Citation: Jeffries v R [2008] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 26 June 2008
Judge(s): Beazley JA, Johnson J, McCallum J
Background
The appellant was convicted by jury of two offences arising from a violent incident on 14 September 2006 at a home in Dubbo: detaining his domestic partner for advantage and causing her actual bodily harm (maximum 20 years), and detaining her teenage daughter for advantage (maximum 14 years). The offences were committed while he was on bail and subject to an apprehended domestic violence order obtained by his partner following a prior assault in August 2006.
The incident involved a prolonged attack during which the appellant threatened to kill both victims if they made any noise, physically assaulted his partner in graphic and serious ways (including tearing part of the underside of her tongue), slammed her daughter's head into a wall, and held both women captive overnight. The victims remained in fear throughout, and it was not until the following morning, after the appellant left, that the daughter was able to call police.
In the District Court, Woods ADCJ sentenced the appellant to seven years and six months (non-parole period) for the more serious offence, and a concurrent fixed term of five years for the second offence. The appellant sought leave to appeal those sentences, arguing they were manifestly excessive.
Legal Issues
- Whether the sentences imposed by the District Court were manifestly excessive having regard to the objective seriousness of the offences and the appellant's subjective circumstances
- Whether the sentencing judge erred in any identifiable respect in the exercise of sentencing discretion, including the treatment of specific and general deterrence, the appellant's criminal history, rehabilitation prospects, and the application of the totality principle
- Whether post-sentence conduct (including a letter sent by the appellant to the victim while in custody, in breach of a prohibition order) was relevant on any resentencing exercise
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Johnson J (with whom Beazley JA and McCallum J agreed) found that the sentencing judge had not committed any identifiable error and that the sentences were not manifestly excessive.
The Court accepted that the offences were objectively serious. The attack was sustained and prolonged, the injuries to the partner were severe and unusual, both victims were threatened with death and held against their will overnight, and the offences were committed against the backdrop of an ongoing pattern of domestic violence. The appellant's criminal history, which included prior offences of violence, was a significant aggravating feature, as was the fact that the offences were committed while subject to bail conditions and an ADVO specifically designed to protect the partner.
Johnson J carefully examined each ground of alleged sentencing error and found none established. The sentencing judge had permissibly assessed the appellant's prospects of rehabilitation as poor, had correctly applied principles of specific and general deterrence, and had appropriately structured the sentences given the overall criminality involved. No error in the exercise of discretion was demonstrated.
The Court also addressed the appellant's post-sentence conduct. After the appeal was lodged, it emerged that the appellant had sent a letter to the victim in January 2008 in breach of a prohibition order, and had pleaded guilty to an offence arising from that letter. The Court noted that, had error been found and resentencing required, this conduct would have been relevant to the assessment of rehabilitation prospects, and would not have assisted the appellant. As no error was established, resentencing did not arise.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences for domestic violence offences committed in breach of both bail conditions and an ADVO will attract significant weight given to specific and general deterrence, particularly where the offender has a prior record for violence.
- A pattern of coercive control, including the manipulation of victims into withdrawing prior complaints, formed part of the factual context the sentencing court was entitled to consider in assessing objective seriousness.
- Where an appellant seeks resentencing before the Court of Criminal Appeal and places before the Court affidavit evidence of remorse and rehabilitation, any post-sentence conduct that contradicts those claims (such as further offending against the victim) is admissible and relevant to the rehabilitation assessment.
- No error is established merely by contending that a sentence is heavy; the appellant must identify a specific error in principle or demonstrate that the sentence falls outside the range of sentences reasonably open on the facts.
- The Court emphasised the need for great care in the preparation of material filed in support of sentence appeals, particularly where an appellant's own affidavits may be incomplete or inconsistent with subsequent conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86(1)(b), 86(2)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
- Criminal Procedure Act 1986 (NSW)
- Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- R v Hamid (2006) 164 A Crim R 179
- R v Stott [2005] NSWCCA 346
- Salvaggio v R [2007] NSWCCA 136
- R v Bloomfield (1998) 44 NSWLR 734
- Johnson v The Queen (2004) 78 ALJR 616
- Markarian v The Queen (2005) 228 CLR 357
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Douar v R (2005) 159 A Crim R 154
- Heine v R [2008] NSWCCA 61
- R v McNaughton (2006) 66 NSWLR 566
- R v Simpson (2001) 53 NSWLR 704
- Baxter v R (2007) 173 A Crim R 284
- Vaovasa v R (2007) 174 A Crim R 116