Citation: R v Moran [2000] NSWCCA 379
Court: NSW Court of Criminal Appeal
Date: 7 August 2000
Judge(s): Dowd J; Bruce James J
Background
The applicant was convicted by a jury of one count of assault occasioning actual bodily harm under s 59 of the Crimes Act 1900 (NSW), following an altercation with his wife. The sentencing judge, Tupman DCJ in the Parramatta District Court, found that the applicant had pushed the complainant into an ironing board, pushed her against a wall, and punched her in the right eye, causing bruising to her face and back, tenderness to her head, and bruising around the eye.
The applicant was sentenced on 16 July 1997 to nine months periodic detention (a form of part-time custody served on weekends). That sentence was made cumulative upon a separate six-month periodic detention sentence, imposed on the same day, which replaced a six-month full-time sentence from Penrith Local Court arising from an earlier assault on his ex-wife in December 1996.
The applicant appeared in person before the Court of Criminal Appeal seeking leave to appeal against the severity of his sentence.
Legal Issues
- Whether the sentencing judge erred in the weight given to delay between the offence and sentencing
- Whether the sentencing judge adequately considered the applicant's contrition and rehabilitation
- Whether the overall sentence was manifestly excessive, having regard to the totality of the sentences imposed
Decision
Dowd J, with Bruce James J agreeing, found that no error had been demonstrated in the sentencing judge's approach. Her Honour had expressly taken into account the delay in proceedings, the applicant's contrition, and his rehabilitation, including a new relationship he had established. The applicant's further rehabilitation since sentencing was acknowledged, but this alone did not establish appellable error.
The court also noted that the nine-month periodic detention sentence was imposed cumulatively on an earlier sentence for a related offence. Assessed on a totality basis, the combined sentence was not considered excessive. There was described as "an element of leniency" in imposing periodic detention rather than full-time imprisonment for offences that, taken together, carried significant maximum penalties.
Two aggravating features reinforced the appropriateness of the sentence. The later assault was committed while the applicant was on bail and subject to an apprehended violence order. The court also noted that, while such a charge might ordinarily have been dealt with in the Local Court (where the maximum penalty would have been two years rather than five), Her Honour's approach to that consideration was entirely proper.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- No error was established in the sentencing judge's approach where delay, contrition, and rehabilitation had each been expressly taken into account at the time of sentencing.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that further rehabilitation occurring after sentencing does not, on its own, demonstrate appellable error in the original sentence.
- The commission of an assault while on bail and subject to an apprehended violence order constitutes a significant aggravating factor in sentencing.
- Under a totality assessment, the court may treat the imposition of periodic detention, rather than full-time imprisonment, as itself reflecting an element of leniency.
- A sentencing court's recognition that an offence might ordinarily have attracted a lower maximum penalty in the Local Court is a proper but not determinative consideration where the circumstances of the offence justify the higher court's jurisdiction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59 (assault occasioning actual bodily harm; maximum penalty five years imprisonment)
Cases:
- Lowndes v R (1999) 73 ALJR 1007
- Allpass (1993) 72 A Crim R 561