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Court of Criminal Appeal 9 August 2016

Ngatamariki v R

[2016] NSWCCA 155

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL SENTENCE GRIEVOUS BODILY HARM WITH INTENT ASSAULT BY APPLICANT UPON HIS PARTNER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Ngatamariki v R [2016] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 9 August 2016
Judges: Hoeben CJ at CL, Hall J, Bellew J

Background

The applicant was convicted by a jury in the District Court of causing grievous bodily harm to his domestic partner with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years.

The attack occurred in the early hours of 2 April 2014 at the couple's shared home. The applicant had spent the day and evening drinking heavily. He returned home late at night and, following a dispute about whether he could see their sleeping children, violently assaulted the victim. He punched her multiple times while holding her by the throat, causing multiple facial fractures. The victim's face was so swollen in photographs tendered at trial that she was virtually unrecognisable. Two nearby campers heard the assault and called police.

The District Court sentenced the applicant to a non-parole period of 3 years, commencing 2 April 2014, with an additional term of 2 years. The applicant sought leave to appeal on two grounds.

  • Whether the sentencing judge erred by taking into account the applicant's prior conviction when assessing the objective seriousness of the offence.
  • Whether the sentence imposed was manifestly excessive.

Decision

Ground 1: Prior conviction and objective seriousness

The Court examined the sentencing judge's reasons and found no error. Although a prior conviction is not, as a matter of law, relevant to the objective seriousness of the offence for which a person is being sentenced, the sentencing judge had not treated it that way. The prior conviction had been taken into account for the purposes it was properly available: assessing subjective circumstances, specifically the applicant's character and prospects of rehabilitation. The first ground was not established.

Ground 2: Manifest excess

The Court found the sentence was not manifestly excessive. To succeed on this ground, an applicant must demonstrate the sentence is unreasonable or plainly unjust, drawing on Dinsdale v R and Markarian v R. The Court noted that the head sentence was actually two years below the standard non-parole period for the offence, a factor pointing against manifest excess, particularly given that the applicant had gone to trial and had a prior conviction involving similar conduct towards the same victim.

The Court also addressed the use of comparative sentences from other cases. Consistency of sentencing principle, rather than numerical equivalence between cases, is the proper objective. The applicant relied on cases said to attract lower sentences for similar offending, but the Court found those comparisons did not assist, given the particular circumstances of this brutal, alcohol-fuelled attack. The Court went further, describing the sentence imposed as one that "might be regarded as modest" in all the circumstances.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • A prior conviction is not relevant to the objective seriousness of the current offence, but remains available to the sentencing court when assessing subjective matters such as character and rehabilitation prospects.
  • Where a sentence falls below the standard non-parole period for an offence, that fact is a relevant consideration pointing against a finding of manifest excess, although it is not determinative.
  • Consistency in sentencing requires consistency of principle, not numerical equivalence between sentences imposed in different cases. Comparative case analysis cannot override an assessment of the individual circumstances of the offending.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed the approach in Munda v Western Australia that courts must give due recognition to the human dignity of domestic violence victims, and that denunciation and punishment are legitimate sentencing objectives in such cases.
  • No error arises from a sentencing judge's reasons simply because the word "seriousness" appears in proximity to a reference to prior convictions. The question is whether the prior conviction was, in substance, used impermissibly to elevate the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 253 CLR 58
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Briouzguine v R [2014] NSWCCA 264
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- MLP v R [2014] NSWCCA 183
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Newman v R [2015] NSWCCA 270
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465