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Court of Criminal Appeal 27 August 2014

Agius v R

[2014] NSWCCA 173

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE

Citation: Agius v R [2014] NSWCCA 173
Court: Court of Criminal Appeal, NSW
Date: 27 August 2014
Judge(s): Gleeson JA (leading judgment); Fullerton J (agreeing); McCallum J (agreeing)

Background

The appellant had pleaded guilty in the District Court to three offences committed against his domestic partner: one count of detaining for advantage (maximum 14 years imprisonment) and two counts of assault occasioning actual bodily harm (maximum 5 years each). Four further matters, including contravening an apprehended domestic violence order, common assault, possession of a prohibited drug, and a further assault occasioning actual bodily harm, were placed on a Form 1 to be taken into account on sentence.

The offending involved a sustained pattern of serious domestic violence over a period of roughly ten months. The most serious incidents included the appellant chaining the complainant to a bed overnight, repeated beatings causing significant injuries, threats to kill, and forcing the complainant to urinate outside. The appellant was arrested in February 2012 after the complainant reported the conduct to police.

On 14 September 2012, the District Court sentenced the appellant to an aggregate term of six years imprisonment with a non-parole period of four years and six months. The appellant sought leave to appeal that sentence, with an extension of time having been granted to file the application.

  • Whether the sentencing judge erred in finding that the appellant had at no time sought professional assistance for his drug addiction or propensity for violence.
  • Whether the sentencing judge erred in declining to find "special circumstances" that would justify a longer parole period relative to the non-parole period.
  • Whether the sentencing judge erred in concluding that the appellant's prospects for rehabilitation could not be assessed as good.

Decision

Ground 1: Prior professional assistance

The appellant argued that the sentencing judge overlooked evidence that, upon entering custody, he had undergone a week-long detoxification program, attended interviews, and expressed willingness to participate in residential rehabilitation. The Court accepted that this material was before the sentencing judge as Exhibit 1. However, the Court found that it had been tendered in an earlier bail application for a different purpose, and the sentencing judge had not been in error in finding that the appellant had made no attempt to seek professional assistance prior to entering custody. The detoxification and interviews occurred only after arrest, not before. The finding was consistent with the pre-sentence report, which itself noted that the appellant had not undertaken any other intervention or treatment for his addictions prior to custody.

Grounds 2 and 3: Rehabilitation prospects and special circumstances

The appellant's counsel conceded that grounds 2 and 3 could not succeed if ground 1 failed. That concession was accepted as properly made. Because no error was established in the primary finding, the sentencing judge's scepticism about the appellant's unsworn statement expressing a wish to undergo rehabilitation was equally unimpeachable. McCallum J noted pointedly that the appellant had subjected his partner to a series of violent, abusive and degrading assaults, and had only professed a willingness to rehabilitate after his arrest, partly in aid of a bail application. In those circumstances, the Court found that the sentencing judge's negative assessment of rehabilitation prospects and the associated refusal to find special circumstances disclosed no error.

Orders Made

  • Application for leave to appeal refused.

Key Takeaways

  • A sentencing court does not err in finding that an offender made no genuine attempt to seek professional assistance where the only rehabilitative steps taken occurred after arrest and were initially pursued in the context of a bail application.
  • Where grounds challenging rehabilitation prospects and special circumstances are entirely dependent on establishing an earlier error, they fall away once that foundational error is not made out.
  • The Court of Criminal Appeal confirmed that it is not sufficient for an appellant to point to material that was before the sentencing judge; the question is whether that material was used for a purpose that the sentencing judge failed to consider, which was not established here.
  • In dismissing all three grounds, the Court underscored that post-arrest expressions of rehabilitative intent, particularly where they arise in the context of seeking bail, provide a legitimate basis for judicial scepticism without that scepticism constituting legal error.
  • Exhibit material tendered for one purpose at an earlier stage of proceedings (a bail application) does not automatically require express engagement by the sentencing judge on every possible aspect of its contents.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1) (assault occasioning actual bodily harm), 86(1)(b) (detaining for advantage)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 additional offences)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases cited: No cases were cited in the portions of the judgment available for review.