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Court of Criminal Appeal 15 August 2013

R v Eckermann

[2013] NSWCCA 188

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE DOMESTIC VIOLENCE SENTENCING SPECIAL CIRCUMSTANCES PAROLE DIRECTION

Citation: R v Eckermann [2013] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 15 August 2013
Judges: Johnson J, Price J, RA Hulme J

Background

The respondent pleaded guilty in the District Court to aggravated break, enter and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment, with a standard non-parole period of five years. The respondent had broken into the home of his former domestic partner in the early hours of the morning, assaulted her in the presence of their children, and threatened to kill her current partner. A common assault charge arising from a separate incident the previous day was taken into account on a Form 1.

The District Court sentenced the respondent to two years imprisonment, but directed that the sentence be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The respondent was placed on a good behaviour bond with conditions including alcohol rehabilitation supervision.

The Director of Public Prosecutions appealed the sentence under s 5D(1) of the Criminal Appeal Act 1912, arguing the sentence was affected by legal error and was manifestly inadequate.

  • Whether the sentencing judge erred in assessing the objective gravity of the offence
  • Whether the sentencing judge gave excessive weight to the fact that the respondent knew the victim, treating that familiarity as reducing objective seriousness
  • Whether the presence of children during the offence was properly treated as an aggravating factor
  • Whether the sentencing judge erred in his approach to suspending the sentence
  • Whether the suspended sentence was manifestly inadequate
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline re-sentencing despite finding error

Decision

Price J (with Johnson J and RA Hulme J agreeing) found that the sentencing judge had erred in multiple respects. The primary error was treating the respondent's familiarity with the victim as a factor reducing the objective seriousness of the offence. The Court held that, in a domestic violence context, the relationship between offender and victim does not diminish the gravity of the conduct. The offence was committed against a woman in her own home, in the presence of her children, in the early hours of the morning.

The Court also found error in the suggestion that the respondent's primary motive (to confront the victim's partner rather than to harm the victim herself) reduced the objective seriousness of the assault on her. The violence directed at the complainant remained a serious indictable offence regardless of the intended target. Further, the sentencing judge failed to treat the presence of children as an aggravating factor under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999, despite the facts clearly supporting that finding.

On the suspension question, the Court held that the sentencing judge erred by failing to apply the threshold requirement under s 5(1) of the Crimes (Sentencing Procedure) Act 1999: that a sentence of imprisonment is not to be imposed unless no other sentence is appropriate. Because full-time imprisonment was clearly appropriate given the objective gravity of the offence, suspension under s 12 was not available. The resulting sentence was also manifestly inadequate.

The Court declined to exercise its residual discretion to dismiss the appeal despite finding error. The respondent had provided no updated material about his circumstances or rehabilitation progress at the hearing, and the Court found that allowing the appeal would not come at too high a cost in terms of individual justice.

Orders Made

  • Appeal allowed
  • Sentence imposed by Hosking SC ADCJ on 26 March 2013 quashed
  • Respondent re-sentenced to imprisonment with a non-parole period of 14 months commencing 23 March 2013 and expiring 22 May 2014, and a balance of term of 10 months expiring 22 March 2015
  • Respondent directed to be released on parole on 22 May 2014
  • Parole conditions to include supervision by the Probation and Parole Service with particular emphasis on alcohol rehabilitation

Key Takeaways

  • In a domestic violence context, familiarity between the offender and victim does not reduce the objective seriousness of a break and enter offence; the Court of Criminal Appeal confirmed that the relationship may, in fact, aggravate rather than diminish the gravity of the conduct.
  • A sentencing court cannot suspend a sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 without first determining, under s 5(1), that no sentence other than full-time imprisonment is appropriate. Where the offence plainly warrants full-time custody, suspension is unavailable.
  • The presence of children during the commission of an offence is a statutory aggravating factor under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999, and a sentencing court must apply it where the facts support it.
  • An offender's primary motive in entering premises does not automatically reduce the objective seriousness of serious violence inflicted on a victim encountered there. The gravity of the assault on the complainant was not diminished because the respondent's original target was someone else.
  • Where an offender provides no updated evidence of rehabilitation progress at a Crown appeal hearing, the Court of Criminal Appeal is less likely to exercise its residual discretion to decline re-sentencing on grounds of individual justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61, 112(2), 105A
- Criminal Appeal Act 1912 (NSW) s 5D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 12, 21A(2)(ea)

Cases:
- Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hiron v R [2007] NSWCCA 336
- House v The King (1936) 55 CLR 499
- Hussain v R; Ali v R [2010] NSWCCA 184
- Mulato v R [2006] NSWCCA 282
- R v Baker [2000] NSWCCA 85
- R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41
- R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436
- R v Fahda [2013] NSWCCA 86
- R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
- R v Johnson [2004] NSWCCA 140
- R v KB; R v JL; R v RJB [2011] NSWCCA 190
- R v Zamagias [2002] NSWCCA 17