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Court of Criminal Appeal 15 February 2012

Roberts v R

[2012] NSWCCA 232

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL LAW APPEAL SENTENCE APPLICATION FOR LEAVE TO APPEAL SENTENCE NOT MANIFESTLY EXCESSIVE LEAVE TO APPEAL REFUSED.

Citation: Roberts v R [2012] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 15 February 2012
Judge(s): McClellan CJ at CL, Hidden J, Rothman J

Background

The applicant pleaded guilty in the District Court to remaining in a building with intent to commit an indictable offence, specifically intimidation, under s 114(1)(d) of the Crimes Act 1900. That offence carries a maximum penalty of seven years imprisonment. A number of related matters, including breaching an apprehended domestic violence order (ADVO) and possessing an offensive implement, were included on a Form 1 to be taken into account at sentencing.

The applicant and the victim had been in an on-and-off de facto relationship for 23 years, marked by a history of domestic violence. On the night in question, the applicant produced a tomahawk during an argument at their home, refused to leave, prevented the victim from leaving, punched her, and held the blade of the tomahawk to her throat. These acts occurred while the applicant was subject to an ADVO imposed for the victim's protection and while he was on three bonds for previous breaches of apprehended violence orders, all imposed only three weeks earlier.

The sentencing judge imposed a non-parole period of two years and three months, with a balance of term of nine months, after applying a 25 percent discount for the utilitarian value of the guilty plea. The applicant sought leave to appeal, arguing errors in the assessment of objective seriousness and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in characterising the offence as falling "at least in the middle of any scale" of seriousness for offences under s 114(1)(d) of the Crimes Act 1900
  • Whether the starting point of four years imprisonment (before the guilty plea discount) was manifestly excessive
  • Whether the sentencing judge impermissibly allowed the applicant's criminal history and breach of conditional liberty to influence the assessment of objective seriousness

Decision

On the first ground, the Court of Criminal Appeal held that the sentencing judge's characterisation of the offence as at least mid-range was plainly open on the facts. The Court confirmed that an offence is not treated as mitigated merely because more serious examples of the same offence can be imagined, and that any evaluation of seriousness must respect the constraints set out in R v De Simoni, which prevents a sentencing court from treating a defendant as if they had committed a more serious offence than charged. The applicant's conduct, including producing a tomahawk, holding it to the victim's throat, and refusing to let the victim leave, amply supported the mid-range assessment.

On the second ground, the Court was not persuaded that the sentencing judge allowed subjective matters to distort his objective assessment of the offence. The reference to repetition in the sentencing remarks was read as directed at the objective circumstances of the offending rather than as impermissible double-counting of the applicant's character. Even had error been established, the Court was satisfied the sentence imposed was appropriate given the gravity of the conduct, the Form 1 matters, the domestic violence context, the applicant's serious criminal history, and the breach of multiple forms of conditional liberty.

The Court emphasised the significance of specific and general deterrence in domestic violence sentencing, particularly for repeat offenders, citing R v Hamid for the proposition that powerful denunciation and community protection are important sentencing considerations in this context. The applicant's expressed intention to abstain from alcohol was noted, but the sentencing judge's scepticism about sustained abstinence was upheld as a reasonable conclusion.

All three judges agreed that leave to appeal should be refused. McClellan CJ at CL added that the application was so devoid of merit that leave was refused outright.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • In dismissing both grounds, the Court of Criminal Appeal confirmed that the assessment of an offence's objective seriousness is an evaluative exercise reserved for the sentencing judge, and appellate intervention requires an identifiable error, not merely a different view of the facts.
  • An offence under s 114(1)(d) of the Crimes Act 1900 is not mitigated by the absence of features that would make it more serious; the absence of aggravating circumstances does not automatically push an offence below mid-range.
  • Where a sentencing judge makes remarks touching on an applicant's criminal history, those remarks will not necessarily constitute error if they are reasonably read as directed at the objective nature of the offending rather than impermissibly inflating the gravity of the charge.
  • Specific and general deterrence carry particular weight when sentencing repeat domestic violence offenders, alongside the community's interest in denunciation and victim protection, as affirmed in R v Hamid.
  • Breach of an ADVO and multiple good behaviour bonds at the time of the offence are relevant aggravating circumstances that can support a substantial non-parole period even where the offender expresses genuine remorse and an intention to reform.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 114(1)(d)
- Summary Offences Act 1988 (NSW), s 11B
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)

Cases:
- Ayoub and El Mazri v R [2010] NSWCCA 196
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- The Queen v De Simoni (1981) 147 CLR 303