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Court of Criminal Appeal 20 June 2008

R v Burton

[2008] NSWCCA 128

Assault & violenceDomestic & family violencePublic order & justice offences
SENTENCING CROWN APPEAL OFFENDER ON PAROLE ATTITUDE OF VICTIM TO PENALTY SENTENCES MANIFESTLY INADEQUATE

Citation: R v Burton [2008] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 20 June 2008
Judge(s): Campbell JA, Grove J, Johnson J

Background

The respondent, Michael Anthony Burton, was 26 years old and on parole for break, enter and steal when he commenced a relationship with the victim in November 2006. He moved into her home at East Corrimal, where she lived with her three children. Over the following months, he subjected her to a sustained course of domestic violence.

The offences spanned from December 2006 to March 2007 and included two incidents of common assault, two assaults occasioning actual bodily harm, detention with intent to obtain advantage, and a public justice offence of influencing a witness (the victim herself). The witness influence offence occurred between February 2007 and was committed while the respondent was in custody, with the victim being pressured not to pursue the matter against him. A further common assault was committed by the respondent while he was a convicted inmate in a correctional centre.

Following pleas of guilty in the Wollongong District Court, the sentencing judge imposed sentences that included good behaviour bonds for the witness influence offence and the final assault, with a total effective non-parole period of one year and nine months. The Director of Public Prosecutions appealed those sentences as manifestly inadequate under section 5D of the Criminal Appeal Act 1912.

  • Whether the sentences imposed by the District Court were manifestly inadequate having regard to the objective seriousness of the offences
  • Whether the sentencing judge gave appropriate weight to the principles of specific and general deterrence in the context of domestic violence offences
  • Whether the victim's attitude to the penalty was a factor that could lawfully reduce the sentences imposed, particularly where the victim had been subjected to witness influence by the respondent
  • How the public justice offence of influencing a witness should be reflected in the overall sentencing structure

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentences imposed in the District Court were manifestly inadequate. The Court identified that the sentencing judge had failed to give sufficient weight to the need for general and specific deterrence. The offences were serious, committed against a vulnerable victim in a domestic setting while the respondent was already subject to conditional liberty on parole.

The Court addressed the significance of the victim's attitude to sentencing. While a victim's wishes may be relevant, the Court found that the victim's apparent desire for leniency could not carry substantial weight where she had herself been subjected to an attempt by the respondent to influence her as a witness. To allow that influence to reduce the penalty would effectively reward the offending rather than punish it.

The Court treated the witness influence offence (Count 6) with particular seriousness. It carried a maximum penalty of seven years' imprisonment, and the District Court's imposition of a good behaviour bond for that offence was found to be wholly inadequate. The Court imposed a sentence of imprisonment for that count with a non-parole period of two years.

The Court restructured the sentences to reflect appropriate accumulation across the separate offences, which were committed over a four-month period. Special circumstances were found under section 44 of the Crimes (Sentencing Procedure) Act 1999, justifying a longer than usual balance of term for Count 5 to allow an extended period of supervision upon release to parole.

Orders Made

  • Crown appeal allowed; all sentences imposed in the Wollongong District Court on 13 December 2007 quashed
  • Count 1 (common assault): fixed term of six months from 18 April 2007
  • Count 2 (assault occasioning actual bodily harm): fixed term of nine months from 18 October 2007
  • Count 3 (common assault): fixed term of nine months from 18 January 2008
  • Count 4 (assault occasioning actual bodily harm): fixed term of 18 months from 18 January 2008
  • Count 5 (detain with intent to obtain advantage): non-parole period of two years and six months from 18 October 2007, balance of term of one year and six months from 18 April 2010
  • Count 6 (influencing witness): non-parole period of two years from 18 December 2007, balance of term of one year from 18 December 2009
  • Count 7 (common assault in custody): fixed term of 14 months from 18 August 2008
  • Earliest parole eligibility date: 17 April 2010

Key Takeaways

  • A victim's expressed preference for a lenient sentence carries significantly diminished weight where the offender has committed a public justice offence of witness influence against that same victim; permitting such influence to moderate the penalty would undermine the sentencing process.
  • The Court of Criminal Appeal confirmed that general and specific deterrence are matters of particular importance when sentencing for domestic violence offences committed repeatedly over a sustained period against a vulnerable victim in a domestic setting.
  • Imposing a good behaviour bond for a witness influence offence carrying a maximum of seven years' imprisonment was found to produce a manifestly inadequate outcome, especially where the offending was connected to and designed to frustrate prosecution of the principal domestic violence charges.
  • Where an offender commits offences both in the community while on parole and later while in custody, some degree of sentence accumulation is required to reflect the distinct criminality involved in each episode.
  • Under section 56 of the Crimes (Sentencing Procedure) Act 1999, a sentence for an assault committed by a convicted inmate in a correctional centre must be directed to be served partly concurrently and partly consecutively with other sentences being served.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 61, 59(1), 86(1)(b), 323(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44, 50, 56

Cases:
- R v Wall [2002] NSWCCA 42
- Markarian v The Queen (2005) 228 CLR 357
- R v Hamid (2006) 164 A Crim R 179
- Hiron v R [2007] NSWCCA 336
- R v Moffitt (1999) 20 NSWLR 114
- R v McNaughton (2006) 66 NSWLR 566
- Callaghan v R (2006) 160 A Crim R 145
- R v Baker [2000] NSWCCA 85
- R v Mobbs [2005] NSWCCA 371
- Warby v R (2007) 171 A Crim R 575
- R v Merrin (2007) 174 A Crim R 100
- R v Newell [2004] NSWCCA 183
- R v Falls [2004] NSWCCA 335
- R v Glen (19 December 1994, unreported)
- R v Palu (2002) 134 A Crim R 174
- R v Newman and Simpson [2004] NSWCCA 102
- R v Olbrich (1999) 199 CLR 270
- R v Edigarov (2001) 125 A Crim R 551
- R v Knight [2007] NSWCCA 283