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22
Court of Criminal Appeal 13 October 2014

Brown v R

[2014] NSWCCA 215

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL SENTENCE ONE OFFENCE GUILTY PLEA HEAD SENTENCE OF 4 YEARS AND 10 MONTHS

Citation: Brown v R [2014] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 13 October 2014
Judges: Beazley P, R A Hulme J, Garling J (Garling J delivering the principal judgment)

Background

The appellant pleaded guilty in the District Court to one count of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900, arising from a serious domestic violence incident in November 2012. The victim was the appellant's partner of six years. During an argument at the appellant's home following a night out, the appellant punched the victim repeatedly to both sides of her face, fracturing her cheekbone and upper jaw. The injuries required surgery, including the insertion of a metal plate.

The appellant had an extensive prior criminal history spanning nearly three decades, including prior convictions for assault, breaches of apprehended violence orders, and a 2009 conviction for assault occasioning actual bodily harm against the same victim. An apprehended violence order naming the victim as a protected person had been in force at the time of the offence.

District Court Judge Frearson sentenced the appellant to a head sentence of 4 years and 10 months, comprising a non-parole period of 3 years and 4 months with a balance of term of 1 year and 6 months. The appellant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentencing judge erred in using the appellant's prior criminal history in determining the sentence
  • Whether the sentencing judge erred in characterising the offence as falling within the mid-range of objective seriousness
  • Whether the sentence was manifestly excessive

Decision

On the use of prior criminal history, the Court confirmed the approach set out in Veen v The Queen (No. 2): a prior criminal record is a legitimate sentencing consideration, but it cannot be used to punish an offender again for past conduct. Rather, it is relevant to assessing the need for protection of the community, deterrence, and the weight to be given to subjective matters such as remorse and prospects of rehabilitation. The Court found no error in the sentencing judge's approach.

On objective seriousness, the Court noted that characterisations of seriousness are not ordinarily susceptible to appellate interference unless there is a discrete legal error. The Court found no such error. The facts, including repeated punching, the severity of the resulting fractures, the requirement for surgery, and the existence of an apprehended violence order at the time, supported the mid-range characterisation.

On manifest excess, the Court acknowledged that the sentence was not a lenient one and could be described as sitting towards the upper end of the available range. However, the test for manifest excess requires that a sentence be unreasonable or plainly unjust, not merely at the higher end. The Court was unpersuaded that the sentence crossed that threshold and declined to interfere.

The Court granted leave to appeal given the legitimate nature of the concerns raised, but dismissed the appeal.

Orders Made

  • Application for leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A prior criminal record may legitimately inform sentencing on matters such as community protection, deterrence, and the weight of subjective factors, but cannot be used to punish an offender a second time for past conduct, consistent with the Veen (No. 2) principle.
  • Appellate courts will not ordinarily interfere with a sentencing judge's characterisation of objective seriousness unless a discrete legal error is identified; a challenge to the characterisation of facts alone is insufficient.
  • Manifest excess requires more than a finding that the sentence was stern or at the upper end of the range. The sentence must be unreasonable or plainly unjust before appellate intervention is warranted.
  • Judicial Commission statistics on comparable offences are, as the Court noted, a particularly blunt tool in cases involving reckless grievous bodily harm, because the underlying facts, injury severity, and offender histories are rarely comparable across entries.
  • In dismissing the appeal, the Court reinforced that the maximum penalty and standard non-parole period serve as legitimate reference points in calibrating the appropriate sentence, alongside but not replacing consideration of all relevant facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm)

Cases
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Aslett v Regina [2006] NSWCCA 360
- Mulato v Regina [2006] NSWCCA 282