Citation: SS v R [2016] NSWCCA 197
Court: Court of Criminal Appeal, NSW
Date: 2 September 2016
Judge(s): Bathurst CJ (with Schmidt J and Wilson J agreeing)
Background
The applicant and the victim had been in an intimate relationship for approximately two years. When the victim ended the relationship, the applicant followed her to her workplace, a care facility for severely disabled young persons, where she was the sole staff member on the overnight shift. He broke in by dismantling a fly screen and manipulating a back door lock.
After a lengthy conversation during which the applicant made veiled threats, he approached the victim from behind while she was watching television and strangled her until she lost consciousness. He then emptied the entire contents of a fire extinguisher into her throat and around her mouth while she was unconscious, pulled down her clothing, and left the premises. A co-worker arrived to find the victim struggling to breathe and unconscious. She was taken to hospital and sustained temporary but no permanent injury.
The applicant pleaded guilty to breaking and entering with intent to commit a serious indictable offence in aggravation (count 1, maximum 20 years) and assault occasioning actual bodily harm (count 2, maximum 5 years). He was sentenced to 9 years with a 4-year non-parole period for count 1 (taking into account a Form 1 indecency charge) and 3 years and 9 months with a 2-year non-parole period for count 2, partially accumulated to produce a total sentence of 10 years with a 5-year non-parole period. He appealed against those sentences.
Legal Issues
- Whether the sentencing judge erred by referring to the potential risks of emptying an unknown chemical compound into an unconscious victim's mouth when assessing the objective seriousness of count 2
- Whether the individual sentences, or the overall accumulated sentence, were manifestly excessive
Decision
Risk findings on count 2: The sentencing judge had noted that the fire extinguisher assault could have caused chemical burns or fatal coagulation of powder in the victim's mouth, while acknowledging those risks did not materialise. The Court of Criminal Appeal held this was not an error. The sentencing judge had not made positive findings of fact about the risks; he had appropriately referred to them as possibilities when assessing the objective gravity of deliberately pouring an unknown substance into the mouth of a defenceless, unconscious person.
Manifest excess: Bathurst CJ reaffirmed that appellate intervention on sentence is only warranted where the sentence is unreasonable or plainly unjust in a way that indicates a misapplication of principle. The mere fact that an appellate court would have imposed a lesser sentence, or that the sentence differs markedly from sentences in other cases, does not justify intervention.
Sentencing statistics and comparisons: The Court found that the bare sentencing statistics tendered by the applicant provided no useful guide in the absence of detail about the circumstances of those cases. The two comparative cases relied upon by the applicant were distinguished on their facts, particularly with respect to the psychiatric condition of the respective offenders, the number of offences making up the total sentence, and the degree of remorse shown.
Deprived background and totality: The Court accepted that the applicant's profoundly traumatic background in Sierra Leone, including witnessing his father's murder and spending a decade in a refugee camp, was a mitigating factor under the principles in Bugmy v The Queen. However, the applicant's successful adjustment to life in Australia since 2009 was also relevant and weighed against treating the background as decisive. The Court found neither the individual sentences nor the degree of accumulation was unreasonable or plainly unjust, noting that the sentencing judge had found special circumstances and imposed a non-parole period of 50% of the total term.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge does not err by referring to potential but unrealised risks arising from an offender's conduct when assessing objective seriousness, provided those references are framed as possibilities rather than positive findings of fact.
- Appellate intervention on manifest excess grounds requires more than a different view on the appropriate sentence; the sentence must be unreasonable or plainly unjust in a way that reveals a misapplication of sentencing principle.
- Bare sentencing statistics carry little weight on a manifest excess appeal without accompanying detail about the facts and circumstances of the cases in question.
- Under Bugmy v The Queen, a deprived background and childhood trauma remain relevant mitigating factors at sentence, but their weight is not fixed and may be moderated by evidence of subsequent successful adaptation and rehabilitation.
- In dismissing the appeal, the Court of Criminal Appeal reinforced that the need for adequate punishment, personal and general deterrence, and denunciation are particularly significant considerations in domestic violence offending.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes Act 1900 (NSW), ss 59(1), 112(2)
Cases
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- Bolt v The Queen [2012] NSWCCA 50
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Lowndes v The Queen [1995] HCA 29; 195 CLR 665
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- Thompson-Davis v The Queen [2013] NSWCCA 75
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- YS v The Queen [2010] NSWCCA 98