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Court of Criminal Appeal 17 August 2016

Ross v R

[2016] NSWCCA 176

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER VICTIM UNDER THREE YEARS’ AGE APPLICANT IN A POSITION OF TRUST VIGILANCE

Citation: Ross v R [2016] NSWCCA 176
Court: Court of Criminal Appeal, New South Wales
Date: 17 August 2016
Judges: Hoeben CJ at CL, Hall J, Bellew J

Background

The appellant was convicted by jury in December 2013 of the murder of a two-year-old girl, the daughter of his former partner. The child was aged two years and eight months at the time of her death in August 2011. The appellant had moved into the family home approximately two months before the fatal events, assumed a parental role, and was referred to by the children as "Daddy."

The sentencing judge found that the appellant had subjected the child to a sustained pattern of physical abuse in the weeks leading to her death, including forcing her to run laps, hitting her with a belt and electric cord, and making her stand in place for extended periods. The fatal injuries were inflicted in a bathroom, where the appellant struck the child's head against shower glass on multiple occasions. No medical attention was sought, and the child died as a result of her injuries.

In May 2014, Rothman J sentenced the appellant to a total term of 40 years' imprisonment, comprising a non-parole period of 30 years commencing 27 September 2011 and a parole period of 10 years. The appellant sought leave to appeal that sentence.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence as "well-above the mid-range of offences of murder and approaching the worst case of murder"
  • Whether the sentencing judge failed to give any weight to the appellant's onerous gaol conditions, including time spent in protective custody and an alleged ongoing fear of violence
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal rejected all three grounds and dismissed the appeal, with Hall J delivering the principal judgment and both Hoeben CJ at CL and Bellew J agreeing.

On the first ground, the Court held that the sentencing judge's characterisation of the offence as well above the mid-range and approaching the worst case of murder was entirely justified. The relevant aggravating features included the appellant's gross abuse of a position of trust over a very young and entirely vulnerable child, a sustained series of assaults constituting deliberate and callous conduct, and a failure to seek medical attention that may have prevented the child's death. The Court noted the absence of any significant subjective factors that could mitigate the sentence.

On the second ground, the Court found that the evidence before the sentencing judge concerning the appellant's protective custody conditions was extremely limited. The appellant's affidavit had made general references to fears of violence and hyper-vigilance, but those claims were not established as material or significant factors at the sentencing hearing. The Court also confirmed the established principle, drawn from House v The King, Bugmy v R, and CMB v Attorney-General for NSW, that a sentencing judge's failure to attribute sufficient weight to a particular matter does not itself constitute a reviewable error of the type required to warrant appellate intervention.

The Court further noted that no evidence suggested any material worsening of gaol conditions since sentencing. Given the gravity of the offence and the absence of meaningful subjective factors, the Court concluded the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a gross abuse of trust over a very young and wholly dependent child, combined with sustained deliberate violence and a failure to seek medical attention, properly places a murder offence well above the mid-range and approaching the worst category.
  • A failure by a sentencing judge to give "sufficient weight" to a particular mitigating factor does not, without more, constitute a ground of appellate error under the principles in House v The King and as confirmed in Bugmy v R and CMB v Attorney-General for NSW.
  • Claims regarding onerous gaol conditions, including protective custody and fears of ongoing violence, must be established by adequate evidence before the sentencing court; generalised assertions in an affidavit will not suffice to compel explicit consideration on appeal.
  • Protective custody conditions can, in principle, be relevant to the weight of a sentence, but the Court found no basis here to conclude that factor had been overlooked or that it would unequivocally operate in the appellant's favour.
  • In the absence of significant subjective mitigating factors, the objective gravity of an offence of this character properly supports a substantial non-parole period of 30 years.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Bugmy v R [2013] HCA 37; 249 CLR 571
- CMB v Attorney-General for NSW [2015] HCA 9; 317 ALR 30
- Markarian v R [2005] HCA 25; 228 CLR 357
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
- R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
- RWB v R [2010] NSWCCA 147; 202 A Crim R 209
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
- Ali v R [2010] NSWCCA 35
- Jarrold v R [2010] NSWCCA 69
- R v Pfitzner [2010] NSWCCA 314
- Clinton v R [2009] NSWCCA 276
- Mulato v R [2006] NSWCCA 282
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- R v Hill [2014] NSWSC 1010
- R v PJS [2009] NSWSC 153
- Dennis v R [2009] NSWSC 1357
- R v Elfar [2003] NSWCCA 358