AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 9 September 2013

Andrew Smith v R

[2013] NSWCCA 209

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL APPEAL SENTENCE APPEAL SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Andrew Smith v R [2013] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 9 September 2013
Judge(s): Leeming JA, R A Hulme J, Button J

Background

The appellant had been in a domestic relationship with the complainant, and the couple had lived together in Balranald. After the relationship ended in September 2011, the complainant remained in the home and began a new relationship with a housemate. Three days after the appellant had entered good behaviour bonds for two prior assaults against the same complainant, he broke into her home at 5.15am while she and her new partner were asleep.

The appellant forced entry through the front door, kicked through an internal door with such force that debris struck the complainant, hit her to the back of the head, and threatened to stab her. He also caused extensive property damage throughout the home. Police arrested him later that day.

The appellant pleaded guilty in the Local Court to one count of aggravated breaking and entering a dwelling house and committing a serious indictable offence, namely intimidation, under s 112(2) of the Crimes Act 1900 (NSW). The District Court sentenced him to 4 years 2 months imprisonment, with a non-parole period of 2 years 9 months. He sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge engaged in double counting by treating the domestic violence context as an aggravating feature, when the serious indictable offence charged was itself intimidation arising from that domestic relationship
  • Whether the absence of planning or premeditation was a significant mitigating factor warranting a reduction in sentence
  • Whether the fact that the offence was committed while the appellant was on conditional liberty (good behaviour bonds) was properly treated as an aggravating feature
  • Whether the sentence of 4 years 2 months was manifestly excessive having regard to comparable cases and sentencing statistics

Decision

The Court rejected the double counting argument. R A Hulme J reasoned that treating the domestic violence context as an aggravating circumstance did not impermissibly overlap with the elements of the intimidation offence. The intimidation offence was constituted by the threat to stab the complainant, whereas the domestic violence context encompassed a broader pattern of conduct and relationship dynamics that properly informed the objective seriousness of the principal offence.

On the question of planning, the Court found that the absence of premeditation carried little mitigating weight in the circumstances. The appellant's actions, while not premeditated in a formal sense, involved sustained and purposeful conduct directed at gaining entry to the home and confronting the complainant and her new partner.

The Court confirmed that committing the offence while subject to good behaviour bonds, entered only three days earlier for prior assaults against the same victim, was a significant aggravating factor. Combined with the appellant's lengthy history of violent offending, the need for both personal and general deterrence was a prominent sentencing consideration.

Turning to manifest excess, the Court acknowledged that the sentence sat towards the upper end of the range disclosed by sentencing statistics. However, it found that the experienced sentencing judge had not exceeded the proper exercise of his discretion. The two comparable cases cited by the appellant were insufficient to establish manifest excess.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that treating the domestic violence context as an aggravating feature on sentence does not constitute double counting, even where the serious indictable offence charged is itself intimidation arising from that relationship, provided the aggravating context is broader than the specific conduct constituting the offence element.
  • Absence of planning or premeditation is not a significant mitigating factor where the offender's conduct was sustained and purposeful throughout the commission of the offence.
  • Committing an offence while on conditional liberty, particularly where that liberty was granted only days earlier for prior offending against the same victim, is a weighty aggravating consideration that increases the significance of deterrence in sentencing.
  • In dismissing the manifest excess ground, the Court reiterated the limitations of sentencing statistics and the difficulty of establishing excess by reference to only a small number of comparable cases, consistent with the approach in Hili v The Queen and Markarian v The Queen.
  • A sentence described as "stern" will not be set aside on appeal if it remains within the range of a sound exercise of the sentencing discretion, even if it sits towards the upper end of that range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter), s 61 (common assault)
- Crimes (Domestic and Personal) Violence Act 2007 (NSW), s 13(1) (intimidation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances), Div 1A Pt 4 (standard non-parole periods), s 9 (good behaviour bonds)

Cases:
- Bolt v R [2012] NSWCCA 50
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- House v The King (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- Palijan v R [2010] NSWCCA 142
- R v Ball [2013] NSWCCA 126
- R v Eckermann [2013] NSWCCA 188
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v Henry (1999) 46 NSWLR 346
- Shaw v R [2008] NSWCCA 58
- Waters v R [2007] NSWCCA 219
- Zreika v R [2012] NSWCCA 44
- ZZ v R [2013] NSWCCA 83