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Court of Criminal Appeal 6 September 2005

R v Romano

[2005] NSWCCA 313

Assault & violenceDomestic & family violence
APPEAL AGAINST SEVERITY OF SENTENCE AGGRAVATING FACTORS OF OFFENCES ACCUMULATION OF SENTENCES CUSTODIAL CIRCUMSTANCES NO ERROR SHOWN

Citation: R v Romano [2005] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 6 September 2005
Judge(s): Simpson J; Smart AJ; Patten AJ

Background

The applicant pleaded guilty in the District Court to two offences arising from events on 27 December 2003. The first was intimidation of his former partner, with whom he had a young child. The second was assault occasioning actual bodily harm, committed in company, against her new partner at his home unit in Bankstown.

The assault involved the applicant and his two brothers entering the victim's unit. One member of the group was armed with a club lock, which was used to strike the victim repeatedly on the legs, causing lacerations. The victim was treated at hospital and made a full recovery.

At sentencing in the District Court, Judge Twigg imposed a fixed term of 12 months for the intimidation offence and a non-parole period of 18 months, wholly cumulative on the first sentence, with a balance of term of six months for the assault offence. The applicant sought leave to appeal on grounds that the sentencing process was infected by error.

  • Whether the sentencing judge erred in his treatment of the aggravating factors of the offences
  • Whether the sentences should not have been accumulated (that is, run consecutively rather than concurrently)
  • Whether the sentencing judge failed to make adequate allowance for the onerous conditions of the applicant's protective custody

Decision

The Court granted leave to appeal but dismissed the appeal on all grounds. Simpson J (with Smart AJ and Patten AJ agreeing) was not satisfied that the sentencing process disclosed any error warranting intervention.

On the question of custodial conditions, the applicant gave unchallenged evidence at the sentencing proceedings about the difficulties he experienced in protective custody, including restrictions on education and limited access to programs. The sentencing judge made no express reference to this in the remarks on sentence. The Court considered whether this amounted to a failure to account for those circumstances.

The Court concluded it was unlikely the sentencing judge had overlooked the evidence of protective custody. Reference to the applicant's status had been included in written submissions before the sentencing judge. The Court also noted that the sentences imposed were quite lenient and did not suggest any mitigating factor had been disregarded.

Even if some technical error could be identified, the Court found it was not satisfied, under s 6 of the Criminal Appeal Act 1912, that any lesser sentence was warranted in the circumstances and ought to have been passed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing process, and the Court of Criminal Appeal declined to intervene with sentences it characterised as quite lenient.
  • Where conditions of protective custody are more onerous than ordinary incarceration, that circumstance is a relevant factor in the determination of sentence.
  • A sentencing judge's failure to make express reference to mitigating evidence in remarks on sentence does not automatically establish error, particularly where the evidence was before the court through written submissions and the resulting sentence reflects that the matter was not overlooked.
  • Under s 6 of the Criminal Appeal Act 1912, even where a technical error might exist, the Court of Criminal Appeal will not interfere with a sentence unless it is satisfied that a lesser sentence was warranted and ought to have been passed.
  • Accumulation of sentences was upheld given the distinct nature of the two offences, which involved separate victims and arose from sequential criminal conduct over the course of the same day.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 562AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, s 21A
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Johnson [2004] NSWCCA 76
- R v Romano [2004] NSWCCA 380
- R v Shankley [2003] NSWCCA 253
- R v Walker [2005] NSWCCA 109
- R v Wickham [2004] NSWCCA 193
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465