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Court of Criminal Appeal 22 August 2011

Martin v R

[2011] NSWCCA 188

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE PAROLE PERIOD

Citation: Martin v R [2011] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 22 August 2011
Judge(s): McClellan CJ at CL, Simpson J, Fullerton J (all agreeing)

Background

The appellant pleaded guilty in the District Court to breaking and entering the home of his former partner and causing her actual bodily harm, contrary to s 112(2) of the Crimes Act 1900. The offence occurred in April 2009 when, heavily intoxicated, he kicked down her front door, grabbed her, and kicked her repeatedly in the legs, leaving severe bruising. The victim's two young daughters resided at the premises.

The sentencing judge imposed a head sentence of 6 years imprisonment with a non-parole period of 3 years, after a 15 per cent discount for the guilty plea and a finding of special circumstances. That sentence was partially accumulated on a concurrent sentence imposed for a separate break and enter offence committed in company. The practical effect of the accumulation order was that the appellant would serve 2 years in custody attributable solely to the domestic violence offence.

The appellant sought leave to appeal against the sentence for the domestic violence offence, arguing it was excessive and affected by legal error.

  • Whether the sentencing judge erred by failing to assess objective seriousness relative to mid-range offending, as required by established authority
  • Whether the sentencing judge erred by failing to state reasons for departing from the 5-year standard non-parole period, as required by s 54B(4) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred by treating the fact that the offence was committed while the appellant was on bail as a factor aggravating the objective seriousness of the offence (rather than as a subjective aggravating matter), contrary to R v McNaughton
  • Whether, despite any such errors, a different sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court of Criminal Appeal, in reasons delivered by Fullerton J (with McClellan CJ at CL and Simpson J agreeing), confirmed that all three errors identified by the appellant were established. The Crown itself conceded two of them. The failure to assess objective seriousness relative to the mid-range, and the erroneous treatment of the on-bail factor as aggravating objective seriousness rather than the subjective circumstances, were accepted as legal errors infecting the sentencing exercise. The failure to provide reasons for departing from the standard non-parole period was also established, though the Crown and appellant agreed that error alone did not invalidate the sentence.

Despite those errors, the Court was not persuaded that any different sentence was warranted in law. Fullerton J found that the offending, properly assessed, fell at or just below the mid-range for offences of this kind. The appellant's submission that it fell significantly below mid-range was rejected. Features such as the domestic setting, the presence of children at the premises, and the nature and severity of the violence were all relevant to objective seriousness. The fact that the break-in was not effected with a weapon and the children did not witness the assault distinguished the case from Shaw v R, where those elements placed offending squarely within the mid-range.

The Court noted that the outcome might have been different had the head sentence of 6 years not been moderated by the partial accumulation order and the totality principle. Because the effective custodial consequence of the sentence under challenge was 2 years, the Court was satisfied that no lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that failing to assess objective seriousness relative to mid-range offending, and treating an on-bail circumstance as aggravating objective seriousness for standard non-parole period offences, are established sentencing errors under NSW law.
  • Under s 6(3) of the Criminal Appeal Act 1912, a sentence appeal can be dismissed despite identified legal errors if no lesser sentence is warranted in law, with the court assessing the effective custodial outcome rather than the face of the head sentence in isolation.
  • Domestic violence offending committed in a victim's home, particularly where children reside, carries recognised weight in the objective seriousness assessment and engages considerations of general deterrence and the protection of vulnerable persons.
  • The totality principle, applied through partial accumulation orders, can substantially reduce the practical custodial consequence of a head sentence and influence the outcome of a sentence appeal.
  • Failing to state reasons for departing from a standard non-parole period under s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 does not, of itself, invalidate a sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v McNaughton [2006] NSWCCA 242; 163 A Crim R 381
- Shaw v R [2008] NSWCCA 58
- Hiron v R [2007] NSWCCA 336
- Terkmani v R [2009] NSWCCA 142; 195 A Crim R 298
- Ngati v R [2008] NSWCCA 3; 180 A Crim R 384
- Zammit v R [2010] NSWCCA 29
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575