Citation: SHAW, Jason Robert v R [2008] NSWCCA 58
Court: New South Wales Court of Criminal Appeal
Date: 14 March 2008
Judge(s): McClellan CJ at CL, Grove J, Fullerton J (unanimous)
Background
The appellant pleaded guilty in the District Court at Dubbo to one count of aggravated break, enter and commission of a serious indictable offence (inflicting actual bodily harm) and one count of malicious damage to property. The offences arose from a domestic violence incident on 26 September 2006, five days after the appellant separated from his former partner. The appellant broke into the home where his former partner and children were staying and assaulted her.
The sentencing judge imposed a total term of six years imprisonment with a four-year non-parole period. The appellant sought leave to appeal on the basis that the sentence was disproportionate and that the sentencing judge made a series of legal errors.
Legal Issues
- Whether the sentence was proportionate to the objective seriousness of the offences
- Whether the sentencing judge correctly applied Division 1A of Part IV of the Crimes (Sentencing Procedure) Act 1999, which governs standard non-parole periods
- Whether the sentencing judge gave proper weight to the guilty plea, remorse, reparation, and prospects of rehabilitation
- Whether the sentencing judge erred in treating the offence as involving an abuse of trust
- Whether the sentencing judge inappropriately punished the appellant for an apparent propensity to harassment in domestic relationships
- Whether provocation by the victim was properly considered under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act
- Whether the sentencing judge took the correct approach to s 44(2) of the Crimes (Sentencing Procedure) Act, which governs the standard ratio between non-parole period and total term
Decision
The Court of Criminal Appeal found that the sentencing judge had made errors in assessing the objective seriousness of the offence and in the approach taken to the guilty plea discount. These errors were sufficient to warrant intervention and resentencing by the appellate court.
On objective seriousness, the Court assessed the offence as falling within the mid-range rather than above it, as the sentencing judge appeared to have found. While the offence was serious, particularly given its domestic violence context, the Court considered that the sentencing judge's characterisation overstated its gravity in the circumstances established by the agreed facts.
On the guilty plea, the Court found the sentencing judge had not properly applied the framework under Division 1A of Part IV of the Crimes (Sentencing Procedure) Act. The Court applied a 25 per cent discount for the early plea of guilty, which it considered was not adequately reflected in the original sentence. The Court also took into account the former partner's evidence, given in court, expressing forgiveness and describing the violence as out of character. The Court acknowledged that victim expressions of forgiveness must be treated with caution but gave that evidence significant weight on the particular facts.
Regarding special circumstances (which allow a court to depart from the standard one-third balance of term), the Court found the sentencing judge's conclusion that special circumstances existed was appropriate, even though the proper analytical process under R v Simpson had not been followed. The Court varied the statutory proportion to a greater extent than the sentencing judge had, citing the appellant's need for supervision on release to address anger management and alcohol consumption.
Orders Made
- Leave to appeal granted.
- Appeal allowed; sentences imposed in the District Court quashed.
- In lieu thereof, the appellant sentenced to a non-parole period of two years and six months commencing 7 April 2007 and expiring 6 October 2009, with a balance of term of eighteen months expiring 6 April 2011.
Key Takeaways
- The Court of Criminal Appeal confirmed that objective seriousness must be assessed accurately before a sentencing court uses the standard non-parole period as a reference point; overstating seriousness is a reviewable error.
- A 25 per cent discount for an early guilty plea was applied where the plea was entered at the first available opportunity, and the Court found the original sentence failed to give that discount proper effect.
- Under Division 1A of Part IV of the Crimes (Sentencing Procedure) Act, the standard non-parole period functions as a reference point, not a floor; both objective and subjective factors can warrant departure from it.
- Evidence of a victim's forgiveness is not irrelevant to sentencing, but courts must exercise caution before giving it significant weight; on the particular facts here, the Court found it appropriate to do so.
- Even in domestic violence matters, where deterrence, denunciation, and community protection carry significant weight, those factors do not override the requirement that a sentence be proportionate to the objective circumstances of the individual offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 195(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(c), 44, 54A–54D, 54B
- Criminal Appeal Act 1912 (NSW)
Cases:
- Hoare v The Queen (1989) 167 CLR 348
- Lovell v R; Dominey v R [2006] NSWCCA 222
- Markarian v R [2005] HCA 25; 215 ALR 213
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Davies [2004] NSWCCA 319
- R v Devine (Supreme Court of Tasmania, Underwood J, 5 July 1993, unreported)
- R v Dodd (1991) 57 A Crim R 349
- R v Glen (Court of Criminal Appeal, 19 December 1994, unreported)
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v Johnson [2005] NSWCCA 186
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Porteous [2005] NSWCCA 115
- R v Rice [2004] NSWCCA 384; 150 A Crim R 37
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Tory [2006] NSWCCA 18
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- Veen v The Queen (No 2) (1988) 164 CLR 465