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Court of Criminal Appeal 3 February 2004

R v Newton

[2004] NSWCCA 47

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL MALICIOUSLY DAMAGING PROPERTY ASSAULTING A POLICE OFFICER

Citation: Newton v R [2004] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 3 February 2004
Judge(s): James J, Buddin J

Background

The appellant had pleaded guilty in the District Court to three offences arising from two separate incidents in 2001 and 2002. The first incident, on 24 October 2001, involved the appellant smashing a car window with a baseball bat and then firing fireworks at police officers who had attended to serve an apprehended domestic violence order. The second incident, on 9 June 2002, occurred while the appellant was on bail and involved him brandishing a knife at police who responded to an emergency call at the same premises.

At sentencing, Judge Berman took three additional offences into account alongside the principal charge from June 2002: assaulting a police officer, breaching an apprehended domestic violence order, and common assault. The total sentences imposed amounted to five years imprisonment with a non-parole period of three years.

The appellant sought leave to appeal against the sentences on three grounds, arguing errors in the sentencing judge's approach to the facts, procedural fairness, and the principle of totality.

  • Whether the sentencing judge erred by taking into account matters beyond what was established by the agreed facts, specifically in relation to injury caused to a police officer during the fireworks incident
  • Whether the sentencing judge denied the appellant procedural fairness by relying on factual matters without giving the appellant an opportunity to address them
  • Whether the sentencing judge failed to apply the principle of totality when sentencing for the principal offence and the offences taken into account

Decision

On the first ground, the Court of Criminal Appeal examined whether the sentencing judge had impermissibly relied on evidence of injury to a police officer from the fireworks incident, in a manner that went beyond the agreed facts. The Court found no departure from the material placed before the sentencing judge and rejected this ground.

On the procedural fairness ground, the appellant argued that the sentencing judge had, during the hearing, raised the possibility of treating the fireworks incident as having caused injury, but then did not address this further in the remarks on sentence. The Court found that, because the sentencing judge's remarks on sentence did not depart from what had been raised in argument, there was no denial of procedural fairness to the appellant.

On the totality ground, the Court considered whether the offences taken into account were so closely connected to the principal offence that no additional weight should have been given to them. The Court inferred that the sentencing judge had given little weight to the additional offences and had treated the sentence as primarily reflecting the criminality in the principal charge. The Court also noted that the breaches of the domestic violence order and the assault on the complainant were sufficiently distinct from the principal offence to independently warrant some consideration.

The Court rejected a further oral submission that the sentences were manifestly excessive, having regard to the objective seriousness of the offences and the appellant's personal circumstances, including his criminal history, alcohol-related aggression, and the fact that the June 2002 offences were committed while on bail.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not required to specify the extent to which a sentence for a principal offence has been increased by reason of additional offences taken into account.
  • No denial of procedural fairness arises where a sentencing judge raises a factual matter in argument but does not ultimately rely on it in the remarks on sentence.
  • Offences taken into account that are sufficiently distinct from the principal offence, such as breaches of an apprehended domestic violence order and assaults on a separate victim, may properly attract independent weight in sentencing.
  • The De Simoni principle (that a sentencing court must not punish for a more serious offence than that charged) remains relevant to the analysis of whether a judge has exceeded the proper factual basis for sentence.
  • Mitigating factors such as impaired mental functioning, including a personality disorder and alcohol-related aggression, may reduce the weight given to general deterrence but do not necessarily displace the need for personal deterrence, particularly where the offending escalated and occurred while the appellant was on bail.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1), 58, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 57

Cases:
- The Queen v De Simoni (1980-1981) 147 CLR 383
- Attorney General's Application under s 57 of the Crimes (Sentencing Procedure) Act 1997 No 1 (2002) 56 NSWLR 146