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52
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, New South Wales
Date: 9 December 2016
Judges: Bathurst CJ, Beazley P, Hall J, Bellew J, N Adams J

Background

The applicant and the victim were in a domestic relationship of approximately ten years. They had three children together, and the relationship was characterised by controlling and violent behaviour on the applicant's part. On one occasion, the applicant slapped the victim during an argument, perforating her eardrum and causing associated deafness. One of their daughters heard the assault and entered the room to find her mother on the floor with blood on her face.

On a separate occasion, following an argument triggered by the victim speaking to a male shop assistant, the applicant forced the children to tell their mother she was a bad parent, threw a cup of tea at her, and later forced her to perform oral and anal sex.

The applicant was convicted of recklessly inflicting grievous bodily harm (one count) and having sexual intercourse without consent (two counts). He was sentenced to an aggregate term of nine years' imprisonment with a non-parole period of six years and five months. The sentencing judge applied two statutory aggravating factors: that the grievous bodily harm offence was committed in the presence of a child, and that all offences were committed in the home of the victim.

  • Whether s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which treats an offence committed "in the home of the victim or any other person" as an aggravating factor, applies only where the offender was an intruder, or whether it also applies where the offender was entitled to be at the premises.
  • Whether the sentencing judge engaged in impermissible "double counting" by treating the presence of a child as both a factor in assessing the objective seriousness of the grievous bodily harm offence and as a separate statutory aggravating factor under s 21A(2)(ea).

Decision

The "home of the victim" aggravating factor. A five-judge bench was convened to resolve a question described as of general importance. The Court held unanimously that s 21A(2)(eb) is not limited to cases where the offender was an intruder. The text of the section does not impose any such precondition, and the aggravating factor expressly extends to the home of "any other person," including the offender. Limiting the provision to intruders would therefore contradict its plain words.

The Court further held that the purpose of the provision, as reflected in the relevant Second Reading Speech, is to recognise that a home should be a place of safety and security for those who reside or are present there. That purpose is equally served whether or not the offender had a right to be present. A victim's home does not cease to be a place deserving of protection simply because the offender shared or was entitled to occupy it.

The Court also addressed s 21A(4), which prevents a court from applying an aggravating factor where doing so would be contrary to any Act or rule of law. The Court held that inconsistency with existing sentencing principles must be demonstrated before s 21A(4) operates. No binding rule of law required that the "home of the victim" factor be confined to intruders. A line of prior CCA decisions that had attributed such a rule to R v Comert [2004] NSWCCA 125 was found to be plainly wrong and was overruled.

Double counting of the child's presence. The Court rejected the argument that the sentencing judge counted the child's presence twice. When read as a whole, the sentencing judge's comments about objective seriousness focussed on the nature and extent of the victim's injury, referring to the child's evidence only as support for the finding that the applicant caused that injury. When the judge later treated the commission of the offence in the presence of a child as a statutory aggravating factor, there was nothing in those remarks to suggest the factor had already been applied. The absence of any such cross-reference confirmed, rather than undermined, the conclusion that no double counting had occurred.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal unanimously held, sitting as a five-judge bench, that s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to offences committed in the home of the victim regardless of whether the offender was an intruder or was otherwise entitled to be on the premises.
  • A line of earlier CCA decisions reading R v Comert [2004] NSWCCA 125 as establishing a rule that the "home of the victim" factor was confined to intruders was overruled as plainly wrong.
  • Under s 21A(4), a court must apply an aggravating factor unless doing so would be contrary to a specific Act or rule of law. A general inconsistency with prior sentencing practice is insufficient to engage the exemption; actual legal inconsistency must be shown.
  • No double counting arises merely because a child's presence is mentioned during an assessment of objective seriousness, provided that reference goes to a distinct matter (such as establishing causation of injury) rather than to the aggravating character of the offending itself.
  • In dismissing the appeal, the Court confirmed that a home retains its character as a place deserving protection, for the purposes of the aggravating factor, even where the offender and victim share or jointly occupy that home.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(ea), s 21A(2)(eb), s 21A(4)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

Cases (selected):
- R v Comert [2004] NSWCCA 125 (overruled)
- EK v The Queen (2010) 79 NSWLR 740; [2010] NSWCCA 199
- Ingham v The Queen [2011] NSWCCA 88
- BIP v The Queen [2011] NSWCCA 224
- MH v The Queen [2011] NSWCCA 230
- Essex v The Queen [2013] NSWCCA 11
- DJM v The Queen [2013] NSWCCA 101
- Melbom v The Queen [2013] NSWCCA 210
- Aktar v The Queen [2015] NSWCCA 123
- Erazo v The Queen [2016] NSWCCA 139
- Gore v The Queen (2010) 208 A Crim R 353; [2010] NSWCCA 330
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41