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18
Court of Criminal Appeal 30 March 2007

Frigiani v R

[2007] NSWCCA 81

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCING APPLICATION OF R V WAY

Citation: Frigiani v R [2007] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 30 March 2007
Judges: Simpson J, Barr J, Howie J (Howie J delivered the principal judgment)

Background

The appellant pleaded guilty in the District Court to malicious wounding with intent to inflict grievous bodily harm under section 33 of the Crimes Act 1900. The offence arose from a violent attack on his estranged wife in December 2004, during which he stabbed her six to eight times, causing a collapsed lung and lasting physical and psychological harm.

Approximately six weeks before the stabbing, the appellant had been charged with assaulting the same victim. That earlier offence was disposed of under section 10 of the Crimes (Sentencing Procedure) Act 1999, meaning no conviction was recorded. A good behaviour bond was imposed, with a condition that he not assault or interfere with the victim.

The sentencing judge (Marien DCJ) imposed a total sentence of nine years, comprising a non-parole period of five years and six months and a balance of term of three years and six months. The appellant sought leave to appeal on two grounds: first, that the judge had applied the standard non-parole period incorrectly; and second, that the judge had improperly taken into account the prior assault dealt with under the section 10 bond.

  • Whether the sentencing judge misapplied the standard non-parole period framework established in R v Way by allowing it to dominate the sentencing discretion rather than treating it as a guidepost.
  • Whether a prior offence disposed of under section 10 of the Crimes (Sentencing Procedure) Act (with no conviction recorded) could legitimately be taken into account as an aggravating factor at sentencing for a later offence.

Decision

On the first ground, the Court found no error in the judge's approach to the standard non-parole period. The sentencing remarks, read as a whole, showed the judge had correctly treated the standard non-parole period as a reference point and had departed from it downward on account of the guilty plea, the appellant's prospects of rehabilitation, and other mitigating factors. The passage complained of did not reveal a misconception of the Way principles.

On the second ground, the Court held that the prior conduct was relevant in two distinct ways. First, the current offence was committed in breach of an existing good behaviour bond, which is expressly listed as an aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, regardless of the nature of the conduct underlying the bond. Second, the fact that the appellant had previously assaulted the same victim was relevant to show that the index offence was not an isolated aberration. For that purpose, it was sufficient that the appellant had been found guilty of the prior conduct, even though no conviction was recorded.

The Court did note some caution about the judge's reference to Veen v R (No 2) and R v Palmer in this context. Those cases concern offenders with substantial criminal records, and their principles are not well suited to a situation involving only a single prior matter. The judge was correct to consider personal deterrence, but Veen was not necessary authority for that proposition in these circumstances.

Neither ground was made out, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A prior offence resolved under section 10 of the Crimes (Sentencing Procedure) Act (no conviction recorded) can still be taken into account at sentencing for a subsequent offence, both as evidence that the later offending was not an aberration and, where a good behaviour bond was imposed, as relevant to breach of that bond under section 21A(2)(j).
  • Under section 21A(2)(j), committing an offence in breach of a good behaviour bond is an aggravating factor regardless of what underlying conduct gave rise to the bond.
  • The Court of Criminal Appeal confirmed that the absence of a recorded conviction does not insulate prior conduct from consideration at a later sentencing, provided the offender was found guilty of that prior conduct.
  • Caution is warranted when invoking Veen v R (No 2) in sentencing remarks: the principles established in that case are directed at offenders with substantial criminal histories and are not readily applicable where only a single prior matter exists.
  • In dismissing the appeal, the Court reaffirmed that standard non-parole periods under the Way framework operate as guideposts, and a sentencing judge who departs downward from the standard period for articulated reasons does not necessarily err by referring to that period as a starting point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A(2)(d), 21A(2)(j), 54B

Cases
- R v Way [2004] 60 NSWLR 168
- R v AJP (2004) 150 A Crim R 575
- R v Ancuta [2005] NSWCCA 275
- R v Sangalang [2005] NSWCCA 171
- R v Zegura [2006] NSWCCA 230
- MLP v R [2006] NSWCCA 271
- R v Price [2005] NSWCCA 285
- Veen v R (No 2) (1988) 164 CLR 465
- R v Palmer [2005] NSWCCA 349