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Court of Criminal Appeal 31 May 2017

Hurst v R

[2017] NSWCCA 114

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL DOMESTIC VIOLENCE SENTENCES NOT MANIFESTLY EXCESSIVE NEED TO RESENTENCE NO LESSER SENTENCE WARRANTED IN LAW

Citation: Hurst v R [2017] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 31 May 2017
Judges: Hoeben CJ at CL, Price J, Lonergan J

Background

The appellant had pleaded guilty in the Parramatta District Court to nine offences of physical and sexual violence against his former girlfriend, committed across three separate periods between August 2006 and late 2012. A further 18 offences were taken into account on Form 1 schedules. The offences included aggravated detention for advantage, maliciously inflicting grievous bodily harm with intent, aggravated sexual intercourse without consent, and multiple assault-related charges.

The sentencing judge imposed an aggregate effective sentence of 18 years imprisonment, backdated to 15 July 2012, with an effective non-parole period of 12 years. Because the appellant entered his guilty pleas on the first day of trial, the sentencing judge applied a 10% discount to reflect the utilitarian value of those pleas.

The appellant sought leave to appeal on five grounds, arguing that the sentencing judge had failed to properly assess objective seriousness, that certain sentences were manifestly excessive, that prosecution delay was not adequately considered, and that an error had been made in recording the maximum penalty for one of the sexual assault offences.

  • Whether the sentencing judge had failed to make a proper assessment of the objective seriousness of the offence of aggravated detention for advantage (Count 3)
  • Whether the sentence for aggravated detention for advantage was manifestly excessive
  • Whether the sentencing judge had adequately taken into account the delay in prosecution and any prejudice to the appellant arising from it
  • Whether the aggregate sentences were manifestly excessive
  • Whether the sentencing judge had erred by recording the maximum penalty for the aggravated sexual assault offence under s 61J(1) of the Crimes Act 1900 (NSW) as 25 years rather than the correct 20 years

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. On the first four grounds, Hoeben CJ at CL found no error warranting intervention. The sentencing judge had properly identified the objective seriousness of the offending, which the Court described as reflecting the very worst aspects of domestic violence: a sustained campaign of controlling and degrading behaviour directed at a vulnerable victim over many years. The individual sentences and the aggregate sentence were not manifestly excessive.

On the delay ground, the Court found the sentencing judge had adequately acknowledged the prosecution delay and its potential impact. No sufficient prejudice was established to require any further reduction in the sentences imposed.

The Court did identify an error on Ground 5: the sentencing judge had incorrectly recorded the maximum penalty for the s 61J(1) aggravated sexual assault offence as 25 years rather than the correct 20 years. This error engaged the Court's resentencing jurisdiction. However, after considering what sentence it would impose were it to resentence the appellant, the Court concluded that the sentence it would impose would in fact be significantly greater than that imposed by the sentencing judge. On that basis, no lesser sentence was warranted in law and the appeal was dismissed.

The Court cited Munda v State of Western Australia [2013] HCA 38 in emphasising that the principles of general deterrence, specific deterrence, and the state's obligation to vindicate victims of domestic violence all pointed firmly toward a substantial custodial sentence. The Court noted the absence of any signs of rehabilitation and the consistent pattern of violent and controlling behaviour across multiple relationships over many years.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • An error by a sentencing court in recording the maximum penalty for an offence will engage the Court of Criminal Appeal's resentencing jurisdiction, but will not automatically result in a lesser sentence being imposed.
  • In dismissing the appeal despite identifying a technical error, the Court of Criminal Appeal confirmed that resentencing is required to result in no lesser penalty where the sentence originally imposed was, if anything, insufficient.
  • A guilty plea entered on the first day of trial attracted only a 10% discount for utilitarian value, reflecting the limited practical utility of such a late plea.
  • Under the principles affirmed in Munda v State of Western Australia (2013) 249 CLR 600, the criminal law requires courts to give full weight to general deterrence, specific deterrence, and the state's obligation to vindicate victims of domestic violence when sentencing for sustained and controlling violence of this kind.
  • No error was established in the sentencing judge's approach to objective seriousness or prosecution delay where the judge had acknowledged both matters and the overall pattern of offending supported the sentences imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 33, 33B(1)(a), 59(1), 61, 61J(1), 61N(2), 86(2)(b), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW): s 13(1)
- Criminal Appeal Act 1912 (NSW): s 5(1)(c)

Cases
- Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
- The Queen v Kilic [2016] HCA 48; 91 ALJR 131
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Wong v R; Leung v R [2001] HCA 64; 207 CLR 584
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Baxter v Regina [2007] NSWCCA 237
- Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
- Coles v R [2016] NSWCCA 32
- Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581
- Donaghey v R [2015] NSWCCA 119
- Elchiekh v R [2016] NSWCCA 225
- Hughes v R [2013] NSWCCA 129
- Luong v R [2014] NSWCCA 129
- McKittrick v R [2014] NSWCCA 128
- Mooney v R [2016] NSWCCA 303
- R v Campbell [2014] NSWCCA 102
- R v Newell [2004] NSWCCA 183
- R v Van Ryn [2016] NSWCCA 1
- RG v R [2017] NSWCCA 60
- Sabra v Regina [2015] NSWCCA 38