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Court of Criminal Appeal 9 February 2012

Evans v R

[2012] NSWCCA 59

Sexual offencesAssault & violenceFirearms & weapons
CRIMINAL LAW APPEAL SENTENCE PAROLE PERIOD FOR AN OFFENCE

Citation: Evans v R [2012] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 9 February 2012
Judge(s): McClellan CJ at CL; Johnson J; Rothman J

Background

The applicant pleaded guilty to two offences committed in June 2010 at Kempsey. The first was assault with an act of indecency, contrary to section 61L of the Crimes Act 1900, carrying a maximum of five years imprisonment. The second was being armed with a knife with intent to commit intimidation, contrary to section 114(1)(a) of the Crimes Act 1900, carrying a maximum of seven years imprisonment.

The offences arose from a single evening. The applicant made repeated unwanted sexual advances toward a female acquaintance in the back seat of a car, touching her genitals over her clothing despite her persistent objections. Later that same night, after returning to the group's home, the applicant brandished a steak knife, threatened to stab the complainant, and pressed the knife against the stomach of a third party who intervened.

The applicant was sentenced to eight months imprisonment on count one and two years and eight months on count two, with the sentences partially cumulative. Both offences were committed while he was on parole, which was subsequently revoked. The applicant sought leave to appeal against the sentences on four grounds.

  • Whether the sentencing judge erred by failing to consider that both offences could have been dealt with summarily in the Local Court, where the maximum penalty would have been two years imprisonment
  • Whether the sentencing judge erred in determining the objective seriousness of the offences where no standard non-parole period applied
  • Whether the sentencing judge took into account an irrelevant factor in assessing objective seriousness
  • Whether the total sentence failed to reflect the overall criminality of the offences

Decision

On the first ground, the Court acknowledged that both offences were capable of being dealt with summarily, and that the sentencing judge had not adverted to that possibility. However, the Court applied principles from Lewis v R, Palmer v R, Bonwick v R, and Dagdanasar v R, which establish that a sentencing court is not required in every case to expressly consider the summary jurisdiction. Where an offender has a serious criminal history and the objective criminality is significant, the failure to do so does not necessarily constitute error.

On the second and third grounds, the Court found no error in the sentencing judge's approach to objective seriousness. The absence of a standard non-parole period did not prevent the judge from assessing where the offending sat on the spectrum of seriousness. No irrelevant consideration was identified on the evidence before the Court.

On the fourth ground, the Court rejected the submission that sentencing statistics demonstrated the total sentence was excessive. Sentencing statistics indicate the range of sentences previously imposed but do not displace the need to sentence an individual offender by reference to the particular circumstances of the offending and the offender. The applicant's extensive criminal history dating back to age 16, his numerous prior convictions for violence and intimidation, and the fact that the offences were committed on parole were all properly treated as significant aggravating factors.

The Court found the total sentence was entirely appropriate and that the application was without merit. Leave to appeal was refused unanimously.

Orders Made

  • Leave to appeal against sentence refused

Key Takeaways

  • A sentencing court's failure to expressly consider the availability of the summary jurisdiction does not automatically constitute an error warranting appellate intervention, particularly where the offender's criminal history is serious and the objective criminality is significant.
  • Under the principles in Dagdanasar v R and Lewis v R, the relevant question is whether the failure to consider the summary alternative actually affected the sentence imposed, not merely whether it was omitted from the reasons.
  • Sentencing statistics show the range of sentences previously imposed for a given offence, but they do not override the requirement to sentence by reference to the specific circumstances of the individual offender and their offending.
  • Committing offences while on parole is a statutory aggravating factor, and the absence of any mitigating evidence regarding an offender's psychological or personal circumstances leaves the sentencing court without a basis to moderate an otherwise appropriate sentence.
  • In refusing leave, the Court of Criminal Appeal confirmed that the combined weight of a serious criminal record, a pattern of violent offending, and on-parole status can justify significant sentences even where individual offences carry relatively modest maximum penalties.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 114(1)(a), 154(10)(b)

Cases:
- Bonwick v R [2010] NSWCCA 177
- Dagdanasar v R [2010] NSWCCA 310
- Lewis v R [2011] NSWCCA 206
- Palmer v R [2005] NSWCCA 349
- Pearce v R (1998) 194 CLR 610
- R v El Masri [2005] NSWCCA 167
- R v Koloamatangi [2011] NSWCCA 288