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Court of Criminal Appeal 1 March 2017

Siemek v R

[2017] NSWCCA 18

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE DOMESTIC VIOLENCE OFFENCES APPLICANT WITH MENTAL HEALTH ISSUES NO ERROR DEMONSTRATED LEAVE TO APPEAL REFUSED

Citation: Siemek v R [2017] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 1 March 2017
Judge(s): Basten JA, Johnson J, Button J

Background

The applicant pleaded guilty in the Newcastle District Court to recklessly causing grievous bodily harm against his former wife, contrary to s 35(2)(a) of the Crimes Act 1900 (NSW). The offence occurred on 10 January 2015, just five days after the applicant had been released from custody following the imposition of a suspended sentence for a domestic violence assault on a different former partner.

The assault was extremely serious. In the early hours of the morning, the applicant grabbed his former wife by the hair, dragged her through a window, punched her to the face, stomped on her head multiple times, jumped on her chest, and dragged her face-first down concrete steps. He was also subject to an apprehended domestic violence order protecting his former wife at the time. The applicant had a lengthy history of domestic violence offending against both women, as well as a longstanding diagnosis of bipolar affective disorder and substance abuse disorder.

Hock DCJ sentenced the applicant to three years and nine months imprisonment with a non-parole period of two years for the primary offence, and a concurrent fixed term of six months for a related contravention of an apprehended domestic violence order. Those sentences were partially accumulated on the existing suspended sentence. The applicant sought leave to appeal against all aspects of the sentencing.

  • Whether the sentencing judge double-counted the applicant's conditional liberty status, by treating it as an aggravating factor both when setting the individual sentences and again when deciding to partially accumulate those sentences on the earlier suspended sentence
  • Whether the partial accumulation of the new sentences on the earlier suspended sentence was itself an error
  • Whether the total effective sentence was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no double-counting occurred. The applicant's status on conditional liberty at the time of the offence is a recognised aggravating factor in setting an individual sentence. The separate question of how sentences should run relative to each other, including whether to accumulate, involves a distinct exercise governed by the totality principle. Applying conditional liberty at both stages does not constitute impermissible double-counting because the two exercises serve different purposes.

On the second ground, the Court found no error in the decision to partially accumulate the new sentences by six months on the earlier sentence. The sentencing judge was required to take into account that the applicant had committed serious fresh offences while subject to conditional liberty. A degree of accumulation was a legitimate and orthodox sentencing response to that circumstance.

On the third ground, the Court rejected the contention that the overall sentence was manifestly excessive. Johnson J described the sentence as "a measured sentencing response" that balanced the grave objective seriousness of the offence against the applicant's subjective circumstances, particularly his mental health. The sentencing judge had made findings in the applicant's favour regarding his manic, unmedicated state at the time, which served to moderate what would otherwise have been a heavier sentence. The Court noted that specific and general deterrence, denunciation, and community protection are especially prominent sentencing considerations for repeat domestic violence offenders.

All three grounds were rejected. Basten JA and Button J agreed with Johnson J's reasons, and the Court refused leave to appeal.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • Applying conditional liberty as an aggravating factor at the individual sentencing stage and again when determining accumulation does not constitute double-counting, because the two inquiries are analytically distinct.
  • Partial accumulation of sentences where an offender commits serious offences while on conditional liberty is a legitimate exercise of sentencing discretion, not a separate species of error.
  • In dismissing the manifest excess argument, the Court affirmed that sentencing for repeat domestic violence offending must give significant weight to specific and general deterrence, denunciation, and community protection, citing R v Hamid (2006) 164 A Crim R 179.
  • A sentencing judge's findings about an offender's mental health and unmedicated state at the time of an offence can legitimately moderate the overall sentence, but do not preclude a substantial term where the objective seriousness of the offending is high.
  • No error was established across any of the three grounds advanced, confirming the breadth of the sentencing discretion exercised by the District Court in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 14(1), 36
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25(2)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Browning v R [2015] NSWCCA 147
- Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Porter v R [2008] NSWCCA 145
- R v Dinh (2010) 199 A Crim R 573; [2010] NSWCCA 74
- R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159
- R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44