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55
Court of Criminal Appeal 9 December 2016

Jonson v R

[2016] NSWCCA 286

Also reported as (2016) 263 A Crim R 268
Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL SENTENCE APPEAL

Citation: Jonson v R [2016] NSWCCA 286
Court: Court of Criminal Appeal
Date: 9 December 2016
Judge(s): Bathurst CJ, Beazley P, Hall J, Bellew J, N Adams J

Background

The applicant was convicted following trial of recklessly inflicting grievous bodily harm and two counts of sexual intercourse without consent. The offending occurred in a domestic relationship context, at premises where both the applicant and the victim lived. The sentencing judge imposed an aggregate term of nine years imprisonment with a non-parole period of six years and five months.

The applicant sought leave to appeal on sentence. Two grounds were pressed. First, that the sentencing judge erred by treating the offences as aggravated because they were committed in the victim's home, when the applicant was lawfully present at those premises. Second, that the sentencing judge impermissibly double-counted the fact that one offence was committed in the presence of a child when assessing both the objective seriousness of that offence and the applicable aggravating factors.

Because the first ground raised a question of general importance about the construction of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a five-judge bench was convened. The same issue was considered concurrently in the related matter of R v Lulham [2016] NSWCCA 287.

Legal Issues

  • Whether s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which treats offending in a victim's home as a potential aggravating factor, applies only where the offender was an intruder, or whether it extends to offenders who were lawfully present at the premises.
  • Whether s 21A(4) of the same Act, which prevents a court from taking an aggravating factor into account where that would be contrary to a rule of law, operates to limit the reach of s 21A(2)(eb) to intruder scenarios.
  • Whether the sentencing judge double-counted the presence of a child as an aggravating factor.

Decision

Ground 1: Aggravation by reason of offending in the victim's home

Bathurst CJ, writing for the Court on this issue, undertook a close analysis of the text of s 21A(2)(eb). The provision, on its face, contains no requirement that the offender be an intruder: it extends beyond the victim's home to any other person's home, which the Court observed could include the offender's own home (at [40]). The Court held that the legislature did not intend the section to be confined to intrusion scenarios, and that a broader construction promotes the evident purpose of the provision: that a home should be a place of safety and security for those present in it (at [41]-[42]).

The Court then addressed s 21A(4), which limits reliance on an aggravating factor where doing so would be "contrary to" a rule of law. The Court accepted, without deciding the point definitively, that judicially developed sentencing principles can constitute "law" for s 21A(4) purposes. However, it held that s 21A(4) is not engaged merely because existing sentencing principles had only previously recognised intrusion as an aggravating circumstance. A positive principle prohibiting the use of the home location as an aggravating factor, where the offender was lawfully present, would need to be established before s 21A(4) could operate (at [44]-[45]).

The Court reviewed the line of authority stemming from R v Comert [2004] NSWCCA 125, which had been followed in EK v The Queen [2010] NSWCCA 199 and Ingham v The Queen [2011] NSWCCA 88, and held that those decisions were plainly wrong (at [50]). The Court found that the proposition attributed to Comert was not clearly articulated in that case, rested on no authority, and had generated reservations in several subsequent judgments. There is no principled basis for confining the victim's sense of security in her home to intrusion scenarios: a person lawfully on the premises can equally undermine that security (at [49]-[50]).

The Court emphasised that the broader construction does not mean the home location will always aggravate an offence. Whether it does so remains a matter for the sentencing judge to assess in the circumstances of each case, in accordance with ordinary sentencing principles (at [52]). Ground 1 was not made out (at [51]).

Ground 2: Double counting of offending in the presence of a child

Bellew J addressed this ground, finding no error in the sentencing judge's approach (at [74]-[75]). When the sentencing judge referred to the child's evidence in assessing objective seriousness, the focus of that passage was on the nature and cause of the victim's injuries, not on the fact of the child's presence as a separate circumstance (at [73]-[74]). The child's presence as a distinct aggravating factor was only identified and applied in the later section of the remarks dealing expressly with s 21A factors. The contrast with the sentencing judge's explicit acknowledgment (in relation to a different factor) that he had already taken a matter into account earlier in fact supported the conclusion that no double counting had occurred in relation to the child's presence (at [75]). Ground 2 was not made out (at [76]).

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal held, by a five-judge bench, that s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not confined to circumstances where an offender intruded into the victim's home: it can apply where the offender was lawfully present at the premises (at [40]-[41]).

  • The prior line of authority derived from R v Comert [2004] NSWCCA 125, including the decisions in EK v The Queen and Ingham v The Queen, was overruled as plainly wrong: those cases incorrectly read a restriction into s 21A(2)(eb) that the text does not support and that lacks any sound principled basis (at [50]).

  • Section 21A(4) does not limit s 21A(2)(eb) merely because sentencing principles previously recognised only intrusion as an aggravating circumstance. To engage s 21A(4), there would need to be an established principle affirmatively prohibiting the use of the home location as an aggravating factor in non-intrusion cases (at [44]-[45]).

  • A broader construction of s 21A(2)(eb) does not automatically make the home location an aggravating factor in every case: the sentencing court must still assess whether, in the particular circumstances, the location genuinely aggravates the offending (at [52]).

  • No double counting arises simply because a sentencing judge mentions a factual circumstance at more than one stage of the sentencing remarks. Where the emphasis in an earlier passage was on a related but distinct matter (here, the injury and its cause), and the aggravating factor was separately identified and applied only once, the sentencing process will not be infected by error (at [73]-[75]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

Cases
- Aktar v The Queen [2015] NSWCCA 123
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
- BIP v The Queen [2011] NSWCCA 224
- Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
- Director of Public Prosecutions v Devaldez [2003] VSCA 29; (2003) 141 A Crim R 11
- Director of Public Prosecutions v Fellows [2002] VSCA 58
- Director of Public Prosecutions v Joyce [2007] VSCA 215
- Director of Public Prosecutions v Sims [2004] VSCA 129
- DJM v The Queen [2013] NSWCCA 101
- EK v The Queen (2010) 79 NSWLR 740; [2010] NSWCCA 199
- Erazo v The Queen [2016] NSWCCA 139
- Essex v The Queen [2013] NSWCCA 11
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 51
- Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16
- Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353
- Heuston v The Queen [1993] SASC 4125
- Ingham v The Queen [2011] NSWCCA 88
- Melbom v The Queen [2013] NSWCCA 210
- MH v The Queen [2011] NSWCCA 230
- Montero v The Queen [2013] NSWCCA 214; (2013) 234 A Crim R 532
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9
- NLR v The Queen [2011] NSWCCA 246
- Oh v The Queen [2010] NSWCCA 148
- Pasoski v The Queen [2014] NSWCCA 309
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v Comert [2004] NSWCCA 125
- R v DK [2016] ACTCA 7
- R v Johnson [2004] NSWCCA 76
- R v Keenan [2005] VSCA 64
- R v Kershaw [2005] NSWCCA 56
- R v Lulham [2016] NSWCCA 287
- R v Preston (Court of Criminal Appeal (NSW), 9 April 1997, unrep)
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Wickham [2004] NSWCCA 193