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Court of Criminal Appeal 18 December 2014

Clinton v R

[2014] NSWCCA 320

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Clinton v R [2014] NSWCCA 320
Court: Court of Criminal Appeal, New South Wales
Date: 18 December 2014
Judge(s): Leeming JA, McCallum J, R A Hulme J

Background

The appellant was an 18-year-old man who, over the course of a single night in late March 2012, committed a series of violent offences against his former domestic partner. The offences occurred at the victim's home in breach of an existing apprehended domestic violence order. The conduct included choking the victim, head butting her, punching and kicking her, smashing a wardrobe mirror, and stabbing a knife into the bed while threatening to kill a man he believed she was seeing.

The appellant was arraigned in the District Court on eight counts. He pleaded guilty to three charges (intimidation, property damage, and using an offensive weapon with intent to intimidate) and was found guilty by a jury of two others (common assault and assault occasioning actual bodily harm). He also pleaded guilty to a charge of contravening an apprehended violence order that had been transferred to the District Court on committal.

The sentencing judge imposed a combination of concurrent and accumulated terms resulting in a further 15 months of full-time custody from the date of sentence, followed by 18 months of supervised parole. The appellant sought leave to appeal against those sentences on five grounds.

  • Whether the sentencing judge erred by refusing to treat the theoretical availability of summary disposal as a mitigating circumstance
  • Whether the judge erred by adopting an "averaging" approach when calculating the discount for the guilty pleas
  • Whether the judge erred in finding that the appellant displayed a continuing attitude of disobedience, thereby warranting emphasis on specific deterrence
  • Whether the judge failed to give sufficient weight to subjective matters, including the appellant's youth, a childhood head injury, and his capacity for rehabilitation
  • Whether the total sentence was manifestly excessive

Decision

Summary disposal as a mitigating factor: The Court found no error on this ground. The sentencing judge had correctly identified that a discount for the possibility of summary disposal is only warranted where there is a clear case that charges could and should have been dealt with in the Local Court. The transcript revealed that the submission had barely been pressed at first instance, and the judge's brief treatment of it was consistent with its marginal relevance on the facts.

Averaging approach to the guilty plea discount: The Court rejected this ground. While the judge's remarks on sentence included language that could be read as averaging the discounts across counts, the Court was satisfied that the judge had in fact considered the appropriate discount for each individual offence and had not applied a mechanically averaged figure in a way that constituted legal error.

Continuing disobedience and specific deterrence: This ground was also dismissed. The Court accepted that the sentencing judge was entitled to find that the appellant's conduct, committing multiple serious offences against a person he was already prohibited from contacting under an AVO, demonstrated a pattern of deliberate disobedience. That finding supported the emphasis placed on specific deterrence.

Subjective matters and manifest excess: The Court was not persuaded that the judge had failed to consider the appellant's youth, his neurological history, or his rehabilitative prospects. The judge had expressly referred to Dr Furst's psychiatric evidence attributing the appellant's anger partly to a childhood head injury and viral meningitis, and had taken youth and rehabilitation into account. The Court confirmed that a more lenient sentence being available does not establish error; manifest excess requires the sentence to be so disproportionate that the sentencing discretion can be seen to have miscarried.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A discount for the theoretical availability of summary disposal is only warranted where the sentencing court identifies a clear case that charges could and should have been dealt with summarily; marginal or barely-pressed submissions on this point are unlikely to generate appellate error.
  • Under the principles in Markarian v R, establishing that a sentence was stern or even "harsh and severe" is insufficient to succeed on a ground of manifest excess; the sentence must be so excessive as to demonstrate in itself that the sentencing discretion miscarried.
  • Where a sentencing judge expressly addresses psychiatric and subjective evidence in the remarks on sentence, an appellate argument that those matters were not given sufficient weight amounts to a submission that a different weighing was available, not that the judge was wrong.
  • The Court of Criminal Appeal confirmed that committing serious offences against a protected person in deliberate breach of an existing apprehended violence order is a legitimate basis for emphasising specific deterrence, even for a young offender.
  • Concessions made by defence counsel at first instance (here, that full-time custody was appropriate) carry weight on appeal; the Court noted the earlier concession when rejecting the submission that a non-custodial disposition was open.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 61, 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 166, 260

Cases:
- Elias v R; Issa v R [2013] HCA 31
- Kentwell v R [2014] HCA 37
- Zreika v The Queen [2012] NSWCCA 44
- Markarian v R [2005] HCA 25; 228 CLR 357