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26
Court of Criminal Appeal 2 July 2014

R v Campbell

[2014] NSWCCA 102

Assault & violenceFirearms & weaponsDomestic & family violence
SENTENCE PAROLE PERIOD FOR S 112(3) OFFENCES

Citation: R v Campbell [2014] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 2 July 2014
Judge(s): Simpson J (at [1]), Hall J (at [44]), Harrison J (at [45])

Background

The respondent, an estranged husband and father, rode his motorcycle to the rural property where his former partner lived with their three sons and her new partner. He used a key he had retained to access the gun safe, loaded a .22 calibre pump action rifle, and waited inside the home for the occupants to return. When his former partner arrived, he pointed the rifle at her head. A struggle followed, the gun discharged (the bullet struck the floor), and the former partner was injured, suffering a broken rib and bruising.

The respondent pleaded guilty to two counts in the District Court: breaking and entering a dwelling house and committing a serious indictable offence in circumstances of special aggravation under s 112(3) of the Crimes Act 1900 (NSW), and assault occasioning actual bodily harm under s 59 of the same Act. The sentencing judge imposed 3 years and 11 months imprisonment with a non-parole period of 1 year and 10 months on the first count, and a fixed term of 9 months on the second count, with both sentences running wholly concurrently.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending the sentence for the s 112(3) offence was manifestly inadequate and that the total concurrency of the two sentences was also an error.

  • Whether the sentence imposed for the s 112(3) offence was manifestly inadequate, having regard to the objective seriousness of the offence, the degree of planning, and the discharge of the firearm
  • Whether the sentencing judge gave proper or due regard to the standard non-parole period of 7 years prescribed for s 112(3) offences
  • Whether it was an error to order the sentence for the assault occasioning actual bodily harm to be served wholly concurrently with the s 112(3) sentence

Decision

The Court of Criminal Appeal upheld the appeal on the first ground, finding that the sentence for the s 112(3) offence was manifestly inadequate. The non-parole period of 1 year and 10 months represented less than one quarter of the 7-year standard non-parole period. The Court found it impossible, on the facts, to characterise the offence as being significantly below the middle range of seriousness for this type of offending, particularly given the premeditation, planning, use of a loaded firearm in a domestic setting, and the discharge of that firearm during the struggle.

Although the sentencing judge had referenced the standard non-parole period as a "marker or guide post," the Court held that merely mentioning it in the remarks on sentence did not satisfy the requirement to give it practical recognition in the actual sentence imposed. Even accounting for the significant subjective factors in the respondent's favour, including his early guilty plea (attracting a 25 per cent discount), concerns for his children's welfare, limited criminal history, and good character, the resulting non-parole period fell far short of what the offence warranted.

The Court declined to interfere with the order for total concurrency of the two sentences. It accepted that the two offences were effectively contemporaneous, arising from the same facts, and that the sentence for the s 112(3) offence was capable of comprehending the criminality involved in the assault count. The Crown's preference for a different approach did not amount to demonstrated error.

The respondent was re-sentenced on the s 112(3) count to 5 years imprisonment with a non-parole period of 3 years, both commencing on 27 January 2013. The sentence for the s 59 offence was confirmed.

Orders Made

  • Appeal allowed
  • Sentence for the s 112(3) offence quashed and replaced with a term of imprisonment of 5 years commencing 27 January 2013 and expiring 26 January 2018, with a non-parole period of 3 years expiring 26 January 2016
  • Sentence for the s 59 offence otherwise confirmed

Key Takeaways

  • A sentencing court's mere reference to a standard non-parole period in its remarks on sentence is insufficient if the sentence ultimately imposed fails to give that standard non-parole period any practical weight. The Court of Criminal Appeal confirmed that the standard non-parole period must be reflected in the sentence itself, not only acknowledged in passing.
  • Under s 112(3) of the Crimes Act 1900, the 7-year standard non-parole period operates as a meaningful benchmark. A non-parole period representing less than one quarter of that figure will be difficult to sustain where the offence cannot fairly be characterised as well below the mid-range of seriousness.
  • Strong subjective factors, including an early guilty plea, limited criminal history, and creditable personal circumstances, do not by themselves justify a departure from the standard non-parole period to the degree seen in this case.
  • Total concurrency of sentences for separate counts is not necessarily erroneous where the offences are entirely contemporaneous and arise from the same facts, and where the sentence for the more serious offence is found to encompass the criminality of the lesser.
  • In re-sentencing, the Court of Criminal Appeal increased the non-parole period from 1 year and 10 months to 3 years, reflecting a more proportionate recognition of both the seriousness of the offending and the subjective matters that genuinely favoured the respondent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 112(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A; s 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Hiron v R [2007] NSWCCA 336
- Martin v R [2011] NSWCCA 188
- Micklesson v R [2009] NSWCCA 61
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- 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 Huynh [2005] NSWCCA 220
- R v Kentwell [2013] NSWCCA 266
- R v Rossi-Murray [2009] NSWCCA 177
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v XX [2009] NSWCCA 115
- Shaw v R [2008] NSWCCA 58
- Simpson v R [2014] NSWCCA 14