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Court of Criminal Appeal 3 July 2013

McLaughlin v R

[2013] NSWCCA 152

Assault & violenceDomestic & family violence
CRIMINAL LAW NO LESSER SENTENCE WARRANTED AT LAW SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: McLaughlin v R [2013] NSWCCA 152
Court: Court of Criminal Appeal, New South Wales
Date: 3 July 2013
Judge(s): Latham J, Button J, Barr AJ

Background

The appellant was sentenced in the District Court at Penrith in April 2012 for three offences of violence against his former de facto partner, committed across 2010. The offences involved dragging the victim from a bed causing injury, striking her near the eye, and grabbing her by the hair and throat. Each occurred in the home they shared; the victim's young son was also living there.

The sentencing judge imposed a total head sentence of two years and four months, with a non-parole period of one year and four months. The judge found special circumstances to reduce the ratio between the non-parole period and the head sentence. The appellant had pleaded guilty on the morning of trial and received a ten per cent discount for the utilitarian value of his pleas.

The appellant's criminal history included a prior common assault against a different female partner in 2000, and a further assault against the same victim in this matter in April 2010, for which he received a supervised bond and an apprehended violence order only months before committing counts two and three. The appeal to the Court of Criminal Appeal challenged both an aggravating finding and the overall severity of the sentences.

  • Whether the sentencing judge erred in treating the offences as aggravated by commission in the "generalised presence" of a child under 18, in circumstances where the child had not necessarily witnessed the offending
  • Whether the sentences imposed were manifestly excessive, whether considered individually or in the aggregate

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had erred. Under section 21A of the Crimes (Sentencing Procedure) Act 1999, the statutory aggravating factor requires that an offence be committed in the presence of a child under 18 years. For counts one and two, there was no evidence the child was present at all. For count three, the child was asleep in the bedroom nearby, but there was no evidence as to whether he was awake during the incident. The Court held it was not open to treat this as an established aggravating circumstance without proper evidentiary foundation, regardless of the well-documented broader harms that domestic violence causes to children in the household.

Despite finding that error, the Court applied section 6(3) of the Criminal Appeal Act 1912 and concluded that no lesser sentence was warranted in law. The Court took into account the appellant's positive conduct in custody, including participation in rehabilitation programmes and maintained employment prospects. However, those matters did not displace the Court's satisfaction that the sentences were appropriate given the totality of circumstances.

On the second ground, the Court rejected the submission that the sentences were manifestly excessive. The Court emphasised several seriously aggravating features: the victim's vulnerability and isolation from family and support networks; the appellant's prior conviction for assaulting a different female partner; and, critically, that counts two and three were committed while the appellant was subject to both a supervised bond and an apprehended violence order arising from an assault on the same victim only months earlier. The Court described pulling a person off a bed by the feet as "a very dangerous and frightening thing to do," and noted that the sentences were well within the sentencing judge's discretion.

The Court also declined to make any recommendation to the Department of Corrective Services regarding the classification of prisoners with pending appeals, noting it had no knowledge of the background or reasoning behind classification policies.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the statutory aggravating factor of committing an offence in the presence of a child under section 21A of the Crimes (Sentencing Procedure) Act 1999 requires an evidentiary foundation; general proximity or the broader documented harm of domestic violence to children in the home does not, by itself, establish the factor.
  • Even where a sentencing error is established, the Court of Criminal Appeal may decline to reduce a sentence if satisfied under section 6(3) of the Criminal Appeal Act 1912 that no lesser sentence is warranted in law.
  • A victim's vulnerability and isolation, including geographic and social factors that limit their access to support, are relevant to the objective seriousness of domestic violence offences.
  • Committing further offences against the same victim while subject to a supervised bond and an apprehended violence order arising from earlier violence against that same person constitutes a significant aggravating circumstance in sentencing.
  • Positive rehabilitative steps taken by an offender in custody, while relevant and commendable, do not automatically entitle an applicant to a reduction in sentence when the underlying offending is of sufficient seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353
- R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180
- R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v Seymour [2012] NSWSC 1010