Citation: Kendall v R [2015] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 23 February 2015
Judges: Hoeben CJ at CL; Johnson J; Hamill J
Background
Following a jury trial in the District Court, the appellant was convicted of two serious offences: breaking and entering a dwelling and committing an indecent assault in circumstances of aggravation (s 112(2) Crimes Act 1900), and intentionally inflicting actual bodily harm with intent to have sexual intercourse (s 61K(a) Crimes Act 1900). Both offences carry maximum penalties of 20 years' imprisonment.
The offences were committed on 7 July 2012 at a gated retirement community in Port Macquarie. The appellant, then aged 25 and on bail, had been discharged from a residential alcohol rehabilitation program the previous day following aggressive and non-compliant behaviour. After consuming alcohol, he entered the retirement village, knocked on the door of a 71-year-old woman living alone, pushed his way inside when she opened the screen door, knocked her to the floor, and subjected her to an indecent assault while pressing her face to the ground to suppress her screams. She suffered bruising and lacerations to her face, lips, hands and arms.
The sentencing judge in the District Court imposed an aggregate sentence with a non-parole period of 6 years (commencing 7 March 2013, expiring 6 March 2019) and an additional term of 3 years, expiring 6 March 2022. The appellant sought leave to appeal, contending that the sentence was the product of error and was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in characterising the offending as being "near what is described as the highest level of offending behaviour"
- Whether the sentencing judge erred in finding the appellant was on parole at the time of the offending (he was in fact on bail)
- Whether the sentence imposed was manifestly excessive
Decision
Ground 1: Objective seriousness
The Court of Criminal Appeal found no error in the sentencing judge's assessment of objective seriousness. The offences involved a deliberate targeting of an elderly, isolated and vulnerable woman in her own home, with physical violence used to prevent her from raising the alarm. The Court found that characterising this conduct as near the highest level of such offending was well open on the facts.
Ground 2: Parole or bail
The sentencing judge incorrectly stated the appellant had been released on parole; he was in fact on bail. The Court acknowledged this was a factual error. However, it found the error was minor and did not infect the overall sentencing exercise. Whether the appellant was on parole or bail, the key finding, that he was on conditional liberty at the time of the offending, remained valid and properly weighed as an aggravating factor.
A separate factual error was also identified: the sentencing judge stated the appellant had struck the victim with his fist on a number of occasions, when in fact no such evidence existed. The Court treated this error in the same way, finding it did not materially affect the sentencing outcome. The identified aggravating features, including the use of deception to gain access, the commission of the offences in the victim's home, her vulnerability, and the appellant's conditional liberty, were all accurately recorded and properly considered.
Ground 3: Manifest excess
The Court rejected the submission that the sentence was manifestly excessive. It applied the well-established principle from Markarian v R that there is no single correct sentence, only a range that experienced judges would agree is appropriate. The appellant's subjective case was modest: while he had learning difficulties, a troubled background, and an alcohol dependency, these factors offered limited mitigation against the objective gravity of the offences. His intoxication at the time was not a mitigating factor; rather, it demonstrated a propensity for serious violence when under the influence of alcohol, which supported the need for both specific and general deterrence.
Orders Made
- Leave to appeal granted.
- The appeal is dismissed.
Key Takeaways
- Minor factual misstatements in a sentencing judgment will not automatically establish appellable error; the relevant question is whether those errors materially affected the overall sentencing exercise.
- A finding that an offender was on "parole" rather than "bail" at the time of offending is a factual error, but does not constitute reversible error where the aggravating feature, that the offender was on conditional liberty, remains accurately reflected in the sentence.
- Intoxication at the time of offending does not operate as a mitigating factor where the offender has a demonstrated pattern of violent behaviour when drinking; in such circumstances, it may support the need for specific deterrence and community protection.
- In dismissing the appeal, the Court reaffirmed the principle from Markarian v R that sentencing involves an instinctive synthesis of all relevant factors, and appellate intervention is not warranted unless the sentence falls outside the range that experienced judges would regard as appropriate.
- The vulnerability of a victim, their age, the location of the offending within their own home, and the use of deception to gain access are all properly treated as aggravating features in the assessment of objective seriousness for offences of this kind.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) -- ss 61K(a), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) -- s 53A
- Criminal Appeal Act 1912 (NSW) -- s 6(3)
Cases:
- Markarian v R [2005] HCA 25; 228 CLR 357
- Little v R [2010] NSWCCA 210
- Mulato v Regina [2006] NSWCCA 282
- R v Andrews [2011] NSWCCA 24
- R v Bilal Skaf [2005] NSWCCA 297
- R v Shillingsworth [2003] NSWCCA 272
- Regina v Twala (NSWCCA, unreported, 4 November 1994)
- Thompson-Davies v R [2013] NSWCCA 75
- Vuni v R [2006] NSWCCA 171
- YS v R [2010] NSWCCA 98