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17
Court of Criminal Appeal 22 July 2005

R v Abboud

[2005] NSWCCA 251

Assault & violenceDomestic & family violence
CRIMINAL LAW CROWN APPEAL PRINCIPLES MANIFEST INADEQUACY BREACH OF PAROLE CRIMINAL HISTORY, USE OF

Citation: R v Abboud [2005] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 22 July 2005
Judge(s): Grove J, Howie J, Rothman J (Rothman J delivered the principal judgment; Grove J and Howie J agreed)

Background

The respondent pleaded guilty in the District Court to six assault offences against his domestic partner: one count of assault occasioning actual bodily harm (under s.59 of the Crimes Act 1900) and five counts of common assault (under s.61). The offences occurred across three separate incidents in September 2004. They ranged from throwing a television remote control at the victim's head to punching her, choking her while making death threats, stomping and kicking her legs in front of children, and biting her face.

Charteris DCJ sentenced the respondent to twelve months' imprisonment with a six-month non-parole period, with all six sentences running entirely concurrently. The Crown appealed under s.5D of the Criminal Appeal Act 1912 on the ground that the sentences were manifestly inadequate.

  • Whether the original sentences were manifestly inadequate, particularly given the serious and repeated nature of the domestic violence offences.
  • Whether sentences for multiple distinct offences should have been structured cumulatively rather than run entirely concurrently.
  • Whether photographs showing injuries were admissible at sentencing for common assault charges under s.61, given that common assault is defined as assault that does not occasion actual bodily harm.
  • How a prior criminal history and breach of parole should properly be taken into account in sentencing.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the original sentences manifestly inadequate. The Court found that making all sentences fully concurrent failed to reflect the gravity of six distinct offences committed across three separate occasions. The principle of cumulation, applied in conjunction with the totality principle (which requires the overall sentence to remain proportionate), required at least partial accumulation across the charges.

On the admissibility point, the Court made clear that tendering photographs of injuries was impermissible at a sentencing hearing for common assault under s.61. Because common assault is by definition an offence that does not occasion actual bodily harm, evidence of actual bodily harm is legally irrelevant to the sentencing exercise under that provision. The Court deprecated the practice of adducing such material and stated that, where this cannot be avoided, proceedings should be adjourned to be dealt with properly.

Regarding the respondent's criminal history, the Court applied the principle from Veen v The Queen [No. 2] that a prior criminal record may increase the sentence beyond what the current offences alone would warrant, but cannot be used to impose a sentence disproportionate to the instant offending. The respondent's history and his status as a parole breacher were treated as relevant aggravating factors within those limits.

The Court also found special circumstances existed to justify a longer parole period than the statutory norm, given the respondent's participation in a drug rehabilitation program. The restructured sentences were made partially cumulative, resulting in an overall effective head sentence of two and a half years with a non-parole period of thirteen months.

Orders Made

  • The Crown appeal was allowed.
  • The sentences imposed by Charteris DCJ on 4 March 2005 were quashed.
  • In substitution, the following sentences were imposed:
  • Offence 2 (common assault, 24 September 2004): five months' imprisonment, fixed term, commencing 4 March 2005, concluding 3 August 2005.
  • Offence 3 (common assault, 28 September 2004): ten months' imprisonment, fixed term, commencing 4 April 2005, concluding 3 February 2006.
  • Offence 4 (common assault, 28 September 2004): ten months' imprisonment, fixed term, commencing 4 May 2005, concluding 3 March 2006.
  • Offence 5 (common assault, 28 September 2004): ten months' imprisonment, fixed term, commencing 4 June 2005, concluding 3 April 2006.
  • Offence 6 (common assault, 28 September 2004): ten months' imprisonment, fixed term, commencing 4 July 2005, concluding 3 May 2006.
  • Offence 1 (assault occasioning actual bodily harm): two and a half years' imprisonment commencing 4 May 2005, concluding 3 November 2007, with a non-parole period of thirteen months expiring 3 June 2006.
  • The respondent was to be released on parole on 3 June 2006 on the usual conditions.

Key Takeaways

  • Making all sentences fully concurrent across six distinct assault offences committed on three separate occasions was found to be manifestly inadequate; partial accumulation was required to reflect the true criminality of the conduct.
  • Evidence of actual bodily harm is inadmissible at a sentencing hearing for common assault under s.61 of the Crimes Act 1900, because the offence is defined as assault that does not occasion such harm. The Court of Criminal Appeal identified this as a practice to be deprecated and indicated that proceedings should be adjourned if such material cannot otherwise be excluded.
  • Under the principle in Veen v The Queen [No. 2], prior criminal history and breach of parole are legitimate aggravating factors in sentencing, but they cannot justify a sentence that is disproportionate to the gravity of the current offences.
  • Special circumstances warranting an extended parole period can be established where there is evidence of engagement with a rehabilitation program, even where the offending history is substantial.
  • A discount of 15% for a guilty plea entered only after a voir dire and on the day of hearing was noted as potentially generous, though the Court applied the same rate as the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s.5D
- Crimes Act 1900 (NSW), ss.59, 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.21A

Cases:
- Veen v The Queen [No. 2] (1988) 164 CLR 465
- Pearce v The Queen (1998) 194 CLR 610
- Dinsdale v The Queen (2000) 202 CLR 321
- Johnson v The Queen (2004) 78 ALJR 616
- R v Wall [2002] NSWCCA 42
- R v Prasad (2004) 147 A Crim R 385