any of these matters. His Honour’s further finding that there was no evidence that the applicant had contributed to any delay was ‘somewhat generous’ since the applicant could have brought these matters to the attention of the authorities at any time after they occurred ([140]).

Further, there was no evidence that the delay in the proceedings caused the applicant increased hardship. Even if there were, this ground of appeal was founded entirely upon the apportionment of weight to a particular sentencing factor in the exercise of the sentencing judge’s discretion. In those circumstances, it is well established that matters of weight will only rarely justify the intervention of the Court. Circumstances warranting the Court’s intervention have not been demonstrated in this case ([141]).

Vaiusu v The Queen [2017] NSWCCA 71 (5 April 2017) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Ex tempore judgement’ – ‘Impact on children’ – ‘Imprisonment’ – ‘Manifestly excessive’ – ‘Perpetrator victim of domestic violence’ – ‘Subjective circumstances’

Charges: Wounding with intent to do grievous bodily harm x 1.

Appeal type: Appeal against sentence.

Facts: The victim was the appellant’s brother in law. The victim had hit the appellant’s sister, apparently accidentally, in a scuffle outside a nightclub. The appellant’s sister told her that the victim had hit her, but she did not tell her that it was an accident. The appellant followed the victim to a train station and stabbed him in the neck with a broken bottle ([7]).

The appellant pleaded guilty and was sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 2 months.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The appellant argued that the trial judge failed to take sufficient account of her background as a victim of domestic violence by her stepfather growing up ([23]). It was also submitted that the appellant was subject to domestic violence by her husband, whose death she was still mourning at the time of the offending ([24]). Further, the trial judge made no mention of the fact that her daughter would be left without a parent if the appellant was sentenced to imprisonment ([26]).

The Court of Appeal (Bathurst CJ, R A Hulme and Beech-Jones JJ) emphasised that a trial judge cannot carefully consider their remarks while delivering an ex tempore judgement. If a trial judge does not mention a particular factor, that does not mean that they have not had regard to it ([31]). Even though the trial judge did not specifically mention the factors raised by the appellant, it was evident that the trial judge adopted a sympathetic approach to sentencing while having regard to the maximum sentence and current sentencing practices ([36]-[38]).

McIlwraith v R [2017] NSWCCA 13 (22 February 2017) – New South Wales Court of Criminal Appeal

‘Intimidation’ – ‘Intoxication’ – ‘Property damage’ – ‘Specific intent’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Numerous charges, including aggravated breaking etc into any house etc and committing serious indictable offence under section 112(2) of the Crimes Act 1900 (NSW).

Case type Appeal against conviction.

Facts: On 18 June 2014, the applicant entered 3 properties, and was arrested and charged with a number of offences alleging breaking and entering, and stealing property. The applicant pleaded guilty to one (Count 5) of 8 counts, and elected to be tried by judge alone. The trial judge acquitted the applicant on Counts 1, 2, 3 and 8, and convicted him on Count 7 (an offence of aggravated break, enter and commit serious indictable offence under section 112(2) of the Crimes Act 1900 (NSW)). The serious indictable offence was one of intimidation with intent to cause fear of physical or mental harm under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The applicant was sentenced to 22 months imprisonment with a non-parole period of 14 months with respect to Count 5. He was also sentenced to 4 years imprisonment with a non-parole period of 3 years with respect to Count 7. The first sentence was wholly concurrent with, and consumed within, the longer second sentence.

The applicant appealed on the ground that the trial judge erred in finding that the offence of intimidation under section 13 is not an offence of ‘specific intent’.

Issue: A key question for the Court was whether the offence of intimidation under section 13 is one of ‘specific intent’, and whether the applicant’s intoxication at the time of the offending can be taken into account in determining his guilt.

Held: The Court refused to grant leave to appeal with respect to the challenge to the findings of fact, and otherwise dismissed the appeal against the conviction. It also refused leave to appeal against the sentence imposed in the District Court.

The provisions of Part 11A dealing with intoxication are concerned with circumstances in which a particular state of mind is required and can be viewed as wrongful. A particular state of mind can involve a specific intent to achieve an identified consequence (as in section 13(1) or section 13(3)), matters of which the accused is aware and consequences which he or she knows to be likely ([39]). The question for the Court was whether the offence of intimidation is an offence of specific intent and whether the provisions under Part 11A of Crimes Act regarding intoxication apply to it.

Basten J found that the offence of intimidation under section 13(1) is one of specific intent, and thus subject to the provisions of Part 11A ([39]). Therefore an offender’s intoxication can be taken into account in determining criminal liability. His Honour reached this conclusion by considering the decisions of R v Grant (2002) 55 NSWLR 80 and Harkins v R [2015] NSWCCA 263 ([39]-[42]).

Morgan v R [2016] NSWCCA 298 (16 December 2016) – New South Wales Court of Criminal Appeal

‘Exposing children to domestic and family violence’ – ‘People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘Physical violence and harm’ – ‘Women’

Charges: Specially aggravated break, enter and commit an indictable offence, namely reckless wounding x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and complainant (both women) lived together with the victim’s two children and had been in an intimate relationship ([4]). The victim and applicant argued, which escalated into a physical confrontation. The victim barricaded herself in a bedroom and picked up her infant child. The applicant broke into the room and stabbed the victim in the back. The applicant continued to chase, hit and choke the victim, and the victim sustained stab wounds to her buttock, arms, wrist and neck ([5]-[8]). The applicant pleaded guilty and was sentenced to 6 years and 3 months’ imprisonment, with a non-parole period of 2 years and 9 months.

Issues: Whether the sentence is manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The Court of Appeal (Ward JA, Bellew J and Hidden AJ) had regard to the applicant’s subjective circumstances, such as the fact that she had experienced domestic violence and sexual abuse as a child, and had been diagnosed with anxiety, depression and borderline personality disorder ([10]-[12]). The Court of Appeal found that the trial judge had adequate regard to the subjective circumstances proffered by the applicant ([27]). The victim did not sustain any serious injuries ([16]).

The Court of Appeal remarked that the charge of break and enter was unusual in this case, given that the applicant broke an internal door. This fact made it impossible to find comparable cases ([22], [26]).

Drew v R [2016] NSWCCA 310 (16 December 2016) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Aggravation’ – ‘Culture considerations’ – ‘Judicial notice’ – ‘Physical violence and harm’ – ‘Vulnerability’ – ‘Worst category’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Initially charged with wound with intent to murder. He entered into a plea of guilty to a charge of wound with intent to cause grievous bodily harm, as well as one count of contravening an Apprehended Domestic Violence Order (ADVO).

Case type Appeal against decision.

Facts: The appellant pleaded guilty to a charge of wounding with intent to cause grievous bodily harm, as well as one count of contravening an ADVO. He was sentenced to 12 years and 6 months imprisonment, with a non-parole period of 9 years and 4 months. The sentencing judge made a number of observations, including a statement that the victim was a vulnerable person due to the culture of silence and ostracism of those who complain in relation to acts of violence in the Indigenous community. Her Honour also stated that the offence fell within the worst category of offences of its kind.

The appellant was in a domestic relationship with the victim at the time of the offending. There was a history of domestic violence in the relationship to the extent that an ADVO had been taken out against the appellant. He has a long and varied criminal history which included numerous violent offences against 13 separate victims. 3 of those victims were his domestic partners at the time of the offence, and one was his own son. 9 of those instances involved a weapon.

Issue: The appellant relied on the following grounds of appeal:

•

The judge erred by finding the offending was aggravated due to the victim being Aboriginal and thereby a vulnerable person.

•

The judge erred in the characterisation of the offence as falling within the ‘worst category’.

•

The sentence imposed was manifestly excessive.

Held: The Court granted leave to appeal, but dismissed the appeal. It made remarks on the need to take special care when making findings of fact about vulnerable victims.

Vulnerability:

A question arose as to whether the sentencing judge was entitled to take into account the serious problem of under-reporting of domestic violence in Indigenous communities due to a culture of ‘silence and ostracism’, and aggravate the offence on that basis ([83]). Her Honour was entitled to note both the high rates of domestic violence, and the vulnerability of women and children in Indigenous communities, but she erred in finding the offence to be aggravated on account of the victim being classified ‘vulnerable’ due to this under-reporting problem ([85], [90]). ‘A Court may not aggravate an offence by taking judicial notice of the fact that some Aboriginal women might be less likely to complain of domestic violence because of a culture of silence and ostracism in their communities’ ([84], see also [1], [8]). No evidence was capable of establishing beyond reasonable doubt that the victim was a member of a particular class bearing those characteristics ([90]).

Further, the aggravating factor of vulnerability under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 is only engaged where the victim belongs to a class that is vulnerable because of a common characteristic ([8], [75]-[78]). An ultimate finding of vulnerability of the victim in the more general sense of being under an impaired ability to avoid physical conflict with the appellant or to defend herself in the event of conflict was open as an inference from primary facts ([5]).

Fagan J noted that it was a circumstance of the offence, relevant to determining an appropriate sentence, that because of the victim’s emotional and intimate attachment to the appellant, she was less likely than any other potential victim to avoid him or to put herself out of harm’s way ([7]). The individual vulnerability of the victim was an ‘inescapable conclusion from the evidence’ and had, in practical terms, the same consequence for assessment of the objective seriousness of the offence ([8]).

‘Worst category’:

The use of the phrase ‘worst category’ should be avoided by judges unless it is in the context of imposing the maximum penalty available for that offence ([105]). However, when taking into account the features of the offence, such as the seriousness of the victim’s injuries, the appellant’s earlier threat to the victim, the fact that the offence occurred without regard to the ADVO, the prolonged nature of the attack, the location of the offence (the victim’s home), and the appellant’s intoxication at the time of the offence, it was open to the sentencing judge to classify the objective seriousness of the offence as her Honour did ([106]-[114]). It is not necessary for the injuries to be of the ‘worst type’ for an offence to fall into the ‘worst case’ category. The nature of the offence can bring a case within that category ([107]).

Manifestly excessive:

The sentence imposed was not manifestly excessive. The appellant had a history of violent offending, which included offending during parole periods. The sentencing factors of specific deterrence and community protection meant that no shorter sentence could be warranted in law.

Silva v The Queen [2016] NSWCCA 284 (7 December 2016) – New South Wales Court of Criminal Appeal

‘Manslaughter’ – ‘Physical violence and harm’ – ‘Reasonableness’ – ‘Relevance of past violent conduct’ – ‘Self-defence’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction.

Facts: The female appellant was in a relationship with the deceased, James Polkinghorne, and they had a child together. Evidence was led at trial that the deceased had physically and verbally abused the appellant throughout their relationship. She was unable to leave the relationship and saw seeking help from the police as impossible.

On the 13 May 2012, the appellant went to her parents’ place, against the deceased’s wishes. During the course of the day, there were 80 calls and SMS messages between the appellant and the deceased. These messages and calls were tendered as evidence at trial (recordings were available because the police had been tapping the deceased’s phone in light of his suspected involvement in a previous murder). These messages, while not phrased in terms of ‘killing’ the appellant, were extremely threatening and abusive. The deceased was affected by methylamphetamine.

That night, the deceased went to the home of the appellant’s parents. He was ‘going crazy, screaming and kicking items’. The appellant’s brother called 000. From here, there were some inconsistencies in the accounts of the appellant’s father, brother and the record of interview from the appellant produced after the killing. There was no contention that the appellant was punched and thrown around by the deceased. Both the appellant in her record of interview and her brother at trial said that the deceased yelled, “I’m going to fucking kill her’ and ‘I’ll get youse cunts’. The appellant’s father and brother started fighting with the deceased. The appellant retrieved a knife from inside and stabbed the deceased. After trial by a jury, she was found not guilty of murder but guilty of manslaughter and sentenced to 18 months imprisonment wholly suspended.

Issue/s: Whether it was open for the jury to conclude, to the criminal standard of proof, that the fatal stab wound inflicted by the appellant was not a reasonable response to the circumstances as she saw them?

Decision and Reasoning: The appeal was allowed (McCallum J and RS Hulme AJ in majority, Leeming JA in dissent). In the majority judgment, RS Hulme AJ first held that there was no rational reason for the jury to reject the substance of the evidence before them. This evidence included the terms and tone of what the deceased had said in the phone calls and messages that day. As per His Honour at [163]:

‘Certainly he had not in terms threatened to “kill” the Appellant. However he was powerful, had been violent in the past, had previously attacked the Appellant and on the day in question he was very angry, irrational, and had threatened to seriously hurt her and to come to where the Appellant was, thus providing some opportunity to carry out his threats’.

Further, notwithstanding the inconsistencies, much of the evidence suggested that the appellant and her brother had been in serious danger. Accordingly, RS Hulme AJ concluded that there was sufficient evidence that the appellant believed her act was necessary to defend herself or some other person (see [170]).

Second, His Honour held that the appellant’s response was reasonable. This was in circumstances where the police would have taken time to arrive, the appellant saw substantial disadvantages in calling the police, and it was not obvious that they would be able to overwhelm the deceased. Therefore, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant had not acted in defence of herself or her brother and father (see [171]-[173]). The appeal was allowed.

McCallum J largely agreed with RS Hulme AJ but provided some additional comments. Her Honour was also unable to accept that the jury could, acting reasonably, have been satisfied beyond reasonable doubt that the appellant’s conduct was not reasonable in the circumstances as she perceived them at the time of the stabbing (see [93]). Her Honour noted that Leeming JA in dissent had placed emphasis on the objective medical evidence and the evidence of eye witnesses at the confrontation. Acknowledging that it is important to have regard to the whole of the evidence, McCallum J continued:

‘Ultimately, however, the critical issue in this case is the reasonableness of inflicting mortal injury judging that issue by reference to an assessment of the circumstances in that instant as perceived by Ms Silva. While the evidence directly relating to the time of the stabbing is important, that assessment is also critically informed by a close analysis of the circumstances leading up to the fatal confrontation’ (see [94]).

McCallum J’s own assessment was that the appellant could only have seen the deceased’s attack on her that evening as ‘urgent, life-threatening and inescapable’ and that the events in the street could not be divorced from the ‘irrational, menacing rage exhibited by the deceased in his calls to Ms Silva in the period leading up to the time when he confronted her physically’ (see especially [95]-[109]). Her Honour concluded at [110]:

‘The circumstances described in the evidence in this case are the kind in which, more commonly, it is the woman who is killed. In my assessment of the record of the trial, the evidence was not capable of proving beyond reasonable doubt…that Ms Silva’s conduct in fatally stabbing the deceased was not reasonable in the circumstances as she perceived them at the time of the stabbing’.

In dissent, Leeming J was not persuaded that a deep penetrating stab into the deceased’s chest cavity, while he was struggling with two other men, was a reasonable response to the circumstances as the appellant saw them at 9.09pm and it was therefore open to the jury to reach this conclusion (see discussion at [83]). His Honour also noted that the jury had the advantage of seeing the evidence first hand and therefore declined to interfere with the verdict.

See also R v Silva [2015] NSWSC 148 (6 March 2015).

Ngatamariki v R [2016] NSWCCA 155 (9 August 2016) – New South Wales Court of Criminal Appeal

‘Objective seriousness’ – ‘Physical violence and harm’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Grievous bodily harm x 2.

Case type Appeal against sentence.

Facts: The applicant was convicted of causing grievous bodily harm with intent to his partner (the victim), with whom he resided with their 2 children. He was intoxicated at the time of the offending and had a prior conviction for domestic violence towards the victim. He was sentenced to 5 years imprisonment with a non-parole period of 3 years.

Issue: The applicant sought leave to appeal on the grounds that the trial judge erred by having regard to his prior conviction in determining the objective seriousness of the offence, and that the sentence was manifestly excessive.

Held: The Court granted leave to appeal, but dismissed the appeal. The applicant’s offending was extremely serious, and constituted a ‘brutal and violent attack…on an innocent, and largely defenceless, victim’. The Court noted that the sentence imposed required a strong measure of general deterrence ([71]). The trial judge correctly took into account the fact that the offending occurred in the context of a domestic relationship ([72]). Denunciation of, and punishment for, ‘brutal’ and ‘alcohol-fuelled’ conduct in such circumstances is particularly apt ([73]).

Further, the trial judge was found not to have improperly used the applicant’s prior convictions as a factor which aggravated the seriousness of his offending. The domestic relationship between the applicant and victim was relevant to determining the objective seriousness of the offending ([45]). In order to make a complaint of manifest excessiveness, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. The submissions and evidence did not establish that the sentence imposed fell into such a category. In light of the circumstances, the sentence was one that might be regarded as modest ([75]).

Browning v The Queen [2015] NSWCCA 147 (17 June 2015) – New South Wales Court of Criminal Appeal

‘Breach of an apprehended domestic violence order’ – ‘Conditional liberty’ – ‘Deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Repeated breaches’ – ‘Using etc explosive substance or corrosive fluid etc with intent to burn, maim, disfigure, disable or do grievous bodily harm’

Charge/s: Using etc explosive substance or corrosive fluid etc with intent to burn, maim, disfigure, disable or do grievous bodily harm, breach of an apprehended domestic violence order x 2.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant had been married for 30 years but separated in August 2012. The complainant obtained an Apprehended Domestic Violence order (ADVO) against the applicant for 12 months. Notwithstanding this, the applicant breached the order on two occasions. On a subsequent occasion, the applicant doused the complainant in petrol and made a sustained attempt to light her on fire. He was stopped by three teenage boys. The applicant was sentenced to 7.5 years imprisonment for the offence of using an explosive substance or corrosive fluid with intent, with a non-parole period of four years.

Issue/s: One of the grounds of appeal was that the Court’s finding that the offence of using an explosive substance or corrosive fluid with intent was in the mid-range of seriousness failed to adequately account for the Court’s findings that:

1.

the offence was not pre-meditated but spontaneous;

2.

no significant harm was occasioned to the victim;

3.

the applicant’s attempts to carry out his intended actions were less determined than in other examples of this offence; and

4.

other matters bore on the assessment of the seriousness of the offence.

Decision and Reasoning: This ground of appeal was dismissed. Garling J held (Gleeson JA and Johnson J agreeing) that the finding of the sentencing judge that this offence was in the mid-range was, if anything, unduly favourable to the applicant. This was a sustained attempt to set the complainant alight after the applicant had doused her in petrol. The only impediment to his success was the repeated intervention of the teenage men (See [96]-[100] and [3]).

Johnson J made some additional observations at [5]-[8]. His Honour cited with approval Spigelman CJ’s observations regarding apprehended domestic violence orders in John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101 at [20]:

‘The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law’.

His Honour further noted that the applicant was a repeat domestic violence offender. Accordingly, in sentencing for these offences, it was appropriate to have in mind the statement of the Court in R v Hamid [2006] NSWCCA 302 (20 September 2006) at [86]:

‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’.

Finally, Johnson J stated:

‘Where a court has made an apprehended domestic violence order to protect a person, and then further orders are made by way of conditional liberty for criminal offences arising from breaches of that order, the commission of another offence, in breach of that conditional liberty, will constitute significant aggravating circumstances: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. This is especially so where the offence against the protected person is of the very grave character of the s 47 offence in this case, with the offence being committed so soon after the applicant had been given the benefit of conditional liberty by order of the District Court’.

Note: Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced on 25 September 2018 imposing additional requirements in sentencing for domestic violence offences in NSW.

Ahmu v The Queen; DPP v Ahmu [2014] NSWCCA 312 (15 December 2014) – New South Wales Court of Criminal Appeal

‘Crown appeal against sentence’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Indecent assault’ – ‘Offender often believes violence is justified’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Protection of the community’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Vindication of the victim’ – ‘Women’

Charge/s: Rape x 15, indecent assault x 2.

Appeal Type: Appeal against conviction and Crown appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship and had a two year old son at the time of the offences. At trial, it was alleged by the prosecution that the appellant was sexually predatory, violent and abusive in his relationship with the complainant and that he was a child molester with a sexual interest in children, including his two year old son. The complainant obtained an apprehended violence order against the applicant in 2009 but the relationship resumed in 2010 because she was concerned about the appellant having unsupervised access with the child. The rape and indecent assault offences occurred throughout one night in 2010, in the presence of their two year old son. The complainant, who was pregnant at the time, pleaded with the appellant to stop, but the appellant threatened to kill her and continued regardless. A number of the sexual acts were accompanied by humiliating and degrading conduct. The appellant was sentenced to seven years imprisonment, with a non-parole period of four years.

Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.

Decision and Reasoning: The appeal against conviction was dismissed but the Crown appeal against sentence was allowed. The overall sentence demonstrated that the sentencing judge either misapprehended the significance of the standard non-parole period or underestimated the objective seriousness of the offences. Here, the gross, repeated attacks on the complainant occurred over an extended period and were committed by the appellant who understood what he was doing despite his (limited) mental issues and possible intoxication. This, combined with deliberate additional humiliation and a callous indifference to the presence of their son, meant that the objective seriousness of the offence fell within the middle of the range and brought the standard non-parole period into sharp focus as a yardstick: Muldrock v The Queen (See [78]-[79]).

Even in light of the residual discretion of the Court to decline to interfere with the sentence, re-sentencing the appellant to nine years and six months imprisonment with a non-parole period of six years and six months was appropriate in the interests of justice. As per Adams J at [83]:

‘In considering the exercise of the residual discretion, it is appropriate in my view to bear in mind - in terms not usually used but implicit in sentencing for offences such as the present - the need to do justice to the victim, so appallingly dealt with, whose vindication is part of the function of the administration of criminal justice. This applies with particular force in cases of so-called domestic violence, where there seems to often be present in offenders a degree of self-justification as if, in some way, the victim (to use the vernacular) had it coming. I do not say that this was specifically the offender's state of mind in the present case but the facts strongly suggest that he thought he had some kind of right to do what he did. This aspect of domestic violence emphasises the importance, to my mind, of general deterrence, as well as the protection of the community, especially women, who are far too often the victims of this attitude. These considerations also underline the importance of denunciation’.

Pasoski v The Queen [2014] NSWCCA 309 (15 December 2014) – New South Wales Court of Criminal Appeal

‘Admissibility’ – ‘Assault occasioning actual bodily harm’ – ‘Context evidence’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Sexual assault’ – ‘Tendency evidence’

Charges: Assault occasioning bodily harm x 2, sexual assault x 5.

Appeal type: Application for leave to appeal against conviction and sentence.

Facts: The applicant and complainant lived together with their daughters and were in a relationship since 2003. In November 2010, the applicant physically assaulted the complainant in their home on two occasions, by kicking her in the legs, and slapping her face, causing her to fall (see [13]). The sexual assault charges were alleged to have occurred on one night, where the applicant had vaginal penile intercourse five times without her consent (see [13]).

At a voir dire during trial, the applicant’s trial counsel successfully objected to the admission of other evidence of previous penile vaginal penetration without consent (see [27]). That evidence was not admitted because the trial judge found that the ‘evidence is more in the nature of tendency evidence than contextual evidence’ (see [31]). However, evidence of the applicant’s controlling behaviour was admitted, and was relied upon at trial (see [12]).

In summing up, the trial judge gave directions as to the use of the evidence of controlling behaviour, stating that ‘the Crown relies upon this evidence only for one purpose… to put the complainant's allegations concerning the offences in November 2010 into a realistic context’ (see [42]). Her Honour also stated: ‘if that evidence was not there, you would be asking yourselves, well, why would the accused throw his weight around in this horrible manner with the complainant completely out of the blue, when they had been in an apparently normal relationship for the previous six years?’ (see [42]).

Issues: Two of the grounds of appeal concerned ‘context evidence’ (see [6], [44]):

1.

‘A miscarriage of justice was occasioned by the admission of the so-called context evidence’ because it was not relevant and was prejudicial, and

2.

The trial judge erred by failing to identify the precise issues to which the evidence was directed.

Decision and Reasoning: Leave to appeal was refused on both the ‘context evidence’ grounds.

In relation to the first ground, Meagher JA referred to the use of context evidence as being admissible if it is used to ‘remove implausibility that might attach to a complainant’s account of what otherwise would be seen as isolated incidents’ (see [24]). His Honour referred to HML v The Queen [2008] HCA 16; 235 CLR 334 [6] to observe that ‘by doing so, it bears upon the assessment of the probability of the existence of facts directly in issue (Evidence Act 1995 (NSW), s 55) … Similar observations were made in Roach v The Queen [2011] HCA 12; 242 CLR 610 at [42] and BBH v The Queen [2012] HCA 9; 245 CLR 499 at [146]-[150].’

Meagher JA held that the evidence was properly admitted (see [45]). His Honour found that from the conduct of the trial, ‘it was apparent that the Crown was relying upon it only as showing that the relationship was an unhappy one from the complainant's perspective so as to make more plausible her evidence that she did not consent to having sexual intercourse with the applicant on the five occasions in question’ (see [33]). Furthermore, the fact that trial counsel had not objected to the evidence at the voir dire, despite having objected to the evidence of the other sexual assaults on the grounds that it might invite propensity reasoning, indicated that ‘the parties and the Court were conscious that evidence tendered to explain the context in which the alleged offences occurred might, depending on its content, be relied on or used for a tendency purpose’ (see [30]).

In relation to the second ground, regarding the directions given by the trial judge to the jury, Meagher JA held that the directions did not give rise to a real risk that the jury might employ propensity reasoning, and thus did not occasion a miscarriage of justice (see [49]). His Honour found that the direction regarding the applicant ‘throwing his weight around’ did verge on an invitation to the jury to employ propensity reasoning (see [47]). However, his Honour held that, assessed in context, the other directions made clear to the jury that the evidence of controlling behaviour was not being relied upon to suggest a ‘propensity of the applicant physically or sexually to impose his will on the complainant’ (see [48]).

The other issues concerned two failures of the trial judge. First, the trial judge failed to properly comply with s 55F(2)(b) of the Jury Act 1977 (NSW), and therefore two counts of sexual assault were quashed (see [8]-[11]). Second, the trial judge erred in taking into account as an aggravating factor in sentencing that the offences were committed in the complainant's home: EK v R [2010] NSWCCA 199; 79 NSWLR 740 at [79] (see [54]). Accordingly, the aggregate sentence of imprisonment was reduced from five years and six months with a non-parole period of two years and nine months to four years and eleven months with a non-parole period of two years and five and a half months.

Monteiro v The Queen [2014] NSWCCA 277 (26 November 2014) – New South Wales Court of Criminal Appeal

‘Aggravated rape’ – ‘Deterrence’ – ‘Emotional abuse’ – ‘Physical violence and harm’ – ‘Relevance of a prior relationship’ – ‘Sentencing’

Charge/s: Aggravated rape namely, immediately before sexual intercourse the appellant inflicted actual bodily harm.

Appeal Type: Appeal against sentence.

Facts: The male appellant was physically and verbally abusive towards the female complainant throughout their relationship. At the time of the offence, the relationship had ended and the appellant started yelling at the complainant that they should resume this relationship. He slapped the complainant in the face and proceeded to have sexual intercourse with her without her consent. The appellant was sentenced to 11 years imprisonment with a non-parole period of six years and six months for the principal offence of aggravated rape.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The manifest excess argument was dismissed. Counsel for the appellant submitted that the prior relationship between the appellant and the complainant was a factor that should have mitigated the sentence imposed. Bellew J noted that while the existence of a relationship between offender and victim can be a relevant consideration in determining the objective seriousness of sexual offending, each case must turn on its own facts. Here, the relationship was over and it therefore followed that the existence of a prior relationship was not a factor that warranted mitigation of sentence. In particular, this was not a case where the complainant had invited the appellant to engage in sexual intercourse with her or had indicated that she was prepared to do so (cf NM v R [2012] NSWCCA 215 and Norman v R [2012] NSWCCA 230.) His Honour continued at [131]-[132]:

‘What remains important is that even though the relationship had ended, the offending occurred in what might be loosely described as a domestic setting. In R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41]:

"As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267and Powell [2000] NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

These principles were confirmed, after a review of the relevant authorities, by Johnson J (with whom Hunt AJA and Latham J agreed) in R v Hamid [2006] NSWCCA 302at [65] and following. Leaving aside the question of general deterrence, the observations of Wood CJ at CL are directly apposite to the present case’.

R v Eckermann [2013] NSWCCA 188 (15 August 2013) – New South Wales Court of Criminal Appeal

‘Aggravated break and enter and commit serious indictable offence’ – ‘Damaging property’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Sentencing’ – ‘Suspended sentences’ – ‘Where the offender is known to the victim’

Charge/s: Aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm).

Appeal Type: Crown appeal against sentence.

Facts: After being in a domestic relationship for nine years and having two children together, the respondent and the complainant separated due to domestic violence perpetrated by the respondent. The complainant was asleep when she was woken by the respondent breaking into the property. He was shouting and looking for the complainant’s new partner. This woke and scared the children. He started throttling the complainant and then punched her in the face. The complainant managed to call the police. In sentencing, the judge characterised the offending as being towards the lower end of the spectrum. This was in light of a number of factors including that the respondent was not a stranger to the complainant (and therefore the offence would have been less frightening than a home invasion by a stranger) and that the respondent’s primary motivation was to protect his children from danger from the complainant’s new partner. The respondent was sentenced to two years imprisonment, suspended conditional upon entering into a good behaviour bond.

Issue/s: Some of the grounds of appeal were –

1.

The sentencing judge erred in characterising the objective seriousness of the offending as being ‘towards the lower end of the spectrum’.

2.

The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to imprisonment with a non-parole period of 14 months and a balance term of 10 months. First, Price J held that the sentencing judge erred in characterising the objective seriousness of the offence as at the lower end. Home invasion offences do not become less serious by virtue of a prior domestic relationship between an offender and the victim. Rather, the objective gravity of the crime is to be assessed on the facts of the case and here it was not open to the sentencing judge to conclude that the offence would have been less frightening than a home invasion by a stranger (See [35]-[36]). Further, very little weight could be given to the respondent’s motivation to protect his children. His actions terrified the complainant and the children. The offending was aggravated by the fact that it was committed in the presence of the children (See [37]-[45]). Accordingly, the offending was towards the middle of the range for such offences (See [46]).

Second, notwithstanding the respondent’s subjective circumstances including his love for his children, his employment, and good prospects of rehabilitation, a suspended sentence was manifestly inadequate. As per Price J at [54]-[55]:

‘This was a serious offence of violence by the respondent. When women (and men) enter into a new domestic relationship, they are entitled to do so without the threat of violence from a former partner. This is particularly so when there are children of the prior relationship as acts of violence towards a parent particularly when committed in the children's presence have the potential to impact severely upon their well-being and future development.

This Court has emphasised the seriousness with which violent attacks in domestic settings must be treated: Hiron v R [2007] NSWCCA 336.Specific and general deterrence, denunciation of the offending conduct and the protection of the community are important factors in sentencing a domestic violence offender: R v Dunn [2004] NSWCCA 41; R v Edigarov [2001] NSWCCA 436; R v Hamid [2006] NSWCCA 302.In my view, the respondent's subjective circumstances could not justify the suspension of the sentence. A full-time sentence of imprisonment was called for’.

McLaughlin v R [2013] NSWCCA 152 (3 July 2013) – New South Wales Court of Criminal Appeal

‘Assault occasioning actual bodily harm’ – ‘Common assault’ – ‘Exposing children’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Protection orders’

Charge/s: Assault occasioning actual bodily harm x 2, common assault.

Appeal Type: Appeal against sentence.

Facts: The female complainant and her young son moved from Tasmania to Victoria to live with the male applicant, her then de facto partner. At the time of offence, the complainant was vulnerable and isolated in that she was unemployed, cut off from friends and family, and suffered from a physical disability to her leg. Count 1 occurred when the applicant and complainant were arguing and the applicant dragged her off the bed, causing her to hit her jaw and bite her lip. Count 2 occurred when the applicant and complainant were again arguing and the applicant hit her to the side of her head near her eye. Count 3 occurred when they were arguing about an apprehended violence order (AVO) that had been made for the protection of the complainant and, as the complainant walked into her son’s room, the applicant grabbed her by the hair and throat. The applicant was sentenced to a total head sentence of two years and four months imprisonment with a non-parole period of four months.

Issue/s:

1.

The sentencing judge erred when she found that the offences were aggravated by the fact that they took place in the generalised presence of a child under the age of 18 years.

2.

The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Error was demonstrated with ground one of the appeal. While there was evidence for Count 3 on which it might have been open to the sentencing judge to find that the child must have realised what was happening (even though he did not see the events), Her Honour did not make such a finding. Accordingly, the sentencing judge erred in taking into account that the offence was committed in the presence of the child (See [31]). Further, for Counts 1 and 2 there was no direct evidence of the presence of a child (See [32]). However, Button J declined to intervene with the sentence on appeal (See [54]-[55]).

The second ground of appeal was dismissed. At [48]-[49] Button J noted that:

‘The approach of this Court to men who assault vulnerable women is well established and need not be elaborated upon by me: see R v Edigarov [2001] NSWCCA 436, R v Dunn [2004] NSWCCA 41, and R v Hamid [2006] NSWCCA 302’.

‘If an offender sees fit repeatedly to visit violence upon a woman in breach of a bond and an apprehended violence order imposed months before with regard to the same behaviour and the same victim, he should expect to be imprisoned, and not for an insubstantial period’.

R v Cortese [2013] NSWCCA 148 (26 June 2013) – New South Wales Court of Criminal Appeal

‘Indecent assault’ – ‘Mitigating factors’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Indecent assault, rape.

Appeal Type: Crown appeal against sentence.

Facts: The female victim told the male respondent that she wanted to end their relationship. They argued, during which the respondent tried to make sexual advances towards the victim, including trying to kiss her and rubbing her vagina. Despite protestations from the victim, the respondent stayed over the night. The next morning the respondent forced himself on top of the victim, forced at least two fingers into her vagina, and then forced his penis into her vagina and had penile/vaginal intercourse with the victim without her consent. The respondent was sentenced to a good behaviour bond for twelve months for the indecent assault and two years imprisonment, wholly suspended, for the rape offence. In assessing the seriousness of the offending, the sentencing judge stated that the ‘prior sexual relationship [between the respondent and the victim] is an important mitigating factor’ and held the offending was at the bottom of the range (See [36]-[39]).

Issue/s: One of the grounds of appeal was that the sentencing judge erred in her assessment of the objective seriousness of each offence.

Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to three years imprisonment with a non-parole period of 18 months. The sentencing judge erred in her characterisation of the seriousness of the offending. In reaching this conclusion, Beech-Jones J stated at [55] that:

‘…cases confirm that the mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality involved. Needless to say, each case will depend upon facts, but one common circumstance in which a pre-existing relationship has been found to diminish the seriousness of the offence is where it suggests some prevarication or at least initial consent on the part of the victim. Thus, if sexual contact is initiated by the victim or initially consented to by the victim, then the ensuing offence may be considered less serious’: See NM v R [2012] NSWCCA 215; Bellchambers v R [2011] NSWCCA 131; R v Hendricks [2011] NSWCCA 203; Stewart v R [2012] NSWCCA 183.

Here, the pre-existing relationship had no relevance as the victim repeatedly expressed her lack of consent (See [55]). Following from this, it was clear that the sentencing judge’s assessment of the culpability of the respondent was clearly erroneous. This was a case involving the rape of a young woman which occurred in the context of threats of violence, as well as aggressive and humiliating language. It came after she was detained overnight. The offending would likely fall below the mid-range of offences of this character but was not ‘bottom of the range’ (See [56]-[58]).

ZZ v The Queen [2013] NSWCCA 83 (19 April 2013) – New South Wales Court of Criminal Appeal

‘Aggravated rape’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Aggravated rape (recklessly inflicting actual bodily harm), rape.

Appeal Type: Appeal against sentence.

Facts: The sexual offences were committed in the context of a sexual relationship between the male applicant and the female complainant. The applicant and complainant had been drinking, taking drugs and engaging in consensual sexual relations. The applicant then asked the complainant to drink his urine and, after urging the uncertain complainant to try it, the applicant urinated into her mouth. The complainant, gagging and nearly vomiting, tried to pull away but the applicant forced her head back towards his penis (count 1 — rape). After further sexual activity, the complainant became increasingly distressed and uncomfortable. She attempted to leave but was pushed into the bathroom wall by the applicant. He penetrated her anus with his penis so forcefully that she smashed her head against the tiles and suffered a deep four-centimetre laceration to her forehead. He continued penetrating her and smashed her head against the wall again (count 2 — aggravated rape). The applicant was sentenced to a total effective sentence of nine years and six months with a non-parole period of seven years.

Issue/s: Some of the grounds of appeal were that –

1.

The sentencing judge erred in the assessment of the objective seriousness of count 1.

2.

The sentencing judge erred in the way the applicable standard non-parole periods in respect of the sexual assault offences were taken into account.

Decision and Reasoning: The appeal was allowed. First, while the sentencing judge accepted the offence as ‘being in the mid range of seriousness’, His Honour later incorrectly referred to count 1 as ‘being at the top of the mid range’ and erroneously sentenced the applicant on this basis. Second, the standard non-parole period played a greater role in the sentencing judge’s decision than as a guidepost, to be taken into account with other factors on sentence, contrary to the principle articulated in Muldrock v The Queen.

In re-sentencing the applicant, Johnson J took into account the objective gravity of the applicant’s offences, his subjective circumstances and other aspects bearing upon the question of sentence, including the maximum penalty and the standard non-parole period for counts 1 and 2. Johnson J noted that the objective gravity of the applicant’s offences needed to be assessed in the context of the relationship between the applicant and the victim. It was true that the complainant was not sexually assaulted by a stranger, where, if she had been, a further element of fear and terror would have been expected. However, the fact that the victim knew the offender and trusted him provided her with ‘little comfort’ here (See [103]). In a case such as this, involving significant violence and infliction of injury, the context of this relationship offered no real assistance to the offender on sentence (See [107]).

Norman v The Queen [2012] NSWCCA 230 (9 November 2012) – New South Wales Court of Criminal Appeal

‘Evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’

Charge/s: Rape x 3.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: During the course of the complainant’s 13 year marriage to the appellant, the complainant and the appellant had anal intercourse five times but only twice with her consent. At trial, the Crown sought to tender evidence of non-sexual domestic violence (see [22]). They argued that the evidence was not being admitted as evidence indicating a propensity on the part of the appellant which rendered it more likely that he had committed the crimes with which he was charged (therefore ss 97 and 101 of the Evidence Act and the test in Pfennig v R [1995] HCA 7; 182 CLR 461 did not apply). The trial judge accepted this argument and ruled that evidence of non-sexual domestic violence could be admitted for the purpose of showing the relationship between the appellant and the complainant. The appellant was found guilty.

Issue/s: One of the grounds of appeal was that 'relationship' evidence should not have been admitted.

Decision and Reasoning: The appeal was dismissed. MacFarlane J noted the relevant law, stating that: ‘As pointed out in Roach v R [2011] HCA 12; 242 CLR 610, evidence which incidentally shows propensity but which is otherwise relevant will not be excluded provided that the jury is properly warned against its use as propensity evidence (see also BBH v R [2012] HCA 9at [146]- [149])’.

Relationship evidence may be relevant if it assists in the evaluation of other evidence such as that of a complainant. His Honour continued at [26]: ‘In other words, relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context’.

However, the Courts have emphasised that it is necessary to consider carefully the basis upon which ‘relationship’ evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG v R [2010] NSWCCA 173 at [36] - [37]) (at [29]).

Here, MacFarlane J held that evidence of two isolated incidents of non-sexual domestic violence was irrelevant and should have been excluded. While the Crown submitted that the evidence was relevant to demonstrate ‘the nature of the relationship,’ MacFarlane J noted:

‘[C]onsistently with the approach taken by this Court in Qualtieriand DJV, it is insufficient to rely solely upon such a proposition. Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJVper McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed’.

The evidence was also not relevant to demonstrate why the alleged sexual assaults were not reported earlier, and nor could it be said that the evidence would have assisted the jury, in any permissible way, in evaluating the complainant’s evidence (see [32]-[34]).

Therefore, His Honour concluded at [35]-[36]:

‘[E]vidence of the two isolated incidents of non-sexual domestic violence was not necessary to place the sexual assaults within a meaningful context… [I]t is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning that the appellant was the type of man who might have sexual intercourse with a woman without her consent. Whilst the trial judge directed the jury not to reason in that way, there was unfairness to the appellant in the evidence being before the jury when it was not relevant on any basis’.

Despite this, on the facts, there was no substantial miscarriage of justice. The Crown case against the appellant was so overwhelming there was no significant possibility that a jury would have acquitted the appellant (See [38]).

Stewart v The Queen [2012] NSWCCA 183 (29 August 2012) – New South Wales Court of Criminal Appeal

‘Dominance’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Psychological consequences’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Victim impact statements’

Charge/s: Rape.

Appeal Type: Appeal against sentence.

Facts: The male applicant and female complainant had been in a somewhat disrupted and non-continuous relationship for some years. On the day of the offence, the complainant informed the applicant that their relationship was over and she was communicating with other men on Facebook. Jealous, the applicant smashed the complainant’s mobile phone. Later that evening, the intoxicated applicant lay on top of the complainant and, while she was struggling, placed his fingers into her vagina for about 30 seconds. The applicant was sentenced to five years and six months imprisonment, with a non-parole period of two years and eight months. In his remarks, the sentencing judge noted that:

‘I just want to make it clear, as I have to do unfortunately in cases of this nature, as far as I am concerned, cases of sexual assault have significant effects on the victim. There are two particular ways, they result in significant distrust as far as the victim is concerned in forming relationships, particularly with males if the assailant was a male. The other very broad area that is affected is the confidence or self-confidence of the victim is significantly damaged, they have concerns about their own self-worth, sometimes that is demonstrated by self-harm but there are other ways in which it is demonstrated. There is no satisfactory material yet available to indicate how long those matters may last, I always proceed on the basis that they will continue to be present for a very long time’ at [58].

Issue/s: Some of the grounds of appeal included –

1.

The sentencing judge erred in his consideration of the impact of the offence on the victim.

2.

The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The first ground of appeal was dismissed. It would have been preferable for the sentencing judge not to state that he ‘always’ proceeded on the basis that the psychological effects of sexual assaults would last for a long time. This ground of appeal may have had some force if there had been evidence that the complainant had not suffered psychological injury. However, here, the victim impact statement contained clear evidence of the significant psychological injuries the complainant had suffered (See [62]-[64]).

The second ground of appeal was also dismissed. This was a serious example of an offence against the section. Button J noted at [69] that:

‘The matter can be sharply contrasted with a case where two persons are engaged in intimate contact by consent, and one of them fleetingly goes too far. The digital penetration in this case was not fleeting, and it was preceded by a physical assault upon the victim. Throughout the sexual offence the victim was making her lack of consent abundantly clear and struggling to put an end to the invasion of her body. Most importantly, His Honour found that the offence was an attempt to demonstrate dominance over a young woman who was in truth free to engage in Facebook contact, or any other kind of contact, with whomever she wished. An offence of sexual penetration that is motivated by a desire to dominate the victim, because he or she has failed to comply with the expectations of the offender, will very rarely be anything other than a serious offence’.

Further, while this was a stern sentence in light of the applicant’s subjective circumstances, it was not manifestly excessive (See [71]).

Bellchambers v The Queen [2011] NSWCCA 131 (10 June 2011) – New South Wales Court of Criminal Appeal

‘Mitigating factors’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape x 4.

Appeal Type: Appeal against sentence.

Facts: The female complainant and the male applicant were in a relationship. Counts 1 and 2 took place after the complainant refused to have sex with the applicant but he had sexual intercourse with her regardless. The complainant reported these incidents to her general practitioner and the applicant was charged. Despite these charges, a sexual relationship continued between the applicant and the complainant. Counts 3 and 4 took place again after the complainant said she did not want to have sexual intercourse with the applicant. The applicant was sentenced to ten years imprisonment with a non-parole period of seven years.

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge erred by failing to impose a non-parole period for the first two counts.

•

The sentencing judge failed to determine the objective seriousness of the offences.

•

The sentencing judge did not properly assess the totality of the criminal offending by determining the individual sentences and then assessing the totality but rather did the reverse.

•

The sentence was manifestly excessive.

Decision and Reasoning: The sentencing judge’s decision was replete with errors and the appeal was allowed. First, the sentencing judge failed to set a non-parole period for the first two counts (See [30]-[31]). Second, the sentencing judge erred by stating that the objective seriousness of the offences were ‘at least’ in the mid-range of gravity. The sentencing judge must make apparent and define the extent to which the offence is above the mid-range (See [32]-[36]). Third, the sentencing judge did not follow the approach set out in R v Pearce.

Finally, the sentence was manifestly excessive. The sentencing judge failed to fix individual sentences and review these provisional sentences to ensure they were appropriate for the offences at hand. Further, the sentencing judge erred in his characterisation of the objective seriousness of the offences. While the offences were serious, they occurred in the context of a domestic relationship ‘which involved considerable ambivalence on the part of the complainant’ (See [47]). The sentencing judge also failed to review the subjective circumstances of the applicant. The applicant was resentenced to seven years imprisonment with a non-parole period of five years.

Sudath v The Queen [2008] NSWCCA 207 (9 September 2008) – New South Wales Court of Criminal Appeal

‘Assault’ – ‘Evidence issues’ – ‘Evidence via cctv’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, assault.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The male appellant had become violent and abusive towards the female complainant throughout their relationship. On the night of the offences, the complainant was breast feeding their child when the appellant started pulling up her night dress. The complainant said no. She then put her son down and tried to get something from under the bed. While she was kneeling, the appellant forced his penis into her anus. She screamed no but the appellant continued. The next day the appellant yelled at the complainant and physically assaulted her. The appellant was sentenced to three years and six months imprisonment with an aggregate balance of term of two years.

Issue/s: One of the grounds of appeal was that the trial judge erred in law by holding that he was ‘satisfied’ within the meaning of s 294B(6) of the Criminal Procedure Act 1986 that the complainant was “entitled” to give her evidence pursuant to the provisions of s 294B(3) of the Act.

Decision and Reasoning: The appeal was dismissed. The trial judge was correct in ruling that evidence could be given by alternative means. For complaints in sexual offence proceedings, it is generally not a sufficient reason to deny the use of CCTV or other technology merely because the jury might form the impression that the accused is/was violent. As per McClellan CJ at [29]:

‘The submission which the appellant made could of course be made in any case where there is an allegation of sexual intercourse without consent in a relationship of ongoing violence. There are many cases of this character. It was because of the personal trauma likely to be experienced by a complainant when giving evidence that s 294B was enacted. If the submission was accepted a substantial purpose of the legislative provision would be defeated. It may be that in an unusual case a submission in these terms may be accepted by a trial judge. However, the discretion is to be exercised in the individual circumstances of each case’.

Raczkowski v The Queen [2008] NSWCCA 152 (4 July 2008) – New South Wales Court of Criminal Appeal

‘Attempted rape’ – ‘Breach of apprehended domestic violence order’ – ‘Detain with intent to obtain advantage occasioning actual bodily harm’ – ‘Indecent assault’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Relevance of a prior relationship’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Using a prohibited pistol without a licence or permit’

Charge/s: Using a prohibited pistol without a licence or permit, detain with intent to obtain advantage occasioning actual bodily harm, attempted rape, indecent assault, breach of apprehended domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The complainant was the applicant’s wife of over 40 years. Their relationship had deteriorated and an apprehended domestic violence order (ADVO) had been issued for the protection of the complainant. The applicant breached this order on a number of occasions and was charged. He was bailed on conditions which included that he not approach or contact the complainant. However, again, the applicant breached these conditions. He wrote to the complainant. Further, one night the applicant, who was intoxicated, entered the property of the complainant without her consent and engaged in serious misconduct throughout the night including physically assaulting the complainant, typing her up, attempting to rape her, pulling out a pistol and threatening the complainant with it, and sexual assaults.

Issue/s:

•

The sentencing judge gave insufficient weight to the fact that the applicant was suffering from severe depression at the time of the offences.

•

The sentence was manifestly excessive in light of the applicant’s depression and that they occurred in the context of a domestic relationship.

Decision and Reasoning: These grounds of appeal were dismissed but the appeal was allowed on other grounds. First, the sentencing judge was not obliged to find that the applicant’s judgment was impaired by his illness. To the extent that the depression may have contributed to the applicant’s poor judgement, its significance was diminished by the applicant’s voluntary consumption of large amounts of alcohol. Additionally, there was evidence of advance planning by the applicant. In these circumstances, specific and general deterrence were particularly important. This approach of the sentencing judge was amply endorsed by authority, particularly when offences have been committed in a domestic context: R v Hamid and when such offences occur in breach of extant restraining orders such as an ADVO: Hiron v The Queen(See [33]-[37]).

Second, the sentence could not be said to be manifestly excessive. The relevance of depression was considered in the above ground of appeal. Additionally, in terms of the relevance of a (broken down) domestic relationship, as per Grove J at [46]:

‘That a violent and pre planned attack occurred in what might be classified as a domestic setting is not a matter of mitigation. This Court has repeatedly stressed that it is a circumstance of significant seriousness: R v Edigarov; R v Dunn; and R v Burton’.

Here, the applicant detained and abused his wife verbally, physically and sexually. He did so in defiance of the conditions imposed by the ADVO and by bail. The production and use of the pistol, particularly where the applicant was ingesting significance quantities of alcohol, magnified the fear in the complainant (See [47]).

Jeffries v The Queen [2008] NSWCCA 144 (26 June 2008) – New South Wales Court of Criminal Appeal

‘Aggravated kidnapping’ – ‘Aggravating factor’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Detain for advantage and cause actual bodily harm, detain for advantage.

Appeal Type: Appeal against sentence.

Facts: The victim of the aggravated kidnapping was the male applicant’s domestic partner (AW) and the victim of the kidnapping offence was AW’s 15 year old daughter, KW. The relationship between the applicant and AW had been marked by incidents of physical violence. At the time of the offence, AW had obtained an apprehended domestic violence order (ADVO) against the applicant. The applicant physically assaulted and verbally abused AW and KW, including partially ripping AW’s tongue. There was a knock on the door during the incident and someone called out, ‘It’s the police’. The applicant told AW and KW not to say anything. AW and KW were unable to leave the house that night. The applicant was sentenced to seven years and six months imprisonment.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The sentence was not manifestly excessive in light of the objective seriousness of the offences and the absence of any subjective factors operating in the applicant’s favour (at [99]). The offences involved the protracted detention of AW and KW for the advantage of fending off police intervention with respect to the applicant’s violence against both victims. They were committed in the context of the applicant’s controlling and violent relationship with the victim, and he inflicted actual bodily harm of a serious (and bizarre) type on AW. Great fear was instilled in both victims (See [90]).

Significant aggravating factors existed on the facts namely, that the offences were committed whilst the Applicant was on bail for an offence of violence committed against AW and was subject to an apprehended domestic violence order intended to control his conduct towards his domestic partner. These were flagrant violations of both forms of conditional liberty intended to protect AW (See [91]). It was also a significant aggravating factor that the offender’s ‘recidivist conduct demonstrated a propensity to act violently towards his partners’ (See [92]).

R v Burton [2008] NSWCCA 128 (20 June 2008) – New South Wales Court of Criminal Appeal

‘Assault occasioning bodily harm’ – ‘Common assault’ – ‘Community protection’ – ‘Denunciation’ – ‘Detain for advantage’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Influencing witness’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Relevance of victim's expression of forgiveness’ – ‘Victim contribution’ – ‘Victim's wishes’

Charge/s: Common assault x 3, assault occasioning actual bodily harm x 2, detain for advantage, influencing witness.

Appeal Type: Crown appeal against sentence.

Facts: The respondent was released on parole as part of a sentence of imprisonment for break, enter and steal. He subsequently commenced a relationship with the female complainant, who was eight years older than him, and moved into her home with her two children. The respondent committed a series of offences against the complainant involving violent assaults and threats, including an offence of influencing a witness by convincing the complainant to withdraw the charges against him. The total effective sentence included a non-parole period of one year and nine months with a balance of term of one year. The sentencing judge backdated sentences for Counts 1, 2 and 3 so that they operated concurrently with the balance of parole. Even at sentence, the victim provided a measure of support to the respondent.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. The sentences imposed failed to reflect the objective seriousness of the offences and were so inadequate as to be plainly unjust. Several aspects of the sentence imposed supported this conclusion. First, the approach of making the sentences concurrent meant that no effective sentence was imposed for three separate and serious offences of violence (See [92]-[93]). Second, the sentence for the detain for advantage offence did not reflect its objective seriousness, which was aggravated by the use of a knife. It was committed in the context of a ‘controlling and violent relationship’, extended over some hours, and involved actual threats of violence towards the victim (See [94]-[95]). It was additionally noted at [97] domestic violence offences involve the exercise of ‘power, dominance and control’ over the victim.

Third, the use of a bond for the offence of influencing a witness diluted significantly, and erroneously, the objective criminality in this case and a custodial sentence should have instead been imposed. Johnson J then made some observations regarding the role of victim’s attitude towards the respondent in sentencing, noting that it ought to play ‘no part on sentence’ at [102]. His Honour quoted (at [104]) the remarks of Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) which deal directly with this issue:

‘There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.’

Fourth, the sentencing judge’s remarks made no reference to specific deterrence, general deterrence nor the need for denunciation of the respondent’s conduct (See [106]-[107]). Finally, the final count of assault was a significant and unusual feature, committed after the respondent had been in custody for over two months. It was a further incident of control or dominance by the respondent over the victim, this time in a prison setting (See [108]-[110]).

In resentencing, the Court emphasised the importance of general and personal deterrence, denunciation and community protection, and noted that the offending took different forms and occurred at different times against the same victim and often in the presence of his children. The respondent had a substantial criminal history and showed little prospects for rehabilitation. The total effective sentenced was increased to four years and six months, with a non-parole period of three years (See [115]-[130]).

Shaw v The Queen [2008] NSWCCA 58 (14 March 2008) – New South Wales Court of Criminal Appeal

‘Aggravated break and enter (with actual bodily harm)’ – ‘Damaging property’ – ‘Denunciation’ – ‘General deterrence’ – ‘Malicious damage’ – ‘Offender character references’ – ‘Relevance of victim's expression of forgiveness’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Victim contribution’ – ‘Victim's wishes’

Charge/s: Aggravated break and enter with actual bodily harm, malicious damage to property.

Appeal Type: Appeal against sentence.

Facts: The male applicant and the female complainant had been in a domestic relationship for approximately five years and lived together with their three children. Following a domestic dispute, the complainant went with the three children to stay at a friend’s place. Over the next five days, the applicant made a number of threats to the complainant’s physical safety by telephone before he, intoxicated, broke into the friend’s place. He demanded to see his son before grabbing the complainant by her hair and striking her a number of times. The applicant had a long criminal history of offending in the domestic context and while those incidents did not involve actual violence, they evidenced a propensity to harassment in domestic situations and a failure to manage his anger. The complainant submitted a statutory declaration taking some responsibility for what she considered to be her part in provoking the applicant to act as he did. The applicant pleaded guilty and was sentenced to six years imprisonment, with a non-parole period of four years.

Issue/s: Whether the sentence was disproportionate to the gravity of the offending.

Decision and Reasoning: The appeal was allowed. Fullerton J found that the fact the offence was a domestic violence offence and that the victim was in a vulnerable position, did not elevate the offending to an ‘objectively high’ level. (See at [36]). The offending was not planned or premeditated, and the applicant did not arm himself with a weapon to inflict injury. As such, the offending was better characterised as in the middle of the range. In relation to the victim’s strong expression of support for the applicant, His Honour acknowledged the caution that must be exercised in attaching weight to such sentiments. In R v Glen [1994] NSWCCA 1 (19 December 1994) Simpson J said:

‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind [general evidence of forgiveness and desire that the assailant/ partner not be imprisoned] in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.

There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases…’

Notwithstanding this, Fullerton J was persuaded to give the victim’s support significant weight in this case. The victim’s view that the offending was ‘totally out of character’ was also supported in evidence from the applicant’s work supervisor. The sentence was reduced accordingly (See at [48]).

Kennedy v The Queen [2008] NSWCCA 21 (22 February 2008) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Grievous bodily harm with intent’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Grievous bodily harm with intent.

Appeal Type: Appeal against sentence.

Facts: The male Aboriginal applicant had been in a de facto relationship with the female Aboriginal victim of the assault. Their relationship had been volatile and the police had taken out an interim apprehended violence order (AVO) on behalf of the victim. Three weeks prior to the offence, the victim had ended the relationship and taken the applicant’s medication for schizophrenia with her in her handbag. The applicant began experiencing auditory hallucinations and attacked the victim. She suffered severe physical injuries including facial fractures, fractures to her nasal bones and fractures of the mandible.

At sentence, the applicant explained that he did not obtain replacement medicine because there was no doctor and he did not want to leave his sick father. Nevertheless, the sentencing judge found that the applicant’s state of mind was induced by his failure to take his medication, such that his psychological status was of his own default. The applicant was sentenced to a term of imprisonment consisting of a non-parole period of four years, with a balance of term of three years.

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge erred in finding that the applicant’s psychological status was his own fault.

•

The sentencing judge erred in his assessment that the offence was in the ‘upper level of seriousness’.

•

The sentencing judge failed to appropriately take into account the applicant’s mental disorder when imposing sentence.

Decision and Reasoning: The appeal was allowed. First, the sentencing judge failed to give reasons for his finding that the applicant’s psychological status was his own fault. In particular, the sentencing judge failed to examine the circumstances which led to the applicant ceasing to take his medication. Such failure means that the sentencing judge could not arrived at such a conclusion beyond reasonable doubt (See [25]-[27]). Second, the sentencing judge erred in determining the objective seriousness of the offence by only having regard to the physical aspects of the assault and failing to consider the applicant’s psychological condition (See [38]-[40]). Third, the sentencing judge failed to take into account the applicant’s mental disorder as being relevant to the applicant’s moral culpability (See [46]-[49]). Relevant to domestic violence, an aggravating factor of this offending was that at the time of the offence, the applicant was subject to an AVO, taken out to protect the victim (at [8]).

Hiron v The Queen [2007] NSWCCA 336 (7 December 2007) – New South Wales Court of Criminal Appeal

‘Assault occasioning actual bodily harm’ – ‘Denunciation’ – ‘Deterrence’ – ‘False imprisonment’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Protection of the community’ – ‘Sentencing’

Charge/s: Assault occasioning actual bodily harm x 4, false imprisonment, resist arrest x 2.

Appeal Type: Appeal against sentence.

Facts: The female victim of the assaults and false imprisonment was the applicant’s de facto partner, who was pregnant at the time. The applicant was sentenced to a total effective sentence of imprisonment comprising of a non-parole period of four years with a balance of term of two years.

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge erred in not having proper regard to the totality principle.

•

The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Price J noted at [32] that:

‘Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see for example R v Edigarov; R v Dunn; and R v Hamid’.

Price J then quoted from Wood CJ in Edigarov at [41] where it was said that:

‘…such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’

Here, the sentence could not be said to be manifestly excessive or that the sentencing judge erred in his application of the totality principle. Each of the four offences of assault occasioning actual bodily harm involved separate episodes of violence towards the victim. After each occasion, the applicant had the opportunity to stop. The false imprisonment was serious and distressing to the victim. Some offences involved the use of a weapon and the offences involved gratuitous cruelty. The offences were committed while the applicant was on conditional liberty. The offender abused a position of trust, as the partner of the victim and the father of their children. The victim was vulnerable in that she was a pregnant female of much smaller build than the applicant (See [34]-[39]).

Vragovic v The Queen [2007] NSWCCA 46 (27 February 2007) – New South Wales Court of Criminal Appeal

‘Characterisation of seriousness’ – ‘Deterrence’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Sentencing’ – ‘Women’

Charge/s: Grievous bodily harm with intent.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The male applicant and the female victim had been married for some years before they divorced in mid-2003. The victim then commenced a relationship with another man and an apprehended domestic violence order was obtained protecting both the victim and her new partner. One evening, the victim was at home alone speaking on the telephone when the line went dead. The applicant then broke into the house and beat her with a piece of exhaust pipe and a shortened firearm. The applicant was sentenced to 12 years imprisonment, with a non-parole period of 8 years. This sentence was partially accumulated upon an earlier imposed sentence for grievous bodily harm with intent against the victim’s new partner. Accordingly, the effective overall sentence for both offences was 14 years imprisonment, with a non-parole period of 10 years.

Issue/s: One of the grounds of appeal was that the sentencing judge erred in his description that the offence ‘must be near the top of the range of seriousness’.

Decision and Reasoning: The appeal was dismissed. Adams J stated at [33]:

‘It was once thought in some circles that domestic violence was somehow less serious than criminal violence inflicted in other circumstances. I do not agree. In many cases of domestic violence a distinguishing characteristic is the notion of the offender that he (and it is almost invariably a male) is entitled to act as he did pursuant to some perverted view of the rights of a male over a female with whom he is or was intimately connected. It is this characteristic of self-justification which requires particular emphasis to be given, in cases of this kind, to the elements of general and personal deterrence. In this case, the appellant had already been arrested for another extremely vicious attack on [his ex-wife’s new partner] for motives which were plainly related to those for which he attacked his ex-wife. The notion that this was some kind of temporary aberration is, I think, disproved by this concatenation of events. There was no a sudden loss of control arising out of circumstances beyond his capacity to deal with. It was a cold, calculating and brutal attack upon a helpless woman at night in her own home’.

Here, the characterisation of the offence by the sentencing judge as ‘near the top of the range of seriousness’ related not to the actual physical injuries or to the overall seriousness of the offence but to the circumstances in which the injuries were inflicted. This characterisation was correct (See [34]).

Walker v The Queen [2006] NSWCCA 347 (1 November 2006) – New South Wales Court of Criminal Appeal

‘Attempted wounding with intent to cause grievous bodily harm’ – ‘Distress at the breakdown of a relationship is no excuse for violence’ – ‘Objective seriousness’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Attempted wounding with intent to cause grievous bodily harm.

Appeal Type: Appeal against sentence.

Facts: The offence arose out of the breakdown of the fifteen year marriage between the applicant and the victim. The victim told the applicant that she was seeing another man and that their marriage was over. Some days later, the applicant beat the victim and attacked her with a 32 cm long kitchen knife. The applicant was sentenced to a head sentence of three years with a non-parole period of eighteen months.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The sentencing judge correctly characterised the objective criminality of the offending as very serious. The sentencing judge emphasised, as many on the bench had done so previously, that however sad and distressing a matrimonial breakdown might be, violence of any kind is not to be accepted as a more or less natural incident of such a breakdown (See [7]). The sentencing judge further gave appropriate weight to the relevant subjective matters (See [8]-[9]).

R v Hamid [2006] NSWCCA 302 (20 September 2006) – New South Wales Court of Criminal Appeal

‘Assault occasioning bodily harm’ – ‘Coercive control’ – ‘Denunciation’ – ‘General deterrence’ – ‘Multiple victims’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Repeat domestic violence offenders’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Vulnerability of the victim’ – ‘Wounding’

Charge/s: Assault x 2, assault occasioning actual bodily harm x 5, detaining without consent and with intent to obtain an advantage (to avoid detection for assaulting her), malicious wounding.

Appeal Type: Crown appeal against sentence.

Facts: The total effective sentence included a non-parole period of two years and six months, with the balance of the term lasting two years. The offending involved prolonged and serious violence committed against three women with whom the respondent was either married or in a relationship over an eight year period.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. Johnson J at [65] - [88] provided a very useful summary of the relevant principles, particularly of relevant Court of Criminal Appeal authority. This authority has placed great emphasis on general deterrence, due to the prevalence of domestic violence, as well as the vulnerability of victims and breaches of trust involved. Specific deterrence and denunciation is also important.

Johnson J also quoted Wood CJ in R v Edigarov [2001] NSWCCA 436 who stated –

‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’

Her Honour went on at [77] –

‘These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pp 6-7.

Her Honour then commented specifically on the relevant considerations when sentencing — ‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’ at [86].

‘This is not to say that promotion of rehabilitation of the offender is not an important factor. It remains necessary to provide individualised justice in the circumstances of the particular sentencing decision. Nevertheless, the factors to which reference has been made above assume particular significance in the case of a domestic violence offender who has committed a series of offences over an extended period of time against different victims’ at [88].

While the respondent did have a mental illness, Her Honour found that it was not such as to reduce his moral culpability, or reduce the need for general deterrence, as he was aware of the gravity of the offending. In applying these principles to the facts, Johnson J found that the sentences imposed at trial were manifestly inadequate and did not reflect the ‘objective criminality’ that was involved. The respondent showed minimal remorse, was seeking to ‘justify his crimes’ and had a criminal record of assaults and breaches of apprehended domestic violence orders. The respondent was re-sentenced accordingly (See at [152]).

R v Kershaw [2005] NSWCCA 56 (1 March 2005) – New South Wales Court of Criminal Appeal

‘Breach of apprehended violence order’ – ‘Rape’ – ‘Relevance of victim's expression of forgiveness’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Victim's wishes’

Charge/s: Rape, breach of an apprehended violence order.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant had been married for 16 years and lived with their eight year old daughter. They had been arguing when the applicant pushed the complainant forcefully. She rang the police and obtained an apprehended violence order (AVO) restraining intimidating conduct and restraining the applicant from being at their premises under the influence of alcohol, liquor or drugs. The applicant arrived back at their premises and complained about the AVO. He then stripped naked. The complainant told the applicant that she was not willing to have sex with him and was not going to change her mind about the AVO. He then raped the complainant. The applicant pleaded guilty and was sentenced to 5 years imprisonment, with a non-parole period of two and a half years. A 10 percent reduction in sentence was made to take into account this guilty plea.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The Court held that the discount for the guilty plea was appropriate, was not ‘meagre’ and was actually quite significant. Further, the applicant contended that the trial judge erred by taking a ‘harsh view’ in finding that the applicant and the complainant continuing their relationship is an issue with regards to the applicant’s rehabilitation. The complainant maintained a ‘favourable’ view of the applicant and the relationship (See at [21]). Bryson JA held that the complainant’s ‘forgiving and optimistic attitude’ should not play a large part in the sentencing decision. The trial judge was correct to conclude that the fact that the offence was committed against his wife was an aggravating factor. As per the trial judge, at [24] ‘The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence’.

The trial judge’s view that the gravity of the offence was severe was correct. Other aggravating factors included his previous conviction for assaulting his wife, the fact that offence was committed after ongoing supervision and a good behaviour bond was completed, and it was in breach of an AVO. This justified a correspondingly high sentence.

R v Dunn [2004] NSWCCA 41 (23 February 2004) – New South Wales Court of Criminal Appeal

‘Assault occasioning actual bodily harm’ – ‘Breach of an apprehended violence order’ – ‘Break and entering a dwelling armed with an offensive weapon’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Purposes of sentencing’ – ‘Sentencing’

Charge/s: Breaking and entering a dwelling armed with an offensive weapon, assault occasioning actual bodily harm, breach of an apprehended domestic violence order.

Appeal Type: Crown appeal against sentence.

Facts: The de facto relationship between the male respondent and the female complainant had ended in mid-2000. In 2001, the respondent was convicted of assault occasioning actual bodily harm and placed on a bond for two years. Six months later, the poorly disguised respondent crashed his car into the complainant’s car, which she was driving with her two children. The respondent then tried to force the complainant out of her car and punched her in the nose, eye and head. In 2002, the respondent broke into the complainant’s house and attacked her with a Stanley knife. The complainant’s new partner intervened. The respondent was sentenced to three years and nine months imprisonment with a non-parole period of one year and nine months.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. Adams J stated at [47]:

‘Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind’.

He found that the sentencing judge did not give adequate weight to the need for deterrence and denunciation. Further, the extent of injury committed by the offender is an important factor in assessing the appropriate measure of punishment and the sentence here did not adequately reflect the pain and suffering the respondent caused. Finally, the sentencing judge erred in imposing wholly concurrent sentences because there were two distinct and separate instances of violence against the complainant and her new partner. The respondent was re-sentenced to four years and six months imprisonment.

R v O’Brien [2003] NSWCCA 121 (6 May 2003) – New South Wales Court of Criminal Appeal

‘Battered woman syndrome’ – ‘Defences’ – ‘Expert evidence’ – ‘Forensic psychiatrist’s evidence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Where the victim is an offender’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The appellant was found guilty of the manslaughter of her daughter, who died of malnutrition at the age of 14 months. The appellant refused to take the child to the hospital, against the advice of medical practitioners and friends. In a record of interview, the appellant said that she did not take the deceased to the hospital because her husband believed that children should not be infused with fluids or have any artificial substances injected into their bodies. At trial, the appellant gave evidence that her husband was controlling, verbally abusive and violent, and she was afraid to contravene his wishes. Defence counsel also called evidence from a forensic psychiatrist, Dr Nielssen. Dr Nielssen did not find that the appellant suffered from any kind of psychiatric disorder but that her situation fitted ‘battered wife syndrome’. As a result of this, the appellant accepted the decisions made by her husband, despite having reservations about them (See [31]). The appellant was sentenced to five years imprisonment with a non-parole period of two years.

Issue/s: Some of the grounds of appeal included –

•

The trial judge erred in summarising Dr Nielssen’s evidence altogether, as it related to the defence of duress. Rather, His Honour ought to have summarised the parts of Dr Nielssen’s evidence that were relevant to the subjective test, and then after describing the objective test, directed the jury’s attention to those parts of Dr Nielssen’s evidence that were relevant to that test and how a hypothetical person in the same circumstances, i.e. a battered wife, would have acted as to withdrawing from the relationship etc.

•

The trial judge’s summing-up on the evidence of battered wives syndrome from Dr Nielssen was inadequate.

Decision and Reasoning: The appeal was dismissed. First, as per Durford J at [43], ‘although it is undoubtedly the duty of a trial judge in summing up to relate the different pieces of evidence to the different issues in the trial: R v Zorad (1990) 19 NSWLR 91 at 105, this was a "single issue" trial and that single issue was duress. The evidence of Dr Nielssen about the battered wife syndrome was relevant to both the subjective and objective tests and there was no need to divide it up in a way which had not been suggested by either counsel in their addresses: Osland v The Queen [1998] HCA 75at [59]-[60]’.

Second, a trial judge is not required to read or summarise the whole of the relevant evidence to the jury which has already been heard from witnesses, but merely to present a balanced summary of the salient parts which is fair to both sides. The evidence of Dr Nielssen was sufficiently and fairly summarised by the trial judge. Some of the questions and answers not repeated in the summing-up were merely elaboration of general propositions of the doctor which had been summarised, and one answer in particular which it was claimed should not have been omitted had been substantially paraphrased by the appellant's trial counsel in his final address (See [47]-[48]).

R v Palu [2002] NSWCCA 381 (17 September 2002) – New South Wales Court of Criminal Appeal

‘Malicious grievous bodily harm’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Relevance of the attitude of the victim’ – ‘Sentencing’ – ‘Victim contribution’

Charge/s: Maliciously inflicting grievous bodily harm.

Appeal Type: Crown appeal against sentence.

Facts: The male respondent and the male victim were drinking partners and got into a fight. The victim suffered a skull fracture. The sentencing judge adjourned proceedings and granted bail to the respondent on certain conditions, under s 11 of the Crimes (Sentencing Procedure) Act

Issue/s: In light of the seriousness of the offence and because it was inevitable that a full-time custodial sentence had to be imposed, it was outside the exercise of His Honour’s discretion to make an order adjourning proceedings.

Decision and Reasoning: The appeal was allowed. This was not a case involving domestic violence but Howie J’s comments regarding the relevance of a victim’s attitude to sentence have been cited in subsequent domestic violence cases. Here, the sentencing judge was unduly influenced by the fact that the victim and the respondent were still friends. At [37] His Honour provided:

‘The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen [1994] NSWCCA 1 (19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim’.

Howie J also noted that a sentencing judge should only give very limited weight to statements made by an offender to a psychiatrist or psychologist reproduced in reports, including expressions of remorse (See [39]-[41]).

Note: Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced on 25 September 2018 imposing additional requirements in sentencing for domestic violence offences in NSW.

R v Quach [2002] NSWCCA 173 (15 May 2002) – New South Wales Court of Criminal Appeal

‘Contrition’ – ‘Forgiveness by the victim’ – ‘Good character’ – ‘Grievous bodily harm with intent to murder’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim contribution’

Charge/s: Grievous bodily harm with intent to murder.

Appeal Type: Appeal against sentence.

Facts: The applicant began to suspect that his wife, the victim, was having an affair (an allegation without basis). One morning, while the children were at school, the victim was lying in bed and was struck several times, mainly on the head, with a bottle wielded by the applicant. The applicant said to the victim that he wanted to kill her because she did not respect him. He then tied the victim up and gagged her whilst continuing to threaten to kill her and then himself. The victim was not released until her children returned home from school and the victim lost a lot of blood. The applicant was sentenced to nine years imprisonment with a non-parole period of five years. In imposing this sentence, the sentencing judge made reference to the former good character of the accused and stated:

‘We must all accept the fact that differences in marriages do occur and it is expected that people will try and resolve any differences without violence. However to go to the stage of wanting to end the marriage by killing someone is quite unacceptable of course and quite frightening to the wider community. There can be no mitigating factors in such an act with that intention. We do accept the realities of marriages breaking up and people separating but we can never accept or tolerate any person killing someone as the solution. And so it is difficult with reference to a person being a man of good character up until now. It is difficult to know what relevance that has where a person has considered the final solution’ at [16].

The fact is that at the start of the assault that morning the prisoner did state and evidence an intention to kill. Such an expression and intention must immediately negate any consideration of mitigating factors because of good character, then to extend the trauma and terror of the assault all day until the late afternoon takes the actions of the prisoner into a further level of callousness’ at [17].

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge did not take into account the previous good character of the applicant when fixing the sentence.

•

The sentencing judge failed to consider the contrition of the applicant.

Decision and Reasoning: The appeal was dismissed. First, O’Keefe J noted that there is nothing wrong with a judge discussing the weight which should be given to the previous good character of an offender. While the sentencing judge’s remarks at [16] were unexceptional, the sentencing judge erred at [17] when he completely excluded the applicant’s previous good character as a mitigating factor and therefore did not take it into consideration in mitigation of the penalty (see [19]). However, the sentence imposed by the judge and the non-parole period were very lenient given the objective gravity of the offence and taking into account the subjective features of the applicant, and a lesser sentence would not have been appropriate in the circumstances. This ground of appeal was therefore dismissed.

Second, on the facts, it was arguable that the applicant showed contrition and further, the absence of an affirmative finding in relation to contrition by the sentencing judge was not to be regarded as a matter overlooked by His Honour (See [27]). Additionally, O’Keefe J commented on forgiveness of the victim at [28] and stated:

‘The fact that he expressed contrition to his wife and that she said that she forgave him did not detract from the duty of the judge to impose a proper sentence. Her views in relation to the contrition of the Applicant, as opposed to what he said to her, do not seem to have been tested. Furthermore, even the stated acceptance by the victim of her acceptance of her attacker's contrition does not bind the court, nor does it detract from the need to give proper weight to the principle of general deterrence, R v Kanj [2000] NSWCCA 408, a principle that is important in cases of domestic violence (R v Green [2001] NSWCCA 258; R v Glen [1994] [1994] NSWCCA 1). Furthermore, the fact that a victim may forgive her attacker is not determinative. Indeed, its weight in relation to general deterrence will be a variable depending on the offence and the circumstances. It is a matter for judgment by the sentencing judge’.

R v Edigarov [2001] NSWCCA 436 (5 October 2001) – New South Wales Court of Criminal Appeal

‘Assault police officer occasioning actual bodily harm’ – ‘Common assault’ – ‘Deterrence’ – ‘Double jeopardy in sentencing’ – ‘Exposing children’ – ‘Kidnapping’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Common assault, assault police officer occasioning actual bodily harm, kidnapping.

Appeal Type: Crown appeal against sentence.

Facts: On 3 August 1999, the respondent assaulted his wife (the victim) in the presence of their three year old daughter by pushing her against a refrigerator, pursuing her into the bedroom and pushing her to the floor. After throwing and kicking items, he left the unit and the victim went to a friend’s unit for safety. The respondent arrived there an hour later and threatened to kill her if she did not return home. Police were called and the respondent assaulted these officers. The respondent was released on bail and became subject to an apprehended domestic violence order. On 7 October 2000, the respondent kidnapped the victim while she was walking along the street with her daughter. He drove her to his parents’ home and repeatedly punched and kicked her. The victim managed to escape and called the police. The sentencing judge imposed the following sentences:

•

Common assault: six months imprisonment.

•

Assault police officer occasioning actual bodily harm: 18 months imprisonment, suspended upon the condition that he enter into a good behaviour bond.

•

Kidnapping: two years imprisonment with a non-parole period of six months and 12 days.

In imposing the sentence for kidnapping, His Honour found that there were special circumstances in that all of the offences of the respondent were ‘by-products of (his) anger and frustration and disappointment at the failure of (his) marriage and at the imposition of the apprehended violence order against (him)’.

Issue/s: One of the grounds of appeal was that the sentencing judge failed to give sufficient weight to the objective seriousness of the combination of the offences involved.

Decision and Reasoning: The appeal was allowed. Wood CJ held that the sentence imposed failed to give sufficient weight to the objective seriousness of the offences and too much significance was attached to the emotional reaction of the respondent to being thwarted in the marriage, a circumstance that provided no excuse whatsoever for his behaviour (See [39], [52]). In relation to the assault of his wife, Wood CJ found that the offence involved the sustained use of physical violence causing fear in the presence of an equally terrified child. It could not be characterised as a momentary or uncharacteristic loss of self-control, as the aggression continued into the evening. Further, at [41]:

‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.

Additionally, the kidnapping offence involved sustained violence by the respondent who caused substantial injury to his wife and again threatened to kill her. It was again committed in the presence of their young daughter and caused significant fear. Further, the sentencing judge failed to reflect three aggravating factors in the sentence namely, this was not an isolated act of violence, and the offence was committed while the offender was on bail and while the offender was subject to an apprehended violence order in relation to the same victim (See [47]-[51]). In re-sentencing the respondent, the court took into account the principle of double jeopardy (See [55]-[65]).

R v MacAdam-Kellie [2001] NSWCCA 170 (9 May 2001) – New South Wales Court of Criminal Appeal

‘Aggravating factor’ – ‘Attempted murder’ – ‘Breach of an apprehended domestic violence order’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Attempted murder.

Appeal Type: Appeal against sentence.

Facts: The applicant and the victim had been married for 21 years before the victim left the family home and obtained an apprehended violence order. On the day of the offence, the victim was arriving at the Family Court accompanied by their four year old son when the applicant approached her and produced a knife, approximately 30 cm in length with a serrated edge blade. The victim fled but was chased by the applicant and almost fatally stabbed in the arm, back and stomach. The applicant was sentenced to 16 years imprisonment, with a non-parole period of 12 years. A psychiatric report tendered from Dr Nielssen diagnosed the applicant as suffering from a major depressive illness and a personality disorder.

Issue/s: One of the grounds of appeal was that the sentencing judge erred in failing to accept the findings of Dr Nielssen and in concluding that there was no evidence which established a link between the major depressive illness the applicant was suffering and the commission of the offence (See [51]).

Decision and Reasoning: The appeal was allowed. In light of the opinion of Dr Nielssen and fresh evidence adduced, there was a link between the illness suffered by the applicant and the offence (See [58]). James J also noted that the sentencing judge’s conclusions regarding the severity of the attack (particularly in light of the apprehended violence order) were entirely open to him. The attack was very severe and showed a degree of viciousness. The offence was committed in breach of an apprehended domestic violence order and this was a significant aggravating factor (See [37]-[38]).

R v Grech [1999] NSWCCA 268 (6 September 1999) – New South Wales Court of Criminal Appeal

‘Deterrence’ – ‘People with disability and impairment’ – ‘Person in authority having sexual intercourse with person with intellectual disability’ – ‘Position of trust’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Person in authority having sexual intercourse with a person with intellectual disability x 2.

Appeal Type: Appeal against sentence.

Facts: The male complainant, who had an intellectual disability, lived in a group home where the male applicant worked as a team leader. They formed a sexual relationship. The complainant gave evidence at trial that the sexual contact commenced when he turned 18 and that they loved each other. The applicant was found guilty after a trial of two counts of a person in authority having sexual intercourse with a person who has an intellectual disability under Crimes Act 1900 (NSW) s 66F. The applicant was sentenced to a minimum term of three years imprisonment with an additional term of two years imprisonment.

Issue/s: The sentencing judge failed to adequately take into account the evidence of the nature of the relationship between the applicant and the complainant together with the lack of evidence of psychological or other injury suffered by the complainant and his borderline degree of intellectual disability.

Decision and Reasoning: The appeal was dismissed. Carruthers AJ held that even if one were to accept that there was a genuine mutual loving relationship on the facts (of which there was some doubt), this did not reduce the criminality of the applicant as assessed by the trial judge. His Honour noted that the legislature did not encumber s 66F(2) with qualifications and it was clearly intended to prohibit absolutely, persons with authority (as defined) having sexual intercourse with intellectually disabled persons over whom they have authority (See [32]). Deterrence looms large for offences under s 66F(2) as ‘it is the mark of a civilised society that those who are incapable fully of protecting their own interests, should be protected from exploitation by those in whom society vests the responsibility of caring for them. Carers who breach this trust must expect condign punishment’ (See [37]). The seriousness of the offence was explained by Carruthers AJ at [33]-[34]:

‘strong emotional relationships are quite capable of developing between carer and intellectually disabled person, whether they are of the same gender or not. It is essential, therefore, that persons in authority exercise the utmost care to avoid such situations developing, and immediately there are indications of such a situation arising, the obligation is on the person in authority to remove himself or herself from the relationship or, at the very least, immediately to seek expert counselling.

‘Neither of these courses was adopted in the subject case and, intolerably, the relationship developed into one of a continuing and prolonged violation of the provisions of s 66F(2). The applicant knew not only that he was in breach of his position of trust, but that he was in breach of the criminal law, and he was also aware that the complainant had previously been the victim of sexual exploitation and as a consequence a prior carer was serving a lengthy custodial sentence. The fact that the relationship may have developed, as the applicant contends, into a mutual loving relationship could fairly be described as an aggravating feature of the case rather than a mitigating factor’.

R v Kotevski [1998] NSWCCA 1 (3 April 1998) – New South Wales Court of Criminal Appeal

‘Malicious wounding with intent to cause grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sentencing judge should not enter into a determination of the merits of matrimonial disputes’

Charge/s: Malicious wounding with intent to cause grievous bodily harm.

Appeal Type: Appeal against sentence.

Facts: The victim was the applicant’s estranged wife. Despite living apart and having commenced Family Court proceedings, they continued to work together in a takeaway food business. One day at work, they were arguing and the applicant ‘snapped’. He repeatedly stabbed the victim with a scraper and a trowel before picking up a long bladed knife and lunging at the victim. Someone heard the victim’s screams and managed to intervene. The applicant was sentenced to three years imprisonment with a minimum term of two years and three months.

Issue/s: Some of the grounds of appeal included –

1.

Whether the sentencing judge erred in not taking into account, or in not sufficiently taking into account, the belief by the applicant that he had been unfairly treated by his wife and the applicant's consequential feelings of anger and frustration.

2.

Whether the sentencing judge erred in declining to enter into a determination of the merits of the matrimonial disputes between the applicant and his wife.

Decision and Reasoning: The appeal was dismissed by James J (Simpson J agreeing). First, the sentencing judge did not proceed on the basis that the applicant’s belief and feelings about his wife were irrelevant in the sentencing of the applicant. On the contrary, the sentencing judge appropriately took into account these feelings expressly when he noted that the attack by the applicant on his wife was not pre-meditated and that the applicant while subject to stress had ‘snapped’ and had ‘on the spur of the moment’ engaged in a ‘heated’ attack. His Honour was not required to take the applicant’s belief and feelings about his wife any further into account (10-11). Second, the sentencing judge was justified in adopting the position that he would not enter into a determination of the merits of the matrimonial disputes (i.e. who was right and who was wrong) and this was irrelevant to sentencing, except insofar as determining the attack was not pre-meditated (11-14).

R v O’Grady [1997] NSWCCA 1 (13 May 1997) – New South Wales Court of Criminal Appeal

‘Aggravated sexual intercourse without consent’ – ‘Character’ – ‘Denunciation’ – ‘Detention against will with intent to carnally know the victim’ – ‘Deterrence’ – ‘Factors not mitigating at sentence’ – ‘Public confidence in the criminal system’ – ‘Relevance of a prior relationship’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Women’

Charge/s: Aggravated sexual intercourse without consent, detention against will with intent to carnally know the victim.

Appeal Type: Crown appeal against sentence.

Facts: The female victim and the male respondent had previously been in a consenting sexual relationship but at the time of the offence the relationship had ended and they were merely seeing each other as friends. The respondent asked the victim for another chance at the relationship but the victim refused. He then threatened the victim with a knife and tied her up. The respondent fondled the victim and had penile intercourse with her without her consent. The respondent was sentenced to three years imprisonment, to be served by way of periodic detention for the aggravated sexual intercourse without consent and deferred sentence for the detention offence on the condition that the respondent enter into a recognisance to be of good behaviour for a period of five years. In imposing this sentence, the judge found that these offences were ‘foreign’ to the respondent’s normal character, had their roots in compulsive gambling, and were an ‘aberration committed by a young man who loved a young girl’.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. Sully J held that while there was sufficient evidence to support a finding that the offences were ‘foreign’ to the respondent’s normal character, the offending did not have its roots in ‘compulsive gambling’ and nor could the objective seriousness of the offences be broken down as being no more than ‘an aberration committed by a young man who loved a young girl’. These were extremely serious offences which resulted from the breakdown of the relationship between respondent and the victim and the victim’s rejection of the respondent’s request to resume the relationship (See 8). As per Sully J at p. 9 that where a relationship breaks down:

‘ the woman who is involved in the relationship is entitled to feel that, whatever other consequences ensue, her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of those with which we are now called upon to deal’.

In sum, the sentences imposed were manifestly inadequate. They were wholly inadequate to denounce the violent rape, at knife point, of a defenceless young woman in what ought to have been the safety and security of her own home. They were wholly inadequate to properly denounce the victim’s violent and prolonged detention for that purpose. They were also wholly inadequate to deter both the respondent and other young men from similar behaviour. Further, very importantly, the sentences imposed were hopelessly inadequate to ensure that there is maintained public respect for and confidence in current standards of criminal justice (See 11). The respondent was resentenced to five years imprisonment for the sexual intercourse with consent offence with a minimum term of three years and three years imprisonment on the detention offence.

R v Rowe [1996] NSWCCA 1 (3 October 1996) – New South Wales Court of Criminal Appeal

‘Deterrence’ – ‘Family hardship’ – ‘Kidnapping’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of victim's wishes’ – ‘Sentencing’ – ‘Victim contribution’

Charge/s: Kidnapping, rape.

Appeal Type: Appeal against sentence.

Facts: The male applicant and the female complainant lived in an ‘off and on’ de facto relationship over a period of five years and had two children together. Immediately prior to the offences, the relationship had broken down again. The applicant became jealous because he believed the complainant was seeing a new man. He then forced the complainant into his car, drove her to his premises, threatened to kill her family and this new man, and proceeded to have sexual intercourse with her without consent. He was sentenced to seven years imprisonment, with an effective minimum term of four years. The complainant wrote to the sentencing judge stating that she had resumed a relationship with the applicant, she did not want him to go to prison (particularly because of the trauma that would result to their children), and she had forgiven the applicant.

Issue/s: Some of the grounds of appeal included –

1.

The sentencing judge gave insufficient weight to his subjective features including his age, background, disrupted and violent upbringing, education and employment.

2.

The sentencing judge gave insufficient weight to the wishes of the complainant

Decision and Reasoning: The appeal was dismissed. First, the sentencing judge did not err when he rejected the claim that these subjective circumstances had a relationship to the commission of these offences and therefore ought to have mitigated the sentence (See 472). Second, Hunt CJ dismissed the contention that the sentencing judge ought to have given greater weight to the wishes of the complainant. As at 472-473:

‘This Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Glen, Simpson J pointed out that, whilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

‘This Court has also said more than once that the hardship upon the family of an offender will not be relevant in mitigation unless it goes beyond that which inevitably results in any case of incarceration and unless it is sufficiently extreme as to demand that the judge draw back. That has not been established in this case. It may be ironic, as has been suggested, that the victim and her children are going to suffer the punishment imposed upon the offender, but the fact remains that the law requires such a punishment to be imposed’.

R v Glen [1994] NSWCCA 1 (19 December 1994) – New South Wales Court of Criminal Appeal

‘Deterrence’ – ‘Physical violence and harm’ – ‘Relevance of victim’s forgiveness’ – ‘Sentencing’ – ‘Sexual intercourse with consent’ – ‘Victim contribution’

Charge/s: Sexual intercourse without consent.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The male appellant and the female victim had been in an intermittent relationship for two years and had a daughter together. The appellant had sexual intercourse with the victim without her consent in the front yard of his premises. At the time of offence, he was upset about his possible denial of access to his daughter.

Issue/s:

1.

The appellant did not appreciate when he pleaded guilty that he was acknowledging the absence of consent of the victim to sexual intercourse.

2.

The admission of guilt involved in the plea should be regarded as tainted and not a free and voluntary confession.

3.

The sentencing judge fell into error by failing to give adequate weight to the lack of any relevant prior record, the emotional background to the incident - including the appellant’s fears concerning future contact with his daughter, the remorse expressed and the attitude of the complainant.

Decision and Reasoning: As per Grove J (Loveday AJ and Simpson J agreeing) the appeal against conviction and the appeal against sentence was dismissed. First, counsel for the appellant at trial obtained adequate written instructions prior to the arraignment that the appellant wished to plead guilty. These evidenced that the appellant knew the consequences of pleading guilty (See 5-6). Second, the terms of the written instructions, the evidence of the solicitor and the lack of credibility attaching to the appellant’s assertion combine to made this ground of appeal untenable (See 7). Finally, none of the above matters were overlooked by the sentencing judge and no error was accordingly demonstrated. In particular, the sentencing judge made express reference to the attitude of the complainant, which cannot govern the duty of the court when proceeding to sentence (See 8).

After agreeing with the reasons of Grove J, Simpson J made further comments on the relevance of the victim’s attitude of the offences to the sentence which should be imposed. Her Honour provided:

‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been be) could attain the victim's forgiveness.

There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.

The second reason of principle for treating with extreme caution the evidence of the forgiveness of the victim in the circumstances of this case is that the legislature has, since 1982, made clear its intention that special considerations apply to offences of domestic violence’.

Last updated: July 2024

New South Wales

Court of Criminal Appeal

R v VR [2024] NSWCCA 91 (7 June 2024) — New South Wales Court of Criminal Appeal

‘Appeal against sentence’ - ‘Manifestly inadequate’ - ‘Extensive history of domestic violence’ - ‘Coercive control’ - ‘Sexual and reproductive abuse’ - ‘Physical violence and harm’ - ‘Strangulation/choking’ - ‘Rape’ - ‘Economic and financial abuse’ - ‘jealousy’ - ‘intimate images’

Proceedings: Appeal against sentence.

Charges: Rape x 12; inciting the commission of an act of indecency x 1.

Facts: In June 2023, the male respondent was found guilty by a jury of offences committed over 17 years against three victims, two of whom were the respondent’s ex-wives and the other an intimate partner. The offending was extremely violent, characterised by a high degree of degradation and humiliation that was partly demonstrative of the respondent’s jealousy and coercive control. [9]–[34]

Grounds of Appeal: The prosecution appeal on the sole ground that the sentence was manifestly inadequate.

Decision and Reasoning: Appeal allowed. Sentence quashed. Respondent re-sentenced to an aggregate sentence of 14 years and 6 months’ imprisonment.

Hamill J (with whom Mitchelmore JA and Wright J agreed) emphasised that prosecution appeals against inadequate sentencing ‘should be rare’ and only upheld where there is an identifiable error. [63]–[64]

For Justice Hamill, the identifiable error was the unreasonable and manifestly inadequate sentence imposed by the sentencing judge. It fell below the level of sentence necessary to or capable of reflecting the objective gravity of the ‘particularly egregious facts of the case’: [72]

The sentence fails to vindicate the dignity of the three separate victims, or to reflect the grave objective seriousness of offences spanning over a period of 17 years, or to capture the overall criminality involved [73]

In determining sentence, Hamill J noted the respondent’s lack of remorse and insight into the harm he has perpetrated. [82]

Habambo v R [2023] NSWCCA 328 (15 December 2023) – New South Wales Court of Criminal Appeal

‘Appeal against conviction’ - ‘Appeal against sentence’ - ‘Manifestly excessive’ - ‘Factual error’ - ‘Physical violence and harm’ - ‘Intimidation’ - Strangulation/choking’ - Property Damage’ - ‘Evidence’ - ‘Admissibility’ - ‘Objective seriousness’ - ‘History of domestic and family violence’

Proceedings: Appeal against conviction and sentence.

Charges: 15x common assault, 15x intimidation, 1x assault occasioning actual bodily harm, 1x malicious damage, 2x intentionally choke with recklessness

Facts: The male applicant was convicted for 28 counts of domestic violence offences against his former wife (the complainant). The applicant’s conduct including strangling the complainant with a plastic bag [20], slapping her across the face [29], intimidation [40] and pushing the complainant while pregnant [55] on several distinct occasions across multiple years. The applicant was sentenced to a total aggregate sentence of 10 years imprisonment and a 2 year conditional release order. [2]–[3]

Grounds of Appeal: The applicant appealed his conviction and sentence on several grounds. With respect to conviction, the applicant appealed the admissibility of two forms of evidence (ie, a record of text messages and a record of WhatsApp messages). With respect to sentence, the applicant argued that the aggregate sentence was manifestly and that the sentencing judge erred in their determination of certain counts as serious offending.

Decision and Reasoning: Leave to appeal conviction refused and leave to appeal sentence granted and dismissed.

With respect to the conviction appeal, the Court (Ward P, Rothman J and Davies J) first regarded the text messages as both ‘admissible and relevant’. The messages were specifically relevant ‘to the circumstance where there was a dispute raised as to the complaint made by the complainant to the applicant’s sister, Ms Harb’. [222] These messages were not relied upon as opinion evidence, but rather to demonstrate Ms Harb’s credibility. [223] Accordingly, the admission of the text messages did not ‘cause manifest or unfair prejudice to the applicant’. [226]

Second, the Court held that the WhatsApp messages to equally be admissible. The Court dismissed the applicant’s argument that these messages were inadmissible: they formed a substantial component of the applicant’s evidence/cross-examination: ‘[I]t cannot be said that there was not a rational forensic decision open to defence counsel not to seek an earlier ruling as to the admissibility of the text messages; and complaint cannot now be made at the fact that defence counsel did not do so’. [296]

With respect to the sentencing appeal, the Court held first that the sentencing judge’s assessment of counts 3 and 11 (intimidation by strangulation/choking) as objectively high in gravity was appropriate. [322]; [324] In each instance, the applicant intimidated the complainant by effectively depriving her of oxygen, either manually (using his hands to cover her mouth and nose) or with a plastic bag. Accordingly, the behaviour ‘could be said to amount to suffocation’. [322]

Similarly, with respect to a count of common assault, the Court upheld the sentencing judge’s treatment of the conduct as falling at the ‘mid-range’ of objective seriousness:

The offence constituting count 34 was not the first time the applicant had assaulted the complainant. It was, in fact, part of the final episode of intimidation and violence inflicted upon the complainant by the applicant, following nine years of domestic violence. The fact that it occurred at the complainant’s home and in front of the children were both aggravating factors. The assault was far more serious than some of the previous assaults including the two others committed in this final episode. The assault involved the applicant jamming the complainant in the door, having just threatened to throw her off the balcony he was preventing her from leaving. The extent of the complainant’s distress from the episode including count 34 can be seen in the police BWV which was Exhibit P [334]

Lastly, the Court held that the aggregate sentence of 10 years, though ‘stern’, was not manifestly excessive:

The offending involved domestic violence over a nine year period. Two of the offences were suffocating or choking offences contrary to s 37 of the Crimes Act, 15 of the offences were intimidation offences contrary to the CDPV Act, two of which involved acts of suffocation, and a number of other offences of common assault. The applicant received a generous adjustment to the statutory ratio from 75% to 60%. The aggregate sentence is not plainly unjust [377]

Elwood v R [2023] NSWCCA 200 (17 August 2023) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Manifestly excessive’ – ‘Factual error’ – ‘Physical violence and harm’ – ‘Damaging property’ – ‘History of domestic and family violence’ – ‘Prevention order’ – ‘Exposing children to domestic and family violence’ – ‘threats to police’

Proceedings: Appeal against sentence.

Facts: The male applicant was sentenced to 5 years’ imprisonment for domestic and personal violence offences, property offences and offences against police. The applicant and the female complainant (the applicant’s estranged partner) were in a ‘volatile’ relationship over six years. [4] In December 2021, the applicant contravened a prevention order, recklessly wounding the complainant with a jagged edge of a broken bottle while intoxicated. The applicant threatened the complainant’s sister, doing so in the presence of his children. The applicant subsequently threatened police that arrived at the scene. [1]; [5]–[14]

Grounds of Appeal: The applicant appealed the sentence on the sole ground that the aggregate sentence imposed was manifestly excessive. [2]

Decision and Reasoning: Leave to appeal granted and appeal dismissed.

The Court (Adamson JA, Wright and Fagan JJ) acknowledged the ‘salient features’ of the case; notably, the ‘applicant’s past domestic violence against [the complainant]’, the ‘renewed violence of the applicant’ in the presence of children and towards both the complainant and her sister, the ‘wanton damage’ done to the complainant’s property and the violence towards the police. [19]–[24] In lieu of these features, the Court held the head sentence of 5 years was not manifestly excessive.

DS v R [2023] NSWCCA 151 (23 June 2023) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Manifestly excessive’ – ‘Factual error’ – ‘Physical violence and harm’ – ‘Damaging property’ – ‘History of domestic and family violence’ – ‘Prevention order’ – ‘Exposing children to domestic and family violence’ – ‘Animal abuse’ – ‘Sexual and reproductive abuse’ – ‘Rape’ – ‘motor vehicle’

Proceedings: Appeal against conviction.

Charges: 2x assault occasioning actual bodily harm, 2x use of an offensive weapon with intent to commit an assault, 1x aggravated sexual intercourse without consent, 1x attempted sexual intercourse without consent, 2x sexual intercourse without consent in circumstances of aggravation (recklessly inflict actual bodily harm), 1x sexual intercourse without consent

Facts: The male applicant was found guilty of domestic violence offences, committed against his female former partner (the complainant), and sentenced to 7 years and 6 months’ imprisonment. [4] The male applicant punched the complainant multiple times in the face, dragged her in front of a vehicle and started the engine, before dragging her to a dog kennel and having non-consensual sexual intercourse. Finally, the applicant dragged and assaulted the complainant while in the presence of children. [11]–[32]

Grounds of Appeal: The applicant appealed the sentence on two grounds, both of which turn on whether a miscarriage of justice was occasioned:

1.

Miscarriage of justice — error in refusing the application to severe counts 4 and 5 (aggravated sexual intercourse and attempted sexual intercourse without consent with the family dog’s penis) from the indictment prior to the commencement of a trial;

2.

Miscarriage of justice — error in refusing the application to discharge the jury once the Crown had elected to “no bill” count 5 [5]

Decision and Reasoning: Leave to appeal against conviction granted and appeal dismissed.

With respect to ground one, Yehia Y (with whom Beech-Jones CJ and Weinstein J agree) held that the refusal of the trial judge to sever the indictment or discharge the jury was neither an error or irregularity in the trial. The conduct informing counts 4 and 5 was bestiality. The applicant submitted that the evidence relating to these counts was so ‘depravingly different’ rendering their linkage to other counts on the indictment unfair. [70]–[71] Justice Yehia dismissed this ground, holding the ‘whole of the applicant’s alleged conduct’ to be ‘unpleasant and of a violent and humiliating character’ [89]:

I am not persuaded that the applicant has demonstrated error on the part of the trial judge in refusing to sever counts 4 and 5 on the indictment. The trial judge, when considering the application for severance, observed that there is always a consideration of some prejudice in a trial where there are a number of counts in the indictment. In determining whether the applicant would be prejudiced or embarrassed in his defence by reason of the evidence constituting counts 4 and 5, her Honour identified, correctly in my view, that the other allegations on the indictment were of an extremely violent nature [88]

With respect to ground two, Yehia J accepted the force of the applicant’s submission that ‘the jury should have been discharged after count 5 was no billed and in circumstances where only some of the evidence relating to the dog was to be relied on by the Crown to prove count 4’. [110] However, the verdicts of the jury demonstrated careful and conscientious consideration of the evidence such that there was clearly no prejudice against the applicant. [121] Accordingly, Yehia J held that the applicant ‘failed to demonstrate that a miscarriage of justice was occasioned either as a result of the refusal to sever counts 4 and 5 and/or as a result of the refusal to discharge the jury after count 5 was no billed’. [121]

Giacometti v R [2023] NSWCCA 150 (23 June 2023) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Assault occasioning actual bodily harm’ – ‘Inconsistent evidence’ – ‘Intentional choking without consent’ – ‘Manifestly excessive’ – ‘Moral culpability’ – ‘Paraphilic disorder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Psychiatric evidence’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Sexual assault’ – ‘Strangulation’ – ‘Subjective circumstances’ – ‘Wounding’

Charges: Sexual intercourse without consent x 1; Attempted sexual intercourse without consent x 1; Intentional choking so as to render unconscious x 2; Assault occasioning actual bodily harm x 2; Reckless wounding x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant was sentenced to 14 years imprisonment with a non-parole period of 9 years and 9 months, after entering a late plea of guilty to seven offences against his then female partner.

The sentencing judge found that the applicant’s personal history and mental health diagnoses cited in psychiatric reports were inconsistent. The sentencing judge was not satisfied of the accuracy or reliability of the history provided by the applicant and disregarded most of the applicant’s subjective circumstances [51].

Grounds:

1.

The sentencing judge erred in declining to consider evidence of his subjective circumstances; and

2.

The sentence was manifestly excessive.

Reasoning and decision: Hamil J (Mitchelmore JA and Davies agreeing) found error in ground 1 but dismissed the appeal.

Ground 1: The court held that the sentencing judge erred in declining to consider evidence of the applicant’s subjective circumstances. The sentencing judge was correct to find the applicant’s alcohol abuse did not explain his conduct [97] and the judge was entitled to be suspect in accepting the accuracy of his history [102].

However, the sentencing judge was not justified in rejecting almost all of the applicant’s subjective circumstances. The applicant was entitled to have his relative youth, lack of prior convictions, sexual abuse, neglect, and diagnosis of a paraphilic disorder considered. These factors were largely consistent and should not have been rejected [107].

Ground 2: This ground was rejected. The court held the applicant’s course of conduct represented sexual and violent offending of an extreme and depraved kind [111]. The applicant’s childhood experiences, and mental health conditions only had a modest impact on his moral culpability [119]. The Court found that the aggregate sentence and non-parole period would have been of at least the same magnitude as the sentence imposed in the District Court [139].

R v Sharrouf [2023] NSWCCA 137 (16 June 2023) – New South Wales Court of Criminal Appeal

‘Allegations of infidelity’ – ‘Assault’ – ‘Coercive control’ – ‘Financial abuse’ – ‘Jealousy’ – ‘Lack of planning and mitigation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Rape’ – ‘Spiritual abuse’ – ‘Strangulation’

Charges: Sexual assault without consent x 8; aggravated sexual intercourse without consent x 1; indecent assault x 1; attempted choke with intent to commit an indictable offence (intimidation) x 1; use offensive weapon with intent to commit an indictable offence x 2; assault occasioning actual bodily harm x 5; common assault x 6.

Proceedings: Crown appeal against sentence.

Facts: The respondent was sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 5 years after a judge alone trial after pleading not guilty to 40 offences and was found guilty of 24 charges. All offences were committed against his then-wife (they were “married” in an Islamic ceremony which was not officially recorded) between 2007-2008 shortly after their marriage. The victim made a statement to police in 2009 but did not proceed to make a formal statement until July 2019. Expert evidence was led of the respondent’s schizophrenia and melancholic depression. The respondent had been exposed to family violence as a child. The offending included multiple counts of penile-vaginal and penile-anal rape. The respondent demanded that the complainant behave in a manner contrary to her religious beliefs, he assaulted the complainant as punishment for “hiding” things from him or seeking advice in relation to his financially controlling behaviour, he punched the complainant to the face breaking her nose and rendering her unconscious and deliberately caused injuries to the complainant’s legs and feet such that she had difficulty walking as punishment for perceived misdeeds on her part.

The respondent conceded grounds 2 and 3 but argued that the court should exercise its residual discretion to decline to intervene.

Grounds:

1.

The sentencing judge erred in his assessment of the objective seriousness of counts 9, 16 and 26;

2.

The sentencing judge erred in imposing convictions with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) in relation to counts 2, 10, 36 and 38; and

3.

The aggregate sentence is manifestly inadequate.

Decision: Sentence quashed (Price, Wilson and Dhanji JJ), resentenced to an aggregate term of 14 years imprisonment with a non-parole period of 9 years (Price and Wilson JJ).

Ground 1: The sentencing judge understated the objective seriousness of 9, 16 and 26 [171]. Re counts 16 and 26 (sexual assault without consent), the sentencing judge emphasised the spontaneity and lack of planning of these offences in assessing their objective seriousness. Price J (Wilson J agreeing) observed:

[167] How in these circumstances could the lack of planning reduce the objective gravity of the offending? As Adamson J (as her Honour then was) observed in Kennedy v R [2022] NSWCCA 215 at [51]:

“... it is typical of offences of domestic violence committed by persons such as the applicant that they are not “premeditated”. Thus, the lack of planning in this context is of negligible, if any significance.”

[168] This Court has observed that the short duration of a sexual assault would not ordinarily be considered as a factor which mitigates the objective seriousness of the offence: R v Daley [2010] NSWCCA 233 at [48]; Cowling v R [2015] NSWCCA 213 at [16]. In the present case, where the respondent’s sexual offending was a repetitive feature in a violent domestic relationship, the short duration of an offence could not amount to a mitigating factor.

[169] In the passage quoted at [151] above, the judge said that the offending in count 16 “was not associated with particular additional violence of the kind that characterised some of the offending.” It is unclear to which offences his Honour was referring, however, the infliction of actual bodily harm at the time of, or immediately before or after the sexual assault would have amounted to an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW).

Re count 9, neither the spontaneity or its short duration could reduce the objective seriousness of the offence, which involved chasing the victim, punching her to the face with a closed fist, causing her to fall to the ground, unconscious with a broken nose [170].

Ground 2: In finding that the sentencing judge erred in applying s10A CSP Act to impose no conviction for counts 2, 10, 36 and 38 Price J (Wilson and Dhanji JJ agreeing) observed:

[188] I recognise that the recording of a conviction may have serious consequences for an offender. However, general sentencing principles apply to the operation of the section. Where an offence is objectively serious and general deterrence, denunciation, and the protection of the community are of importance, the scope for the use of the section must necessarily be substantially diminished. I acknowledge that current sentencing legislation does not prohibit the application of s 10A to a domestic violence offence. Nevertheless, the appropriate use of s 10A in a domestic violence offence must be rare.

In addition no reasons were given for departing from a sentence of full-time detention or a supervised order as required by s4A(2) CSP Act.

Ground 3: Price J (Wilson and Dhanji JJ agreeing) held the aggregate sentence of 10 years imprisonment and non-parole period of 5 years is “so manifestly inadequate that it does not reflect the totality of the criminality involved in the respondent’s offending.”

Residual discretion to decline to intervene:

In agreeing with Price J’s refusal to exercise the residual discretion, Wilson J noted:

[269] This is not a matter in which the residual discretion should be exercised. The courts must ensure that those who seek to brutally dominate a domestic partner, and violently impose a claimed gender superiority on another, are held to account. The aggregate sentence proposed by Price J is one that achieves that aim, whilst giving proper ameliorative weight to the respondent’s subjective case.

Waldron v R [2023] NSWCCA 128 (9 June 2023) – New South Wales Court of Criminal Appeal

‘Accused case not glaringly improbable’ – ‘Application for leave to appeal against conviction’ – ‘Circumstantial evidence directions’ – ‘Directions apt to reverse onus of proof’ – ‘Error in jury direction’ – ‘Female alleged perpetrator’ – ‘Intent to cause grievous bodily harm’ – ‘Jury direction’ – ‘Male complainant’ – ‘Miscarriage of justice’ – ‘Misdirection’ – ‘No rational inference direction’ – ‘No substantial miscarriage of justice’ – ‘Onus of proof’ – ‘Perpetrator misidentification’ – ‘Proper directions’ – ‘Proviso’ – ‘Re-trial’ – ‘Rebutting self-defence’ – ‘Self defence’ – ‘Tendency evidence’ – ‘Uniform evidence law’ – ‘Use of tendency evidence’ – ‘Victim as (alleged) perpetrator’ – ‘Wounding’

Charges: Wounding with intent to cause grievous bodily harm x 1.

Proceedings: Application for leave to appeal against conviction.

Facts: The female accused was charged with wounding her male former domestic partner. At trial she claimed she acted in self-defence in wounding the complainant when he arrived at her home angry and in the company of a companion and initiated a physical altercation between them. The female accused is physically much smaller than the male complainant. Her case included evidence of the complainant’s past offending against a former female domestic partner:

[29] A tendency notice served pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW) identified the tendencies of the complainant the applicant sought to establish:

(a)

To make threats to kill to ex-partners;

(b)

To threaten or to bash them in front of friends/family;

(c)

To call ex-partners ‘slut’ or ‘dog’ ‘cunt’; and

(d)

To threaten to or actually visit ex-partner’s homes with the intention to commit violence.

[30] The notice identified a variety of evidentiary sources that were said to be capable of establishing these tendencies. The Prosecutor objected to the evidence, but Judge English accepted that the evidence had significant probative value and was admissible.

In relation to the adduced tendency evidence, which included a statement of agreed facts (s 191 Evidence Act 1995 (NSW)) that the complainant had admitted and been convicted of the offences of Use carriage service to menace/harass/offend and stalk/intimidate intend fear physical or mental harm against [the victim] in relation to a former partner. The statement included text messages and telephone calls heard by police containing threats to kill and bash the victim and calling the victim a “slut” and “cunt”, and that the accused was apprehended while actually causing damage to the victim’s home.

In directing the jury, the trial judge identified the nature of the evidence and tendency the applicant sought to establish:

Part of the defence case is that the complainant has a tendency to have a particular state of mind, namely, to become angry to an extreme towards ex-partners. It is also part of the defence case that the complainant has a tendency to act on that state of mind by making threats to kill ex-partners, threatening to bash them in front of family and/or friends, calling ex-partners words such as a ‘slut’, or a ‘dog’, or a ‘cunt’, or threaten to – or actually – visit ex-partner’s homes with the intention to commit violence. [34]

The applicant submitted and the respondent conceded that parts of the following direction were erroneous:

Whether you reason in the way argued by the defence, or the Crown is entirely a matter for you. You will need to be very careful about drawing the inference asked of you by the defence, and I will direct you to consider whether there be any alternative explanations for that evidence, and I direct you that you should not draw any inference from the direct evidence unless it is a rational inference in the circumstances. Very shortly I will give you a general direction about drawing inferences when you are considering this part of the defence case. But if you find the complainant did have the tendency alleged by the defence, then you can use that fact in considering whether it is more likely than not that he acted in the way alleged by the accused on 19 July 2020. That is, that he was the aggressor on this occasion. [Emphasis added.] [36]

Grounds:

1.

Her Honour erred in directing the jury that it should not draw the inference that the complainant had a tendency to act in a particular way unless it was the only rational inference in the circumstances.

2.

Her Honour erred in directing the jury that it could take into account a tendency of the complainant to act in a particular way in considering whether it is more likely than not that he acted in the way alleged by the applicant.

Reasoning and decision:

1.

Leave to appeal granted.

2.

Appeal upheld.

3.

Quash the applicant’s conviction.

4.

Order that there be a new trial.

5.

List the matter for call-over on 8 June 2023 at the District Court sitting at Newcastle.

6.

The Court directs that, pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that the commencement date of the aggregate sentence for H82562810 (court file 2021/00297170) imposed on the applicant at Toronto Local Court on 28 March 2022 be varied from 14 March 2024 to 14 March 2022.

Hamill J (Button and Sweeney JJ agreeing) observed:

[38] The applicant was correct to submit, and the respondent was correct to concede, that parts of that direction were erroneous. There were at least three flaws in the direction.

[39] First, the jury should not have been directed that it should be “very careful about drawing the inference asked of you by the defence”. There was nothing wrong with directing the jury that the process of drawing an inference should be a rational one, but it will rarely be appropriate for a jury to be warned that it needs to be “very careful” about drawing an inference favourable to an accused in a criminal trial. That is because the accused, except in unusual cases, bears no onus.

[40] Secondly, the direction introduced a standard of proof – “whether it is more likely than not” – that the alleged victim acted in accordance with the tendency on the day of the offence. This cast an onus on the applicant to establish that the complainant acted “in the way alleged by the accused on 19 July 2020”. The direction had the capacity to, and perhaps did, reverse the onus of proof. Other directions made it clear that the prosecution bore the onus and emphasised the high standard it was required to meet. Even considered in that context, the direction represented a significant legal error in the summing up.

And:

[43] Her Honour drew no distinction between drawing an inference of guilt against an accused person – where all other reasonable inferences must be excluded – and drawing an inference favourable to the applicant as part of her circumstantial case based on the tendency evidence.

[44] It is, by now, well established that tendency evidence is a species of circumstantial evidence and there is no requirement that it be proved to any particular standard, let alone (as these directions were want to suggest) that it must be proved beyond reasonable doubt

In rejecting the respondent’s arguments that the despite the misdirection no substantial miscarriage of justice occurred, and that the applicant’s account was “glaringly improbable”, Hamill J (Button and Sweeney JJ agreeing) was not persuaded that self-defence was eliminated beyond reasonable doubt.

Lawrence v R [2023] NSWCCA 110(24 May 2023) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Criminal history’ – ‘Driving’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical harm and violence’ – ‘Protection order’ – ‘Sentencing’ – ‘Threats to kill’ – ‘Weapon’

Charges: Intimidation x 1; Aggravated kidnapping x 1; Contravention of a protection order x 6.

Proceedings: Application for leave to appeal against sentence.

Facts: The male offender accosted and detained his former de facto wife, contravening a protection order which protected her. For 9 hours, the offender drove the victim at a high speed and in an erratic manner, while abusing, threatening, and assaulting her. The period of detention ended when the victim ran from the car, despite the offender’s threats that he would kill her if she escaped.

The offender was sentenced by the District Court to 6 years and 6 months imprisonment with a non-parole period of 4 years, affording a 10% discount for late pleas.

Grounds:

1.

The sentencing judge erred by aggravating the offending by reason of the applicant’s criminal history;

2.

the sentencing judge erred in her assessment of the objective seriousness of the offending without reference to the applicant’s reduced moral culpability and mental health conditions;

3.

the sentencing judge erred in finding that the applicant’s drug use from an early age did not amount to a mitigating factor;

4.

the sentencing judge erred in double counting the presence of the knife in Count 1, both in determining where on the scale of seriousness the offending sat and also by counting it as an aggravating factor; and

5.

the sentencing judge erred in imposing a sentence that was manifestly excessive.

Reasoning and decision: Wilson J (Gleeson JA and Davies J agreeing) dismissed the appeal.

Ground 1: It was held there was no error in the conclusion that the offender’s criminal history was an aggravating factor. It was a feature relevant to the overall determination, but not used to elevate the objective gravity of the offences [58].

Ground 2: The sentencing judge was correct to treat the offender’s moral culpability distinct from the objective gravity of the offences. The offender’s deprived background or mental health impairment are features that affect the weight to be given to considerations of moral blameworthiness and general deterrence [79].

Ground 3: The sentencing judge appropriately gave weight to the offender’s drug addiction as a manifestation of his deprived background. There was no need to have further regard to it [85]; Wilson J stated ‘it will be a rare case in which a drug addiction, of itself and standing alone, can be treated as a mitigating factor, no matter what age an offender was when the addiction commenced’ [85].

Ground 4: The sentencing judge did not err by double counting. Double counting is not established by the number of times a feature is mentioned, but the use of the feature [90].

Ground 5: The sentence was not excessive, if anything, it was lenient [101].

Liu v R [2023] NSWCCA 30 (24 February 2023) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Causing grievous bodily harm with intent to murder’ – ‘Failure to properly consider the offender's advanced age in sentencing’ – ‘Jealous behaviour’ – ‘Older people’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence’ – ‘Principles in gulyas v western australia’ – ‘S27 crimes act 1900 (nsw)’ – ‘Severity’ – ‘Weapon’

Charge: Causing grievous bodily harm with intent to murder.

Proceeding: Application for leave to appeal against sentence.

Ground: The sentencing judge had failed to apply the principle regarding advance aged in determining the sentence.

Facts: The appellant and victim were married in 2014 and living with the widower of a woman the victim had cared for. The appellant had become jealous of the attention the victim gave to the widower.

The applicant attacked his wife with a meat tenderising mallet and stabbed her before cutting his own wrists and hers, leaving her with very serious injuries. At the time of the attack the appellant was 81 years and 6 months old and was 82 years and 8 months old at the time of sentencing.

The appellant pleaded guilty to causing grievous bodily harm with intent to murder (s 27 Crimes Act 1900 (NSW)) and was sentenced to 12 years imprisonment with a non-parole period of 7 years and 3 months.

Reasoning and decision: Leave to appeal, appeal dismissed.

Campbell J (Adamson JA [1]and McNaughton J [50] agreeing) emphasised that the general principles regarding advanced aged and sentencing expressed by Steytler P in Gulyas v Western Australia [2007] WASCA 263 are nuanced and not to be mechanically applied or seen as automatically leading to a lesser sentence than the objective circumstances require [40].

The appellant had no age-related mental impairment. Similarly, imprisonment would not necessarily be more arduous for him as he was found to enjoy generally good health and was not struggling with age-related frailty. The impact of advanced age on sentencing is subject to proportionality: the punishment must fit the crime.

The sentencing judge’s regard to age as a special circumstance had a real and direct effect in reducing the minimum time that the appellant was to serve. No error in the previous judgement was found, as the appellant’s advanced age had not been treated as peripheral.

Thorp v R [2022] NSWCCA 180 (31 August 2022) – New South Wales Court of Criminal Appeal

‘Applicant pleaded guilty to aggravated detain and breach of apprehended domestic violence order (advo)’ – ‘Application for leave to appeal against sentence’ – ‘Criminal law’ – ‘Double punishment’ – ‘Manifestly excessive’ – ‘Sentence’ – ‘Whether both charges arose from same incident’ – ‘Whether sentencing judge erred in imposing wholly consecutive sentences’

Matter: application for leave to appeal against sentence.

Facts:  The applicant was convicted of:

1.

Aggravated detain for advantage contrary to s 86(2)(b) Crimes Act 1900 (NSW); and

2.

Breach of an ADVO contrary to 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)

The applicant was sentenced to 3 years and 3 months imprisonment on the first charge; and 2 months on the second charge, to be served wholly concurrently.

The applicant had prior convictions for domestic violence and other offences.

The applicant and the victim had been in an on-off relationship for three years. At the time of the offences, the applicant was subject to an ADVO which included a requirement not to come within 200 m of the victim. The Victim and applicant were in the applicant’s car and both knew there was an electric stock prod in the car. The victim was driving while the applicant read through her phone messages. He became angry that she had texted a friend, yelled at her and threatened to break her legs so she couldn’t run away. The victim drove to the carpark of a restaurant, got out of the car, and started running away from the applicant, screaming for help. The applicant caught up to the victim and started dragging her back to the car, injuring her knees, arms and hands. An employee appeared from the restaurant, saw what was happening, and returned shortly with three other men. They yelled at the applicant who dropped the victim. One of the men helped the victim and the applicant drove out of the carpark, nearly hitting the other two men.

Grounds:

1.

[The sentencing judge] erred by doubly punishing the applicant for his breach of the [ADVO], such double punishment manifesting in:

(a)

the assessment of the objective seriousness of the detain offence including the fact that it constituted a contravention of the ADVO; and

(b)

an entirely consecutive sentence being imposed for the contravene ADVO offence.

2.

The sentence imposed for the detain offence was manifestly excessive.

Held: Leave granted; appeal against sentence dismissed.

Ierace J, with whom Bell CJ and Bellew J agreed, dismissed the appeal on the first ground, holding at [71]:

the sentencing judge clearly explained that the contravention of the ADVO contributed to the seriousness of the detain offence but also warranted discrete punishment for contravening the court order by an act of violence. The relatively short sentence of 2 months fixed term imprisonment is consistent with it reflecting primarily the criminality of the breach of a court order.

His Honour also dismissed the appeal on the ground of manifestly excessive sentence. While the second case cited by the applicant in support of his manifest excess argument was similar, the difference in sentence imposed (three months more in the case at hand) was ‘not so much as to reflect a misapplication of principle’ [89]. Moreover, the ‘protection of society and the safety of the victim were of particular importance’ so a ‘significant total sentence and a ratio of the overall non-parole period to the balance of term of 56 per cent was the means of achieving that result’ [90].

GS v R; DPP v GS [2022] NSWCCA 65 (1 April 2022) – New South Wales Court of Criminal Appeal

‘Choking, suffocation or strangulation’ – ‘Crime’ – ‘Intentionally chokes’ – ‘Meaning of 'intentionally chokes'’ – ‘People with mental illness’ – ‘Residual discretion not to remit for trial’ – ‘Threat to kill’ – ‘Weapon’

Charges: intentional choking x 1; assault occasionally actual bodily harm x 1.

Proceedings: Appeal against directed acquittal; appeal against conviction; appeal against sentence.

Facts: The DPP appealed against a directed acquittal on the charge of intentionally choking contrary to s 37(1A) Crime Act 1900 (NSW).

The defendant GS appealed against a conviction on a charge of occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.

GS also appealed against his sentence for the above conviction. He was sentenced to 20 months’ imprisonment with a non-parole period of 15 months. However, he had served 29 months’ imprisonment by the time the sentence was imposed.

GS and the victim JC were in a relationship. The charges arose from GS’ conduct over 24 hours. According to JC, GS returned home at 5am, work up JC and began punching her. The punching continued in different parts of her body throughout the day. JC also threw three objects at her, causing bruising. At around 8 or 9am he armed himself with a knife which he kept with him throughout the day in case she tried to run away and threatened to cut her throat if she didn’t stop lying to him. JC said that GS jumped on her while she was on the bed, kept his hands around her neck for about one minute, after which she managed to slide her head out of his hands. This caused bruising to her neck, which was ‘really sore’ for a couple of days, but she did not specifically mention that her breathing or blood flow was affected. The next day, GS forced JC to accompany him to the fruit shop and then home again. After GS said he was going to have a shower, JC ran to the train station. GS followed her and put her in a headlock. A witness called police. GS said he did not commit any of the offences alleged and was trying to restrain JC from jumping in front of a train. JC had a mental illness. GS was found not guilty of three related charges and two ‘backup’ charges.

Decision and Reasoning:

DPP v GS:

1.

Set aside the order for the acquittal of GS on the charge of intentionally choking contrary to s 37(1A) of the Crimes Act 1900 (NSW);

2.

Declare that “intentionally chokes” within the meaning of s 37(1A) of the Crimes Act 1900 (NSW) means “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head”;

3.

In the exercise of the residual discretion, decline to remit GS to the District Court for a re-trial.

GS v R:

1.

Dismiss the appeal against conviction and sentence.

Payne JA, with whom Rothman and Harrison JJ agreed, declared that ‘intentionally chokes’ means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to and from the head.’

His Honour reached this conclusion by undertaking statutory interpretation of s 37(1A) Crimes Act 1900 (NSW). He referred to the context and structure of s 37 as a whole [49]. He said at [50]:

Section 37(1A) was designed to facilitate the prosecution of choking, suffocation and strangulation offences in the context of a “zero tolerance” approach to domestic violence. The section was expressly intended to fill a gap in the legislation for the choking, suffocation or strangulation of a victim of domestic violence where the victim was not rendered unconscious, insensible or incapable of resistance. The purpose of including s37(1A) was to create an offence which responded to issues raised in the NSW Domestic Violence Death Review Team report to Parliament for the period 2015-2017.

DS v R [2022] NSWCCA 55 (21 March 2022) – New South Wales Court of Criminal Appeal

‘Agreement to punishment’ – ‘Application to extend time to appeal’ – ‘Consent’ – ‘Culturally and linguistically diverse people’ – ‘Delay in reporting’ – ‘Evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual abuse’ – ‘Sexual assault’

Charges: Sexual intercourse without consent x 21.

Proceedings: Application to extend time to appeal.

Facts: The appellant and victim were married for 17 years and had two children. The appellant was convicted of 21 charges of sexual intercourse without consent, which the appellant used to ‘punish’ the victim whom he falsely believed was having an affair [4]. The offending included ‘fellatio, fellatio with urination in the complainant’s mouth, digital/vaginal penetration, vaginal penetration with a “sex toy”, and attempted anal penetration with that toy’ [4].

The defendant sought leave to appeal on the following grounds:

1.

Unreasonable, or cannot be supported by the evidence.

2.

His Honour misdirected himself on the elements of the offences (negation of consent).

3.

Relationship evidence had no probative force on the question of consent.

Decision and Reasoning: The application was dismissed.

The trial judge found that ‘the complainant’s agreement to sexual intercourse was not freely and voluntarily given in circumstances where she was “subjecting herself to the punishment he had imposed”’. Furthermore, ‘consent was negated under s 61HA(4)(c) where the complainant had been “assaulted multiple times and was scared that this would occur again”’ [58]. In response to these findings and in support of his second ground of appeal, the appellant submitted that ‘the complainant agreed to participate in the various sexual acts to “manipulate” him so that he would stay in the relationship against his wishes’ and ‘that she participated because she was prepared to do whatever was necessary to remain in the relationship with him’ [60]. The Court affirmed the trial judge’s finding that the victim did not give free and voluntary consent and rejected the appellant’s submission on the probative value of the relationship evidence. The Court explained that ‘the complainant did not regard herself as having any choice, because of her situation and her need to protect her children, but to accept and “agree” to’ the appellant’s ‘punishments’. Furthermore, ‘the complainant’s evidence… describes her as being “scared” and the sexual activity variously as “dangerous”, “aggressive”, “unbearable”, “brutal”, “painful”, “rough”, “hurting” and “bruising”. The evidence suggests no sensible explanation for why the complainant would have freely and voluntarily subjected herself to that conduct. Finally, the sequence of events leading to the complainant jumping off the carport roof… is consistent with the sexual activity which preceded it not being consensual’ [88]-[92]. The trial judge’s findings ‘demonstrate the probative value of the evidence in relation to the issues of consent and delay in making any complaint’ and ‘do not involve or include any tendency reasoning’ [67]. Finally, the Court found that evidence of the victim’s fear, both generally and in response to threats made by the appellant, provided a ‘reasonable justification for her’ delay in reporting the offending [90].

Nguyen v R [2021] NSWCCA 118 (18 June 2021) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Damaging property’ – ‘Financial abuse’ – ‘Following, harassing and monitoring’ – ‘Kidnapping threat’ – ‘Physical violence and harm’ – ‘Pregnant people’ – ‘Separation’ – ‘Sexual and reproductive abuse’ – ‘Suicide threat’ – ‘Technology facilitated abuse’ – ‘Threats to kill’

Charges: Aggravated entry with intent to steal; Steal property in dwelling house; Intimidation; Form 1 offences attached to sequence 6 (Damage property, contravene Apprehended Violence Order); Section 166 Certificate (Dishonestly obtaining financial advantage by deception).

Proceedings: Application for leave to appeal against aggregate sentence.

Facts: The male applicant and the female complainant had been in a relationship, which had ended prior to the offending. While the complainant was at the hospital giving birth to their child, the applicant entered her home, damaged her car, ransacked her room, and stole her laptop. He sent her many threatening messages via text, WhatsApp and email (threats to kill, violent sexual assault, stalking, removal of child, suicide etc), including breach of a provisional Apprehended Violence Order (AVO). He also used the complainant’s laptop to access her personal MyGov account and make two fraudulent tax returns in the complainant’s name causing payments to be made to the applicant’s own bank account. The applicant was sentenced to an aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years 11 months.

Grounds of appeal:

1.

The sentencing judge erred by failing to give proper practical effect to the finding of special circumstances.

2.

The sentencing judge erred by taking into account the incorrect offence when dealing with the second offence on Form 1.

3.

The aggregate sentence was manifestly excessive.

Held: Application for leave to appeal granted, appeal dismissed.

Ground 1: It was evident from the sentencing judge’s remarks that he gave proper effect to his finding of the basis for special circumstances by varying the statutory ratio downwards to 70%.

Ground 2: It was clear that the sentencing judge nominated the incorrect offence at a point in his reasons. However, while the Crown’s submissions focused on whether the error vitiated the sentencing discretion, the true question in the circumstances here was whether the error was an inadvertent misstatement that did not affect the sentence imposed. The slip that occurred could not properly be characterised as a material error capable of vitiating the sentence imposed.

Ground 3: The aggregate sentence was not manifestly excessive in light of the fact that the applicant’s criminality encompassed offences of a different nature and varying degrees of seriousness with multiple complainants. Relevant matters in relation to the sequence 6 offence (aggravated entry with intent to steal and the Form 1 offence) included at [107]:

•

The offences were committed in the context of a relationship marred by domestic violence. The applicant twice threatened to kill the applicant and had also threatened her with violent sexual assault and removal of her newborn baby.

•

It was significant that the applicant purposefully chose the complainant’s home and attended at a time he thought she would be asleep and near to her giving birth.

•

The offence was not less serious because the duration of the entry was short.

•

The objective seriousness of the sequence 6 offence was at the middle of the range, noting the persons present were inherently vulnerable and the offence was not impulsive.

•

The offences involved an abuse of trust.

•

The applicant was a young man who had a prior record including offences of domestic violence perpetrated against the same complainant, which disentitled him to leniency, pointed to an increased need for specific deterrence and contributed to a finding that his prospects of rehabilitation were poor or guarded.

•

The need for general deterrence and the protection of the community.

•

The statistics did not point to the indicative sentence for sequence 6 being manifestly excessive.

The aggregate sentence was also appropriate in light of the circumstances of the other offending including at [108]:

•

The stealing offence was assessed as “falling slightly below the middle range of objective seriousness but not by much”, due to the non-monetary value of the laptop which could be expected to contain personal information.

•

The intimidation offence was assessed as at the middle end of the range of objective gravity noting the conduct was premeditated and designed to instil further mental harm on the complainant, when the applicant was aware she had just given birth.

•

The sentencing judge found the dishonesty offences fell slightly below the middle range of offending given the multiple victims (the ATO and the complainant), and the applicant having exploited his possession of the complainant’s laptop (subject of the stealing offence) to perpetrate the fraud.

•

No challenge was made with respect to accumulation.

•

The two offences on the Form 1, particularly contravene AVO, required an increase to the penalty for the principal offence (sequence 6), to ensure personal deterrence and extract retribution.

•

The applicant showed little or no insight into the complainant’s perspective and was not genuinely remorseful.

•

The applicant represented a medium risk of re-offending.

•

The challenge to a limited adjustment to the sentencing ratio for special circumstances was rejected.

•

There was no double counting.

McFarland v R [2021] NSWCCA 79 (23 April 2021) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Factors relevant to sentencing’ – ‘Manifest excess’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Past domestic and family violence’ – ‘Physical violence and harm’ – ‘Strangulation’

Charges: Aggravated take and detain a person with intent to obtain advantage (aggravation being actual bodily harm, advantage being psychological gratification) plus a Form 1 for common assault x 1; Assault occasioning actual bodily harm x 1; Driving with a high range content of alcohol in blood x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant and female victim were in a de facto relationship. The intoxicated applicant assaulted the victim, punching and strangling her. He forced her partially into the car and drove 2.9 km, leaving her legs dragging along the gravel. The victim’s injuries were described by sentencing judge as “horrific” and representing the most serious form of actual bodily harm. The applicant pleaded guilty and was sentenced to an aggregate term of 7 years imprisonment, with a non-parole period of 4 years and 4 months.

Grounds of appeal: The sentence was manifestly excessive.

Held: Application for leave to appeal against sentence was granted. Appeal dismissed. The sentence was not manifestly excessive in light of the following factors:

•

Aggravated take and detain offence was assessed at above the mid-range of objective seriousness. The maximum penalty of 20 years imprisonment is an important legislative guidepost.

•

Assault occasioning actual bodily harm offence was assessed at the mid-range of objective seriousness. It carried a maximum penalty of 5 years imprisonment.

•

Applicant’s subjective case was not powerful, even taking account of his genuine remorse.

•

No evidence to support a finding that the applicant’s moral culpability was anything but high or that he was not an appropriate vehicle for general or specific deterrence.

•

Self-induced intoxication is not a mitigating factor.

•

Applicant’s prior conviction for domestic violence offending against his previous female domestic partner disentitled him to leniency.

•

Although the offending was unplanned, it was not fleeting. The totality of the offending involved relatively sustained violence.

•

Harm suffered by the victim was described by the sentencing judge as “horrific”.

•

It was necessary the sentence reflected specific deterrence, general deterrence, recognition of the human dignity of the victim and the community’s legitimate interest in the denunciation of alcohol fuelled domestic violence.

Cooper v R [2021] NSWCCA 65 (14 April 2021) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘History of abuse’ – ‘Mercy killing’ – ‘Murder’ – ‘Substance misuse’

Charges: Murder x 1; Form 1 offences (stalking/intimidating with intent and contravening an apprehended domestic violence order, ADVO).

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant injected the deceased, his partner, with a lethal dose of heroin intending to cause her death. The sentencing judge accepted that this was a “mercy killing” at the deceased’s request. After a 25% reduction for his guilty plea, the applicant was sentenced to a term of imprisonment of 13 years and 6 months with a non-parole period of 10 years. There was a history of domestic violence (including an ADVO in place) and substance abuse.

Grounds of appeal:

1.

The Court did not take into account the applicant’s deprived background and early introduction to substance abuse in determining his moral culpability for the offending.

2.

The sentence was manifestly excessive.

Held: Appeal dismissed.

Ground 1: There was no dispute that the applicant’s deprived background and early introduction to alcohol and substance abuse was a highly relevant factor in considering the applicant’s moral culpability: Bugmy v The Queen; R v Millwood. However, the sentencing judge did take these principles into account, setting out in detail the applicant’s troubled background and early association with drugs and alcohol and referring with approval to the forensic psychiatrist’s assessment of the applicant’s mental condition. These conclusions formed part of the context for a finding of the applicant’s low moral culpability ([68]-[72]).

Ground 2: Notwithstanding the tragic circumstances surrounding the killing and the applicant’s low moral culpability, it could not be said the sentence was unreasonable or plainly unjust. It had to be remembered that: (1) This was a deliberate killing of another human being by the injection of an illegal drug; (2) It took place whilst the applicant was on conditional liberty and in direct breach of his bail conditions and the ADVO; (3) Although not a significant issue in sentencing, offences on a Form 1 needed to be taken into account; and (4) Despite the applicant’s mental illness reducing the need for the sentence to reflect denunciation and general deterrence, specific deterrence remained of importance ([82]-[86]).

Rogers v R [2021] NSWCCA 61 (9 April 2021) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against conviction’ – ‘Defence relied upon at trial’ – ‘Extreme provocation’ – ‘Murder’

Charges: Murder x 1.

Proceedings: Appeal against conviction.

Facts: The male appellant suffocated his wife during a physical altercation and attempted to commit suicide. The appellant had discovered his wife had formed a relationship with another man. There was evidence that the deceased kicked the appellant during the struggle. At trials in 2018 and 2019, the appellant relied upon the partial defence of substantial impairment by abnormality of mind under s 23A Crimes Act 1900 (NSW). The jury rejected the partial defence and convicted the appellant of murder. No application was made at trial for the partial defence of extreme provocation to be left to the jury.

Grounds of appeal/Issues: Application for leave to rely upon the ground of appeal pursuant to Rule 4 Criminal Appeal Rules (NSW).

Ground: A miscarriage of justice resulted from the failure to leave the partial defence of extreme provocation under s 23 Crimes Act 1900 (NSW) to the jury.

Held: Leave to rely on the ground of appeal refused; leave to appeal against conviction refused.

Issue 1: As Bathurst CJ observed in ARS v R, the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial. In any event, the appellant had not lost a real chance of a verdict of not guilty of murder, but guilty of manslaughter, because extreme provocation was not left to the jury: ([166]-[167]).

Issue 2: Properly constructed, s 23 provides that the conduct of the deceased to which the accused person responded (s 23(2)(a)), and which caused the accused person to lose self-control (s 23(2)(c)), and which was capable of causing an ordinary person to lose self-control (s 23(2)(d)) must be conduct which constituted a serious indictable offence (s 23(2)(b)). Omitting the words “in the position of the accused” in the 2014 amendment means s 23(2)(d) now significantly departs from the common law. “[T]he ordinary person test now contained in s 23(2)(d) assumes a calm ordinary person and that it is not relevant that the accused person was particularly sensitive to the situation or was experiencing a depressive disorder” (see [92]-[104]).

The critical and determining aspect of the appeal concerned the objective element in s 23(2)(d). It was accepted that the notional ordinary person may act in unreasonable ways but “the reaction must still be within the range of possible reactions of an ordinary person as assessed by the Court when considering the threshold question of law involved.” In the context and factual circumstances of the case, the reaction of the appellant was “not within the range of possible reactions of an ordinary person. The partial defence of extreme provocation ought not to have been left to the jury” ([141]-[163]).

Taylor v R [2020] NSWCCA 355 (20 December 2020) – New South Wales Court of Criminal Appeal

‘Animal abuse’ – ‘Application for leave to appeal against conviction’ – ‘Past domestic and family violence’ – ‘Significant probative value’ – ‘Tendency evidence’

Charges: Breaking and entering into dwelling and committing serious indictable offence, namely, intimidation with intent of causing fear of physical or mental harm, knowing that persons were inside x 1 (Count 4); Intimidation with intent of causing fear of physical or mental harm x 1 (Count 6); Possession of an implement of housebreaking without lawful excuse x 1 (Count 8); Entering dwelling with intent to commit serious indictable offence, namely, intimidation with intent of causing fear of physical or mental harm, knowing that persons were inside x 1 (Count 9).

Proceedings: Application for leave to appeal against conviction.

Facts: The applicant man and the complainant woman were in an on-off relationship for about two years prior to the alleged offences. Following a trial by jury in the District Court of New South Wales, the applicant was found not guilty on Counts 1-3, but guilty on Counts 4, 6, 8, 9, 11 and 12.

In relation to Count 9, the Crown’s case required the applicant to have gained external access to the complainant’s fourth floor apartment of a five storey building, despite there being no means for the applicant to access the balcony externally.

In relation to Counts 1-10, the Crown relied on tendency evidence, namely, a signed statement of agreed facts from 2010 used in sentencing the applicant for a charge of recklessly occasioning grievous bodily harm to his former wife on 25 October 2008. The facts concerned acts of violence and threats towards his former wife of 30 years, and their pet, during the breakdown of the relationship. The signed statement of agreed facts also included a statement that there was a history of domestic violence in the relationship.

Grounds of appeal:

1.

The verdict on Count 9 was unreasonable as there was no direct evidence, or no proper inference from direct evidence, that there were persons in the premises at the time of entry, and that element of the offence was not capable of proof; and

2.

Evidence in relation to conduct committed in 2008 ought not to have been admitted as tendency evidence.

Held: Ground 1 upheld, ground 2 dismissed; applicant re-sentenced to an aggregate term of imprisonment for 14 months, with a non-parole period of 10 months.

Ground 1: It was not reasonably open to the jury to have been satisfied beyond reasonable doubt that the applicant had accessed the balcony externally. There was no evidence how the applicant could have gained external access.

Ground 2: The appeal on ground 2 was dismissed by majority (Beech-Jones J, with Walton J agreeing). First, the tendency evidence relied upon had “significant probative value”. The evidence strongly supported proof that the applicant possessed the alleged tendency (to be violent/threatening towards women with whom he was in/had an intimate relationship) as at the time of the alleged charges (March 2018). There was no relevant difference in this context between the violent breakdown of the 30-year relationship and the 2-year relationship (Beech-Jones J at [140]-[155], Walton J agreeing at [136]).

Further, the probative value of the tendency evidence substantially outweighed its prejudicial effect. The submission that the admission of the tendency evidence would lead to the jury having an “adverse emotional response” was rejected. The trial judge’s direction specifically warned the jury in that regard (Beech-Jones J at [156]-[157], Walton J agreeing at [136]).

Droudis v R [2020] NSWCCA 322 (10 December 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Coercive control’ – ‘Family court matters’ – ‘Female perpetrator’ – ‘Immolation’ – ‘Murder’ – ‘Past domestic and family violence’ – ‘Step-children’ – ‘Victim as perpetrator’ – ‘Weapon’

Charges: Murder x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The female applicant was the partner of Man Haron Monis (who was the perpetrator of, and died during, the Lindt Café siege in December 2014) ([6]). Prior to meeting Monis, the applicant had not been involved in any criminal conduct ([5]). It was accepted that Monis exercised a significant degree of influence/psychological persuasion and a measure of control over the applicant, fortified by a level of physical abuse, and she was prepared to act at his behest ([9], [37], [38], [39]).

Man Haron Monis planned the murder of his former wife (the victim, with whom he had two children). But he was not prepared to carry out the killing himself, planning with the applicant that instead she would carry out the murder. Part of the applicant’s motive included the desire to form a “single family unit” with Man Haron Monis and the children ([29(h)]; [69]).

The applicant stabbed the victim 18 times before dousing her with petrol and setting her alight. The applicant was convicted of the murder of the victim following a judge alone trial. She was sentenced to 44 years imprisonment, with a non-parole period of 33 years.

Grounds of appeal:

1.

The sentencing judge erred in his assessment of the significance of the death of Man Haron Monis to the applicant’s risk of re-offending and prospects of rehabilitation.

2.

The sentencing judge erred in his application of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which deals with the power of the court to reduce penalties for facilitating the administration of justice.

3.

The sentence was manifestly excessive.

Held: Leave to appeal granted, ground 1 upheld. The applicant was re-sentenced to a term of imprisonment of 35 years with a non-parole period of 26 years and 3 months. Grounds 2 and 3 dismissed.

Ground 1: The sentencing judge failed to take into account the death of Monis, and the removal of his ongoing influence on the applicant, as relevant factors in determining future dangerousness, the need for personal deterrence, and the prospects of rehabilitation ([68]-[72]).

Ground 2: The sentencing judge gave proper consideration to the nature of the assistance given ([99]). Section 22A did not require a two-stage approach to sentencing (as opposed to taking the matter into account as part of the “instinctive synthesis approach”), nor impose a legal requirement to quantify the extent to which the sentence was reduced ([100]-[104]). While it would provide further transparency to the sentencing process if the court specifies the penalty that would be imposed but for the assistance provided, a failure to quantify the discount does not by itself establish error ([105]).

Ground 3: The sentencing judge did not err in his conclusion that the psychological persuasion of Monis, and physical abuse, did not give rise to “a form of non-exculpatory duress such as to reduce the applicant’s moral culpability”. The sentencing judge was also correct in his finding of the objective gravity of the offence, and in concluding there was no evidence of contrition or remorse (but there was limited evidence of remorse/ rehabilitation on appeal) ([118]-[119]).

In re-sentencing, despite the relevance of the death of Monis to the applicant’s prospects for rehabilitation and re-offending, the Court noted that the offence was serious and retribution/general deterrence were significant ([120]-[129]).

Bussey v R [2020] NSWCCA 280 (16 November 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Rape where parties formerly in intimate relationship’ – ‘Separation’ – ‘Sexual abuse’ – ‘Strangulation’

Charges: Indecent assault x 1; Sexual intercourse without consent x 1; Aggravated sexual assault without consent (deprivation of liberty) x 2.

Proceedings: Application for leave to appeal against conviction and sentence.

Facts: The applicant man and female victim had remained in contact following the end of their relationship as they were in a music band together. The victim refused the applicant’s request to revive the relationship. The applicant strangled her until she passed out. When he then asked whether she “was going to fight him”, she said “no and reluctantly gave in to intercourse”.

The victim reported the incident to her friends and the police. The victim identified prior sexual practices between the applicant and herself, including regular consensual choking, physical restraint, being thrown onto a bed, role playing and “rough sex”. The defence case was that all sexual contact between the applicant and the victim was consensual. The applicant was found not guilty on Counts 1, 2 and 4, and guilty on one charge of aggravated sexual assault without consent (Count 3).

Grounds of appeal:

1.

The verdict was unreasonable, as it was inconsistent with the not guilty verdicts on the other three counts.

2.

The sentence was manifestly excessive.

3.

The sentencing judge erred by not having sufficient regard, or giving weight, to the historical extent and nature of the prior sexual experience between the applicant and the victim.

Held: Appeal dismissed (per Harrison J, Hoeben CJ and Bellew J agreeing).

Ground 1: In a case where there are mixed verdicts of guilty and not guilty, and the complainant’s evidence is the only evidence of an accused’s guilt, a court may (but not must) conclude the verdicts are factually inconsistent: citing MFA v The Queen, R v Markuleski, and Mackenzie v The Queen. The court held that the verdicts of not guilty on Counts 1, 2 and 4 were explicable without leading to the conclusion that the jury formed an adverse impression about the victim’s credibility. As such, the guilty verdict on Count 3, dependent on the jury’s acceptance of the victim’s credibility, was not inconsistent and unreasonable ([62]-[70]).

Grounds 2 and 3: The seriousness of the offending was not mitigated by the prior sexual relationship between the applicant and the victim. Harrison J (Hoeben CJ and Bellew J agreeing) held at [87]-[88]:

“Mr Bussey maintained that, but for his Honour’s failure to have sufficient regard to the fact that he and RM had, until only a relatively short time before the commission of the offence, been in a close and enthusiastic personal relationship, he would have concluded that Mr Bussey’s objective criminality was reduced and would have imposed a less severe sentence. In this sense, it is said that his Honour allegedly failed to have regard to a relevant consideration:

In my opinion, that submission falls foul of the principle that just because it may be possible to contemplate more serious examples of the same offence does not mean that the particular offence being considered is for that reason less serious.”

And at [95]-[97], with Hoeben CJ and Bellew J particularly noting their agreement with these remarks:

“The cases reveal a consistent and commendable emphasis upon the need to consider each offence of sexual assault upon a woman by her partner or former partner with special and particular regard to the circumstances of the case. However, there has in my view been a regrettable tendency in some cases to refer to the fact that the assault occurred within, or following the breakdown of, a relationship as something that might “mitigate” the seriousness of the particular offence. This type of language has the unfortunate potential erroneously to dilute the significance of the offence under consideration. Put simply, the objective seriousness of sexual intercourse without consent cannot be reduced because of factors such as a prior sexual history between an offender and his victim without making unjustified and impermissible assumptions about the effect upon the victim. It depreciates the notion that no means no, whatever other factors may be involved. To accept that a prior relationship can ever operate to mitigate the seriousness of the offending completely abandons that uncontroversial wisdom and reverts to the type of attitude that once saw domestic violence treated as less culpable than other assaults. It also proceeds upon the implicit and unsafe adoption of non-consensual sexual intercourse with a stranger as the default position.

I cannot accept that a statement such as “the violation of the person and the defilement that are inevitable features where a stranger rapes a woman are not always present to the same degree when the offender and the victim had previously had a longstanding sexual relationship” is now or could ever have been an acceptable, far less correct, summary of the law or that it should continue to influence this Court in the determination of cases such as the present. Violation and defilement of the victim are quintessential aspects of the offence and the victim’s familiarity with an assailant can have no bearing upon that fundamental circumstance. Indeed, such an assault, committed by a person with whom the victim may have had a formerly close and respectful relationship, is potentially more likely to exacerbate the seriousness of the offence than otherwise. I cannot accept the proposition that there can be varying degrees of violation and defilement. Such a concept appears to derive from the offensive notion that a man should in certain circumstances be entitled to raise his prior relationship with the victim as some kind of limited excuse for disregarding the absence of consent to an act of intercourse with him to which activity the victim had historically consented.”

As I have indicated, Mr Bussey’s submissions implicitly rely upon the proposition that the offence of which he was found guilty could have been more serious. The fact that one can imagine the commission of more serious offences of this type is not controversial. It does not, however, mean that the sentence imposed by his Honour for the offence committed by Mr Bussey should somehow be assessed by reference to that fact. It certainly does not mean that the objective seriousness of Count 3 is diminished or reduced because Mr Bussey and RM had previously been in a consensual sexual relationship. Once it is accepted that no means no, that should be the end of the matter.”

Yaman v R [2020] NSWCCA 239 (25 September 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Separation’ – ‘Stalking’ – ‘Weapon’

Proceedings: Application for leave to appeal against sentence.

Charges: Aggravated break and enter, commit assault occasioning actual bodily harm, breach ADVO.

Facts: The male applicant was in a domestic relationship with the female victim which ended due to ongoing domestic violence. The offender breached a protection order by calling the victim 48 times and attending the victim’s residence. As the victim unlocked her front door the applicant ‘collided’ with her, and they fell into her apartment. He put his foot on her head to hold her down screaming ‘how dare you ignore me’ and ‘who are you to tell me it’s over’ [23]. The applicant took a knife from the kitchen, pushed the victim onto a couch. The victim told the applicant ‘If you’re gunna pull a knife on me do it’ which caused him to back off and leave the premises. The victim had several small lacerations to the backs of her hands [27].

Grounds of Appeal:

1.

The sentencing judge was in error in finding that the aggravated break and enter involved ‘some significant planning’;

2.

(2A) The sentencing judge erred in finding the applicant’s criminal history was ‘aggravating on sentence’; (2B) The sentencing judge failed to give reasons as to how the applicant’s history ‘aggravated’ the sentences imposed’

3.

The sentencing judge erred in characterising the objective seriousness of the aggravated break and enter offence as ‘mid-range offence’

4.

The sentence imposed for the aggravated break and enter offence is manifestly excessive

Decision and Reasoning: Leave to appeal granted on grounds 1,2 and 4 and refused leave to appeal on ground 3. The appeals were dismissed.

Fullerton J held there was ‘more than sufficient factual foundation’ to support a finding that the offence involved significant planning. He found the phone calls indicated the applicant’s determination to confront the victim [5].

Wilson J regarded the phone calls, the offender’s presence in the stairwell and the speed he ran to the victim as evidence that it was open to the court to find the only reasonable conclusion was that there was some planning [96].

Wilson J held that the applicant’s characterisation of the offence “significantly minimised the gravity of his crime” [117]. He found that because of the telephone calls the victim had already received, she was already in a state of fear before the confrontation. His Honour found that just because applicant did not use the knife to inflict injury, did not make the incident less serious. That the applicant waited for the victim to be home before charging at her and propelling them both through the doorway heightened the gravity of the crime [119].

Le v R [2020] NSWCCA 238 (23 September 2020) – New South Wales Court of Criminal Appeal

‘Appeal’ – ‘Assault occasioning bodily harm’ – ‘Coercive control’ – ‘Credibility’ – ‘Emotional and psychological abuse’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘People affected by substance misuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Unreasonableness’ – ‘Women’ – ‘Young people’

Charges: 2x counts of assault occasioning bodily harm, with a third alternative charge that was not pressed.

Proceedings: Appeal against conviction on 1 count of assault occasioning grievous bodily harm.

Facts: The female victim and male offender were in an intimate relationship for 15 months. On the relevant night, the offender and the victim had consumed cocaine. The offender hit the victim multiple times after the victim had continued talking after sex. Critically, the offender stomped or kicked the victim’s hip, which fractured her femur and required a hip replacement. The victim did not go to the hospital or report the incident immediately. About two weeks after the injury, she called the police, following an argument where the offender did not hit her but she feared that he would hit her again. Over the next few weeks, she subsequently went to hospital, discovered the seriousness of her injury and gave a recorded statement to police.

Issue: Whether appeal against conviction should be allowed on the ground that the verdict of the jury was unreasonable.

Decision and reasoning: Leave to appeal against conviction was granted. However, the appeal was dismissed by a majority of 2:1.

Hoeben CJ would have allowed the appeal. He considered that there were objective deficiencies in the account of the victim: [30]. She was inconsistent in her account of how she sustained the injury: [53]. This also extended to the circumstances of the injury and the nature of the fight: [45]–[47]. She told a series of lies, admittedly in relation to trivial factors like drug use or the injuries of the accused: [96]–[98]. Further, there was little evidence to support that there had been months of physical abuse prior: [102]. These inconsistencies were so significant that the jury ought to have had a reasonable doubt about the guilt of the offender: [24].

Adamson and Davies JJ, writing separately but agreeing with each other, did not consider that the verdict of the jury was unreasonable. Adamson J, providing primary reasons, accepted that the victim was at times inconsistent but noted that juries can accept parts of what witnesses say, while rejecting other parts: [202]. Recapping the evidence, Adamson J reiterated that the question is whether it was open to a reasonable jury to find that the Crown had established its case beyond reasonable doubt: [205]. In this case, the jury only needed to be satisfied that the offender had stomped or kicked the victim in the left hip and this caused her hip to fracture: [205]. Given the evidence, Adamson J did not have a doubt and, further, any such doubt would be the kind of doubt that was resolved by the jury’s advantage in seeing and hearing the evidence: [226].

Davies J, providing additional reasons, added that, even though this was primarily a single-witness case, the fact the victim sustained a fractured femur was significant objective evidence: [112]. The expert evidence suggested that a fall was an unlikely cause of an isolated injury to the hip: [117], [121]. This was so despite aspects of the victim’s evidence being unreliable: [124]. The defence case that the victim may have fabricated charges following the break up was inconsistent with the victim’s reluctance to provide statements to the police: [128]–[130]. It was open to the jury to reject the applicant’s case but it was also open to accept that the hip fracture occurred in the way that the victim said: [132]. Therefore, the appeal ground was not made out.

Ebsworth v R [2020] NSWCCA 229 (11 September 2020) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘De Simoni issue’ – ‘Intent to kill’ – ‘Strangulation’

Charges: Breaking, entering and committing a serious indictable offence in circumstances of aggravation x 1; Using an offensive weapon with intent to assault x 2; Intimidation x 5; Recklessly damaging property x 1; Contravening a DFV protection order x 5.

Proceedings: Application for leave to appeal against sentence.

Facts: The applicant man and female victim were in a domestic relationship. After an argument, the applicant was told to leave the victim’s premises and did so. Later, he returned when the victim was absent and cut up most of her clothes. As a consequence of that incident, an protection order was issued. Following this the applicant committed a number of offences including threatening to kill the victim, sending abusive and threatening messages, breaking into the victim’s house and assaulting the victim, including strangling her and threatening to kill her while holding a knife. The victim was able to run from the house, but the applicant chased her with the knife, grabbed her hair and punched her repetitively in the face. In response to the victim’s cousin intervening to protect the victim, the applicant threatened to stab both the victim and her cousin. Afterwards, the applicant continued to send abusive and threatening messages to the victim, including threatening to shoot her and her family. The applicant is of Aboriginal heritage.

Grounds: (2) Whether the sentencing judge erred by taking into consideration a more serious offence contrary to the principles in De Simoni.

Decision and reasoning: Leave to appeal granted. Appeal dismissed.

The applicant argued that the sentencing judge considered that the applicant had a state of mind to kill or inflict serious injury upon the victim at the time of committing charge 1. As such, the applicant submits that the sentencing judge was sentencing the applicant in relation to a more serious, uncharged offence (i.e., strangulation with intent of committing murder under s 29 of the Crimes Act). The difficulty with this submission is that the strangling of the victim would have to have been done for the purpose of killing the victim to fall under s 29 of the Crimes Act.

[58] If a choking occurs, which choking does not kill the victim, the offender does not commit an offence under s 29, unless there was an intention to kill. The sentencing judge referred to threats to kill or inflict grievous bodily harm for which the choking was an act following through on those threats. But the sentencing judge did not conclude that the “following through” by choking was done with an intent to kill. It could have been done to inflict really serious injury. The requirement in s 29 of the Crimes Act to commit an act of strangling “with intent … to commit murder”, requires the offender to have an intention to kill; not one that may be to inflict really serious injury. On the other hand, if a strangulation occurs which does, in fact, cause death, then an intention to cause really serious injury is sufficient to give rise to the crime of murder.

…

[63] The prohibition based upon the principles established by the High Court in De Simoni should not be overstated. The principles disentitle a sentencing court from inflicting punishment or aggravating an offence for which a sentence is to be imposed, because conduct has occurred which otherwise would be a more serious offence.

Nothing in the circumstances of this case give rise to the principles described in De Simoni.

Romeo v R [2020] NSWCCA 221 (31 August 2020) – New South Wales Court of Criminal Appeal

‘Administration of justice’ – ‘Application for leave to appeal against sentence’ – ‘Family law dispute’ – ‘Soliciting to murder’

Charges: Soliciting to murder x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant contravened a protection order protecting his former wife. The applicant arranged a third party to murder the victim before his next appearance in court, paying the third party $30,000. The third party planned to defraud the applicant and informed police of the applicant’s intention to murder his former wife. An undercover police operative posing as the person who would carry out the murder met with the applicant and was instructed to get the victim to write a letter to her son to explain the victim’s disappearance. The original sentence was 9 years and 9 months commencing on 18 November 2016 and expiring on 17 August 2026 with a non-parole period of 6 years expiring on 17 November 2022.

Grounds: (1) The sentencing judge erred in finding that the offending fell within the middle of the range of seriousness; (2) the sentence was manifestly excessive.

Decision and reasoning: Leave to appeal granted. Appeal dismissed.

(1) The assessment of the objective seriousness of the offence as falling within the middle range was open to the judge.

[88] In the present case, the offence was motivated at least partially by the applicant’s wish to have his former wife murdered before he was due to attend court on 29 November 2016 for the AVO. As this Court has emphasised, an offence of solicit to murder is seriously aggravated where the motive is to interfere with the administration of justice.

Citing Efthimiadis v R (No 2) [2016] NSWCCA 9 (9 February 2016) at [85]-[86] of that decision:

[85] Personal and general deterrence are important considerations in the sentencing exercise for the reasons previously given and as the offence of soliciting a person to murder another is a heinous crime …

[86] In my mind, there is another reason that general deterrence has significance in the present case. All too often partners in a domestic relationship resort to violence. The community cannot tolerate violence in any domestic setting, but the community’s abhorrence of a crime intended to secure the custody of a young child by the murder of the mother needs to be expressed in the sentence to deter persons who might be like-minded to commit such a crime.

(2) The sentence was not manifestly excessive.

Samandi v R [2020] NSWCCA 217 (27 August 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against conviction and sentence’ – ‘Application to withdraw guilty plea’ – ‘Guilty pleas after commencement of trial’ – ‘Manifestly excessive’ – ‘Systems abuse’

Charges: Assault occasioning actual bodily harm x 6; Assault x 3; Intentionally damaging property x 1; Making a false accusation knowing that persons are innocent of an alleged offence x 1; Contravention of a protection order x 1.

Proceedings: Application for leave to appeal against conviction and sentence.

Facts: When the applicant was originally committed for trial the Crown also alleged four counts of sexual intercourse without consent (also domestic violence offences). The Crown accepted a plea arrangement where the applicant pled guilty to all other counts and the Crown would not proceed further on the four counts of having sexual intercourse without consent. The applicant signed instructions agreeing to the plea deal. The trial judge set out the scale of the offending, namely that between December 2015 and February 2017, the male applicant repeatedly assaulted his female partner. The trial judge highlighted that ‘A common feature of the assaults upon the victim was the quite unnecessary use of force in response to minor matters’, as well as the applicant giving ‘false explanation[s] to the police’ to cover up his conduct [71]. The trial judge noted that domestic violence offences are ‘serious matters … worthy of exemplary sentences in the context of giving proper weight to the purposes of sentencing that reflect the need to send a message to the wider community’ [96]. The trial judge took into account mitigating factors such as the guilty plea.

Issues: (1) Whether a miscarriage of justice will occur if the applicant is not permitted to withdraw their guilty plea; … (4) Whether the sentence was manifestly excessive.

Decision and reasoning: Application for leave to appeal against conviction refused. Application for leave to appeal against sentence granted. Appeal against sentence dismissed.

(1) The applicant has not established that a miscarriage of justice will result from him being held to the pleas of guilty that he entered.

The Applicant’s pleas of guilty were entered freely and voluntarily, and were the subject of written instructions from the Applicant to his lawyers. There was no intimidation, improper inducement or fraud which led to the Applicant’s pleas of guilty. This was an informed decision by the Applicant to plead guilty to the charges for which sentence was passed [123].

(4) The aggregate sentence was not manifestly excessive. The Court endorsed the judgment in Cherry v R [2017] NSWCCA 150 that:

[155]: ‘[78] … current sentencing practices of ‘offences involving domestic violence’ [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community. [79] In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence’.

[156]: The applicant’s offences reflected his exercise of control and domination over the victim with these being common features of domestic violence offences [76]-[77]… Specific and general deterrence were important factors on sentence in this case together with the requirement for powerful denunciation by the community of such conduct and recognition of the harm done to the victim as a result of these offences: Cherry v R [76].

[157]: It is important to keep in mind, as well, the serious public justice offence committed by the applicant contrary to s 314Crimes Act 1900 … the applicant’s s 314 offence involved the making of false allegations against police officers designed to protect the applicant himself from prosecution for domestic violence offences against his partner. The applicant caused injuries to himself which he falsely attributed to police. As his Honour [the sentencing judge] observed, the applicant did not carry through with further reports. However, this was a serious public justice offence which warranted the indicative sentence of imprisonment for two years which was itself a significant component of the aggregate sentence imposed upon the applicant.

[158]: There is a continuing and deep-seated lack of insight on the part of the applicant concerning his domestic violence offences.

AK v Regina [2020] NSWCCA 194 (5 August 2020) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘People affected by mental illness’ – ‘Sexual violence’ – ‘Step-child in the family’ – ‘Suicide threat’ – ‘Threat to kill child’

Charges: Detained wife with the intent to obtain an advantage (psychological gratification) x 1; Detained stepchild with the intent to obtain an advantage (psychological gratification) x 1; Doing an act intending to influence a witness to withhold evidence/procure an acquittal x 1; Sexual intercourse without consent x 1; Contravention of a protection order x 1; Common assault x 2; Intimidation/Stalking x 1.

Proceedings: Application for leave to appeal against sentence.

Facts: The male applicant entered his wife’s home premises in contravention of a protection order, intending to intimidate her. The wife returned home with her child, PC, and was scared when she saw the appellant. She yelled to PC to open the door and the appellant told PC that if she opened the door of the room, he would kill PC. Over a number of hours, the applicant spoke with his wife about an impending court case and threatened to kill himself if she called the police. The wife told the applicant she would ‘say whatever the offender wanted her to say in court’. The applicant detained his wife locked in a bedroom for approximately two hours during which time the applicant said, ‘I’m sorry I hit you, I love you’ and then had sexual intercourse with the victim without her consent. The applicant told the victim he had sent his brother $3000, so that if anything happened to the offender, his brother would kill her and he re-iterated his threat that if she called the police he would commit suicide.

Ground: (1) The sentencing judge erred by failing to properly consider the mental health of the applicant.

Decision and reasoning: Application for leave to appeal granted. Appeal dismissed.

No error has been demonstrated. Ground 1 dismissed.

The sentencing judge made specific reference to the context of domestic violence citing the High Court in Munda v Western Australia [2013] HCA 38 at [54]-[55]:

‘the longstanding obligation of the of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’.

Reference was also made to The Queen v Kilic [2016] HCA 48, recognising the:

‘societal shift in relation to domestic violence and that current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category offence, because of changes in societal attitudes to domestic relations’ [15].

Aggravating factors included the actual or threatened use of violence, the presence of children, the commission of offences in the home of the victim, ‘a place where they are entitled to expect to be safe and free from this type of conduct’, and the breach of bail and a protection order [16]. The sentencing judge took into account medical reports that indicated that the offender’s mental condition may have ‘contributed to the commission of the offending in a material way’. The sentencing judge weighed up the relevant factors on the evidence before him, including:

[40] …a background of repeated, violent offending, where an AVO and bail conditions in place seem to have made no difference to this offender’s willingness to attack, detain, humiliate, terrorise and rape his partner in the presence of her children.

Samandi v DPP (NSW) [2020] NSWCCA 102 (9 June 2020) – New South Wales Court of Criminal Appeal

‘Application for bail pending appeal’ – ‘Protection order’ – ‘Reasonable prospects of success’

Charges: Assault x 3; Assault occasioning actual bodily harm x 6; Intentionally damaging property x 1; Contravening a DFV protection order x 1.

Proceedings: Application for bail pending application for leave to appeal.

Facts: The male applicant plead guilty to offences committed against his wife and has now lodged an application for leave to appeal against convictions and sentences, contending his instructions to withdraw his pleas were not followed. The Crown case against the applicant was ‘very strong’. The applicant also contends that his lawyers failed to inform the sentencing judge about issues related to his health.

Issues: Whether special exceptional circumstances justify the grant of bail.

Decision and reasoning: Special or exceptional circumstances established. Application for bail granted subject to conditions.

The applicant has not established that he has reasonable prospects of success on his conviction appeal. However, the applicant’s contention that the consideration of additional medical evidence could result in him being resentenced is ‘reasonably arguable or … at least [has] some reasonable prospects of success’ on appeal [34]. Further, although the applicant’s submission that being in custody prevents him from properly preparing for appeal as an unrepresented litigant does not ‘qualify as special or exceptional circumstances standing alone’ [33], it can be considered as part of a combination of factors.

Vaughan v R [2020] NSWCCA 3 (6 February 2020) – New South Wales Court of Criminal Appeal

‘Application for extension of time for leave to appeal’ – ‘Controlling and obsessive behaviour’ – ‘Following, harassing and monitoring’ – ‘Motor vehicle’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Visa’ – ‘Weapon’

Charges: Causing grievous bodily harm with intent to murder; Wounding with intent to cause grievous bodily harm

Case type: Application for extension of time for leave to appeal against aggregate sentence

Ground of appeal: His honour erred in the notional accumulation of indicative sentences in determining the aggregate sentence

Facts: The applicant man and female first victim met shortly after she moved from Columbia in 2011 and they married in 201. They had separated having had ‘relationship difficulties’ at the time of the offences. After a series of arguments, the first victim moved out of the marital home at his demand. A few days later, the applicant began texting her and her friend, then when asked not to text her emailed the first victim’s sister (copied to the victim) and accused the first victim of fraudulently obtaining a visa and of trying to steal money from him and his family. He also stated that he "hope[d] [the victim] were to die in a car accident and that she has to fly home the body" [20]. The first victim subsequently made several statements to police leading up to the offending "in case something happened to [her]" and that she felt vulnerable and ‘unsafe to go outside’ and she was worried about what the applicant would do "because he is very controlling" [21-2]. The Applicant was also found to have searched for the first victim online, her place of work and the phrase ‘carotid artery neck’ [26]. This search history was relied upon by the Crown to contend that the offences were premediated and that the "Applicant armed himself with a knife intending to cut the victim’s carotid artery in her neck with an intention to kill" [26].

On the day of the offence, the Applicant had waited for the first victim to arrive at work. When she arrived, he approached her, produced a knife from his pocket and "lunged at the victim’s head and neck area, stabbing her in the forehead, the left-chest area and the left arm which she had raised to protect herself" [32]. One of her colleagues approached the Applicant and told him to stop. The Applicant then stabbed the colleague in the skull, causing immediate bleeding and a bone fracture. The Applicant then ran to his vehicle and accelerated quickly towards the first victim, who had collapsed on the ground, and crushed her between the bumper bar of his vehicle and another parked vehicle before driving away.

The first victim suffered abrasions and bruising, multiple fractured ribs, fractures to the left scapula, several vertebrae and pelvis. She had stab wounds to her chest and arm and a laceration to her left forehead. She was hospitalised for two weeks, a number of days in intensive care and required surgery for several injuries. The second victim required sutures for a laceration as a result of the stab wound to the top of her head and the injury caused a mildly displaced fracture of the skull.

The Applicant admitted that he brought the knife with him "intending to cut [his] throat in front of [the victim]" but instead "completely lost it" during a police interview. He had a major depressive illness but no evidence of psychosis or hallucinations and there was expert evidence he was capable of forming and intention to kill, wound and/or do grievous bodily harm.

The applicant had no prior criminal history. He pleaded guilty and was sentenced to an aggregate sentence of 21 years comprising a non-parole period of 14 years commencing on 19 August 2015 and expiring on 18 August 2029, with a balance of term of seven years commencing on 19 August 2029 and expiring on 18 August 2036 [4]. The sentencing Judge gave the following sentence indications:

(a)

Count 1 - the offence under s.27 Crimes Act 1900 of causing grievous bodily harm with intent to murder - imprisonment for 17 years and six months with a non-parole period of 12 years;

(b)

Count 3 - the offence under s.33(1)(a) Crimes Act 1900 of wounding with intent to cause grievous bodily harm - imprisonment for 11 years and three months with a non-parole period of eight years.

The applicant lodged his Notice of Intention to Seek Leave to appeal in time on 1 May 2019 and it was extended until 1 February 2019. Notice of Application for leave to Appeal was not lodged until 30 August 2019. The Crown submitted that the extension of time should not be granted as there was not merit in the ground of appeal.

Held: The ground of appeal lacked sufficient merit to warrant and extension of time to bring an application for leave to appeal against sentence [114]. Johnson J (Macfarlan JA concurring) provided that "the Applicant’s submission in support of [the] ground of appeal are based upon a misconception concerning the operation of the statutory provisions providing for aggregative sentencing in this State" [87]. "The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court."[91] The sentencing judge was found to have correctly complied with the statutory provisions as well as to have taken a "detailed, careful and balanced approach in reaching sentence in this case" [113].

Field v R [2020] NSWCCA 105 (1 May 2020) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Jealous behaviours’ – ‘Manifestly excessive’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Substance abuse’ – ‘Weapon’

Offences: Causing grievous bodily harm with intent to cause grievous bodily harm

Proceedings: Appeal against sentence

Grounds:

1.

The sentencing judge’s assessment of the objective seriousness of the offence as "just below midrange" was not open to her.

2.

The sentencing judge erred in her approach to general deterrence by failing to have regard to the individual circumstances of the offence and offender.

3.

The sentencing judge erred by failing to give effect to his findings of special circumstances in relation to the overall effective sentence.

4.

The sentence is manifestly excessive.

Facts: The male victim was in a relationship with Ms Crowther (‘C’), who was also in a relationship with the appellant, an Aboriginal man. After staying at C’s house overnight, the victim sent C text messages (which were consistent with someone who was in an intimate relationship) but C did not reply so the victim waited for C at her house while consuming alcohol. The victim fell asleep on the front veranda and was awoken by the appellant opening the front door. The victim punched the appellant in the face, causing him to stagger backwards. The victim then went inside and remonstrated with C. He then felt a blow to his stomach and realised he had been stabbed, so he went to the kitchen to escape. He applied paper towel to his stomach and the appellant said, "Come out and I’ll finish ya". C left to collect her daughter from school and the appellant also subsequently left. The victim was left by himself and called 000. He underwent a number of surgical procedures over the following months.

The appellant was convicted and sentenced to six years’ imprisonment with a non-parole period of four years. In sentencing the appellant, the judge found that the appellant was raised in an extremely violent and dysfunctional environment [18]. Furthermore, he left school in year eight, was illiterate [19], had been using drugs since he was 16 [20] and suffered from longstanding mental illnesses [21].

Judgment: The court dismissed the appeal. Regarding Ground 1, the court held that the assessment of objective seriousness was open to the sentencing judge, taking into account the serious injuries and harm suffered by the victim, that the appellant used a knife capable of inflicting serious injury or worse, and that the offence was committed spontaneously as part of an excessive and disproportionate mode of self-defence [54].

The court also held that Ground 2 had not been made out. The court found that the comments made by the sentencing judge regarding general deterrence had direct application to the facts of the case and did not constitute some generalised "motherhood statement", from their context and content [74]. The sentencing judge did not downplay or ignore the appellant’s mental illness [74] because the mental illness aspect of the appellant’s claims "appear[ed] to be unrelated to his criminality generally and this offence in particular" [70].

In holding that Ground 3 had not been made out, the court stated that the "fact that the applicant was subject to conditional liberty at the time of the offences operates as an aggravating factor by virtue of its existence at the operative time and not because of its capacity to rationally affect the criminality of the offence" [86].

The court held that Ground 4 had not been made out and therefore that the sentence was not manifestly excessive because:

1.

The sentence has to be considered against a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. These are significant guidelines.

2.

The applicant received the benefit of a finding of special circumstances such that the non-parole period is 67 per cent of the total sentence.

3.

Having been found guilty by a jury after trial, the applicant was not entitled to any utilitarian discount.

4.

The offence properly fell just below the midrange of objective seriousness for the reasons advanced in relation to appeal ground 1. Although the applicant’s offence was found to involve a spontaneous act of excessive self-defence, those actions also involved a significantly disproportionate response to the perceived threat. This response involved the use of a knife which caused severe ongoing physical and emotional harm to the victim.

5.

The applicant’s criminal history disentitled him to the leniency to which a person with no criminal history may have been entitled.

6.

The applicant was subject to conditional liberty at the time of the commission of the offence.

7.

The applicant’s sentence was backdated in a manner favourable to the applicant to 18 April 2018. This backdating subsumed the entirety of his time in custody for six other unrelated offences for which he had received sentences of imprisonment ranging from 3 to 6 months.

Goodbun v R [2020] NSWCCA 77 (23 April 2020) – New South Wales Court of Criminal Appeal

‘Breach of advo’ – ‘Guilty plea - history of domestic violence - lack of remorse’ – ‘Manifestly excessive’ – ‘Murder’ – ‘Separation’ – ‘Whether aggregate sentence imposed was unreasonable or plainly unjust’ – ‘Whether unnecessary to make a finding of special circumstances’

Charges: Murder x 1; Contravening an apprehended domestic violence order x 1; Using an unregistered firearm x 1; Assault occasioning actual bodily harm x 1.

Case type: Appeal against sentence

Facts: The applicant man pleaded guilty to the murder of his wife (the victim), and to three related offences, namely, contravening an apprehended domestic violence order, using an unregistered firearm, and assault occasioning actually bodily harm. The victim was shot dead by the applicant. They had been married for 40 years and had 2 adult children. The applicant was sentenced to an aggregate sentence of 41 years 6 months imprisonment, with a non-parole period of 31 years and 1 month. He was born in 1956 and, if alive, would be 91 at the time of eligibility for parole.

The sentencing judge described the murder as a "chilling and deeply shocking crime which, without hyperbole, could be described as an execution" ([46]). Her Honour stated that while the applicant did not have a lengthy criminal history for domestic violence, the incident occurred in the context of a history of significant domestic violence ([63]). It was against this background that the sentencing judge found the applicant to be motivated by hatred to kill the victim as she was instrumental in the issue of an ADVO and the bringing of associated criminal charges. She also highlighted the need for specific and general deterrence, "describing domestic violence as a profoundly serious problem in the community, extending not infrequently to the murder of a spouse or partner" ([64]). Her Honour did not make a finding of special circumstances and emphasised that the "principle consideration is to ensure that the minimum period of incarceration reflects the crime and the subjective case".

Issue: The applicant sought leave to appeal against the aggregate sentence on two grounds:

•

The sentencing judge erred in determining that it was unnecessary to make a finding of special circumstances because of the length of the sentence that she proposed to impose and the ordinary statutory ratio that applied;

•

The sentence was manifestly excessive.

Held: Appeal Ground 1: It was submitted that the sentencing judge erred in determining that it was unnecessary to make a finding of special circumstances, having regard to the applicant’s age, health, lack of experience in prison and risk of institutionalisation ([70]). All judges dismissed the first ground of appeal. Bathurst CJ held that the sentencing judge did not err in reaching her conclusion that the non-parole period was the minimum period of incarceration appropriate, as she took into account the applicant’s age, the nature of the case and the applicant’s subjective circumstances ([77]). Fullerton J added that the sentencing judge was justified in declining to make a finding of special circumstances, as she gave "extensive consideration" to matters relevant to determining the minimum period of incarceration, including, but not limited to, the objective gravity of the totality of the offending, and the lack of evidence of genuine remorse or prospects of rehabilitation ([125]). Similarly, Bellew J found that just because a sentence may have the practical effect of amounting to a sentence of life imprisonment, it does not mean that a sentencing judge has erred. The objective seriousness of an offence is a fundamental principle that should be reflected in a sentence, even where adherence to such a principle may impose a life sentence on an offender of middle to advanced age ([215]).

Appeal Ground 2: Bathurst CJ dissented on the second ground of appeal. His Honour found that the indicative sentence of 40 years and 6 months imposed after a discount for the guilty plea was extremely high. He noted that the sentence appeared to be inconsistent with legal principle in sentencing for this type of offence ([112]). Further, he found that the aggregate sentence was substantially imposed for the murder offence, and as a consequence, it was manifestly excessive and should be set aside ([114]-[115]). As this was a dissenting judgment, it was not necessary for his Honour to re-sentence the applicant ([116]).

Fullerton and Bellew JJ, on the other hand, dismissed the second ground of appeal. After taking into account the sentencing judge’s sentencing remarks and giving due weight to "the applicant’s calculated and brazen determination to kill his wife in an act of callous and unbridled revenge", Fullerton J was not satisfied that the aggregate sentence was "unreasonably or plainly unjust" ([132]-[133]). Before concluding that the sentence imposed was not unreasonable or unjust, Bellew J set out the circumstances of the offending which indicated that it was towards the very top of the range:

•

The commission of the offences in the context of domestic violence, and in the context of a breach of an ADVO, were circumstances which called for the need for specific and general deterrence, and denunciation ([261]);

•

Another important part of the background to the offending was the fact that the applicant made a number of statements prior to the offending in which he expressed an intention to kill the deceased ([262]);

•

The applicant’s planning of the murder was significant - he travelled a considerable distance to the victim’s home, and arrived in the early morning at a time when he knew that she would likely be asleep ([263]-]264]);

•

The offending was in the nature of an execution and involved gratuitous cruelty towards the victim ([265]).

•

The offending was in breach of the ADVO and the applicant’s conditions of bail ([266]).

Amante v R [2020] NSWCCA 34 (11 March 2020) – New South Wales Court of Criminal Appeal

‘Arson’ – ‘Domestic violence offences’ – ‘Judicial notice’ – ‘People affected by substance abuse’ – ‘Photographic evidence’ – ‘Property damage’ – ‘Protection orders’

Charges: Destroying or damaging property x 1 (domestic violence offence).

Case type: Application for leave to appeal against sentence

Facts: This is an application for leave to appeal against the sentence imposed by Colefax DCJ in R v Amante [2019] NSWDC 222. The applicant, whilst under the influence of ice, threatened his estranged partner and subsequently set fire to her Department of Housing unit causing significant damage, potential danger and hardship to other residents ([11]). The applicant was sentenced to 3 years and 9 months imprisonment, with a non-parole period of 2 years.

Issue: The applicant sought leave to appeal against his sentence on two grounds. Firstly, he contended that the sentencing judge erred in taking "judicial notice" of the fact that the fire in the roof cavity "posed a serious structural risk to the integrity of the building". Secondly, he alleged error in the way in which the sentencing judge dealt with the applicant’s mental health issues, specifically in finding that they were "largely untreated and largely unresolved".

Held: The application for leave to appeal was granted, but the appeal was dismissed.

Beech-Jones J acknowledged the sentencing judge’s remarks at [46]-[48]. The applicant had a dysfunctional upbringing, which reduced his moral culpability. Moreover, he was genuinely remorseful and his rehabilitation prospects were found to be reasonable provided that he "receive appropriate treatment". The sentencing judge also found special circumstances and varied the statutory ratio accordingly.

The first ground was a challenge to the factual finding of the sentencing judge. The applicant contended that the sentencing judge erred in taking judicial notice of the fact that the spread of the fire to the roof cavity "posed a serious structural risk to the integrity of the building". The applicant argued that he had found this fact to be an aggravating factor, and as such was required to be satisfied of it beyond reasonable doubt. The applicant warned of the dangers of relying on photographic evidence, and contended that it was "somewhat remarkable" that the sentencing judge purported to take judicial notice of the structural integrity of the building, whilst also noting the lack of expert evidence in relation to the fire ([52]). N Adams J (Payne JA concurring) found that Ground 1 had not been established. She treated Ground 1 as a challenge to the factual conclusion of the sentencing judge and in submissions counsel for the applicant accepted that the relevant test was whether the conclusion was open to His Honour (R v O’Donoghue (1988) 34 A Crim R 397) [55]. Beech-Jones J agreed the matter should be considered by reference to evidence available to support His Honour’s conclusion. Her Honour found that the sentencing judge drew an inference that was open to him based on both the agreed facts that the fire went into the roof void, as well as the photographic evidence which showed that the wooden beams in the roof were burnt ([62]). She was also not satisfied that the sentencing judge found the fact as an aggravating factor, as he had not stated anything to this effect ([64]).

In relation to the second ground, it was submitted that his Honour denied the applicant procedural fairness by finding that considerations of specific deterrence and the need to protect the community were "fully engaged" in the applicant’s case because of his "largely untreated and largely unresolved" mental health issues. The applicant submitted that his mental health issues were being treated with medication and that his major depressive disorder was in remission. Ground 2 was also not established. N Adams J (Payne JA and Beech-Jones J concurring) found that it was open to the sentencing judge to find that the applicant’s mental health issues were unresolved, given his poor history ([82]-[83]). This case is a "classic example" of how sentencing judges may be required to make "individualised discretionary decisions" based on the available material. The sentencing judge "ameliorated the sentence on the basis that no rational person would react to a break-up by setting fire to their ex partner’s house threatening the lives of other people", however, specific deterrence became a relevant consideration as the applicant’s mental health and drug issues was found to have led him to commit the offence ([85]).

Consequently, the appeal against sentence was dismissed.

Elwood v R [2019] NSWCCA 315 (20 December 2019) – New South Wales Court of Criminal Appeal

‘Application for leave to appeal against sentence’ – ‘History of jealous, obsessive and stalking behaviour’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Past domestic violence’ – ‘People with intellectual disability’

Offences: Sexual intercourse without consent; Contravene Apprehended Domestic Violence Order (‘ADVO’)

Proceedings: Application for leave to appeal against sentence

Grounds:

1.

The sentencing judge erred in the assessment of the objective seriousness of the sexual offence.

2.

The sentencing judge erred in his approach to the applicant’s intellectual disability.

3.

The sentencing judge erred by failing to give effect to his findings of special circumstances in relation to the overall effective sentence.

4.

The sentence is manifestly excessive.

Facts: The male applicant and female victim had been in a relationship for six years and lived with the applicant’s parents (as they were only 18 and 20 years old respectively). At the time of the offending, the applicant was subject to an ADVO not to assault, molest, harass, threaten or otherwise interfere with his partner. The order did not prohibit contact or cohabitation with her. The applicant and victim were having consensual intercourse when the applicant started touching the victim’s bottom without her consent. He then inserted his finger into her anus with force, causing the victim to scream so loudly that the applicant’s mother called out to them. The applicant responded by pushing the victim away from him with both fists. The victim immediately complained to the applicant’s mother and asked her to notify the police.

The applicant plead guilty and was sentenced to four years and six months’ imprisonment with a non-parole period of three years, after the sentencing judge took into account an offence of common assault on a Form 1.

Judgment: The court granted leave and allowed the appeal, upholding Ground 3, and resentenced the applicant to three years and two months’ imprisonment with a non-parole period of one year and eight months. The court found that the sentencing judge was satisfied that a number of circumstances, both personal to the applicant (such as his compromised level of cognitive functioning) and features of the sentencing process itself, supported a finding of special circumstances [50]. Having made such a finding, the sentencing judge was required to determine the extent or the degree to which the statutory ratio should be reduced, both in the appointment of the aggregate sentence and after accumulation in the ultimate sentencing order [54]. Where a finding of special circumstances is not based solely on the fact of accumulation (as occurred in this case), the sentencing judge is required to carry that finding into effect on accumulation or give an explanation for why it was not done [61]. The court accepted the applicant’s contention that the judge’s discretion miscarried because the sentencing judge did not indicate that he intended that the effective non-parole period would not reflect the finding of special circumstances that had been given effect to in the appointment of the aggregate sentence [55].

While the court endorsed the sentencing judge’s finding that there was an attenuation of the applicant’s moral culpability for the sexual offending by reason of his compromised level of intellectual functioning, the court also found that the applicant was, for that reason, an inappropriate vehicle for general deterrence [67]. Furthermore, the court accepted that the applicant had been convicted of multiple charges of assault and offences of stalk and intimidate in a domestic context, both as a juvenile and as an adult, none of which attracted a sentence of imprisonment [28].

The court rejected Ground 1, finding that the sentencing judge made the correct assessment of the objective seriousness of the offence (in the low and middle range) [40], [41]. The court also rejected Ground 2, finding that no sentencing error was committed because the sentencing judge failed to make mention of the impact of the applicant’s intellectual or cognitive functioning on the question of either general or specific deterrence [48]. Based on its finding in regards to Ground 3, the court found it unnecessary to consider Ground 4.

Ross, Christopher v R [2019] NSWCCA 314 (20 December 2019) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘Children’ – ‘Coercion’ – ‘Controlling behaviour’ – ‘History of abuse’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Specific considerations’ – ‘Stalking’ – ‘Threats to kill’ – ‘Victims as (alleged) perpetrators’

Charges: Stalking or intimidation with intent to cause fear or physical or mental harm x 2; aggravated detain for advantage x 1; common assault x 1; influence witness x 1

Case type: Application for leave to appeal against sentence

Facts: The applicant man was sentenced with respect to 5 offences involving domestic violence against his female de facto partner (complainant), including one offence of seeking to dissuade her from giving truthful evidence. He was sentenced to an aggregate term of 6 years’ 6 months’ imprisonment, with a non-parole period of 4 years 8 months. The applicant and complainant had known each other since childhood, and their relationship commenced in 2016. At that stage, the complainant had 5 children living with her. The Department of Community Services took the children into care as both parties were using drugs. The relationship soon became dysfunctional with constant arguments and pushing and shoving by each party.

The applicant had intimidated the complainant on several occasions by making threats to kill. One incident involved the use of a syringe to intimidate, and another involved the complainant threatening to take her own life ([5]-[7]). The applicant also detained the complainant without her consent with an intention to obtain an advantage, namely psychological satisfaction, and caused actual bodily harm ([10]]-[11]). On another occasion, the applicant pushed the complainant, causing her to fell particularly frightened ([13]). Whilst the applicant was shopping, the complainant ran to a nearby police station, claiming to have been kept hostage by him and fearful for her life. He was later arrested, charged and refused bail. The police also gave an ADVO for the complainant’s protection, prohibiting the applicant from contacting her. While in custody, the applicant contacted the complainant and pressured her to give false evidence by making a statutory declaration which described her allegations as false and misleading ([17]). She did so, and the applicant was released on bail. He continued to commit further offences against the complainant. He was arrested again and charged with contravening the ADVO, assault occasioning actual bodily harm, common assault, intentionally choking a person with recklessness, and escaping police custody ([18]-[19]).

Grounds: The aggregate sentence was manifestly excessive

Held: The application for leave to appeal against the aggregate sentence was granted; the appeal was dismissed. The Appeal Court was unable to conclude that the sentencing judge failed to apply the relevant principles such that there was an error in the sentence imposed ([42]-[45]). The sentence was not manifestly excessive ([56]).

It was submitted inter alia that the sentence did not reflect the factual findings made by the judge as to his disadvantaged background and the genesis of his drug dependency ([2]).

The sentencing judge emphasised the need for the court to provide full protection to domestic violence victims, because such conduct involves a violation of trust and the use of physical strength to control and subordinate the other party to an intimate relationship ([28]). The sentencing judge found that the offence of influencing a witness involved overtones of domestic violence in that the applicant, although in custody, continued "to exert the power, influence and control that he had established over the complainant, as a result of her dependency upon him" ([34]).

The applicant’s subjective circumstances included that: his father was murdered, he grew up in a household which involved alcohol and drug use, and violence, and he began using drugs and alcohol himself at an early age ([40]). The sentencing judge noted that although his deprived upbringing and early onset of drug and alcohol abuse served to ameliorate his level of moral culpability, he nevertheless had a substantial level of moral culpability ([41]). The Appeal Court considered cases like R v Fernando and Bugmy v The Queen, which discussed the role of alcohol abuse and alcohol-fuelled violence in Aboriginal communities. Wood J in Fernando recognised that both of these problems are endemic in some Aboriginal communities, and considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised, it should be taken into account as a mitigating factor. In Munda, the Court addressed the tension between accepting a reduction in moral culpability due to the offender’s disadvantaged background, and the need to provide the victim of violence with "such protection and vindication as the criminal law can provide."

Wood v R [2019] NSWCCA 94 (19 December 2019) – New South Wales Court of Criminal Appeal

‘Absence of planning’ – ‘Apprehended violence order’ – ‘Gratuitous cruelty’ – ‘Intoxication’ – ‘Manifestly excessive’ – ‘Misuse of alcohol’ – ‘Murder’ – ‘Past domestic violence’ – ‘Strangulation’ – ‘Weapon’

Charges: Murder x 1; Contravention of an Apprehended Violence Order x 1.

Proceedings: Appeal against sentence.

Facts: The applicant sought leave on the following grounds:

•

The sentencing judge erred in having regard to the applicant’s record of previous convictions as a matter that aggravated the offence;

•

The judge erred in taking into account the fact that the applicant was on conditional liberty as a factor that aggravated the offence;

•

The judge erred in failing to have regard to the lack of planning in assessing the objective seriousness of the offence;

•

The judge erred in failing to take into account the applicant’s disadvantaged background as a factor relevant to his moral culpability;

•

The sentencing judge erred in finding that the applicant’s intoxication aggravated the applicant’s offending;

•

The judge erred in find that the Crown had proven beyond reasonable doubt that the applicant’s offending involved gratuitous cruelty; and

•

The sentence was manifestly excessive. [5]

The applicant and the deceased had been in an ‘on again/off again relationship’ characterised by domestic violence for three years [9]. He pleaded guilty and was sentenced to a non-parole period of 19 years 1 month with a balance of term of 6 years and 5 months. The applicant violently killed the deceased, stabbing her with a knife, when both were intoxicated, the applicant having come home an hour earlier than the deceased. At the time of the murder he was subject to a s 20(1)(b) Crimes Act 1914 (Cth) recognisance for 18 months, commencing 17 May 2017 and expiring 16 November 2018 and a s 9 Crimes (Sentencing Procedure) Act bond for 18 months, commencing 17 May 2017 and expiring 16 November 2018.

Decision and reasoning: The application for leave to appeal was granted in respect of grounds 3 and 6, the appeal allowed substituting a sentence of 24 years’ imprisonment with a non-parole period of 18 years.

Regarding the third ground, the court found that the absence of planning is a ‘consideration which goes to the objective seriousness of the offending and was wrongly taken into account by the sentencing judge when considering the applicant’s subjective case’ [108]. This ground of appeal was made out.

Hoeben CJ held that the sixth ground was made out as on the evidence available to the sentencing judge it was not possible to conclude that the injuries were inflicted at a time other than of the killing.

Moore v R [2019] NSWCCA 264 (4 November 2019) – New South Wales Court of Criminal Appeal

‘Manifestly excessive’ – ‘Physical harm and violence -threats to kill’ – ‘Separation’ – ‘Suicide threat’ – ‘Weapon’

Charges: Grievous bodily harm with intent x 1; Detain with intent to obtain an advantage and immediately beforehand occasion actual bodily harm x 1; use offensive weapon with intent to commit an indictable offence x 1.

Proceedings: Appeal against sentence.

Facts: The applicant sought leave to appeal on grounds that the sentencing judge erred in his assessment of the objective seriousness of the counts, failed to accurately assess the applicant’s prospects of rehabilitation and likelihood of reoffending and the sentence imposed was manifestly excessive (12 years imprisonment, non-parole period 9 years). The accused ‘ambushed his ex-partner outside her house, beating her around the head and body with an improvised metal pole. He then forced the victim into her own car, which he proceeded to drive around to [surrounding suburbs], all the while making threats to kill himself, or to kill them both’. When the victim tried to escape the applicant pulled her back into the car by her hair. The victim was trapped in the car for four hours before the applicant crashed into a telephone pole.

Grounds of appeal:

•

The sentencing judge erred in his assessment of the objective seriousness of the counts;

•

The judge failed to accurately assess the applicant’s prospects of rehabilitation and likelihood of reoffending;

•

The sentence imposed was manifestly excessive.

Held:

Ground 1: The sentencing judge did not err in his assessment of the objective seriousness of Count 1 because the seriousness of the offence was increased by factors including planning, duration, brutality, infliction of pain, lack of provocation, and that it occurred in a context of a domestic relationship. In relation to Count 2, it was found that the magistrate did not err in his assessment as the offence occurred spontaneously.

Ground 2: The court found that it was open on the evidence for the judge to approach the issues relating to the establishment of mitigating factors in the way he did.

Ground 3: ‘Given the gravity of the applicant’s offending and the findings of the judge as to objective seriousness, with full recognition of the mitigating factors that stood in the applicant’s favour’, Hulme J was of the view that the sentence imposed was not manifestly excessive

Majzoub v Regina [2019] NSWCCA 94 (8 May 2019) – New South Wales Court of Criminal Appeal

‘Accumulation of sentence’ – ‘Legal representation and self-represented litigants’ – ‘Obstruct justice’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: The applicant was arraigned on an indictment containing 17 counts. Counts 1 to 11 charged various offences of violence and of detaining for advantage (including common assault); while counts 12 to 15 alleged that the applicant attempted to influence the complainant not to give evidence against him.

Case type: Application for leave to appeal against sentence.

Facts: Norton DCJ sentenced the accused to an aggregate term of imprisonment for 12 years with a non-parole period of 9 years. That sentence was partly accumulated upon an aggregate sentence for other offences imposed on him by Bennett DCJ. The applicant pleaded guilty to offences, such as common assault and attempting to influence the complainant not to give evidence made directly by him and through one of his sisters. He was found guilty of possession of an offensive weapon with intent, reckless wounding, two counts of assault occasioning actual bodily harm, and two counts of detaining for advantage.

The applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive. He sought a lesser non-parole period, and argued that there should be greater measure of concurrency in the indicative sentences ([14]). Although the application was outside the limitation period, there was no objection by the Crown that an extension of time should be granted ([6]).

Issue: Whether, in any event, the aggregate sentence is manifestly excessive.

Held: The Court granted leave to appeal, but would dismiss the appeal.

Personal circumstances:

The applicant was born in Lebanon, his father used to assault his mother under the influence of alcohol, he left school in year 8 and had very little employment since. He began to use drugs at the age of 14. At the time of his arrest, he was using ice on a daily basis ([11]). Notably, the applicant had an extensive criminal history, including drug offences, stalking and intimidating and contravening apprehended violence orders. The present offences were committed while he was on some kind of conditional liberty ([10]).

Non-parole period:

The Court noted that Norton DCJ needed to find special circumstances before departing from the 9 year non-parole period that was the statutory norm in accordance with section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was open her Honour to decline to make a finding of special circumstances ([16]-[18]).

Accumulation/concurrence:

The Crown noted that the total of the indicative sentences for the present offences was 29 years and 10 months, so that the aggregate sentence of 12 years would demonstrate a substantial measure of concurrence. The Court held that Norton DCJ’s determination in that respect, and her decision as to the measure of the accumulation of the aggregate sentence upon the sentence imposed by Bennett DCJ, demonstrated an exercise of discretion consistent with established principle ([23]).

Manifestly excessive:

A sentence will only be manifestly excessive if it is ‘unreasonable or plainly unjust’ ([25]). The Court stated that the offences constituted a pattern of domestic violence of considerable gravity, and noted the seriousness of domestic violence and the need for denunciatory and deterrent sentences. Their Honours found that Norton DCJ fairly described the applicant’s subjective case as ‘far from compelling’, and held that the aggregate sentence, including the non-parole period, were well within the legitimate bounds of the exercise of her discretion. Therefore, the sentence was not shown to be unreasonable or plainly unjust ([28]-[29]).

SC v R [2019] NSWCCA 25 (15 February 2019) – New South Wales Court of Criminal Appeal

‘Breach of trust’ – ‘Children’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’

Charges: Nine counts, including assault occasioning actual bodily harm, sexual intercourse without consent and armed with intent to intimidate.

Case type: Application for leave to appeal.

Facts: The applicant and the complainant were married with three children. The applicant was tried by a jury on nine counts, which included various sex offences and assaults. The complainant alleged that the applicant had punched her in the face and mouth, forcibly held her down and raped her, forced anal intercourse on two instances, pushed her head against a laundry wall, threw her out of a door, and grabbed a knife and threatened physical harm. The jury found the applicant guilty on Counts 6, 7 and 8 and not guilty on Counts 1-5 and 9. The sentencing judge imposed an aggregate sentence of 10 years with a non-parole period of 7 years and 6 months ([92]).

Issues: The appellant sought leave to appeal against the conviction on the grounds that (1) there was a miscarriage of justice as the trial judge failed to discharge the jury following the admission of unfairly prejudicial evidence (ground 1); and (2) the verdict in respect of Count 6 was inconsistent with the not guilty verdicts on Counts 1-5 and 9, and could not otherwise be supported by the evidence at trial (ground 2). The appellant further sought leave to appeal against the sentence on the grounds that (1) there was an error by the sentencing judge in the assessment of the gravity of Count 6 (ground 3); and (2) the indicative sentences for Counts 6, 7 and 8 were excessive and that the level of accumulation was too great (ground 4).

Decision and reasoning: The Court granted leave to appeal against the conviction and sentence. Ground 1 related to an application to discharge the jury on the basis that the jury may have heard the word ‘pistol’. The trial judge refused to discharge the jury and directed them at [78]. The Court held that the trial judge was entitled to assume that the jury understood and complied with his direction. Their Honours were not satisfied that there was any miscarriage of justice ([85]). As to ground 2, the Court held that there was no inconsistency between the jury’s verdicts of not guilty and guilty ([69]). With respect to ground 3, their Honours held that the sentencing judge did not err in finding the offending in Count 6 to be ‘above the mid-range’, and that the indicative sentence for Count 6 was not excessive ([109]). In order to establish ground 4, the applicant was required to show that the sentence imposed was unreasonable or plainly unjust ([111]). The Court did not regard any of the indicative sentences as excessive, having regard to the sentencing judge’s findings and assessment of their seriousness. All three counts involved a grave breach of trust and were aggravated by having occurred in the complainant’s home. Count 7 was further aggravated by having been committed in the presence of their eldest child ([112]).

Viavattene v R [2018] NSWCCA 197 (5 September 2018) – New South Wales Court of Criminal Appeal

‘Bail’ – ‘Evidence’ – ‘Self-represented litigants’ – ‘Unacceptable risk and best interests’

Charges: Stalking or intimidation with intent to cause fear of physical or mental harm x 9; Knowingly contravene an apprehended violence order x 1; Using a carriage service in a manner that was menacing, harassing or offensive x 4.

Appeal type: An application pursuant to s 49 of the Bail Act 2013 NSW for release on bail pending the hearing of an appeal to the District Court against convictions recorded in, and sentences imposed by, the Local Court.

Facts: The applicant applied for release on bail pending the hearing of an appeal to the District Court against convictions recorded in, and sentences imposed by, the Local Court. The applicant was charged with nine offences of stalking or intimidation with intent to cause fear of physical or mental harm, one charge of knowingly contravening an apprehended violence order and four charges of using a carriage service in a manner that was menacing, harassing or offensive.

Issues: Whether bail should be ordered.

Decision and reasoning: Bail was refused as the Court was not satisfied that cause was established by the applicant. At the time of sentencing, the applicant was 49 years old. He also had health difficulties and family responsibilities. However, the Court noted that the evidence led by the prosecution, his prior criminal record and the Presiding Magistrate’s comments suggested that he was a substantial menace to the community. Evidence of the difficulties that the applicant was experiencing in custody was inadequate ([27]). His Honour nevertheless accepted that the applicant’s family was experiencing hardship as a result of his absence, and that he was experiencing some problems in custody. To the extent that the matters relevant to unacceptable risks can inform whether a show cause was established, the Court noted that there was not any proper bail proposal put forward to the Court which would alleviate the risks to the various persons who experienced the applicant’s behaviour in previous years.

Suksa-Ngacharoen v Regina [2018] NSWCCA 142 (10 August 2018) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Concurrent sentences’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Grievous bodily harm by the explosion of a substance x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and the victim were in a relationship. In 2013, the applicant was charged with common assault and an apprehended domestic violence order (‘ADVO’) was imposed upon him. In 2014, the applicant doused the victim with methylated spirits and set her alight.

District Judge Syme imposed a sentence of 18 years’ imprisonment with a non-parole period of 13 years and 3 months. The applicant was also sentenced to: 18 months’ imprisonment for the charge of contravening an apprehended domestic violence order; seven months’ imprisonment for breach of bond in relation to the charge of contravening an apprehended domestic violence order; and three months’ imprisonment for breach of bond in relation to the charge of common assault.

Issues: Appeal against sentence on 7 grounds.

Decision and Reasoning: The appeal was allowed.

Leeming JA and Bellew J agreed with Wilson J’s reasoning with respect to grounds 1-6. However, their Honours held that ground 7 (the sentence was manifestly excessive) was established. The applicant had participated in courses, had expressed remorse, had not used drugs in custody, had no other criminal records, and experienced language and cultural difficulties in custody owing to his Thai heritage. Whilst these factors did not detract from the objective seriousness of the offending, they suggested that there was an unarticulated error of principle on the part of the sentencing judge. Their Honours quashed the sentence and imposed a total sentence of 17 years imprisonment, with a non-parole period of 12 years.

Wilson J held that the appeal should be dismissed. Her Honour dismissed ground 4 (failure to properly assess the applicant’s evidence of remorse) on the basis that the applicant had not made reparation and blamed his drug use for the commission of the crime. Accordingly, Wilson J considered that the applicant’s expression of remorse was no more than ‘the often ritual incantation’, easily uttered, whether sincerely or otherwise ([116]).

Her Honour dismissed ground 6 (error by partly accumulating the sentence for the substantive offence on the related offence of contravene ADVO) on the basis that offences committed in breach of an ADVO and the offence of breaching an ADVO, involved separate and distinct criminality which warranted the imposition of distinct sentences for each offence ([131]). Wilson J said at [132]:

‘The criminality of breaching an ADVO rests in the complete disregard for an order of a court, conduct which has the practical effect of undermining the authority of the courts, and preventing the courts from extending effective protection to persons at risk of harm from another. The legislative intent of the scheme for apprehended domestic violence orders is to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship… Conduct which involves deliberate disobedience of a court order must be treated as serious, and should ordinarily be separately punished from any offence that occurs at the same time, always having regard to the requirements of the totality principle as set out in Pearce v The Queen (1989) 194 CLR 610.’

Her Honour disagreed with the majority with respect to appeal ground 7. The applicant's crime was extremely serious, and the consequences for the victim were devastating and long-term. The gravity of the crime warranted a stern sentence representing condign punishment. Accordingly, the sentence imposed was not manifestly excessive ([145]).

Director of Public Prosecutions (NSW) v Al-Zuhairi [2018] NSWCCA 151 (27 July 2018) – New South Wales Court of Criminal Appeal

‘Evidence’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Safety and protection of victims and witnesses’ – ‘Victim experiences of court processes’

Charges: Assault occasioning actual bodily harm x 1

Appeal type: Appeal on the case stated; Appeal against acquittal

Facts: The respondent was convicted of assault occasioning actual bodily harm for assaulting the brother of his ex-partner (the complainant). The complainant’s evidence-in-chief was a recorded statement pursuant to s 289F(1) of the Criminal Procedure Act (NSW). The recording was not tendered in evidence. The transcript did not set out the content of the recorded statement.

On appeal, Colefax SC DCJ held that the recorded statement was required to be tendered as an exhibit. He set aside the respondent’s conviction.

Issues: Whether, in a proceeding for a ‘domestic violence offence’, a recorded statement by a complainant must be formally tendered in the Local Court for the contents of the recorded statement to be put into evidence.

Decision and Reasoning: The Court of Appeal (Payne JA, Hulme and Fagan JJ) quashed the orders made by the District Court, and remitted the matter to the District Court for re-hearing. The Court held that the playing of the recording in the Local Court was sufficient to render it evidence for the purpose of an appeal to the District Court.

The significance of the decision is that recorded statements given by complainants in domestic violence offences can be accepted as evidence as if the contents were given by the complainant in person, notwithstanding that the contents were not recorded on the Local Court transcript or admitted formally as an exhibit.

R v Patsan [2018] NSWCCA 129 (29 June 2018) – New South Wales Court of Criminal Appeal

‘Dynamics of domestic violence’ – ‘Physical violence and harm’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Recklessly causing grievous bodily harm x 1.

Case type Application for leave to appeal against sentence.

Facts: The applicant sought an extension of time for leave to appeal against a sentence of 2 years and 3 months imprisonment, with a non-parole period of 1 year and 4 months, for recklessly causing grievous bodily harm to which he pleaded guilty. A further charge of assault occasioning actual bodily harm was taken into account in the sentence.

Issue: The applicant sought to appeal against the sentence on the ground that it was manifestly excessive.

Held: The Court was not persuaded that the sentence imposed was unreasonable or plainly unjust, and consequently, refused leave to appeal against the sentence ([47]-[48]). Importantly, the Court acknowledged the special dynamics of domestic violence. Their Honours rejected the applicant’s submission that the sentencing judge used him as a scapegoat for the prevalence of domestic violence offences. ‘While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them’. In most cases, the conduct will involve an attack by a male who is in a position to inflict considerable harm to his victim because of his superior physical strength, and where there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths ([39]-[40]).

Glynn Kaderavek v R [2018] NSWCCA 92 (11 May 2018) – New South Wales Court of Criminal Appeal

‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Strangulation’ – ‘Systems abuse’

Charges: Assault x 1; Recklessly causing grievous bodily harm x 1; Perverting the course of justice x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and complainant lived together and had two children. The assault charge occurred when the applicant choked the victim and chased her around the backyard with a wooden stick. The grievous bodily harm charge occurred when the applicant punched the victim, breaking her jaw. The offender then smashed walls with a tow bar and broke belongings in the house. The offender gave a false statement to police alleging that there was a home invasion ([8]).

The chronology of sentencing was ‘unusual’ ([7]). The present offences were committed in August 2013, but the complainant did not report them to the police until July 2014 because of emotional abuse from the applicant ([8]). In March 2014, the applicant committed further offences against the complainant and was sentenced for those offences. At the time of sentencing for the present offences, the applicant was still in custody for the March 2014 offences ([7]). The judge made a finding of special circumstances to recognise the applicant’s mental health issues. The sentencing judge stated that he would reduce the non-parole period so that the offender could be appropriately supervised when released into the community ([27]).

The applicant was sentenced to an aggregate sentence of 7 years’ imprisonment with a non-parole period of 5 years. The sentence was ordered to commence on 7 July 2015 ([5]), the date of expiry of the total sentence (non-parole period and the balance of the term) for the March 2014 offences ([7]).

Issues: The applicant argued that the sentencing judge erred in wholly accumulating the sentence on earlier sentences because the judge failed to take into account:

•

a period of pre-sentence custody;

•

the effect of the earlier sentences on the total ratio between the non-parole period and total sentence; and

•

the principle of totality ([6]).

Decision and Reasoning: The first ground was upheld because Hamill J (Beazley P and Schmidt J agreeing) found that the sentence should have commenced on 7 April 2015, the expiry date of the non-parole period for the March 2014 offences. Hamill J dismissed the second and third grounds of appeal because there was no error in wholly accumulating the sentences or the judge’s application of the principle of totality ([23]-[24]).

Hamill J held that the total impact of the sentence negated the judge’s finding of special circumstances. This was because the when the entire period of imprisonment was taken into account, there was no decrease in the non-parole period ([28]).

Hamill J considered that he needed to exercise the sentencing discretion afresh, in accordance with Kentwell v The Queen [2014] HCA 37 ([30]). Hamill J imposed the same head sentence. His Honour commenced the sentence on 7 April 2015 and reduced the non-parole period to 4 years and 6 months to reflect the finding of special circumstances ([31]).

Ussher-Clarke v The Queen [2018] NSWCCA 61 (13 April 2018) – New South Wales Court of Criminal Appeal

‘Factors affecting risk’ – ‘Impact on consent and disclosure’ – ‘Pregnancy’ – ‘Systems abuse’ – ‘Women’

Charges: Recklessly cause grievous bodily harm x 1; Intending to procure a witness to give false evidence x 1.

Appeal type: Application for leave to appeal against conviction.

Facts: The appellant kicked his partner, the complainant, in the abdomen. The complainant was 12 weeks pregnant, and she miscarried the following morning ([10]). There were conflicting opinions given by experts as to the likelihood that the kick could have caused the miscarriage (see [17]-[44]).

The complainant gave statements to the police immediately after the incident indicating that the appellant had kicked her. In the weeks after the incident, the appellant made a number of phone calls to the complainant to encourage her to lie to the police. In a subsequent statement and in her evidence at trial, the complainant claimed that the appellant had not assaulted her ([8]).

The appellant pleaded guilty to the charge in relation to influencing a witness. The applicant was convicted of the recklessly cause grievous bodily harm charge and was sentenced to a head sentence of 5 years and 6 months with a non-parole period of 4 years.

Issues: Whether the conviction was unreasonable and unable to be supported by the evidence.

Decision and Reasoning: Leave to appeal was refused. The Court discussed the principles governing granting leave to appeal against conviction ([59]-[60]). The Court noted that the Crown had to prove that the kick was a significant cause of the miscarriage, not that that it was the sole cause ([60]-[61]). The Court concluded that it was open to the jury to accept the experts’ evidence, while conflicting, as supporting the conclusion that the kick caused the miscarriage ([89]).

Diaz v The Queen [2018] NSWCCA 33 (14 March 2018) – New South Wales Court of Criminal Appeal

‘Aggravated kidnapping’ – ‘Damaging property’ – ‘General deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Specific deterrence’ – ‘Women’

Charges: Aggravated kidnapping x 1; Sexual intercourse without consent x 1; Destroying or damaging property x 4; Assault occasioning actual bodily harm x 1; Common assault x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and victim had been in a relationship for approximately 5 months. The assault and destroying property charges were in relation to arguments where the applicant pulled out some of the victim’s hair, and smashed her phone, a vase and a television set ([13]-[15]). The aggravated kidnapping and sexual intercourse without consent charges occurred when the applicant pinned the victim onto a bed ([17]). He digitally penetrated her, became angry about the contents of her Facebook and text messages ([18]) and punched her approximately 20 to 30 times ([19]-[20]). This continued for about 5 hours ([21]). The applicant had a ‘disturbing’ criminal history including two similar domestic violence offences where the applicant detained the victim in her apartment ([28]-[31]). The applicant was on parole for those sentences at the time of this offence ([33]).

The applicant was sentenced to a head sentence of 7 years and 9 months imprisonment with a non-parole period of 4 years and 6 months ([10]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Acting Justice Hidden at [47] endorsed the trial judge’s characterisation of the manner in which the applicant detained the victim “by instilling fear and control over her… by his conduct, demeanour, words and assault” (at [39]).

It was significant that the offences were committed while the applicant was on parole. The domestic violence context of these offences was also important, with Hidden AJ quoting from Johnson J’s judgement in R v Hamid [2006] NSWCCA 302 at [86]:

In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.

Justice Garling added: ‘[in] R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41] of violent attacks in domestic settings this:

Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth, such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

Armstrong v R [2017] NSWCCA 323 (15 December 2017) – New South Wales Court of Criminal Appeal

‘Conviction’ – ‘Exposing children to violence’ – ‘Humiliation’ – ‘Sentencing’ – ‘Sexual abuse’ – ‘Tendency evidence’ – ‘Women’

Charges: Assault x 1; Sexual assault x 2; Aggravated sexual assault x 2.

Appeal type: Appeal against conviction and sentence in relation to the two counts of aggravated sexual assault.

Facts: The appellant and complainant were in a relationship. In the presence of the complainant’s son, the appellant punched and bit the complainant, held her down while she was screaming and pushed his fingers into her vagina and anus ([15]).

The prosecution sought to adduce tendency evidence ([8]). CCTV footage showed the appellant dragging the complainant by her hair ([13]). The Crown relied upon the CCTV evidence to argue that the appellant had a tendency to be violent towards the complainant ([8]). The tendency evidence was admitted, and the appellant was found guilty of the two counts of aggravated sexual assault and was sentenced to a head sentence of 8 years and 9 months’ imprisonment with a non-parole period of 5 years and 9 months.

Issues: Whether the tendency evidence) should have been admitted; and whether the sentencing judge erred in determining the objective seriousness of the offences by not taking into account the fact that they were not committed for sexual gratification.

Decision and Reasoning: The appeal against conviction was dismissed and leave to appeal against sentence was refused. In relation to the appeal against conviction, the Court (Meagher JA, Rothman and Button JJ) stated that tendency evidence need not directly establish the elements of an offence charged, but should make one or more of the facts in issue significantly more likely ([20]). The Court at [19] quoted the majority of the High Court in Hughes v The Queen [2017] HCA 20 (14 June 2017) at [40]:

The test posed by s 97(1)(b) [of the Evidence Act 1995 (NSW)] is as stated in Ford [(2009) 201 A Crim R 451 at [125]]: ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. [emphasis in original]

Since the appellant’s case was that he was acting in self-defence, the Court held that the trial judge did not err in admitting the CCTV footage. The footage was sufficiently probative of the appellant’s propensity to act violently towards the complainant ([21]).

In relation to the appeal against sentence, the Court held that the trial judge did not err, Meagher JA stated that: ‘there is nothing to commend the proposition that engaging in sexual intercourse without consent to gratify oneself is in any sense more objectionable than doing so to humiliate and physically dominate another’ ([35]). Thus, the trial judge did not err in measuring the objective seriousness of the offence.

R v Evans [2017] NSWCCA 281 (21 November 2017) – New South Wales Court of Criminal Appeal

‘Aggravating circumstances: breach of bail and protection order’ – ‘Assault’ – ‘Fair hearing’ – ‘People with children’ – ‘Power and control’ – ‘Sexual abuse’ – ‘Strangulation’ – ‘Systems abuse’ – ‘Text messages’ – ‘Women’

Charges: Indecent assault x 1; Common assault x 2; intentionally destroy property x 1; Contravene apprehended domestic violence order x 1; Do act with intent to influence witness x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and complainant had been in a relationship and had three children ([10]). The common assault charges occurred when the applicant grabbed the complainant’s throat and forced her against the wall, onto the bed and onto the ground ([11]-[14], [22]-[24]). The indecent assault charge occurred when the applicant forced her onto the bed and placed his fingers in her vagina ([15]-[18]). The ‘do act with intent to influence witness’ charge occurred when the applicant asked the complainant over text message to drop the charges on at least 16 occasions ([33]). For example, one of the text messages said, ‘you will be left with the kids full time with no break so I couldn’t handily [sic] going away so that’s why I want you to drop the charges’ ([33]).

After a plea of guilty, the applicant received a head sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months ([3]). For the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 3 years and 2 months’ imprisonment ([4]).

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was allowed. Adamson J, with whom Hoeben CJ at CL and Davies J agreed, held that the sentence was manifestly excessive.

In relation to the ‘do act with intent to influence witness’ charge, Adamson J at [38] quoted the sentencing judge:

[the charge] reveals a course of conduct that I regard as being particularly serious. It was repetitive and was clearly designed to emotionally manipulate and blackmail the complainant to discontinue the charges against him. It was also conduct that was in breach of his bail conditions as well as another court order, namely an interim ADVO. These are aggravating features.

Adamson J similarly commented at [46] on the importance of the charge (s 323(a) of the Crimes Act 1900 (NSW)) in the context of domestic violence offences:

It is within the common experience of courts that many charges of domestic violence cannot be prosecuted because the defendant manages to persuade the complainant, including by threatening violence, not to give evidence against him. Conduct of this nature against complainants is inimical to the interests of justice and the administration of justice. The perpetrators of domestic violence may, by committing offences under s 323(a) of the Crimes Act, effectively immunise themselves from prosecution.

However, his Honour considered that the text messages were not as serious compared to other possible offences under s 323(a) of the Crimes Act, such as bribing a witness or threatening violence (see [48]-[51]). Therefore, the sentence of 3 years and 2 months was manifestly excessive, and led to the head sentence being manifestly excessive ([51]).

The applicant was re-sentenced to an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years ([61]). On the ‘do act with intent to influence witness’ charge, the applicant was sentenced to 1 year imprisonment (after applying the 20% reduction for his plea of guilty) ([59]).

DPP v Darcy-Shillingsworth [2017] NSWCCA 224 (13 September 2017) – New South Wales Court of Criminal Appeal

‘Aggregate sentence’ – ‘Community interest’ – ‘General deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Suspending an aggregate sentence’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Reckless wounding x 1; kidnapping x 1; assault occasioning actual bodily harm x 1; reckless grievous bodily harm x 1.

Case type Appeal against sentence.

Facts: The respondent was sentenced to 150 hours of community service for reckless wounding, and an aggregate sentence of 21 months imprisonment, which was suspended upon the offender entering into an 18 month good behaviour bond for assault occasioning actual bodily harm and recklessly causing grievous bodily harm. The assaults were committed against the respondent’s partner, with whom he had 3 children, and her father. The respondent, his partner and their children lived in a small town with a largely Aboriginal population.

The respondent struck his partner, causing her to fall to the ground (Count 1). Later that evening, he drove her around the neighbourhood doing burnouts in his vehicle (Count 2). The respondent also hit her in the face while she was still in the car, pulled her from the car and hit her again, knocking her to the ground (Count 3). He also punched his partner’s father a few times (Count 4).

Issue: The issue for the Court was whether to allow the appeal against the sentences.

Held: The Court held that the sentences imposed did not adequately reflect the community interest in general deterrence ([85]). Their Honours allowed the appeal against the sentences, and resentenced the respondent to an aggregate sentence comprising a non-parole period of 15 months, with a balance of term of 15 months, giving a sentence of 2 years and 6 months.

General deterrence is a matter of some importance in cases of domestic violence ([82]-[85]). Citing The Queen v Kilic [2016] HCA 48, the Court noted that ‘…current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. This statement has been understood by the Court as reflecting the current response of the criminal law in relation to domestic violence as requiring ‘rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community’ ([83]-[84], see also Cherry v R [2017] NSWCCA 150 at [78]).

Further, it did not appear on the evidence that the respondent expressed any remorse in relation to his attack on his de facto partner. In the absence of any finding of remorse or significant insight into the behaviour which led to the offending, specific deterrence should have been a key sentencing consideration ([82]). The violence to his partner occurred in a remote community which was not close to any police presence. Importantly, Count 3 took place in the presence of his partner’s father, who tried to stop the attack. The Court held that her father did not escalate the violence or take the law into his own hands. He simply warned that he was calling the police. This act ought to have caused the respondent to come to his senses and cease the violent behaviour, but instead he started to attack the victim’s father, causing grievous bodily harm. Therefore, in light of the statutory purposes of sentencing and the role of criminal law in redressing violence of this nature, the Court held that offences of such gravity cannot be dealt with as leniently as was done in this case ([107]-[108]).

Cherry v R [2017] NSWCCA 150 (28 June 2017) – New South Wales Court of Criminal Appeal

‘Contravention of a domestic violence order’ – ‘Escalation of violence’ – ‘People affected by substance misuse’ – ‘Strangulation’

Charges: Assault occasioning actual bodily harm x 3; Assault x 4; Breaking and entering x 1; Contravening domestic violence order x 4.

Appeal type: Application for leave to appeal against sentence.

Facts: The applicant and complainant had been in a relationship since 2013 ([12]). The applicant committed a series of assaults, including striking the complainant with his hands ([16]) and car keys ([13]), touching her with a hot pipe used to smoke ice ([27]), and choking her, once until she was nearly unconscious ([14], [20], [25]). The applicant also entered the home of the complainant’s friend, assaulted her and stole her mobile phone ([34]). The applicant pleaded guilty, and was sentenced to 6 years’ imprisonment with a non-parole period of 4 years ([6]).

Issues: The applicant appealed on three grounds: first, that the judge erred in finding that the offending was in the mid-range of objective seriousness; second, that the sentence accorded insufficient weight to the prospects of rehabilitation; and third, that the sentence was manifestly excessive ([9]).

Decision and Reasoning: The appeal was dismissed.

Justice Johnson briefly dismissed the first and second grounds of appeal ([60, [68]). On the third ground, His Honour discussed the importance of general and specific deterrence and denunciation in domestic violence cases (see [74]-[80]).

His Honour observed: “It is correct to characterise the Applicant’s course of conduct towards NR as one involving escalating violence. His act of choking NR in Count 4 had the potential for very grave consequences. Although not applicable to the Applicant in this case, it is noteworthy that in the second reading speech in support of the Crimes Amendment (Strangulation) Act 2014, which amended s.37 Crimes Act 1900, the Attorney General, Mr Hazzard, observed that strangulation “is prevalent in domestic violence incidents” (Hansard, Legislative Assembly, 7 May 2014)” [75].

He further noted: “In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54].” [79]

The applicant’s regular use of the drug Ice was a relevant factor but not a of itself a mitigating circumstance.[81]

This case concerned repeated offences of escalating violence, in breach of a domestic violence order ([80]). Having regard to these considerations, the sentence was not manifestly excessive ([83]).

Xue v R [2017] NSWCCA 137 (21 June 2017) – New South Wales Court of Criminal Appeal

‘Cultural considerations’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Starting point’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Wounding with intent to cause grievous bodily harm x 1.

Case type Appeal against sentence.

Facts: The applicant pleaded guilty to one count of wound with intent to cause grievous bodily harm, and was sentenced to 6 years imprisonment with a non-parole period of 4 years. The applicant received a discount of 25% for his guilty plea.

The applicant and victim were husband and wife and had been married for 30 years. The witnesses to the incident were the applicant’s son and daughter-in-law. There had been some history of domestic violence. The applicant started accusing the victim of having an affair, and began to violently threaten and assault her with a knife. Their son intervened and drove his mother to the hospital where she was admitted for her injuries. The applicant said that he had argued with his wife and had accused her of having an affair. He also said that it was very shameful for a man if his wife had an affair in Chinese culture.

Issue: The issue for the Court was whether the sentence was manifestly excessive. The applicant submitted that allowing for the 25% discount for an early plea of guilty, the starting point for the sentence must have been 8 years, which in the circumstances was excessive. The applicant also argued that the 4 year non-parole period was above the majority of sentences imposed for this offence.

Held: The appeal against sentence was refused. The applicant’s circumstances at the time of the offending and his genuine belief that the victim may have been having an affair could not justify or ameliorate the seriousness of the offending. The catalyst of domestic violence is often a genuine, albeit irrational, belief of being wronged in some way by the victim. A resort to violence in such circumstances is unjustifiable, even if the offender’s belief is correct. The court regarded the sentencing judge’s remarks about the courts’ and the community’s concern at the level of domestic violence in the community as ‘timely and appropriate’ ([53]).

Further, the Court found that the notional starting point was not manifestly excessive as no evidence was put before the Court to establish that such a starting point was excessive in the circumstances. In considering whether a sentence is manifestly excessive, approaching the case from a hypothetical starting point diverts attention from the question as to whether the sentence actually imposed was unreasonable ([50]). However, where there is no dispute over whether the discount was excessive, justice demands that the focus be on the starting point ([4], see also TYN v R [2009] NSWCCA 146 [33]-[34]).

Hurst v R [2017] NSWCCA 114 (31 May 2017) – New South Wales Court of Criminal Appeal

‘Delay’ – ‘Objective seriousness’ – ‘Physical violence and harm’ – ‘Sexual violence’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Assault x 2; aggravated detain for advantage x 1; incite another to commit an act of indecency x 1; maliciously inflict grievous bodily harm with intent to do grievous bodily harm x 1; use offensive weapon with intent to commit the indictable offence of assault occasioning actual bodily harm x 2; aggravated sexual intercourse without consent x 1; assault occasioning bodily harm x 1;

Case type Appeal against sentence.

Facts: The applicant pleaded guilty to 9 offences, relating to physical and sexual violence against his then girlfriend (the complainant), with whom he commenced an intimate domestic relationship in 2005. The sentencing judge imposed a total effective sentence of 18 years imprisonment, with a non-parole period of 12 years. His Honour had regard to the delay in prosecution and noted that the delay was largely due to the complainant’s decision not to proceed against the applicant at the time that the offences occurred.

Issue: The applicant appealed against the sentence on various grounds, including that the sentencing judge erred by failing to make an assessment of the objective seriousness of the offence of aggravated detention for advantage (Ground 1), and that he did not take into account the delay in prosecution and the prejudice suffered by the applicant on sentence (Ground 3).

Held: The Court granted leave to appeal against the sentence, but dismissed the appeal.

Objective seriousness:

The Court was not satisfied that Ground 1 was established on the evidence ([105]-[110]). When a sentencing judge has made it clear from his or her findings that they regard the offence as serious, little more is required ([105]). While he did not expressly determine the objective criminality of the offence of aggravated detain for advantage, he gave due consideration to the nature of the conduct and the circumstances in which it occurred ([109]). Further, the evidence of the applicant’s conduct made a conclusion of significant seriousness self-evident ([109]).

Delay:

Hoeben CJ at CL (with Price and Longergan JJ agreeing) noted that a common aspect of domestic violence related offences is that there may be a considerable delay between the occurrence of the offence and the complaint being made. However such delay should not be held against the victim. It is a direct product of the nature of the offending itself, and it would be incongruous if an offender could gain a benefit from such delay ([132]). Where there is unexplained considerable delay during which there has been steps taken towards rehabilitation, and/or a change of circumstances that increases the hardship brought about by a custodial sentence, it may be appropriate to impose a sentence that would otherwise be considered to fall below the range of an appropriate sentence ([133], see also Hughes v R [2013] NSWCCA 129 at [58]).

The Court noted the significant difference between delay that can be attributed to a police failure to charge and what occurred with the complainant. She was a victim of ongoing domestic violence which involved extremely controlling behaviour, and she chose not to proceed with those charges at the time. It appeared that she did not feel ready and able to address these matters for many years ([138]). The applicant did not make any attempt to rehabilitate in the lengthy period between offending and sentencing. It was open to the sentencing judge to take into account the lack of evidence that the applicant suffered any anxiety as a consequence of concern that he would be prosecuted in connection with any of these matters. His Honour’s further finding that there was no evidence that the applicant had contributed to any delay was ‘somewhat generous’ since the applicant could have brought these matters to the attention of the authorities at any time after they occurred ([140]).

Further, there was no evidence that the delay in the proceedings caused the applicant increased hardship. Even if there were, this ground of appeal was founded entirely upon the apportionment of weight to a particular sentencing factor in the exercise of the sentencing judge’s discretion. In those circumstances, it is well established that matters of weight will only rarely justify the intervention of the Court. Circumstances warranting the Court’s intervention have not been demonstrated in this case ([141]).

Vaiusu v The Queen [2017] NSWCCA 71 (5 April 2017) – New South Wales Court of Criminal Appeal

‘Appeal against sentence’ – ‘Ex tempore judgement’ – ‘Impact on children’ – ‘Imprisonment’ – ‘Manifestly excessive’ – ‘Perpetrator victim of domestic violence’ – ‘Subjective circumstances’

Charges: Wounding with intent to do grievous bodily harm x 1.

Appeal type: Appeal against sentence.

Facts: The victim was the appellant’s brother in law. The victim had hit the appellant’s sister, apparently accidentally, in a scuffle outside a nightclub. The appellant’s sister told her that the victim had hit her, but she did not tell her that it was an accident. The appellant followed the victim to a train station and stabbed him in the neck with a broken bottle ([7]).

The appellant pleaded guilty and was sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 2 months.

Issues: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The appellant argued that the trial judge failed to take sufficient account of her background as a victim of domestic violence by her stepfather growing up ([23]). It was also submitted that the appellant was subject to domestic violence by her husband, whose death she was still mourning at the time of the offending ([24]). Further, the trial judge made no mention of the fact that her daughter would be left without a parent if the appellant was sentenced to imprisonment ([26]).

The Court of Appeal (Bathurst CJ, R A Hulme and Beech-Jones JJ) emphasised that a trial judge cannot carefully consider their remarks while delivering an ex tempore judgement. If a trial judge does not mention a particular factor, that does not mean that they have not had regard to it ([31]). Even though the trial judge did not specifically mention the factors raised by the appellant, it was evident that the trial judge adopted a sympathetic approach to sentencing while having regard to the maximum sentence and current sentencing practices ([36]-[38]).

McIlwraith v R [2017] NSWCCA 13 (22 February 2017) – New South Wales Court of Criminal Appeal

‘Intimidation’ – ‘Intoxication’ – ‘Property damage’ – ‘Specific intent’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Numerous charges, including aggravated breaking etc into any house etc and committing serious indictable offence under section 112(2) of the Crimes Act 1900 (NSW).

Case type Appeal against conviction.

Facts: On 18 June 2014, the applicant entered 3 properties, and was arrested and charged with a number of offences alleging breaking and entering, and stealing property. The applicant pleaded guilty to one (Count 5) of 8 counts, and elected to be tried by judge alone. The trial judge acquitted the applicant on Counts 1, 2, 3 and 8, and convicted him on Count 7 (an offence of aggravated break, enter and commit serious indictable offence under section 112(2) of the Crimes Act 1900 (NSW)). The serious indictable offence was one of intimidation with intent to cause fear of physical or mental harm under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The applicant was sentenced to 22 months imprisonment with a non-parole period of 14 months with respect to Count 5. He was also sentenced to 4 years imprisonment with a non-parole period of 3 years with respect to Count 7. The first sentence was wholly concurrent with, and consumed within, the longer second sentence.

The applicant appealed on the ground that the trial judge erred in finding that the offence of intimidation under section 13 is not an offence of ‘specific intent’.

Issue: A key question for the Court was whether the offence of intimidation under section 13 is one of ‘specific intent’, and whether the applicant’s intoxication at the time of the offending can be taken into account in determining his guilt.

Held: The Court refused to grant leave to appeal with respect to the challenge to the findings of fact, and otherwise dismissed the appeal against the conviction. It also refused leave to appeal against the sentence imposed in the District Court.

The provisions of Part 11A dealing with intoxication are concerned with circumstances in which a particular state of mind is required and can be viewed as wrongful. A particular state of mind can involve a specific intent to achieve an identified consequence (as in section 13(1) or section 13(3)), matters of which the accused is aware and consequences which he or she knows to be likely ([39]). The question for the Court was whether the offence of intimidation is an offence of specific intent and whether the provisions under Part 11A of Crimes Act regarding intoxication apply to it.

Basten J found that the offence of intimidation under section 13(1) is one of specific intent, and thus subject to the provisions of Part 11A ([39]). Therefore an offender’s intoxication can be taken into account in determining criminal liability. His Honour reached this conclusion by considering the decisions of R v Grant (2002) 55 NSWLR 80 and Harkins v R [2015] NSWCCA 263 ([39]-[42]).

Morgan v R [2016] NSWCCA 298 (16 December 2016) – New South Wales Court of Criminal Appeal

‘Exposing children to domestic and family violence’ – ‘People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘Physical violence and harm’ – ‘Women’

Charges: Specially aggravated break, enter and commit an indictable offence, namely reckless wounding x 1.

Appeal type: Appeal against sentence.

Facts: The applicant and complainant (both women) lived together with the victim’s two children and had been in an intimate relationship ([4]). The victim and applicant argued, which escalated into a physical confrontation. The victim barricaded herself in a bedroom and picked up her infant child. The applicant broke into the room and stabbed the victim in the back. The applicant continued to chase, hit and choke the victim, and the victim sustained stab wounds to her buttock, arms, wrist and neck ([5]-[8]). The applicant pleaded guilty and was sentenced to 6 years and 3 months’ imprisonment, with a non-parole period of 2 years and 9 months.

Issues: Whether the sentence is manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The Court of Appeal (Ward JA, Bellew J and Hidden AJ) had regard to the applicant’s subjective circumstances, such as the fact that she had experienced domestic violence and sexual abuse as a child, and had been diagnosed with anxiety, depression and borderline personality disorder ([10]-[12]). The Court of Appeal found that the trial judge had adequate regard to the subjective circumstances proffered by the applicant ([27]). The victim did not sustain any serious injuries ([16]).

The Court of Appeal remarked that the charge of break and enter was unusual in this case, given that the applicant broke an internal door. This fact made it impossible to find comparable cases ([22], [26]).

Drew v R [2016] NSWCCA 310 (16 December 2016) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Aggravation’ – ‘Culture considerations’ – ‘Judicial notice’ – ‘Physical violence and harm’ – ‘Vulnerability’ – ‘Worst category’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Initially charged with wound with intent to murder. He entered into a plea of guilty to a charge of wound with intent to cause grievous bodily harm, as well as one count of contravening an Apprehended Domestic Violence Order (ADVO).

Case type Appeal against decision.

Facts: The appellant pleaded guilty to a charge of wounding with intent to cause grievous bodily harm, as well as one count of contravening an ADVO. He was sentenced to 12 years and 6 months imprisonment, with a non-parole period of 9 years and 4 months. The sentencing judge made a number of observations, including a statement that the victim was a vulnerable person due to the culture of silence and ostracism of those who complain in relation to acts of violence in the Indigenous community. Her Honour also stated that the offence fell within the worst category of offences of its kind.

The appellant was in a domestic relationship with the victim at the time of the offending. There was a history of domestic violence in the relationship to the extent that an ADVO had been taken out against the appellant. He has a long and varied criminal history which included numerous violent offences against 13 separate victims. 3 of those victims were his domestic partners at the time of the offence, and one was his own son. 9 of those instances involved a weapon.

Issue: The appellant relied on the following grounds of appeal:

•

The judge erred by finding the offending was aggravated due to the victim being Aboriginal and thereby a vulnerable person.

•

The judge erred in the characterisation of the offence as falling within the ‘worst category’.

•

The sentence imposed was manifestly excessive.

Held: The Court granted leave to appeal, but dismissed the appeal. It made remarks on the need to take special care when making findings of fact about vulnerable victims.

Vulnerability:

A question arose as to whether the sentencing judge was entitled to take into account the serious problem of under-reporting of domestic violence in Indigenous communities due to a culture of ‘silence and ostracism’, and aggravate the offence on that basis ([83]). Her Honour was entitled to note both the high rates of domestic violence, and the vulnerability of women and children in Indigenous communities, but she erred in finding the offence to be aggravated on account of the victim being classified ‘vulnerable’ due to this under-reporting problem ([85], [90]). ‘A Court may not aggravate an offence by taking judicial notice of the fact that some Aboriginal women might be less likely to complain of domestic violence because of a culture of silence and ostracism in their communities’ ([84], see also [1], [8]). No evidence was capable of establishing beyond reasonable doubt that the victim was a member of a particular class bearing those characteristics ([90]).

Further, the aggravating factor of vulnerability under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 is only engaged where the victim belongs to a class that is vulnerable because of a common characteristic ([8], [75]-[78]). An ultimate finding of vulnerability of the victim in the more general sense of being under an impaired ability to avoid physical conflict with the appellant or to defend herself in the event of conflict was open as an inference from primary facts ([5]).

Fagan J noted that it was a circumstance of the offence, relevant to determining an appropriate sentence, that because of the victim’s emotional and intimate attachment to the appellant, she was less likely than any other potential victim to avoid him or to put herself out of harm’s way ([7]). The individual vulnerability of the victim was an ‘inescapable conclusion from the evidence’ and had, in practical terms, the same consequence for assessment of the objective seriousness of the offence ([8]).

‘Worst category’:

The use of the phrase ‘worst category’ should be avoided by judges unless it is in the context of imposing the maximum penalty available for that offence ([105]). However, when taking into account the features of the offence, such as the seriousness of the victim’s injuries, the appellant’s earlier threat to the victim, the fact that the offence occurred without regard to the ADVO, the prolonged nature of the attack, the location of the offence (the victim’s home), and the appellant’s intoxication at the time of the offence, it was open to the sentencing judge to classify the objective seriousness of the offence as her Honour did ([106]-[114]). It is not necessary for the injuries to be of the ‘worst type’ for an offence to fall into the ‘worst case’ category. The nature of the offence can bring a case within that category ([107]).

Manifestly excessive:

The sentence imposed was not manifestly excessive. The appellant had a history of violent offending, which included offending during parole periods. The sentencing factors of specific deterrence and community protection meant that no shorter sentence could be warranted in law.

Silva v The Queen [2016] NSWCCA 284 (7 December 2016) – New South Wales Court of Criminal Appeal

‘Manslaughter’ – ‘Physical violence and harm’ – ‘Reasonableness’ – ‘Relevance of past violent conduct’ – ‘Self-defence’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction.

Facts: The female appellant was in a relationship with the deceased, James Polkinghorne, and they had a child together. Evidence was led at trial that the deceased had physically and verbally abused the appellant throughout their relationship. She was unable to leave the relationship and saw seeking help from the police as impossible.

On the 13 May 2012, the appellant went to her parents’ place, against the deceased’s wishes. During the course of the day, there were 80 calls and SMS messages between the appellant and the deceased. These messages and calls were tendered as evidence at trial (recordings were available because the police had been tapping the deceased’s phone in light of his suspected involvement in a previous murder). These messages, while not phrased in terms of ‘killing’ the appellant, were extremely threatening and abusive. The deceased was affected by methylamphetamine.

That night, the deceased went to the home of the appellant’s parents. He was ‘going crazy, screaming and kicking items’. The appellant’s brother called 000. From here, there were some inconsistencies in the accounts of the appellant’s father, brother and the record of interview from the appellant produced after the killing. There was no contention that the appellant was punched and thrown around by the deceased. Both the appellant in her record of interview and her brother at trial said that the deceased yelled, “I’m going to fucking kill her’ and ‘I’ll get youse cunts’. The appellant’s father and brother started fighting with the deceased. The appellant retrieved a knife from inside and stabbed the deceased. After trial by a jury, she was found not guilty of murder but guilty of manslaughter and sentenced to 18 months imprisonment wholly suspended.

Issue/s: Whether it was open for the jury to conclude, to the criminal standard of proof, that the fatal stab wound inflicted by the appellant was not a reasonable response to the circumstances as she saw them?

Decision and Reasoning: The appeal was allowed (McCallum J and RS Hulme AJ in majority, Leeming JA in dissent). In the majority judgment, RS Hulme AJ first held that there was no rational reason for the jury to reject the substance of the evidence before them. This evidence included the terms and tone of what the deceased had said in the phone calls and messages that day. As per His Honour at [163]:

‘Certainly he had not in terms threatened to “kill” the Appellant. However he was powerful, had been violent in the past, had previously attacked the Appellant and on the day in question he was very angry, irrational, and had threatened to seriously hurt her and to come to where the Appellant was, thus providing some opportunity to carry out his threats’.

Further, notwithstanding the inconsistencies, much of the evidence suggested that the appellant and her brother had been in serious danger. Accordingly, RS Hulme AJ concluded that there was sufficient evidence that the appellant believed her act was necessary to defend herself or some other person (see [170]).

Second, His Honour held that the appellant’s response was reasonable. This was in circumstances where the police would have taken time to arrive, the appellant saw substantial disadvantages in calling the police, and it was not obvious that they would be able to overwhelm the deceased. Therefore, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant had not acted in defence of herself or her brother and father (see [171]-[173]). The appeal was allowed.

McCallum J largely agreed with RS Hulme AJ but provided some additional comments. Her Honour was also unable to accept that the jury could, acting reasonably, have been satisfied beyond reasonable doubt that the appellant’s conduct was not reasonable in the circumstances as she perceived them at the time of the stabbing (see [93]). Her Honour noted that Leeming JA in dissent had placed emphasis on the objective medical evidence and the evidence of eye witnesses at the confrontation. Acknowledging that it is important to have regard to the whole of the evidence, McCallum J continued:

‘Ultimately, however, the critical issue in this case is the reasonableness of inflicting mortal injury judging that issue by reference to an assessment of the circumstances in that instant as perceived by Ms Silva. While the evidence directly relating to the time of the stabbing is important, that assessment is also critically informed by a close analysis of the circumstances leading up to the fatal confrontation’ (see [94]).

McCallum J’s own assessment was that the appellant could only have seen the deceased’s attack on her that evening as ‘urgent, life-threatening and inescapable’ and that the events in the street could not be divorced from the ‘irrational, menacing rage exhibited by the deceased in his calls to Ms Silva in the period leading up to the time when he confronted her physically’ (see especially [95]-[109]). Her Honour concluded at [110]:

‘The circumstances described in the evidence in this case are the kind in which, more commonly, it is the woman who is killed. In my assessment of the record of the trial, the evidence was not capable of proving beyond reasonable doubt…that Ms Silva’s conduct in fatally stabbing the deceased was not reasonable in the circumstances as she perceived them at the time of the stabbing’.

In dissent, Leeming J was not persuaded that a deep penetrating stab into the deceased’s chest cavity, while he was struggling with two other men, was a reasonable response to the circumstances as the appellant saw them at 9.09pm and it was therefore open to the jury to reach this conclusion (see discussion at [83]). His Honour also noted that the jury had the advantage of seeing the evidence first hand and therefore declined to interfere with the verdict.

See also R v Silva [2015] NSWSC 148 (6 March 2015).

Ngatamariki v R [2016] NSWCCA 155 (9 August 2016) – New South Wales Court of Criminal Appeal

‘Objective seriousness’ – ‘Physical violence and harm’

Note: On 25 September 2018 Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced imposing additional requirements in sentencing for domestic violence offences in NSW.

Charges: Grievous bodily harm x 2.

Case type Appeal against sentence.

Facts: The applicant was convicted of causing grievous bodily harm with intent to his partner (the victim), with whom he resided with their 2 children. He was intoxicated at the time of the offending and had a prior conviction for domestic violence towards the victim. He was sentenced to 5 years imprisonment with a non-parole period of 3 years.

Issue: The applicant sought leave to appeal on the grounds that the trial judge erred by having regard to his prior conviction in determining the objective seriousness of the offence, and that the sentence was manifestly excessive.

Held: The Court granted leave to appeal, but dismissed the appeal. The applicant’s offending was extremely serious, and constituted a ‘brutal and violent attack…on an innocent, and largely defenceless, victim’. The Court noted that the sentence imposed required a strong measure of general deterrence ([71]). The trial judge correctly took into account the fact that the offending occurred in the context of a domestic relationship ([72]). Denunciation of, and punishment for, ‘brutal’ and ‘alcohol-fuelled’ conduct in such circumstances is particularly apt ([73]).

Further, the trial judge was found not to have improperly used the applicant’s prior convictions as a factor which aggravated the seriousness of his offending. The domestic relationship between the applicant and victim was relevant to determining the objective seriousness of the offending ([45]). In order to make a complaint of manifest excessiveness, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. The submissions and evidence did not establish that the sentence imposed fell into such a category. In light of the circumstances, the sentence was one that might be regarded as modest ([75]).

Browning v The Queen [2015] NSWCCA 147 (17 June 2015) – New South Wales Court of Criminal Appeal

‘Breach of an apprehended domestic violence order’ – ‘Conditional liberty’ – ‘Deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Repeated breaches’ – ‘Using etc explosive substance or corrosive fluid etc with intent to burn, maim, disfigure, disable or do grievous bodily harm’

Charge/s: Using etc explosive substance or corrosive fluid etc with intent to burn, maim, disfigure, disable or do grievous bodily harm, breach of an apprehended domestic violence order x 2.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant had been married for 30 years but separated in August 2012. The complainant obtained an Apprehended Domestic Violence order (ADVO) against the applicant for 12 months. Notwithstanding this, the applicant breached the order on two occasions. On a subsequent occasion, the applicant doused the complainant in petrol and made a sustained attempt to light her on fire. He was stopped by three teenage boys. The applicant was sentenced to 7.5 years imprisonment for the offence of using an explosive substance or corrosive fluid with intent, with a non-parole period of four years.

Issue/s: One of the grounds of appeal was that the Court’s finding that the offence of using an explosive substance or corrosive fluid with intent was in the mid-range of seriousness failed to adequately account for the Court’s findings that:

1.

the offence was not pre-meditated but spontaneous;

2.

no significant harm was occasioned to the victim;

3.

the applicant’s attempts to carry out his intended actions were less determined than in other examples of this offence; and

4.

other matters bore on the assessment of the seriousness of the offence.

Decision and Reasoning: This ground of appeal was dismissed. Garling J held (Gleeson JA and Johnson J agreeing) that the finding of the sentencing judge that this offence was in the mid-range was, if anything, unduly favourable to the applicant. This was a sustained attempt to set the complainant alight after the applicant had doused her in petrol. The only impediment to his success was the repeated intervention of the teenage men (See [96]-[100] and [3]).

Johnson J made some additional observations at [5]-[8]. His Honour cited with approval Spigelman CJ’s observations regarding apprehended domestic violence orders in John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101 at [20]:

‘The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law’.

His Honour further noted that the applicant was a repeat domestic violence offender. Accordingly, in sentencing for these offences, it was appropriate to have in mind the statement of the Court in R v Hamid [2006] NSWCCA 302 (20 September 2006) at [86]:

‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’.

Finally, Johnson J stated:

‘Where a court has made an apprehended domestic violence order to protect a person, and then further orders are made by way of conditional liberty for criminal offences arising from breaches of that order, the commission of another offence, in breach of that conditional liberty, will constitute significant aggravating circumstances: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. This is especially so where the offence against the protected person is of the very grave character of the s 47 offence in this case, with the offence being committed so soon after the applicant had been given the benefit of conditional liberty by order of the District Court’.

Note: Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced on 25 September 2018 imposing additional requirements in sentencing for domestic violence offences in NSW.

Ahmu v The Queen; DPP v Ahmu [2014] NSWCCA 312 (15 December 2014) – New South Wales Court of Criminal Appeal

‘Crown appeal against sentence’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Indecent assault’ – ‘Offender often believes violence is justified’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Protection of the community’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Vindication of the victim’ – ‘Women’

Charge/s: Rape x 15, indecent assault x 2.

Appeal Type: Appeal against conviction and Crown appeal against sentence.

Facts: The male appellant and the female complainant were in a relationship and had a two year old son at the time of the offences. At trial, it was alleged by the prosecution that the appellant was sexually predatory, violent and abusive in his relationship with the complainant and that he was a child molester with a sexual interest in children, including his two year old son. The complainant obtained an apprehended violence order against the applicant in 2009 but the relationship resumed in 2010 because she was concerned about the appellant having unsupervised access with the child. The rape and indecent assault offences occurred throughout one night in 2010, in the presence of their two year old son. The complainant, who was pregnant at the time, pleaded with the appellant to stop, but the appellant threatened to kill her and continued regardless. A number of the sexual acts were accompanied by humiliating and degrading conduct. The appellant was sentenced to seven years imprisonment, with a non-parole period of four years.

Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.

Decision and Reasoning: The appeal against conviction was dismissed but the Crown appeal against sentence was allowed. The overall sentence demonstrated that the sentencing judge either misapprehended the significance of the standard non-parole period or underestimated the objective seriousness of the offences. Here, the gross, repeated attacks on the complainant occurred over an extended period and were committed by the appellant who understood what he was doing despite his (limited) mental issues and possible intoxication. This, combined with deliberate additional humiliation and a callous indifference to the presence of their son, meant that the objective seriousness of the offence fell within the middle of the range and brought the standard non-parole period into sharp focus as a yardstick: Muldrock v The Queen (See [78]-[79]).

Even in light of the residual discretion of the Court to decline to interfere with the sentence, re-sentencing the appellant to nine years and six months imprisonment with a non-parole period of six years and six months was appropriate in the interests of justice. As per Adams J at [83]:

‘In considering the exercise of the residual discretion, it is appropriate in my view to bear in mind - in terms not usually used but implicit in sentencing for offences such as the present - the need to do justice to the victim, so appallingly dealt with, whose vindication is part of the function of the administration of criminal justice. This applies with particular force in cases of so-called domestic violence, where there seems to often be present in offenders a degree of self-justification as if, in some way, the victim (to use the vernacular) had it coming. I do not say that this was specifically the offender's state of mind in the present case but the facts strongly suggest that he thought he had some kind of right to do what he did. This aspect of domestic violence emphasises the importance, to my mind, of general deterrence, as well as the protection of the community, especially women, who are far too often the victims of this attitude. These considerations also underline the importance of denunciation’.

Pasoski v The Queen [2014] NSWCCA 309 (15 December 2014) – New South Wales Court of Criminal Appeal

‘Admissibility’ – ‘Assault occasioning actual bodily harm’ – ‘Context evidence’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Sexual assault’ – ‘Tendency evidence’

Charges: Assault occasioning bodily harm x 2, sexual assault x 5.

Appeal type: Application for leave to appeal against conviction and sentence.

Facts: The applicant and complainant lived together with their daughters and were in a relationship since 2003. In November 2010, the applicant physically assaulted the complainant in their home on two occasions, by kicking her in the legs, and slapping her face, causing her to fall (see [13]). The sexual assault charges were alleged to have occurred on one night, where the applicant had vaginal penile intercourse five times without her consent (see [13]).

At a voir dire during trial, the applicant’s trial counsel successfully objected to the admission of other evidence of previous penile vaginal penetration without consent (see [27]). That evidence was not admitted because the trial judge found that the ‘evidence is more in the nature of tendency evidence than contextual evidence’ (see [31]). However, evidence of the applicant’s controlling behaviour was admitted, and was relied upon at trial (see [12]).

In summing up, the trial judge gave directions as to the use of the evidence of controlling behaviour, stating that ‘the Crown relies upon this evidence only for one purpose… to put the complainant's allegations concerning the offences in November 2010 into a realistic context’ (see [42]). Her Honour also stated: ‘if that evidence was not there, you would be asking yourselves, well, why would the accused throw his weight around in this horrible manner with the complainant completely out of the blue, when they had been in an apparently normal relationship for the previous six years?’ (see [42]).

Issues: Two of the grounds of appeal concerned ‘context evidence’ (see [6], [44]):

1.

‘A miscarriage of justice was occasioned by the admission of the so-called context evidence’ because it was not relevant and was prejudicial, and

2.

The trial judge erred by failing to identify the precise issues to which the evidence was directed.

Decision and Reasoning: Leave to appeal was refused on both the ‘context evidence’ grounds.

In relation to the first ground, Meagher JA referred to the use of context evidence as being admissible if it is used to ‘remove implausibility that might attach to a complainant’s account of what otherwise would be seen as isolated incidents’ (see [24]). His Honour referred to HML v The Queen [2008] HCA 16; 235 CLR 334 [6] to observe that ‘by doing so, it bears upon the assessment of the probability of the existence of facts directly in issue (Evidence Act 1995 (NSW), s 55) … Similar observations were made in Roach v The Queen [2011] HCA 12; 242 CLR 610 at [42] and BBH v The Queen [2012] HCA 9; 245 CLR 499 at [146]-[150].’

Meagher JA held that the evidence was properly admitted (see [45]). His Honour found that from the conduct of the trial, ‘it was apparent that the Crown was relying upon it only as showing that the relationship was an unhappy one from the complainant's perspective so as to make more plausible her evidence that she did not consent to having sexual intercourse with the applicant on the five occasions in question’ (see [33]). Furthermore, the fact that trial counsel had not objected to the evidence at the voir dire, despite having objected to the evidence of the other sexual assaults on the grounds that it might invite propensity reasoning, indicated that ‘the parties and the Court were conscious that evidence tendered to explain the context in which the alleged offences occurred might, depending on its content, be relied on or used for a tendency purpose’ (see [30]).

In relation to the second ground, regarding the directions given by the trial judge to the jury, Meagher JA held that the directions did not give rise to a real risk that the jury might employ propensity reasoning, and thus did not occasion a miscarriage of justice (see [49]). His Honour found that the direction regarding the applicant ‘throwing his weight around’ did verge on an invitation to the jury to employ propensity reasoning (see [47]). However, his Honour held that, assessed in context, the other directions made clear to the jury that the evidence of controlling behaviour was not being relied upon to suggest a ‘propensity of the applicant physically or sexually to impose his will on the complainant’ (see [48]).

The other issues concerned two failures of the trial judge. First, the trial judge failed to properly comply with s 55F(2)(b) of the Jury Act 1977 (NSW), and therefore two counts of sexual assault were quashed (see [8]-[11]). Second, the trial judge erred in taking into account as an aggravating factor in sentencing that the offences were committed in the complainant's home: EK v R [2010] NSWCCA 199; 79 NSWLR 740 at [79] (see [54]). Accordingly, the aggregate sentence of imprisonment was reduced from five years and six months with a non-parole period of two years and nine months to four years and eleven months with a non-parole period of two years and five and a half months.

Monteiro v The Queen [2014] NSWCCA 277 (26 November 2014) – New South Wales Court of Criminal Appeal

‘Aggravated rape’ – ‘Deterrence’ – ‘Emotional abuse’ – ‘Physical violence and harm’ – ‘Relevance of a prior relationship’ – ‘Sentencing’

Charge/s: Aggravated rape namely, immediately before sexual intercourse the appellant inflicted actual bodily harm.

Appeal Type: Appeal against sentence.

Facts: The male appellant was physically and verbally abusive towards the female complainant throughout their relationship. At the time of the offence, the relationship had ended and the appellant started yelling at the complainant that they should resume this relationship. He slapped the complainant in the face and proceeded to have sexual intercourse with her without her consent. The appellant was sentenced to 11 years imprisonment with a non-parole period of six years and six months for the principal offence of aggravated rape.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The manifest excess argument was dismissed. Counsel for the appellant submitted that the prior relationship between the appellant and the complainant was a factor that should have mitigated the sentence imposed. Bellew J noted that while the existence of a relationship between offender and victim can be a relevant consideration in determining the objective seriousness of sexual offending, each case must turn on its own facts. Here, the relationship was over and it therefore followed that the existence of a prior relationship was not a factor that warranted mitigation of sentence. In particular, this was not a case where the complainant had invited the appellant to engage in sexual intercourse with her or had indicated that she was prepared to do so (cf NM v R [2012] NSWCCA 215 and Norman v R [2012] NSWCCA 230.) His Honour continued at [131]-[132]:

‘What remains important is that even though the relationship had ended, the offending occurred in what might be loosely described as a domestic setting. In R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at [41]:

"As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267and Powell [2000] NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

These principles were confirmed, after a review of the relevant authorities, by Johnson J (with whom Hunt AJA and Latham J agreed) in R v Hamid [2006] NSWCCA 302at [65] and following. Leaving aside the question of general deterrence, the observations of Wood CJ at CL are directly apposite to the present case’.

R v Eckermann [2013] NSWCCA 188 (15 August 2013) – New South Wales Court of Criminal Appeal

‘Aggravated break and enter and commit serious indictable offence’ – ‘Damaging property’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Sentencing’ – ‘Suspended sentences’ – ‘Where the offender is known to the victim’

Charge/s: Aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm).

Appeal Type: Crown appeal against sentence.

Facts: After being in a domestic relationship for nine years and having two children together, the respondent and the complainant separated due to domestic violence perpetrated by the respondent. The complainant was asleep when she was woken by the respondent breaking into the property. He was shouting and looking for the complainant’s new partner. This woke and scared the children. He started throttling the complainant and then punched her in the face. The complainant managed to call the police. In sentencing, the judge characterised the offending as being towards the lower end of the spectrum. This was in light of a number of factors including that the respondent was not a stranger to the complainant (and therefore the offence would have been less frightening than a home invasion by a stranger) and that the respondent’s primary motivation was to protect his children from danger from the complainant’s new partner. The respondent was sentenced to two years imprisonment, suspended conditional upon entering into a good behaviour bond.

Issue/s: Some of the grounds of appeal were –

1.

The sentencing judge erred in characterising the objective seriousness of the offending as being ‘towards the lower end of the spectrum’.

2.

The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to imprisonment with a non-parole period of 14 months and a balance term of 10 months. First, Price J held that the sentencing judge erred in characterising the objective seriousness of the offence as at the lower end. Home invasion offences do not become less serious by virtue of a prior domestic relationship between an offender and the victim. Rather, the objective gravity of the crime is to be assessed on the facts of the case and here it was not open to the sentencing judge to conclude that the offence would have been less frightening than a home invasion by a stranger (See [35]-[36]). Further, very little weight could be given to the respondent’s motivation to protect his children. His actions terrified the complainant and the children. The offending was aggravated by the fact that it was committed in the presence of the children (See [37]-[45]). Accordingly, the offending was towards the middle of the range for such offences (See [46]).

Second, notwithstanding the respondent’s subjective circumstances including his love for his children, his employment, and good prospects of rehabilitation, a suspended sentence was manifestly inadequate. As per Price J at [54]-[55]:

‘This was a serious offence of violence by the respondent. When women (and men) enter into a new domestic relationship, they are entitled to do so without the threat of violence from a former partner. This is particularly so when there are children of the prior relationship as acts of violence towards a parent particularly when committed in the children's presence have the potential to impact severely upon their well-being and future development.

This Court has emphasised the seriousness with which violent attacks in domestic settings must be treated: Hiron v R [2007] NSWCCA 336.Specific and general deterrence, denunciation of the offending conduct and the protection of the community are important factors in sentencing a domestic violence offender: R v Dunn [2004] NSWCCA 41; R v Edigarov [2001] NSWCCA 436; R v Hamid [2006] NSWCCA 302.In my view, the respondent's subjective circumstances could not justify the suspension of the sentence. A full-time sentence of imprisonment was called for’.

McLaughlin v R [2013] NSWCCA 152 (3 July 2013) – New South Wales Court of Criminal Appeal

‘Assault occasioning actual bodily harm’ – ‘Common assault’ – ‘Exposing children’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Protection orders’

Charge/s: Assault occasioning actual bodily harm x 2, common assault.

Appeal Type: Appeal against sentence.

Facts: The female complainant and her young son moved from Tasmania to Victoria to live with the male applicant, her then de facto partner. At the time of offence, the complainant was vulnerable and isolated in that she was unemployed, cut off from friends and family, and suffered from a physical disability to her leg. Count 1 occurred when the applicant and complainant were arguing and the applicant dragged her off the bed, causing her to hit her jaw and bite her lip. Count 2 occurred when the applicant and complainant were again arguing and the applicant hit her to the side of her head near her eye. Count 3 occurred when they were arguing about an apprehended violence order (AVO) that had been made for the protection of the complainant and, as the complainant walked into her son’s room, the applicant grabbed her by the hair and throat. The applicant was sentenced to a total head sentence of two years and four months imprisonment with a non-parole period of four months.

Issue/s:

1.

The sentencing judge erred when she found that the offences were aggravated by the fact that they took place in the generalised presence of a child under the age of 18 years.

2.

The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Error was demonstrated with ground one of the appeal. While there was evidence for Count 3 on which it might have been open to the sentencing judge to find that the child must have realised what was happening (even though he did not see the events), Her Honour did not make such a finding. Accordingly, the sentencing judge erred in taking into account that the offence was committed in the presence of the child (See [31]). Further, for Counts 1 and 2 there was no direct evidence of the presence of a child (See [32]). However, Button J declined to intervene with the sentence on appeal (See [54]-[55]).

The second ground of appeal was dismissed. At [48]-[49] Button J noted that:

‘The approach of this Court to men who assault vulnerable women is well established and need not be elaborated upon by me: see R v Edigarov [2001] NSWCCA 436, R v Dunn [2004] NSWCCA 41, and R v Hamid [2006] NSWCCA 302’.

‘If an offender sees fit repeatedly to visit violence upon a woman in breach of a bond and an apprehended violence order imposed months before with regard to the same behaviour and the same victim, he should expect to be imprisoned, and not for an insubstantial period’.

R v Cortese [2013] NSWCCA 148 (26 June 2013) – New South Wales Court of Criminal Appeal

‘Indecent assault’ – ‘Mitigating factors’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Indecent assault, rape.

Appeal Type: Crown appeal against sentence.

Facts: The female victim told the male respondent that she wanted to end their relationship. They argued, during which the respondent tried to make sexual advances towards the victim, including trying to kiss her and rubbing her vagina. Despite protestations from the victim, the respondent stayed over the night. The next morning the respondent forced himself on top of the victim, forced at least two fingers into her vagina, and then forced his penis into her vagina and had penile/vaginal intercourse with the victim without her consent. The respondent was sentenced to a good behaviour bond for twelve months for the indecent assault and two years imprisonment, wholly suspended, for the rape offence. In assessing the seriousness of the offending, the sentencing judge stated that the ‘prior sexual relationship [between the respondent and the victim] is an important mitigating factor’ and held the offending was at the bottom of the range (See [36]-[39]).

Issue/s: One of the grounds of appeal was that the sentencing judge erred in her assessment of the objective seriousness of each offence.

Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to three years imprisonment with a non-parole period of 18 months. The sentencing judge erred in her characterisation of the seriousness of the offending. In reaching this conclusion, Beech-Jones J stated at [55] that:

‘…cases confirm that the mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality involved. Needless to say, each case will depend upon facts, but one common circumstance in which a pre-existing relationship has been found to diminish the seriousness of the offence is where it suggests some prevarication or at least initial consent on the part of the victim. Thus, if sexual contact is initiated by the victim or initially consented to by the victim, then the ensuing offence may be considered less serious’: See NM v R [2012] NSWCCA 215; Bellchambers v R [2011] NSWCCA 131; R v Hendricks [2011] NSWCCA 203; Stewart v R [2012] NSWCCA 183.

Here, the pre-existing relationship had no relevance as the victim repeatedly expressed her lack of consent (See [55]). Following from this, it was clear that the sentencing judge’s assessment of the culpability of the respondent was clearly erroneous. This was a case involving the rape of a young woman which occurred in the context of threats of violence, as well as aggressive and humiliating language. It came after she was detained overnight. The offending would likely fall below the mid-range of offences of this character but was not ‘bottom of the range’ (See [56]-[58]).

ZZ v The Queen [2013] NSWCCA 83 (19 April 2013) – New South Wales Court of Criminal Appeal

‘Aggravated rape’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Aggravated rape (recklessly inflicting actual bodily harm), rape.

Appeal Type: Appeal against sentence.

Facts: The sexual offences were committed in the context of a sexual relationship between the male applicant and the female complainant. The applicant and complainant had been drinking, taking drugs and engaging in consensual sexual relations. The applicant then asked the complainant to drink his urine and, after urging the uncertain complainant to try it, the applicant urinated into her mouth. The complainant, gagging and nearly vomiting, tried to pull away but the applicant forced her head back towards his penis (count 1 — rape). After further sexual activity, the complainant became increasingly distressed and uncomfortable. She attempted to leave but was pushed into the bathroom wall by the applicant. He penetrated her anus with his penis so forcefully that she smashed her head against the tiles and suffered a deep four-centimetre laceration to her forehead. He continued penetrating her and smashed her head against the wall again (count 2 — aggravated rape). The applicant was sentenced to a total effective sentence of nine years and six months with a non-parole period of seven years.

Issue/s: Some of the grounds of appeal were that –

1.

The sentencing judge erred in the assessment of the objective seriousness of count 1.

2.

The sentencing judge erred in the way the applicable standard non-parole periods in respect of the sexual assault offences were taken into account.

Decision and Reasoning: The appeal was allowed. First, while the sentencing judge accepted the offence as ‘being in the mid range of seriousness’, His Honour later incorrectly referred to count 1 as ‘being at the top of the mid range’ and erroneously sentenced the applicant on this basis. Second, the standard non-parole period played a greater role in the sentencing judge’s decision than as a guidepost, to be taken into account with other factors on sentence, contrary to the principle articulated in Muldrock v The Queen.

In re-sentencing the applicant, Johnson J took into account the objective gravity of the applicant’s offences, his subjective circumstances and other aspects bearing upon the question of sentence, including the maximum penalty and the standard non-parole period for counts 1 and 2. Johnson J noted that the objective gravity of the applicant’s offences needed to be assessed in the context of the relationship between the applicant and the victim. It was true that the complainant was not sexually assaulted by a stranger, where, if she had been, a further element of fear and terror would have been expected. However, the fact that the victim knew the offender and trusted him provided her with ‘little comfort’ here (See [103]). In a case such as this, involving significant violence and infliction of injury, the context of this relationship offered no real assistance to the offender on sentence (See [107]).

Norman v The Queen [2012] NSWCCA 230 (9 November 2012) – New South Wales Court of Criminal Appeal

‘Evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’

Charge/s: Rape x 3.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: During the course of the complainant’s 13 year marriage to the appellant, the complainant and the appellant had anal intercourse five times but only twice with her consent. At trial, the Crown sought to tender evidence of non-sexual domestic violence (see [22]). They argued that the evidence was not being admitted as evidence indicating a propensity on the part of the appellant which rendered it more likely that he had committed the crimes with which he was charged (therefore ss 97 and 101 of the Evidence Act and the test in Pfennig v R [1995] HCA 7; 182 CLR 461 did not apply). The trial judge accepted this argument and ruled that evidence of non-sexual domestic violence could be admitted for the purpose of showing the relationship between the appellant and the complainant. The appellant was found guilty.

Issue/s: One of the grounds of appeal was that 'relationship' evidence should not have been admitted.

Decision and Reasoning: The appeal was dismissed. MacFarlane J noted the relevant law, stating that: ‘As pointed out in Roach v R [2011] HCA 12; 242 CLR 610, evidence which incidentally shows propensity but which is otherwise relevant will not be excluded provided that the jury is properly warned against its use as propensity evidence (see also BBH v R [2012] HCA 9at [146]- [149])’.

Relationship evidence may be relevant if it assists in the evaluation of other evidence such as that of a complainant. His Honour continued at [26]: ‘In other words, relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context’.

However, the Courts have emphasised that it is necessary to consider carefully the basis upon which ‘relationship’ evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG v R [2010] NSWCCA 173 at [36] - [37]) (at [29]).

Here, MacFarlane J held that evidence of two isolated incidents of non-sexual domestic violence was irrelevant and should have been excluded. While the Crown submitted that the evidence was relevant to demonstrate ‘the nature of the relationship,’ MacFarlane J noted:

‘[C]onsistently with the approach taken by this Court in Qualtieriand DJV, it is insufficient to rely solely upon such a proposition. Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJVper McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed’.

The evidence was also not relevant to demonstrate why the alleged sexual assaults were not reported earlier, and nor could it be said that the evidence would have assisted the jury, in any permissible way, in evaluating the complainant’s evidence (see [32]-[34]).

Therefore, His Honour concluded at [35]-[36]:

‘[E]vidence of the two isolated incidents of non-sexual domestic violence was not necessary to place the sexual assaults within a meaningful context… [I]t is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning that the appellant was the type of man who might have sexual intercourse with a woman without her consent. Whilst the trial judge directed the jury not to reason in that way, there was unfairness to the appellant in the evidence being before the jury when it was not relevant on any basis’.

Despite this, on the facts, there was no substantial miscarriage of justice. The Crown case against the appellant was so overwhelming there was no significant possibility that a jury would have acquitted the appellant (See [38]).

Stewart v The Queen [2012] NSWCCA 183 (29 August 2012) – New South Wales Court of Criminal Appeal

‘Dominance’ – ‘Mitigating factors’ – ‘People affected by substance misuse’ – ‘Psychological consequences’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Victim impact statements’

Charge/s: Rape.

Appeal Type: Appeal against sentence.

Facts: The male applicant and female complainant had been in a somewhat disrupted and non-continuous relationship for some years. On the day of the offence, the complainant informed the applicant that their relationship was over and she was communicating with other men on Facebook. Jealous, the applicant smashed the complainant’s mobile phone. Later that evening, the intoxicated applicant lay on top of the complainant and, while she was struggling, placed his fingers into her vagina for about 30 seconds. The applicant was sentenced to five years and six months imprisonment, with a non-parole period of two years and eight months. In his remarks, the sentencing judge noted that:

‘I just want to make it clear, as I have to do unfortunately in cases of this nature, as far as I am concerned, cases of sexual assault have significant effects on the victim. There are two particular ways, they result in significant distrust as far as the victim is concerned in forming relationships, particularly with males if the assailant was a male. The other very broad area that is affected is the confidence or self-confidence of the victim is significantly damaged, they have concerns about their own self-worth, sometimes that is demonstrated by self-harm but there are other ways in which it is demonstrated. There is no satisfactory material yet available to indicate how long those matters may last, I always proceed on the basis that they will continue to be present for a very long time’ at [58].

Issue/s: Some of the grounds of appeal included –

1.

The sentencing judge erred in his consideration of the impact of the offence on the victim.

2.

The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The first ground of appeal was dismissed. It would have been preferable for the sentencing judge not to state that he ‘always’ proceeded on the basis that the psychological effects of sexual assaults would last for a long time. This ground of appeal may have had some force if there had been evidence that the complainant had not suffered psychological injury. However, here, the victim impact statement contained clear evidence of the significant psychological injuries the complainant had suffered (See [62]-[64]).

The second ground of appeal was also dismissed. This was a serious example of an offence against the section. Button J noted at [69] that:

‘The matter can be sharply contrasted with a case where two persons are engaged in intimate contact by consent, and one of them fleetingly goes too far. The digital penetration in this case was not fleeting, and it was preceded by a physical assault upon the victim. Throughout the sexual offence the victim was making her lack of consent abundantly clear and struggling to put an end to the invasion of her body. Most importantly, His Honour found that the offence was an attempt to demonstrate dominance over a young woman who was in truth free to engage in Facebook contact, or any other kind of contact, with whomever she wished. An offence of sexual penetration that is motivated by a desire to dominate the victim, because he or she has failed to comply with the expectations of the offender, will very rarely be anything other than a serious offence’.

Further, while this was a stern sentence in light of the applicant’s subjective circumstances, it was not manifestly excessive (See [71]).

Bellchambers v The Queen [2011] NSWCCA 131 (10 June 2011) – New South Wales Court of Criminal Appeal

‘Mitigating factors’ – ‘Rape’ – ‘Relevance of a prior relationship in sexual assault offences’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Rape x 4.

Appeal Type: Appeal against sentence.

Facts: The female complainant and the male applicant were in a relationship. Counts 1 and 2 took place after the complainant refused to have sex with the applicant but he had sexual intercourse with her regardless. The complainant reported these incidents to her general practitioner and the applicant was charged. Despite these charges, a sexual relationship continued between the applicant and the complainant. Counts 3 and 4 took place again after the complainant said she did not want to have sexual intercourse with the applicant. The applicant was sentenced to ten years imprisonment with a non-parole period of seven years.

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge erred by failing to impose a non-parole period for the first two counts.

•

The sentencing judge failed to determine the objective seriousness of the offences.

•

The sentencing judge did not properly assess the totality of the criminal offending by determining the individual sentences and then assessing the totality but rather did the reverse.

•

The sentence was manifestly excessive.

Decision and Reasoning: The sentencing judge’s decision was replete with errors and the appeal was allowed. First, the sentencing judge failed to set a non-parole period for the first two counts (See [30]-[31]). Second, the sentencing judge erred by stating that the objective seriousness of the offences were ‘at least’ in the mid-range of gravity. The sentencing judge must make apparent and define the extent to which the offence is above the mid-range (See [32]-[36]). Third, the sentencing judge did not follow the approach set out in R v Pearce.

Finally, the sentence was manifestly excessive. The sentencing judge failed to fix individual sentences and review these provisional sentences to ensure they were appropriate for the offences at hand. Further, the sentencing judge erred in his characterisation of the objective seriousness of the offences. While the offences were serious, they occurred in the context of a domestic relationship ‘which involved considerable ambivalence on the part of the complainant’ (See [47]). The sentencing judge also failed to review the subjective circumstances of the applicant. The applicant was resentenced to seven years imprisonment with a non-parole period of five years.

Sudath v The Queen [2008] NSWCCA 207 (9 September 2008) – New South Wales Court of Criminal Appeal

‘Assault’ – ‘Evidence issues’ – ‘Evidence via cctv’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse’

Charge/s: Rape, assault.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The male appellant had become violent and abusive towards the female complainant throughout their relationship. On the night of the offences, the complainant was breast feeding their child when the appellant started pulling up her night dress. The complainant said no. She then put her son down and tried to get something from under the bed. While she was kneeling, the appellant forced his penis into her anus. She screamed no but the appellant continued. The next day the appellant yelled at the complainant and physically assaulted her. The appellant was sentenced to three years and six months imprisonment with an aggregate balance of term of two years.

Issue/s: One of the grounds of appeal was that the trial judge erred in law by holding that he was ‘satisfied’ within the meaning of s 294B(6) of the Criminal Procedure Act 1986 that the complainant was “entitled” to give her evidence pursuant to the provisions of s 294B(3) of the Act.

Decision and Reasoning: The appeal was dismissed. The trial judge was correct in ruling that evidence could be given by alternative means. For complaints in sexual offence proceedings, it is generally not a sufficient reason to deny the use of CCTV or other technology merely because the jury might form the impression that the accused is/was violent. As per McClellan CJ at [29]:

‘The submission which the appellant made could of course be made in any case where there is an allegation of sexual intercourse without consent in a relationship of ongoing violence. There are many cases of this character. It was because of the personal trauma likely to be experienced by a complainant when giving evidence that s 294B was enacted. If the submission was accepted a substantial purpose of the legislative provision would be defeated. It may be that in an unusual case a submission in these terms may be accepted by a trial judge. However, the discretion is to be exercised in the individual circumstances of each case’.

Raczkowski v The Queen [2008] NSWCCA 152 (4 July 2008) – New South Wales Court of Criminal Appeal

‘Attempted rape’ – ‘Breach of apprehended domestic violence order’ – ‘Detain with intent to obtain advantage occasioning actual bodily harm’ – ‘Indecent assault’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Relevance of a prior relationship’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Using a prohibited pistol without a licence or permit’

Charge/s: Using a prohibited pistol without a licence or permit, detain with intent to obtain advantage occasioning actual bodily harm, attempted rape, indecent assault, breach of apprehended domestic violence order.

Appeal Type: Appeal against sentence.

Facts: The complainant was the applicant’s wife of over 40 years. Their relationship had deteriorated and an apprehended domestic violence order (ADVO) had been issued for the protection of the complainant. The applicant breached this order on a number of occasions and was charged. He was bailed on conditions which included that he not approach or contact the complainant. However, again, the applicant breached these conditions. He wrote to the complainant. Further, one night the applicant, who was intoxicated, entered the property of the complainant without her consent and engaged in serious misconduct throughout the night including physically assaulting the complainant, typing her up, attempting to rape her, pulling out a pistol and threatening the complainant with it, and sexual assaults.

Issue/s:

•

The sentencing judge gave insufficient weight to the fact that the applicant was suffering from severe depression at the time of the offences.

•

The sentence was manifestly excessive in light of the applicant’s depression and that they occurred in the context of a domestic relationship.

Decision and Reasoning: These grounds of appeal were dismissed but the appeal was allowed on other grounds. First, the sentencing judge was not obliged to find that the applicant’s judgment was impaired by his illness. To the extent that the depression may have contributed to the applicant’s poor judgement, its significance was diminished by the applicant’s voluntary consumption of large amounts of alcohol. Additionally, there was evidence of advance planning by the applicant. In these circumstances, specific and general deterrence were particularly important. This approach of the sentencing judge was amply endorsed by authority, particularly when offences have been committed in a domestic context: R v Hamid and when such offences occur in breach of extant restraining orders such as an ADVO: Hiron v The Queen(See [33]-[37]).

Second, the sentence could not be said to be manifestly excessive. The relevance of depression was considered in the above ground of appeal. Additionally, in terms of the relevance of a (broken down) domestic relationship, as per Grove J at [46]:

‘That a violent and pre planned attack occurred in what might be classified as a domestic setting is not a matter of mitigation. This Court has repeatedly stressed that it is a circumstance of significant seriousness: R v Edigarov; R v Dunn; and R v Burton’.

Here, the applicant detained and abused his wife verbally, physically and sexually. He did so in defiance of the conditions imposed by the ADVO and by bail. The production and use of the pistol, particularly where the applicant was ingesting significance quantities of alcohol, magnified the fear in the complainant (See [47]).

Jeffries v The Queen [2008] NSWCCA 144 (26 June 2008) – New South Wales Court of Criminal Appeal

‘Aggravated kidnapping’ – ‘Aggravating factor’ – ‘Exposing children’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Detain for advantage and cause actual bodily harm, detain for advantage.

Appeal Type: Appeal against sentence.

Facts: The victim of the aggravated kidnapping was the male applicant’s domestic partner (AW) and the victim of the kidnapping offence was AW’s 15 year old daughter, KW. The relationship between the applicant and AW had been marked by incidents of physical violence. At the time of the offence, AW had obtained an apprehended domestic violence order (ADVO) against the applicant. The applicant physically assaulted and verbally abused AW and KW, including partially ripping AW’s tongue. There was a knock on the door during the incident and someone called out, ‘It’s the police’. The applicant told AW and KW not to say anything. AW and KW were unable to leave the house that night. The applicant was sentenced to seven years and six months imprisonment.

Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The sentence was not manifestly excessive in light of the objective seriousness of the offences and the absence of any subjective factors operating in the applicant’s favour (at [99]). The offences involved the protracted detention of AW and KW for the advantage of fending off police intervention with respect to the applicant’s violence against both victims. They were committed in the context of the applicant’s controlling and violent relationship with the victim, and he inflicted actual bodily harm of a serious (and bizarre) type on AW. Great fear was instilled in both victims (See [90]).

Significant aggravating factors existed on the facts namely, that the offences were committed whilst the Applicant was on bail for an offence of violence committed against AW and was subject to an apprehended domestic violence order intended to control his conduct towards his domestic partner. These were flagrant violations of both forms of conditional liberty intended to protect AW (See [91]). It was also a significant aggravating factor that the offender’s ‘recidivist conduct demonstrated a propensity to act violently towards his partners’ (See [92]).

R v Burton [2008] NSWCCA 128 (20 June 2008) – New South Wales Court of Criminal Appeal

‘Assault occasioning bodily harm’ – ‘Common assault’ – ‘Community protection’ – ‘Denunciation’ – ‘Detain for advantage’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Influencing witness’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Relevance of victim's expression of forgiveness’ – ‘Victim contribution’ – ‘Victim's wishes’

Charge/s: Common assault x 3, assault occasioning actual bodily harm x 2, detain for advantage, influencing witness.

Appeal Type: Crown appeal against sentence.

Facts: The respondent was released on parole as part of a sentence of imprisonment for break, enter and steal. He subsequently commenced a relationship with the female complainant, who was eight years older than him, and moved into her home with her two children. The respondent committed a series of offences against the complainant involving violent assaults and threats, including an offence of influencing a witness by convincing the complainant to withdraw the charges against him. The total effective sentence included a non-parole period of one year and nine months with a balance of term of one year. The sentencing judge backdated sentences for Counts 1, 2 and 3 so that they operated concurrently with the balance of parole. Even at sentence, the victim provided a measure of support to the respondent.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. The sentences imposed failed to reflect the objective seriousness of the offences and were so inadequate as to be plainly unjust. Several aspects of the sentence imposed supported this conclusion. First, the approach of making the sentences concurrent meant that no effective sentence was imposed for three separate and serious offences of violence (See [92]-[93]). Second, the sentence for the detain for advantage offence did not reflect its objective seriousness, which was aggravated by the use of a knife. It was committed in the context of a ‘controlling and violent relationship’, extended over some hours, and involved actual threats of violence towards the victim (See [94]-[95]). It was additionally noted at [97] domestic violence offences involve the exercise of ‘power, dominance and control’ over the victim.

Third, the use of a bond for the offence of influencing a witness diluted significantly, and erroneously, the objective criminality in this case and a custodial sentence should have instead been imposed. Johnson J then made some observations regarding the role of victim’s attitude towards the respondent in sentencing, noting that it ought to play ‘no part on sentence’ at [102]. His Honour quoted (at [104]) the remarks of Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) which deal directly with this issue:

‘There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.’

Fourth, the sentencing judge’s remarks made no reference to specific deterrence, general deterrence nor the need for denunciation of the respondent’s conduct (See [106]-[107]). Finally, the final count of assault was a significant and unusual feature, committed after the respondent had been in custody for over two months. It was a further incident of control or dominance by the respondent over the victim, this time in a prison setting (See [108]-[110]).

In resentencing, the Court emphasised the importance of general and personal deterrence, denunciation and community protection, and noted that the offending took different forms and occurred at different times against the same victim and often in the presence of his children. The respondent had a substantial criminal history and showed little prospects for rehabilitation. The total effective sentenced was increased to four years and six months, with a non-parole period of three years (See [115]-[130]).

Shaw v The Queen [2008] NSWCCA 58 (14 March 2008) – New South Wales Court of Criminal Appeal

‘Aggravated break and enter (with actual bodily harm)’ – ‘Damaging property’ – ‘Denunciation’ – ‘General deterrence’ – ‘Malicious damage’ – ‘Offender character references’ – ‘Relevance of victim's expression of forgiveness’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Victim contribution’ – ‘Victim's wishes’

Charge/s: Aggravated break and enter with actual bodily harm, malicious damage to property.

Appeal Type: Appeal against sentence.

Facts: The male applicant and the female complainant had been in a domestic relationship for approximately five years and lived together with their three children. Following a domestic dispute, the complainant went with the three children to stay at a friend’s place. Over the next five days, the applicant made a number of threats to the complainant’s physical safety by telephone before he, intoxicated, broke into the friend’s place. He demanded to see his son before grabbing the complainant by her hair and striking her a number of times. The applicant had a long criminal history of offending in the domestic context and while those incidents did not involve actual violence, they evidenced a propensity to harassment in domestic situations and a failure to manage his anger. The complainant submitted a statutory declaration taking some responsibility for what she considered to be her part in provoking the applicant to act as he did. The applicant pleaded guilty and was sentenced to six years imprisonment, with a non-parole period of four years.

Issue/s: Whether the sentence was disproportionate to the gravity of the offending.

Decision and Reasoning: The appeal was allowed. Fullerton J found that the fact the offence was a domestic violence offence and that the victim was in a vulnerable position, did not elevate the offending to an ‘objectively high’ level. (See at [36]). The offending was not planned or premeditated, and the applicant did not arm himself with a weapon to inflict injury. As such, the offending was better characterised as in the middle of the range. In relation to the victim’s strong expression of support for the applicant, His Honour acknowledged the caution that must be exercised in attaching weight to such sentiments. In R v Glen [1994] NSWCCA 1 (19 December 1994) Simpson J said:

‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind [general evidence of forgiveness and desire that the assailant/ partner not be imprisoned] in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.

There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases…’

Notwithstanding this, Fullerton J was persuaded to give the victim’s support significant weight in this case. The victim’s view that the offending was ‘totally out of character’ was also supported in evidence from the applicant’s work supervisor. The sentence was reduced accordingly (See at [48]).

Kennedy v The Queen [2008] NSWCCA 21 (22 February 2008) – New South Wales Court of Criminal Appeal

‘Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Grievous bodily harm with intent’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Grievous bodily harm with intent.

Appeal Type: Appeal against sentence.

Facts: The male Aboriginal applicant had been in a de facto relationship with the female Aboriginal victim of the assault. Their relationship had been volatile and the police had taken out an interim apprehended violence order (AVO) on behalf of the victim. Three weeks prior to the offence, the victim had ended the relationship and taken the applicant’s medication for schizophrenia with her in her handbag. The applicant began experiencing auditory hallucinations and attacked the victim. She suffered severe physical injuries including facial fractures, fractures to her nasal bones and fractures of the mandible.

At sentence, the applicant explained that he did not obtain replacement medicine because there was no doctor and he did not want to leave his sick father. Nevertheless, the sentencing judge found that the applicant’s state of mind was induced by his failure to take his medication, such that his psychological status was of his own default. The applicant was sentenced to a term of imprisonment consisting of a non-parole period of four years, with a balance of term of three years.

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge erred in finding that the applicant’s psychological status was his own fault.

•

The sentencing judge erred in his assessment that the offence was in the ‘upper level of seriousness’.

•

The sentencing judge failed to appropriately take into account the applicant’s mental disorder when imposing sentence.

Decision and Reasoning: The appeal was allowed. First, the sentencing judge failed to give reasons for his finding that the applicant’s psychological status was his own fault. In particular, the sentencing judge failed to examine the circumstances which led to the applicant ceasing to take his medication. Such failure means that the sentencing judge could not arrived at such a conclusion beyond reasonable doubt (See [25]-[27]). Second, the sentencing judge erred in determining the objective seriousness of the offence by only having regard to the physical aspects of the assault and failing to consider the applicant’s psychological condition (See [38]-[40]). Third, the sentencing judge failed to take into account the applicant’s mental disorder as being relevant to the applicant’s moral culpability (See [46]-[49]). Relevant to domestic violence, an aggravating factor of this offending was that at the time of the offence, the applicant was subject to an AVO, taken out to protect the victim (at [8]).

Hiron v The Queen [2007] NSWCCA 336 (7 December 2007) – New South Wales Court of Criminal Appeal

‘Assault occasioning actual bodily harm’ – ‘Denunciation’ – ‘Deterrence’ – ‘False imprisonment’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Protection of the community’ – ‘Sentencing’

Charge/s: Assault occasioning actual bodily harm x 4, false imprisonment, resist arrest x 2.

Appeal Type: Appeal against sentence.

Facts: The female victim of the assaults and false imprisonment was the applicant’s de facto partner, who was pregnant at the time. The applicant was sentenced to a total effective sentence of imprisonment comprising of a non-parole period of four years with a balance of term of two years.

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge erred in not having proper regard to the totality principle.

•

The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. Price J noted at [32] that:

‘Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see for example R v Edigarov; R v Dunn; and R v Hamid’.

Price J then quoted from Wood CJ in Edigarov at [41] where it was said that:

‘…such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’

Here, the sentence could not be said to be manifestly excessive or that the sentencing judge erred in his application of the totality principle. Each of the four offences of assault occasioning actual bodily harm involved separate episodes of violence towards the victim. After each occasion, the applicant had the opportunity to stop. The false imprisonment was serious and distressing to the victim. Some offences involved the use of a weapon and the offences involved gratuitous cruelty. The offences were committed while the applicant was on conditional liberty. The offender abused a position of trust, as the partner of the victim and the father of their children. The victim was vulnerable in that she was a pregnant female of much smaller build than the applicant (See [34]-[39]).

Vragovic v The Queen [2007] NSWCCA 46 (27 February 2007) – New South Wales Court of Criminal Appeal

‘Characterisation of seriousness’ – ‘Deterrence’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Sentencing’ – ‘Women’

Charge/s: Grievous bodily harm with intent.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The male applicant and the female victim had been married for some years before they divorced in mid-2003. The victim then commenced a relationship with another man and an apprehended domestic violence order was obtained protecting both the victim and her new partner. One evening, the victim was at home alone speaking on the telephone when the line went dead. The applicant then broke into the house and beat her with a piece of exhaust pipe and a shortened firearm. The applicant was sentenced to 12 years imprisonment, with a non-parole period of 8 years. This sentence was partially accumulated upon an earlier imposed sentence for grievous bodily harm with intent against the victim’s new partner. Accordingly, the effective overall sentence for both offences was 14 years imprisonment, with a non-parole period of 10 years.

Issue/s: One of the grounds of appeal was that the sentencing judge erred in his description that the offence ‘must be near the top of the range of seriousness’.

Decision and Reasoning: The appeal was dismissed. Adams J stated at [33]:

‘It was once thought in some circles that domestic violence was somehow less serious than criminal violence inflicted in other circumstances. I do not agree. In many cases of domestic violence a distinguishing characteristic is the notion of the offender that he (and it is almost invariably a male) is entitled to act as he did pursuant to some perverted view of the rights of a male over a female with whom he is or was intimately connected. It is this characteristic of self-justification which requires particular emphasis to be given, in cases of this kind, to the elements of general and personal deterrence. In this case, the appellant had already been arrested for another extremely vicious attack on [his ex-wife’s new partner] for motives which were plainly related to those for which he attacked his ex-wife. The notion that this was some kind of temporary aberration is, I think, disproved by this concatenation of events. There was no a sudden loss of control arising out of circumstances beyond his capacity to deal with. It was a cold, calculating and brutal attack upon a helpless woman at night in her own home’.

Here, the characterisation of the offence by the sentencing judge as ‘near the top of the range of seriousness’ related not to the actual physical injuries or to the overall seriousness of the offence but to the circumstances in which the injuries were inflicted. This characterisation was correct (See [34]).

Walker v The Queen [2006] NSWCCA 347 (1 November 2006) – New South Wales Court of Criminal Appeal

‘Attempted wounding with intent to cause grievous bodily harm’ – ‘Distress at the breakdown of a relationship is no excuse for violence’ – ‘Objective seriousness’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’

Charge/s: Attempted wounding with intent to cause grievous bodily harm.

Appeal Type: Appeal against sentence.

Facts: The offence arose out of the breakdown of the fifteen year marriage between the applicant and the victim. The victim told the applicant that she was seeing another man and that their marriage was over. Some days later, the applicant beat the victim and attacked her with a 32 cm long kitchen knife. The applicant was sentenced to a head sentence of three years with a non-parole period of eighteen months.

Issue/s: Whether the sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The sentencing judge correctly characterised the objective criminality of the offending as very serious. The sentencing judge emphasised, as many on the bench had done so previously, that however sad and distressing a matrimonial breakdown might be, violence of any kind is not to be accepted as a more or less natural incident of such a breakdown (See [7]). The sentencing judge further gave appropriate weight to the relevant subjective matters (See [8]-[9]).

R v Hamid [2006] NSWCCA 302 (20 September 2006) – New South Wales Court of Criminal Appeal

‘Assault occasioning bodily harm’ – ‘Coercive control’ – ‘Denunciation’ – ‘General deterrence’ – ‘Multiple victims’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Repeat domestic violence offenders’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Vulnerability of the victim’ – ‘Wounding’

Charge/s: Assault x 2, assault occasioning actual bodily harm x 5, detaining without consent and with intent to obtain an advantage (to avoid detection for assaulting her), malicious wounding.

Appeal Type: Crown appeal against sentence.

Facts: The total effective sentence included a non-parole period of two years and six months, with the balance of the term lasting two years. The offending involved prolonged and serious violence committed against three women with whom the respondent was either married or in a relationship over an eight year period.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. Johnson J at [65] - [88] provided a very useful summary of the relevant principles, particularly of relevant Court of Criminal Appeal authority. This authority has placed great emphasis on general deterrence, due to the prevalence of domestic violence, as well as the vulnerability of victims and breaches of trust involved. Specific deterrence and denunciation is also important.

Johnson J also quoted Wood CJ in R v Edigarov [2001] NSWCCA 436 who stated –

‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.’

Her Honour went on at [77] –

‘These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pp 6-7.

Her Honour then commented specifically on the relevant considerations when sentencing — ‘In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important’ at [86].

‘This is not to say that promotion of rehabilitation of the offender is not an important factor. It remains necessary to provide individualised justice in the circumstances of the particular sentencing decision. Nevertheless, the factors to which reference has been made above assume particular significance in the case of a domestic violence offender who has committed a series of offences over an extended period of time against different victims’ at [88].

While the respondent did have a mental illness, Her Honour found that it was not such as to reduce his moral culpability, or reduce the need for general deterrence, as he was aware of the gravity of the offending. In applying these principles to the facts, Johnson J found that the sentences imposed at trial were manifestly inadequate and did not reflect the ‘objective criminality’ that was involved. The respondent showed minimal remorse, was seeking to ‘justify his crimes’ and had a criminal record of assaults and breaches of apprehended domestic violence orders. The respondent was re-sentenced accordingly (See at [152]).

R v Kershaw [2005] NSWCCA 56 (1 March 2005) – New South Wales Court of Criminal Appeal

‘Breach of apprehended violence order’ – ‘Rape’ – ‘Relevance of victim's expression of forgiveness’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Victim's wishes’

Charge/s: Rape, breach of an apprehended violence order.

Appeal Type: Appeal against sentence.

Facts: The applicant and the complainant had been married for 16 years and lived with their eight year old daughter. They had been arguing when the applicant pushed the complainant forcefully. She rang the police and obtained an apprehended violence order (AVO) restraining intimidating conduct and restraining the applicant from being at their premises under the influence of alcohol, liquor or drugs. The applicant arrived back at their premises and complained about the AVO. He then stripped naked. The complainant told the applicant that she was not willing to have sex with him and was not going to change her mind about the AVO. He then raped the complainant. The applicant pleaded guilty and was sentenced to 5 years imprisonment, with a non-parole period of two and a half years. A 10 percent reduction in sentence was made to take into account this guilty plea.

Issue/s: The sentence was manifestly excessive.

Decision and Reasoning: The appeal was dismissed. The Court held that the discount for the guilty plea was appropriate, was not ‘meagre’ and was actually quite significant. Further, the applicant contended that the trial judge erred by taking a ‘harsh view’ in finding that the applicant and the complainant continuing their relationship is an issue with regards to the applicant’s rehabilitation. The complainant maintained a ‘favourable’ view of the applicant and the relationship (See at [21]). Bryson JA held that the complainant’s ‘forgiving and optimistic attitude’ should not play a large part in the sentencing decision. The trial judge was correct to conclude that the fact that the offence was committed against his wife was an aggravating factor. As per the trial judge, at [24] ‘The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence’.

The trial judge’s view that the gravity of the offence was severe was correct. Other aggravating factors included his previous conviction for assaulting his wife, the fact that offence was committed after ongoing supervision and a good behaviour bond was completed, and it was in breach of an AVO. This justified a correspondingly high sentence.

R v Dunn [2004] NSWCCA 41 (23 February 2004) – New South Wales Court of Criminal Appeal

‘Assault occasioning actual bodily harm’ – ‘Breach of an apprehended violence order’ – ‘Break and entering a dwelling armed with an offensive weapon’ – ‘Denunciation’ – ‘Deterrence’ – ‘Exposing children’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Purposes of sentencing’ – ‘Sentencing’

Charge/s: Breaking and entering a dwelling armed with an offensive weapon, assault occasioning actual bodily harm, breach of an apprehended domestic violence order.

Appeal Type: Crown appeal against sentence.

Facts: The de facto relationship between the male respondent and the female complainant had ended in mid-2000. In 2001, the respondent was convicted of assault occasioning actual bodily harm and placed on a bond for two years. Six months later, the poorly disguised respondent crashed his car into the complainant’s car, which she was driving with her two children. The respondent then tried to force the complainant out of her car and punched her in the nose, eye and head. In 2002, the respondent broke into the complainant’s house and attacked her with a Stanley knife. The complainant’s new partner intervened. The respondent was sentenced to three years and nine months imprisonment with a non-parole period of one year and nine months.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. Adams J stated at [47]:

‘Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind’.

He found that the sentencing judge did not give adequate weight to the need for deterrence and denunciation. Further, the extent of injury committed by the offender is an important factor in assessing the appropriate measure of punishment and the sentence here did not adequately reflect the pain and suffering the respondent caused. Finally, the sentencing judge erred in imposing wholly concurrent sentences because there were two distinct and separate instances of violence against the complainant and her new partner. The respondent was re-sentenced to four years and six months imprisonment.

R v O’Brien [2003] NSWCCA 121 (6 May 2003) – New South Wales Court of Criminal Appeal

‘Battered woman syndrome’ – ‘Defences’ – ‘Expert evidence’ – ‘Forensic psychiatrist’s evidence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Where the victim is an offender’

Charge/s: Manslaughter.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The appellant was found guilty of the manslaughter of her daughter, who died of malnutrition at the age of 14 months. The appellant refused to take the child to the hospital, against the advice of medical practitioners and friends. In a record of interview, the appellant said that she did not take the deceased to the hospital because her husband believed that children should not be infused with fluids or have any artificial substances injected into their bodies. At trial, the appellant gave evidence that her husband was controlling, verbally abusive and violent, and she was afraid to contravene his wishes. Defence counsel also called evidence from a forensic psychiatrist, Dr Nielssen. Dr Nielssen did not find that the appellant suffered from any kind of psychiatric disorder but that her situation fitted ‘battered wife syndrome’. As a result of this, the appellant accepted the decisions made by her husband, despite having reservations about them (See [31]). The appellant was sentenced to five years imprisonment with a non-parole period of two years.

Issue/s: Some of the grounds of appeal included –

•

The trial judge erred in summarising Dr Nielssen’s evidence altogether, as it related to the defence of duress. Rather, His Honour ought to have summarised the parts of Dr Nielssen’s evidence that were relevant to the subjective test, and then after describing the objective test, directed the jury’s attention to those parts of Dr Nielssen’s evidence that were relevant to that test and how a hypothetical person in the same circumstances, i.e. a battered wife, would have acted as to withdrawing from the relationship etc.

•

The trial judge’s summing-up on the evidence of battered wives syndrome from Dr Nielssen was inadequate.

Decision and Reasoning: The appeal was dismissed. First, as per Durford J at [43], ‘although it is undoubtedly the duty of a trial judge in summing up to relate the different pieces of evidence to the different issues in the trial: R v Zorad (1990) 19 NSWLR 91 at 105, this was a "single issue" trial and that single issue was duress. The evidence of Dr Nielssen about the battered wife syndrome was relevant to both the subjective and objective tests and there was no need to divide it up in a way which had not been suggested by either counsel in their addresses: Osland v The Queen [1998] HCA 75at [59]-[60]’.

Second, a trial judge is not required to read or summarise the whole of the relevant evidence to the jury which has already been heard from witnesses, but merely to present a balanced summary of the salient parts which is fair to both sides. The evidence of Dr Nielssen was sufficiently and fairly summarised by the trial judge. Some of the questions and answers not repeated in the summing-up were merely elaboration of general propositions of the doctor which had been summarised, and one answer in particular which it was claimed should not have been omitted had been substantially paraphrased by the appellant's trial counsel in his final address (See [47]-[48]).

R v Palu [2002] NSWCCA 381 (17 September 2002) – New South Wales Court of Criminal Appeal

‘Malicious grievous bodily harm’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Relevance of the attitude of the victim’ – ‘Sentencing’ – ‘Victim contribution’

Charge/s: Maliciously inflicting grievous bodily harm.

Appeal Type: Crown appeal against sentence.

Facts: The male respondent and the male victim were drinking partners and got into a fight. The victim suffered a skull fracture. The sentencing judge adjourned proceedings and granted bail to the respondent on certain conditions, under s 11 of the Crimes (Sentencing Procedure) Act

Issue/s: In light of the seriousness of the offence and because it was inevitable that a full-time custodial sentence had to be imposed, it was outside the exercise of His Honour’s discretion to make an order adjourning proceedings.

Decision and Reasoning: The appeal was allowed. This was not a case involving domestic violence but Howie J’s comments regarding the relevance of a victim’s attitude to sentence have been cited in subsequent domestic violence cases. Here, the sentencing judge was unduly influenced by the fact that the victim and the respondent were still friends. At [37] His Honour provided:

‘The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen [1994] NSWCCA 1 (19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim’.

Howie J also noted that a sentencing judge should only give very limited weight to statements made by an offender to a psychiatrist or psychologist reproduced in reports, including expressions of remorse (See [39]-[41]).

Note: Sections 4A and 4B of the Crimes (Sentencing Procedure) Act were introduced on 25 September 2018 imposing additional requirements in sentencing for domestic violence offences in NSW.

R v Quach [2002] NSWCCA 173 (15 May 2002) – New South Wales Court of Criminal Appeal

‘Contrition’ – ‘Forgiveness by the victim’ – ‘Good character’ – ‘Grievous bodily harm with intent to murder’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim contribution’

Charge/s: Grievous bodily harm with intent to murder.

Appeal Type: Appeal against sentence.

Facts: The applicant began to suspect that his wife, the victim, was having an affair (an allegation without basis). One morning, while the children were at school, the victim was lying in bed and was struck several times, mainly on the head, with a bottle wielded by the applicant. The applicant said to the victim that he wanted to kill her because she did not respect him. He then tied the victim up and gagged her whilst continuing to threaten to kill her and then himself. The victim was not released until her children returned home from school and the victim lost a lot of blood. The applicant was sentenced to nine years imprisonment with a non-parole period of five years. In imposing this sentence, the sentencing judge made reference to the former good character of the accused and stated:

‘We must all accept the fact that differences in marriages do occur and it is expected that people will try and resolve any differences without violence. However to go to the stage of wanting to end the marriage by killing someone is quite unacceptable of course and quite frightening to the wider community. There can be no mitigating factors in such an act with that intention. We do accept the realities of marriages breaking up and people separating but we can never accept or tolerate any person killing someone as the solution. And so it is difficult with reference to a person being a man of good character up until now. It is difficult to know what relevance that has where a person has considered the final solution’ at [16].

The fact is that at the start of the assault that morning the prisoner did state and evidence an intention to kill. Such an expression and intention must immediately negate any consideration of mitigating factors because of good character, then to extend the trauma and terror of the assault all day until the late afternoon takes the actions of the prisoner into a further level of callousness’ at [17].

Issue/s: Some of the grounds of appeal included –

•

The sentencing judge did not take into account the previous good character of the applicant when fixing the sentence.

•

The sentencing judge failed to consider the contrition of the applicant.

Decision and Reasoning: The appeal was dismissed. First, O’Keefe J noted that there is nothing wrong with a judge discussing the weight which should be given to the previous good character of an offender. While the sentencing judge’s remarks at [16] were unexceptional, the sentencing judge erred at [17] when he completely excluded the applicant’s previous good character as a mitigating factor and therefore did not take it into consideration in mitigation of the penalty (see [19]). However, the sentence imposed by the judge and the non-parole period were very lenient given the objective gravity of the offence and taking into account the subjective features of the applicant, and a lesser sentence would not have been appropriate in the circumstances. This ground of appeal was therefore dismissed.

Second, on the facts, it was arguable that the applicant showed contrition and further, the absence of an affirmative finding in relation to contrition by the sentencing judge was not to be regarded as a matter overlooked by His Honour (See [27]). Additionally, O’Keefe J commented on forgiveness of the victim at [28] and stated:

‘The fact that he expressed contrition to his wife and that she said that she forgave him did not detract from the duty of the judge to impose a proper sentence. Her views in relation to the contrition of the Applicant, as opposed to what he said to her, do not seem to have been tested. Furthermore, even the stated acceptance by the victim of her acceptance of her attacker's contrition does not bind the court, nor does it detract from the need to give proper weight to the principle of general deterrence, R v Kanj [2000] NSWCCA 408, a principle that is important in cases of domestic violence (R v Green [2001] NSWCCA 258; R v Glen [1994] [1994] NSWCCA 1). Furthermore, the fact that a victim may forgive her attacker is not determinative. Indeed, its weight in relation to general deterrence will be a variable depending on the offence and the circumstances. It is a matter for judgment by the sentencing judge’.

R v Edigarov [2001] NSWCCA 436 (5 October 2001) – New South Wales Court of Criminal Appeal

‘Assault police officer occasioning actual bodily harm’ – ‘Common assault’ – ‘Deterrence’ – ‘Double jeopardy in sentencing’ – ‘Exposing children’ – ‘Kidnapping’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Common assault, assault police officer occasioning actual bodily harm, kidnapping.

Appeal Type: Crown appeal against sentence.

Facts: On 3 August 1999, the respondent assaulted his wife (the victim) in the presence of their three year old daughter by pushing her against a refrigerator, pursuing her into the bedroom and pushing her to the floor. After throwing and kicking items, he left the unit and the victim went to a friend’s unit for safety. The respondent arrived there an hour later and threatened to kill her if she did not return home. Police were called and the respondent assaulted these officers. The respondent was released on bail and became subject to an apprehended domestic violence order. On 7 October 2000, the respondent kidnapped the victim while she was walking along the street with her daughter. He drove her to his parents’ home and repeatedly punched and kicked her. The victim managed to escape and called the police. The sentencing judge imposed the following sentences:

•

Common assault: six months imprisonment.

•

Assault police officer occasioning actual bodily harm: 18 months imprisonment, suspended upon the condition that he enter into a good behaviour bond.

•

Kidnapping: two years imprisonment with a non-parole period of six months and 12 days.

In imposing the sentence for kidnapping, His Honour found that there were special circumstances in that all of the offences of the respondent were ‘by-products of (his) anger and frustration and disappointment at the failure of (his) marriage and at the imposition of the apprehended violence order against (him)’.

Issue/s: One of the grounds of appeal was that the sentencing judge failed to give sufficient weight to the objective seriousness of the combination of the offences involved.

Decision and Reasoning: The appeal was allowed. Wood CJ held that the sentence imposed failed to give sufficient weight to the objective seriousness of the offences and too much significance was attached to the emotional reaction of the respondent to being thwarted in the marriage, a circumstance that provided no excuse whatsoever for his behaviour (See [39], [52]). In relation to the assault of his wife, Wood CJ found that the offence involved the sustained use of physical violence causing fear in the presence of an equally terrified child. It could not be characterised as a momentary or uncharacteristic loss of self-control, as the aggression continued into the evening. Further, at [41]:

‘As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence’.

Additionally, the kidnapping offence involved sustained violence by the respondent who caused substantial injury to his wife and again threatened to kill her. It was again committed in the presence of their young daughter and caused significant fear. Further, the sentencing judge failed to reflect three aggravating factors in the sentence namely, this was not an isolated act of violence, and the offence was committed while the offender was on bail and while the offender was subject to an apprehended violence order in relation to the same victim (See [47]-[51]). In re-sentencing the respondent, the court took into account the principle of double jeopardy (See [55]-[65]).

R v MacAdam-Kellie [2001] NSWCCA 170 (9 May 2001) – New South Wales Court of Criminal Appeal

‘Aggravating factor’ – ‘Attempted murder’ – ‘Breach of an apprehended domestic violence order’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’

Charge/s: Attempted murder.

Appeal Type: Appeal against sentence.

Facts: The applicant and the victim had been married for 21 years before the victim left the family home and obtained an apprehended violence order. On the day of the offence, the victim was arriving at the Family Court accompanied by their four year old son when the applicant approached her and produced a knife, approximately 30 cm in length with a serrated edge blade. The victim fled but was chased by the applicant and almost fatally stabbed in the arm, back and stomach. The applicant was sentenced to 16 years imprisonment, with a non-parole period of 12 years. A psychiatric report tendered from Dr Nielssen diagnosed the applicant as suffering from a major depressive illness and a personality disorder.

Issue/s: One of the grounds of appeal was that the sentencing judge erred in failing to accept the findings of Dr Nielssen and in concluding that there was no evidence which established a link between the major depressive illness the applicant was suffering and the commission of the offence (See [51]).

Decision and Reasoning: The appeal was allowed. In light of the opinion of Dr Nielssen and fresh evidence adduced, there was a link between the illness suffered by the applicant and the offence (See [58]). James J also noted that the sentencing judge’s conclusions regarding the severity of the attack (particularly in light of the apprehended violence order) were entirely open to him. The attack was very severe and showed a degree of viciousness. The offence was committed in breach of an apprehended domestic violence order and this was a significant aggravating factor (See [37]-[38]).

R v Grech [1999] NSWCCA 268 (6 September 1999) – New South Wales Court of Criminal Appeal

‘Deterrence’ – ‘People with disability and impairment’ – ‘Person in authority having sexual intercourse with person with intellectual disability’ – ‘Position of trust’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’

Charge/s: Person in authority having sexual intercourse with a person with intellectual disability x 2.

Appeal Type: Appeal against sentence.

Facts: The male complainant, who had an intellectual disability, lived in a group home where the male applicant worked as a team leader. They formed a sexual relationship. The complainant gave evidence at trial that the sexual contact commenced when he turned 18 and that they loved each other. The applicant was found guilty after a trial of two counts of a person in authority having sexual intercourse with a person who has an intellectual disability under Crimes Act 1900 (NSW) s 66F. The applicant was sentenced to a minimum term of three years imprisonment with an additional term of two years imprisonment.

Issue/s: The sentencing judge failed to adequately take into account the evidence of the nature of the relationship between the applicant and the complainant together with the lack of evidence of psychological or other injury suffered by the complainant and his borderline degree of intellectual disability.

Decision and Reasoning: The appeal was dismissed. Carruthers AJ held that even if one were to accept that there was a genuine mutual loving relationship on the facts (of which there was some doubt), this did not reduce the criminality of the applicant as assessed by the trial judge. His Honour noted that the legislature did not encumber s 66F(2) with qualifications and it was clearly intended to prohibit absolutely, persons with authority (as defined) having sexual intercourse with intellectually disabled persons over whom they have authority (See [32]). Deterrence looms large for offences under s 66F(2) as ‘it is the mark of a civilised society that those who are incapable fully of protecting their own interests, should be protected from exploitation by those in whom society vests the responsibility of caring for them. Carers who breach this trust must expect condign punishment’ (See [37]). The seriousness of the offence was explained by Carruthers AJ at [33]-[34]:

‘strong emotional relationships are quite capable of developing between carer and intellectually disabled person, whether they are of the same gender or not. It is essential, therefore, that persons in authority exercise the utmost care to avoid such situations developing, and immediately there are indications of such a situation arising, the obligation is on the person in authority to remove himself or herself from the relationship or, at the very least, immediately to seek expert counselling.

‘Neither of these courses was adopted in the subject case and, intolerably, the relationship developed into one of a continuing and prolonged violation of the provisions of s 66F(2). The applicant knew not only that he was in breach of his position of trust, but that he was in breach of the criminal law, and he was also aware that the complainant had previously been the victim of sexual exploitation and as a consequence a prior carer was serving a lengthy custodial sentence. The fact that the relationship may have developed, as the applicant contends, into a mutual loving relationship could fairly be described as an aggravating feature of the case rather than a mitigating factor’.

R v Kotevski [1998] NSWCCA 1 (3 April 1998) – New South Wales Court of Criminal Appeal

‘Malicious wounding with intent to cause grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sentencing judge should not enter into a determination of the merits of matrimonial disputes’

Charge/s: Malicious wounding with intent to cause grievous bodily harm.

Appeal Type: Appeal against sentence.

Facts: The victim was the applicant’s estranged wife. Despite living apart and having commenced Family Court proceedings, they continued to work together in a takeaway food business. One day at work, they were arguing and the applicant ‘snapped’. He repeatedly stabbed the victim with a scraper and a trowel before picking up a long bladed knife and lunging at the victim. Someone heard the victim’s screams and managed to intervene. The applicant was sentenced to three years imprisonment with a minimum term of two years and three months.

Issue/s: Some of the grounds of appeal included –

1.

Whether the sentencing judge erred in not taking into account, or in not sufficiently taking into account, the belief by the applicant that he had been unfairly treated by his wife and the applicant's consequential feelings of anger and frustration.

2.

Whether the sentencing judge erred in declining to enter into a determination of the merits of the matrimonial disputes between the applicant and his wife.

Decision and Reasoning: The appeal was dismissed by James J (Simpson J agreeing). First, the sentencing judge did not proceed on the basis that the applicant’s belief and feelings about his wife were irrelevant in the sentencing of the applicant. On the contrary, the sentencing judge appropriately took into account these feelings expressly when he noted that the attack by the applicant on his wife was not pre-meditated and that the applicant while subject to stress had ‘snapped’ and had ‘on the spur of the moment’ engaged in a ‘heated’ attack. His Honour was not required to take the applicant’s belief and feelings about his wife any further into account (10-11). Second, the sentencing judge was justified in adopting the position that he would not enter into a determination of the merits of the matrimonial disputes (i.e. who was right and who was wrong) and this was irrelevant to sentencing, except insofar as determining the attack was not pre-meditated (11-14).

R v O’Grady [1997] NSWCCA 1 (13 May 1997) – New South Wales Court of Criminal Appeal

‘Aggravated sexual intercourse without consent’ – ‘Character’ – ‘Denunciation’ – ‘Detention against will with intent to carnally know the victim’ – ‘Deterrence’ – ‘Factors not mitigating at sentence’ – ‘Public confidence in the criminal system’ – ‘Relevance of a prior relationship’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Women’

Charge/s: Aggravated sexual intercourse without consent, detention against will with intent to carnally know the victim.

Appeal Type: Crown appeal against sentence.

Facts: The female victim and the male respondent had previously been in a consenting sexual relationship but at the time of the offence the relationship had ended and they were merely seeing each other as friends. The respondent asked the victim for another chance at the relationship but the victim refused. He then threatened the victim with a knife and tied her up. The respondent fondled the victim and had penile intercourse with her without her consent. The respondent was sentenced to three years imprisonment, to be served by way of periodic detention for the aggravated sexual intercourse without consent and deferred sentence for the detention offence on the condition that the respondent enter into a recognisance to be of good behaviour for a period of five years. In imposing this sentence, the judge found that these offences were ‘foreign’ to the respondent’s normal character, had their roots in compulsive gambling, and were an ‘aberration committed by a young man who loved a young girl’.

Issue/s: The sentence was manifestly inadequate.

Decision and Reasoning: The appeal was allowed. Sully J held that while there was sufficient evidence to support a finding that the offences were ‘foreign’ to the respondent’s normal character, the offending did not have its roots in ‘compulsive gambling’ and nor could the objective seriousness of the offences be broken down as being no more than ‘an aberration committed by a young man who loved a young girl’. These were extremely serious offences which resulted from the breakdown of the relationship between respondent and the victim and the victim’s rejection of the respondent’s request to resume the relationship (See 8). As per Sully J at p. 9 that where a relationship breaks down:

‘ the woman who is involved in the relationship is entitled to feel that, whatever other consequences ensue, her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of those with which we are now called upon to deal’.

In sum, the sentences imposed were manifestly inadequate. They were wholly inadequate to denounce the violent rape, at knife point, of a defenceless young woman in what ought to have been the safety and security of her own home. They were wholly inadequate to properly denounce the victim’s violent and prolonged detention for that purpose. They were also wholly inadequate to deter both the respondent and other young men from similar behaviour. Further, very importantly, the sentences imposed were hopelessly inadequate to ensure that there is maintained public respect for and confidence in current standards of criminal justice (See 11). The respondent was resentenced to five years imprisonment for the sexual intercourse with consent offence with a minimum term of three years and three years imprisonment on the detention offence.

R v Rowe [1996] NSWCCA 1 (3 October 1996) – New South Wales Court of Criminal Appeal

‘Deterrence’ – ‘Family hardship’ – ‘Kidnapping’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of victim's wishes’ – ‘Sentencing’ – ‘Victim contribution’

Charge/s: Kidnapping, rape.

Appeal Type: Appeal against sentence.

Facts: The male applicant and the female complainant lived in an ‘off and on’ de facto relationship over a period of five years and had two children together. Immediately prior to the offences, the relationship had broken down again. The applicant became jealous because he believed the complainant was seeing a new man. He then forced the complainant into his car, drove her to his premises, threatened to kill her family and this new man, and proceeded to have sexual intercourse with her without consent. He was sentenced to seven years imprisonment, with an effective minimum term of four years. The complainant wrote to the sentencing judge stating that she had resumed a relationship with the applicant, she did not want him to go to prison (particularly because of the trauma that would result to their children), and she had forgiven the applicant.

Issue/s: Some of the grounds of appeal included –

1.

The sentencing judge gave insufficient weight to his subjective features including his age, background, disrupted and violent upbringing, education and employment.

2.

The sentencing judge gave insufficient weight to the wishes of the complainant

Decision and Reasoning: The appeal was dismissed. First, the sentencing judge did not err when he rejected the claim that these subjective circumstances had a relationship to the commission of these offences and therefore ought to have mitigated the sentence (See 472). Second, Hunt CJ dismissed the contention that the sentencing judge ought to have given greater weight to the wishes of the complainant. As at 472-473:

‘This Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Glen, Simpson J pointed out that, whilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

‘This Court has also said more than once that the hardship upon the family of an offender will not be relevant in mitigation unless it goes beyond that which inevitably results in any case of incarceration and unless it is sufficiently extreme as to demand that the judge draw back. That has not been established in this case. It may be ironic, as has been suggested, that the victim and her children are going to suffer the punishment imposed upon the offender, but the fact remains that the law requires such a punishment to be imposed’.

R v Glen [1994] NSWCCA 1 (19 December 1994) – New South Wales Court of Criminal Appeal

‘Deterrence’ – ‘Physical violence and harm’ – ‘Relevance of victim’s forgiveness’ – ‘Sentencing’ – ‘Sexual intercourse with consent’ – ‘Victim contribution’

Charge/s: Sexual intercourse without consent.

Appeal Type: Appeal against conviction and appeal against sentence.

Facts: The male appellant and the female victim had been in an intermittent relationship for two years and had a daughter together. The appellant had sexual intercourse with the victim without her consent in the front yard of his premises. At the time of offence, he was upset about his possible denial of access to his daughter.

Issue/s:

1.

The appellant did not appreciate when he pleaded guilty that he was acknowledging the absence of consent of the victim to sexual intercourse.

2.

The admission of guilt involved in the plea should be regarded as tainted and not a free and voluntary confession.

3.

The sentencing judge fell into error by failing to give adequate weight to the lack of any relevant prior record, the emotional background to the incident - including the appellant’s fears concerning future contact with his daughter, the remorse expressed and the attitude of the complainant.

Decision and Reasoning: As per Grove J (Loveday AJ and Simpson J agreeing) the appeal against conviction and the appeal against sentence was dismissed. First, counsel for the appellant at trial obtained adequate written instructions prior to the arraignment that the appellant wished to plead guilty. These evidenced that the appellant knew the consequences of pleading guilty (See 5-6). Second, the terms of the written instructions, the evidence of the solicitor and the lack of credibility attaching to the appellant’s assertion combine to made this ground of appeal untenable (See 7). Finally, none of the above matters were overlooked by the sentencing judge and no error was accordingly demonstrated. In particular, the sentencing judge made express reference to the attitude of the complainant, which cannot govern the duty of the court when proceeding to sentence (See 8).

After agreeing with the reasons of Grove J, Simpson J made further comments on the relevance of the victim’s attitude of the offences to the sentence which should be imposed. Her Honour provided:

‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been be) could attain the victim's forgiveness.

There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.

The second reason of principle for treating with extreme caution the evidence of the forgiveness of the victim in the circumstances of this case is that the legislature has, since 1982, made clear its intention that special considerations apply to offences of domestic violence’.

Last updated: July 2024