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Court of Criminal Appeal 26 June 2017

Archer v R

[2017] NSWCCA 151

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL PLEA OF GUILTY VICTIM FORMER PARTNER OF APPLICANT WHETHER DOUBLE COUNTING OCCURRED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Archer v R [2017] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 26 June 2017
Judges: Hoeben CJ at CL; Price J; Fullerton J

Background

The applicant pleaded guilty in the Local Court to three offences arising from events on 21 September 2014 in Taree: the murder of his former partner, wounding a third party with intent to cause grievous bodily harm, and contravening an apprehended domestic violence order (AVO). The AVO had been made on 12 September 2014 and, among other conditions, prohibited the applicant from approaching the deceased or being at her home within 12 hours of consuming alcohol.

The relationship between the applicant and the deceased had deteriorated significantly from around mid-2013. His pathological gambling, increased alcohol consumption, and associated violent behaviour led to the breakdown of the relationship and eventual police intervention. On the day of the killing, the two had been drinking together in each other's company at various venues before returning to the deceased's home.

At the sentence hearing in October 2015, Wilson J imposed a total sentence with a non-parole period of approximately 20 years and 4 months. The applicant sought leave to appeal on several grounds, contending that the sentencing judge had made legal errors including double counting, miscalculation of the guilty plea discount, and failure to properly apply a finding of special circumstances.

  • Whether the sentencing judge double-counted the applicant's breach of the AVO by treating it as serious aggravation of the murder and also accumulating the AVO sentence on the murder sentence
  • Whether her Honour erred in her assessment of factors relevant to the objective gravity of the murder offence, including breach of trust, provocation, and victim vulnerability
  • Whether the sentencing judge failed to apply the correct discount for the early guilty plea in relation to the AVO offence
  • Whether the sentencing judge failed to give effect to her finding of special circumstances
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal identified error requiring resentencing, principally on the ground of double counting. The sentencing judge had treated the AVO breach as a matter of "serious aggravation" when fixing the murder sentence, and had then also accumulated the 21-month AVO sentence substantially on top of the murder sentence. Because the underlying conduct driving both the aggravation finding and the separate AVO sentence was largely the same, this involved impermissible double counting.

Fullerton J, in brief concurring reasons, made an additional observation about the nature of the AVO breach. She noted that on the day of the killing, the deceased had been in the applicant's company voluntarily for some hours across multiple venues, and there was no evidence he had forced his way into the home or was present against her wishes. While this did not diminish the gravity of the AVO breach overall, it informed the double-counting analysis in the context of the accumulated sentences.

The Court resentenced the applicant, reducing the AVO sentence from 21 months to 12 months, adjusting commencement dates for the wounding and murder sentences, and preserving the non-parole period of 18 years for the murder. The revised total structure corrected the double-counting error while maintaining sentences that reflected the extreme gravity of the offending.

The grounds concerning manifest excess and other alleged errors in the assessment of objective gravity were not upheld to any further extent beyond the double-counting correction.

Orders Made

  • Leave to appeal against sentence granted
  • The sentence imposed by Wilson J on 8 October 2015 quashed
  • Applicant resentenced as follows:
  • AVO breach: 12 months imprisonment commencing 21 September 2014, expiring 20 September 2015
  • Wounding with intent to cause grievous bodily harm: non-parole period of 6 years commencing 21 March 2015 (expiring 20 March 2021), balance of term of 2 years (expiring 20 March 2023)
  • Murder: non-parole period of 18 years commencing 21 March 2016 (expiring 20 March 2034), balance of term of 6 years (expiring 20 March 2040)
  • Earliest date of eligibility for parole: 20 March 2034

Key Takeaways

  • Double counting in sentencing occurs where the same conduct is used both to aggravate a primary offence and to justify substantial accumulation of a separate sentence for that same conduct; the Court of Criminal Appeal confirmed this constitutes identifiable sentencing error.
  • Where an AVO breach forms part of the aggravating circumstances taken into account for a more serious offence, the sentencing court must take care not to also substantially accumulate the AVO sentence where the underlying facts overlap with those already factored into the primary sentence.
  • The correction of the double-counting error did not reduce the non-parole period for murder, which remained at 18 years, reflecting the Court's assessment that the overall gravity of the offending was undiminished.
  • Sentencing errors that affect the structure and relationship between concurrent or consecutive sentences can warrant resentencing even where the sentences for individual counts are not themselves manifestly excessive.
  • In dismissing most of the applicant's remaining grounds, the Court of Criminal Appeal confirmed no further error in the sentencing judge's approach to objective gravity, special circumstances, or the guilty plea discount beyond what was remedied in the resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1), 33(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Archer [2015] NSWSC 1487 (sentence at first instance)
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Cayhadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- Gore v R; Hunter v R [2010] NSWCCA 330
- MD v R [2015] NSWCCA 37
- Lehn v R [2016] NSWCCA 255
- R v Edigarov (2001) 125 A Crim R 551
- Caristo v R [2011] NSWCCA 7
- Kaiser v R [2009] NSWCCA 130
- Kennedy v R [2008] NSWCCA 21
- Porter v R [2008] NSWCCA 145
- Frigiani v R [2007] NSWCCA 81
- Cvitan v R [2009] NSWCCA 156
- Huynh v R [2008] NSWCCA 216
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- R v Macadam-Kellie [2001] NSWCCA 170