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Court of Criminal Appeal 16 December 2016

Drew v R

[2016] NSWCCA 310

Also reported as (2016) 264 A Crim R 1
Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL SERIOUS DOMESTIC VIOLENCE RELATED STABBING OFFENCES OF DOMESTIC VIOLENCE

Citation: Drew v R [2016] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 16 December 2016
Judges: Gleeson JA, Fagan J, N Adams J

Background

The appellant was convicted of wounding with intent to cause grievous bodily harm under s 33(1) of the Crimes Act 1900 (NSW), arising from a near-fatal knife attack on his domestic partner in Grafton on 29 December 2013. The attack involved multiple stab wounds to the victim's vital organs. She survived only because of intervention by a passing taxi driver, emergency medical treatment in Grafton, an airlift to Sydney, and surgical intervention at Coffs Harbour en route.

The victim and appellant were both Aboriginal and were in an ongoing intimate relationship. The victim had previously given evidence about an earlier assault by the appellant in November 2012 but recanted that evidence in February 2013, before the December 2013 stabbing occurred. The appellant pleaded guilty and was sentenced at first instance.

The appellant sought leave to appeal his sentence on three grounds: that the sentencing judge erred in finding the victim was vulnerable by reason of her Aboriginality, that the judge erred in categorising the offence as a "worst case", and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding the victim was vulnerable as an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), based on generalisations about a "culture of silence and ostracism" within Aboriginal communities.
  • Whether general propositions about cultural phenomena within Aboriginal communities require evidentiary support before they can be used in sentencing.
  • Whether the sentencing judge erred in describing the offence as falling into the "worst category" of offences of its kind.
  • Whether the sentence was manifestly excessive.

Decision

Ground 1: Victim vulnerability based on Aboriginality

The Court found that the sentencing judge erred in relying on generalised propositions about a culture of silence and ostracism within Aboriginal communities to support a finding that the victim was vulnerable. Fagan J held that such propositions, even if potentially valid, had not been proved by evidence in the proceedings. Without that evidentiary foundation, it was not open to the sentencing judge to find that the victim's Aboriginality, as a class characteristic, made her less likely to seek help or report the violence.

The Court accepted that it was bound by prior authority holding that s 21A(2)(l) is only engaged where the victim belongs to a class that is vulnerable by reason of a shared characteristic. However, the Court held that the victim's individual vulnerability, arising from her emotional dependency on the appellant and her demonstrated inability to remove herself from harm, was plainly established on the evidence. This individual vulnerability had the same practical effect on the objective seriousness of the offence as the impugned cultural finding.

Ground 2: "Worst case" categorisation

The Court noted that, in light of the High Court's decision in The Queen v Kilic [2016] HCA 4, describing an offence as being in the "worst category" when it does not attract the maximum penalty is potentially confusing and should be avoided. However, the Court treated this as a quibble about imprecise terminology rather than a substantive sentencing error. The objective facts, including multiple stab wounds to a defenceless, intoxicated victim who pleaded for her life, plainly disclosed an offence of extreme seriousness, and the characterisation did not produce an unjust sentence.

Ground 3: Manifest excess

All three judges independently concluded that no lesser sentence was warranted in law. Denunciation, specific and general deterrence, and community protection were identified as important sentencing considerations for a repeat domestic violence offender. The Court dismissed the argument that the victim's lack of permanent impairment materially reduced the objective seriousness, noting that the absence of lasting injury reflected the intervention of others rather than any limitation in the gravity of the attack.

Orders Made

  • Leave to appeal against the severity of sentence granted.
  • Appeal dismissed.

Key Takeaways

  • General propositions about cultural practices within Aboriginal communities, including the existence of a "culture of silence and ostracism" in relation to domestic violence, require evidentiary support before a sentencing court can rely on them to establish that a victim belongs to a vulnerable class for the purposes of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A victim's individual vulnerability, demonstrated by evidence of emotional dependency and an inability to remove herself from ongoing danger, can be treated as a circumstance of the offence relevant to objective seriousness, even where class-based vulnerability cannot be established.
  • Following The Queen v Kilic [2016] HCA 4, describing an offence as falling within the "worst category" where the sentence imposed is well below the statutory maximum is a practice the Court of Criminal Appeal confirmed should be avoided as it may lead to error.
  • Error in a sentencing judge's reasoning does not automatically produce a successful appeal: where an independent exercise of sentencing discretion by the appellate court yields the same result, the appeal will be dismissed.
  • In sentencing repeat domestic violence offenders, the Court of Criminal Appeal confirmed that specific and general deterrence, denunciation, and community protection carry significant weight.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 27, 33(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(l)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166, Chapter 6 Part 4B
- Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW)
- Evidence Act 1995 (NSW), s 38(1)

Key cases:
- The Queen v Kilic [2016] HCA 4
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
- AM v R [2012] NSWCCA 203
- Abdulrahman v R [2016] NSWCCA 192
- Fernando v The Queen (1992) 76 A Crim R 58
- House v The King (1936) 55 CLR 499; [1936] HCA 40