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9
Court of Criminal Appeal 9 September 2013

Melbom v R

[2013] NSWCCA 210

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPELLANT A HOUSEMATE OF VICTIMS OFFENCES COMMITTED IN SHARED PREMISES

Citation: Melbom v R [2013] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 09 September 2013
Judges: Simpson J, Price J, R A Hulme J

Background

The appellant had been permitted to move into a unit in Waterloo occupied by two victims, a couple with four children. Following a prolonged argument over a mobile phone, the appellant stabbed one victim in the chest with a pocket knife, severing a chest wall artery and necessitating emergency surgery. When the other victim said she would call police, the appellant held the knife to her throat and threatened to kill her.

The appellant pleaded guilty in the Sydney District Court to reckless wounding and threatening to use an offensive weapon with intent to commit an indictable offence. Judge Syme sentenced him to a total effective term of four years and six months, with a non-parole period of three years, four months and fifteen days.

The appellant sought leave to appeal on two grounds: that the sentencing judge wrongly treated the shared home as an aggravating factor, and that the sentence for reckless wounding was manifestly excessive.

  • Whether the sentencing judge erred by treating the domestic setting of the offences as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that the appellant also lived in the home
  • Whether the sentence imposed for reckless wounding was manifestly excessive

Decision

Ground 1: The home as an aggravating factor

Section 21A(2)(eb) lists as a statutory aggravating factor that an offence was committed "in the home of the victim or any other person." Previous decisions of the Court of Criminal Appeal had held that this provision does not apply where the offender and the victim share the same home. The Crown initially sought to challenge those earlier decisions but expressly abandoned that challenge at the hearing.

R A Hulme J accepted that the sentencing judge had erred in applying s 21A(2)(eb) in circumstances where the appellant also resided in the unit. However, his Honour found that no substantial miscarriage of justice resulted, because the domestic setting remained a relevant circumstance of the offending that the judge was entitled to weigh when assessing objective seriousness. The location of the offence was properly considered without relying on the statutory aggravating factor in its technical sense.

Both Simpson J and Price J agreed with that analysis. Importantly, Simpson J (with Price J concurring) noted reservations about the underlying principle in the earlier decisions, observing that those decisions may warrant re-examination by the Court. The Crown's abandonment of its challenge left that question unresolved.

Ground 2: Manifest excess

The Court examined the objective and subjective features at length. The stabbing caused life-threatening injuries requiring thoracic surgery. The appellant had a substantial criminal history, including prior knife-related offences, a pattern of escalating violent offending, and a longstanding and entrenched history of polysubstance abuse. Despite many opportunities and conditions attached to prior sentences requiring rehabilitation, he had not engaged meaningfully with treatment.

R A Hulme J found the sentence for reckless wounding was at the upper end of the permissible range, but not outside it. The partial accumulation of sentences meant the appellant effectively served only an additional six months for the threat offence, which itself carried a maximum of twelve years. The overall sentence adequately reflected the totality of criminality and was well within the sentencing discretion. Ground 2 was rejected.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the line of authority binding at the time of this decision, s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 does not apply as a statutory aggravating factor where the offender and the victim share the same home.
  • Simpson J and Price J expressly flagged reservations about that principle, suggesting the earlier decisions may warrant reconsideration by the Court of Criminal Appeal in a future case.
  • A sentencing error in applying a statutory aggravating factor does not automatically lead to resentencing: if the circumstances of the offending legitimately supported the weight given to the factor, no substantial miscarriage of justice may result.
  • In assessing manifest excess, the Court examined the full sentencing matrix, including the disproportion between the sentence for the less serious count and the maximum penalty available for the more serious threat offence.
  • A lengthy history of drug-related and violent offending, combined with repeated failures to engage with court-mandated rehabilitation, supported a finding of poor prospects for rehabilitation and the need for specific deterrence and community protection.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(b), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- DJM v R [2013] NSWCCA 101
- DS v R [2012] NSWCCA 159
- EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
- Essex v R [2013] NSWCCA 11
- Ingham v R [2011] NSWCCA 88
- NLR v R [2011] NSWCCA 246
- OH Hyunwook v R [2010] NSWCCA 148
- R v BIP [2011] NSWCCA 224
- R v Engert (1995) 84 A Crim R 67
- R v Gazi Comert [2004] NSWCCA 125
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v MH [2011] NSWCCA 230