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Court of Criminal Appeal 10 March 2010

SHILLINGSWORTH, Richard v R

[2010] NSWCCA 19

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE NO ERROR FOUND

Citation: SHILLINGSWORTH, Richard v R [2010] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 10 March 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The applicant, a 34-year-old Aboriginal man, pleaded guilty in the Sydney District Court to assault occasioning actual bodily harm and to contravening a prohibition or restriction in a domestic violence order. The offences arose from an incident on 15 February 2008 in which the applicant punched the victim repeatedly, knocked her to the ground, and kicked her in the face four or five times, dislodging two of her front teeth. The assault also breached an interim domestic violence order then in force.

The applicant had a significant prior criminal history in Queensland and New South Wales, including previous assaults on the same victim. He was on bail for those prior assault charges at the time of the subject offence. He had a background of severe disadvantage, long-term substance abuse, and borderline intellectual functioning as assessed by a psychologist.

King DCJ sentenced the applicant to a total term of 3 years imprisonment with a non-parole period of 2 years and 3 months for the assault, and a concurrent term of 1 year for the order contravention. The applicant sought leave to appeal against sentence on four grounds, one of which was resolved during the appeal hearing itself.

  • Whether the sentencing judge denied the applicant procedural fairness by making an adverse credit finding without giving him an opportunity to be heard (Ground 1)
  • Whether the sentencing judge erred in his assessment of the applicant's remorse (Ground 2)
  • Whether the sentencing judge erred in failing to find special circumstances justifying a longer balance of term (Ground 3)
  • Whether the sentence was manifestly excessive (Ground 4)

Decision

The procedural fairness issue arose from the applicant's failure to disclose his Queensland criminal record to the examining psychologist, which the sentencing judge had taken into account unfavourably. The Court of Criminal Appeal resolved this ground by permitting the applicant to give evidence on the topic during the appeal hearing and allowing his counsel to make full submissions. Having done so, counsel did not press the ground further.

On remorse, the Court found no error in the sentencing judge's approach. The applicant's version of events had not been challenged, and the judge was entitled to weigh the expression of remorse against the broader circumstances of the offending, including the applicant's history of violence toward the same victim.

Regarding special circumstances, the Court found no basis to disturb the sentencing judge's exercise of discretion. The existing ratio of non-parole period to total sentence did not, in the Court's view, require adjustment.

On manifest excess, Harrison J (with whom the other judges agreed) accepted that a starting point of 4 years imprisonment was appropriate given the serious and vicious nature of the assault, the permanent cosmetic injuries to the victim, the repeated pattern of violence toward the same person, and the need for personal and general deterrence. The sentences imposed were not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a procedural fairness defect at sentencing may be cured on appeal by allowing the affected party to give evidence and make submissions before the appellate court.
  • No error was established in the sentencing judge's treatment of remorse where the offender had a repeated history of violence toward the same victim, notwithstanding an unchallenged account of the events and expressions of regret.
  • A failure to find special circumstances will not constitute appellate error unless there is a demonstrated reason to depart from the standard ratio of non-parole period to total sentence.
  • Where domestic violence offending involves repeated assaults on the same victim, a breach of an existing protection order, and serious physical injuries, a substantial full-time custodial sentence will generally withstand a manifest excess challenge.
  • Sentences for domestic violence offending may properly be made partially cumulative on other sentences where the sentencing judge considers personal deterrence, general deterrence, and denunciation warrant that approach.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm), s 562ZG (contravene prohibition or restriction in an order, since repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Cases:
- Clare v R [2008] NSWCCA 30; (2008) 181 A Crim R 450