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Court of Criminal Appeal 7 March 2013

MARTIN, Alexandra Jane v R

[2013] NSWCCA 24

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM GUILTY PLEA FIRST TIME OFFENDER PRIOR GOOD CHARACTER

Citation: MARTIN, Alexandra Jane v R [2013] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 7 March 2013
Judges: Bathurst CJ, Fullerton J, Beech-Jones J

Background

The appellant was a 20-year-old woman with no prior criminal history who pleaded guilty to breaking and entering premises and assaulting the occupant, contrary to s 112(1)(a) of the Crimes Act 1900. The offence occurred in the early hours of 10 December 2011, after the appellant discovered her boyfriend's car outside a former friend's home following a night of heavy drinking during which her boyfriend had been violent towards her. She forced entry to the premises, confronted the former friend, and punched her three to four times in the face, causing bruising, a broken nose and an orbital floor injury, though the victim did not require surgery and fully recovered.

In the District Court, the appellant was sentenced to 15 months' imprisonment with a non-parole period of six months. She had already served that non-parole period when she was granted bail pending her appeal to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in his assessment of the facts surrounding the offence
  • Whether the sentencing judge erred in assessing the level of criminality and objective seriousness of the offence
  • Whether the resulting sentence of imprisonment was manifestly excessive in light of the appellant's subjective circumstances

Decision

Beech-Jones J (with whom Bathurst CJ and Fullerton J agreed) found that the sentencing judge had erred in his characterisation of the facts. In particular, the sentencing judge described the offence as predatory and planned, concluding that the appellant had deliberately followed her boyfriend to the victim's home. The Court found this characterisation was not supported by the agreed facts, which disclosed instead a spontaneous reaction to a distressing discovery made during an incidental car trip.

The Court also found that the sentencing judge placed undue weight on the standard non-parole period as a reference point, an approach inconsistent with the High Court's guidance in Muldrock v The Queen [2011] HCA 39. Under the correct approach, all relevant factors must be weighed holistically rather than treating the standard non-parole period as a primary or determinative benchmark.

When the Court reconsidered the sentence from scratch, it took into account the appellant's strong subjective case: a first offence, genuine remorse, excellent character references, a pre-sentence report identifying her as unlikely to reoffend, the cessation of the relationship that contributed to the offending, and her rehabilitation since release on bail. The Court also noted that the actual physical harm, while serious, was at the lower end of the spectrum for offences of this kind.

Having regard to all these matters, the Court concluded that the appropriate sentence as at the original sentencing date would have been a 12-month good behaviour bond. Given that the appellant had already served her non-parole period in custody and had maintained good behaviour throughout her period on bail, the Court reduced the bond period to six months from the date of the appeal hearing.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Orders of the District Court made on 30 May 2012 set aside
  • In lieu of those orders, the appellant directed to enter into a good behaviour bond for a period of six months pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 7 February 2013

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must not treat the standard non-parole period as a primary reference point, consistent with Muldrock v The Queen; it is one of many factors to be weighed in a holistic sentencing exercise.
  • Characterising an offence as planned or predatory requires clear factual foundation; where the agreed facts do not support such a finding, reliance on that characterisation constitutes a factual error that can vitiate a sentence.
  • A strong subjective case, encompassing first-offender status, youth, prior good character, genuine remorse, low risk of reoffending, and demonstrated rehabilitation, can in appropriate circumstances justify a non-custodial penalty even for an offence involving a home invasion and physical assault.
  • Where an appeal against sentence is allowed and resentencing is required, the time already served in custody and the conduct of the appellant during the intervening bail period are relevant to the penalty ultimately imposed.
  • Under s 9(1) of the Crimes (Sentencing Procedure) Act 1999, a court dealing with an offence can, where circumstances warrant, direct an offender to enter a good behaviour bond in lieu of a sentence of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9(1), 21A(2)(eb), 54A(2), 95A(b)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Koloamatangi [2011] NSWCCA 288
- R v Martin, Alexandra Jane [2012] NSWSC 801
- R v Sivell, Andrew John [2009] NSWCCA 286
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383