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Court of Criminal Appeal 8 September 2008

Neal v R

[2008] NSWCCA 212

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCING PURSUIT OF DOMESTIC PARTNER ATTACK ON PARTNERS FATHER SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Neal v R [2008] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 8 September 2008
Judge(s): Allsop P, Johnson J, Price J

Background

The appellant pleaded guilty in the District Court to three charges arising from two incidents in August and September 2006. The first involved an early-morning assault on his domestic partner at their home in Ettalong Beach, during which he choked her and pinned her to the floor. She fled to her father's home nearby and called police.

The appellant followed her, ripped away the screen door of the father's home, and then assaulted the father inside, pulling his hair, punching him, and pushing him to the floor. The father was 60 years old and had a pre-existing heart condition; he was taken to hospital for observation following the attack. The appellant's partner attempted to intervene physically to stop the assault on her father. The third charge concerned the appellant later sending a letter intending to persuade his partner to withhold true evidence in the proceedings against him.

The District Court sentenced the appellant to a total effective term of 6 years imprisonment with a non-parole period of 4 years and 6 months, applying a 25 per cent utilitarian discount for the guilty pleas. The sentence for the break-and-enter charge (charge 2) was a term of 4 years 6 months with a non-parole period of 3 years 4 months. That sentence was the sole subject of the appeal.

  • Whether the sentence imposed for the break, enter and commit serious indictable offence charge (contrary to s 112(1) of the Crimes Act 1900) was manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was not manifestly excessive.

Price J, with whom Allsop P and Johnson J agreed, noted that the District Court had placed the break-and-enter offence below the middle of the range of seriousness for offences of its kind. This characterisation, Price J observed, was generous to the appellant given the nature of the attack: it involved the forcible entry of an elderly man's home late at night, an assault that caused physical injury, and occurred in the context of a pursuit of a domestic violence victim who had fled to safety.

The Court took account of the appellant's extensive criminal history, which included prior offences of violence, breaches of apprehended violence orders, and a previous term of imprisonment for malicious wounding. A current apprehended violence order protecting the appellant's partner was in force at the time of the offences, and the appellant was on bail for a separate assault charge when he offended. The sentencing judge's observation that the appellant had "learnt nothing whatsoever" from prior penalties was expressly endorsed by the Court of Criminal Appeal, which confirmed that such a record justified greater weight being given to retribution, personal deterrence, and community protection.

The Court noted that the practical effect of the partial accumulation of sentences meant the effective non-parole period attributable to charge 2 was considerably less than the nominal 3 years 4 months. It was, in effect, 2 years and 2 months. A minor procedural issue arose regarding the Form 1 offence, which the District Court had incorrectly taken into account on charge 1 rather than charge 2, but the Court found it unnecessary to address this further given its proposed orders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court may give greater weight to retribution, personal deterrence, and community protection where an offender has a persistent history of violent offending and has failed to modify behaviour despite previous sentences.
  • Under s 112(1) of the Crimes Act 1900, the maximum penalty of 14 years imprisonment serves as a yardstick for measuring the seriousness of any particular case against the worst possible category of offending, consistent with the principle in Markarian v The Queen.
  • Where sentences are structured with partial accumulation, the effective non-parole period may differ substantially from the nominal non-parole period attached to any single charge, a factor the Court considered relevant when assessing overall proportionality.
  • A guilty plea discount and favourable subjective circumstances do not necessarily render a substantial sentence excessive where objective seriousness and criminal antecedents are significant.
  • The Court noted but did not resolve a procedural error concerning which charge a Form 1 offence was attributed to, as the proposed dismissal of the appeal made it unnecessary to do so.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 59(1) (assault occasioning actual bodily harm), s 112(1) and s 112(2) (break, enter and commit serious indictable offence), s 323 (intimidating a witness), s 562ZG(1) (contravention of apprehended violence order)

Cases:
- Markarian v The Queen (2005) 79 ALJR 1048
- Marshall v R [2007] NSWCCA 24
- R v Edigarov (2001) 125 A Crim R 551
- R v McNaughton [2006] NSWCCA 242
- Regina v Fernando [2002] NSWCCA 28