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Court of Criminal Appeal 13 September 2017

Director of Public Prosecutions v Darcy-Shillingsworth

[2017] NSWCCA 224

Also reported as (2017) 269 A Crim R 40
Assault & violenceDomestic & family violence
CRIME SENTENCING AGGREGATE SENTENCE WHETHER NECESSARY TO DETERMINE SENTENCING WHETHER NECESSARY TO DETERMINE

Citation: Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224
Court: Court of Criminal Appeal, New South Wales
Date: 13 September 2017
Judge(s): Basten JA; Beech-Jones J; Fagan J

Background

On the evening of 25 March 2016, the respondent committed a series of violent offences against his long-term partner and her father in Goodooga, a small regional town in north-west New South Wales. The offending included recklessly wounding the partner (causing a serious laceration when she fell holding a bottle), assaulting her occasioning actual bodily harm on two separate occasions, and causing grievous bodily harm to her father by repeatedly punching him, resulting in a displaced ankle fracture. Apprehended domestic violence orders protecting both victims had been in place since a prior episode of violence in 2015.

The respondent was convicted by jury on three of the four counts and sentenced in the District Court at Dubbo in May 2017. The sentencing judge imposed 150 hours of community service for count 1 and an aggregate suspended sentence of 21 months imprisonment for counts 3 and 4. A procedural complication arose in July 2017 when the sentencing judge, apparently accepting that a suspended aggregate sentence was not lawful, reopened the matter and substituted individual suspended sentences of 6 months and 18 months respectively.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing that all sentences were manifestly inadequate. A preliminary application by the respondent to vacate the hearing date, based on a potential conviction appeal, was refused.

  • Whether a suspended aggregate sentence (under s 12 of the Crimes (Sentencing Procedure) Act 1999) is lawful, or whether s 12(3) precludes suspension of an aggregate sentence imposed under s 53A
  • Whether the sentencing judge had power under s 43 of the Crimes (Sentencing Procedure) Act 1999 to reopen and correct the original sentences on the basis that they were "contrary to law"
  • Whether the community service order for count 1 and the individual suspended sentences for counts 3 and 4 were manifestly inadequate
  • Whether the Court of Criminal Appeal should exercise its residual discretion to intervene and resentence the respondent
  • Whether the hearing date should be vacated pending a potential conviction appeal

Decision

Vacation application. The Court refused to vacate the hearing date. It observed that where a non-custodial sentence is under challenge by the prosecution, prompt resolution is expected. A mere possibility of a conviction appeal, particularly where the respondent had made a "pragmatic" decision not to pursue one while serving a non-custodial sentence, was insufficient reason to delay.

Aggregate sentence and s 43 reopening. The Court found it unnecessary to finally resolve whether a suspended aggregate sentence is unlawful under s 12(3). Basten JA identified significant difficulties with a construction that would preclude suspension, noting the provision's legislative history and the interaction with the aggregate sentencing regime. Beech-Jones J agreed that the question need not be decided, since the orders made on 28 July 2017 were in any event sufficient to ground the appeal and, given the appeal was to be upheld, identifying which set of orders was operative was unnecessary. Fagan J took the same view.

Manifest inadequacy. The Court found the sentences manifestly inadequate across all counts. The sentencing judge had failed to give sufficient weight to the objective seriousness of the offending, the importance of both specific and general deterrence, and the significance of the standard non-parole periods applicable to counts 1 and 4. The Court noted particular concern about the judge's treatment of general deterrence in the context of domestic violence in regional Aboriginal communities, observing that victims in those communities are entitled to the same protection of the criminal law as all others. The Court also found that the sentencing judgment did not adequately explain the direction and weight given to individual sentencing factors.

Residual discretion. The Court was satisfied that the prosecution had negated any reason to exercise the residual discretion against intervention. The offending was serious, the sentences were grossly inadequate, and no compelling countervailing factor pointed against resentencing.

Orders Made

  • The appeal by the Director of Public Prosecutions under s 5D of the Criminal Appeal Act 1912 (NSW) was allowed.
  • The sentences imposed in the District Court on 26 May 2017 and 28 July 2017 were set aside.
  • The respondent was resentenced by way of an aggregate sentence for counts 1, 3 and 4, comprising a non-parole period of 15 months (deemed to have commenced 26 May 2017) and a balance of term of 15 months, giving a total sentence of 2 years and 6 months.
  • The respondent was directed to be released on parole on 25 August 2018.

Key Takeaways

  • The Court of Criminal Appeal found it unnecessary to resolve whether s 12(3) of the Crimes (Sentencing Procedure) Act 1999 precludes the suspension of an aggregate sentence under s 53A, leaving that question open for a future case where it is determinative.
  • Suspended sentences for serious domestic violence offending involving multiple assaults, a reckless wounding, and grievous bodily harm were held to be manifestly inadequate where objective seriousness, deterrence, and standard non-parole periods were not appropriately weighted.
  • Victims of domestic violence in regional Aboriginal communities are entitled to the same level of protection through enforcement of apprehended violence orders and deterrent sentencing as victims in any other community.
  • Transparency in sentencing judgments is enhanced when judges identify not merely the existence of a relevant factor but also the direction in which it operates and the weight accorded to it, though the Court of Criminal Appeal confirmed this cannot be imposed as a prescriptive requirement.
  • A potential conviction appeal, where the respondent had made a deliberate choice not to pursue one while subject to a non-custodial sentence, does not ordinarily justify vacating a listed prosecution sentence appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A, 43, 44, 45, 46, 47, 48, 50, 51, 53, 53A, 54A, 99
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 33, 35, 59, 86
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes and Courts Legislation Amendment Act 2006 (NSW)
- Interpretation Act 1987 (NSW), s 35

Cases:
- Aubrey v The Queen [2017] HCA 18
- Bugmy v The Queen (2013) 249 CLR 571
- Munda v Western Australia (2013) 249 CLR 600
- The Queen v Kilic [2016] HCA 48
- Pearce v The Queen (1998) 194 CLR 610
- R v Coleman (1990) 19 NSWLR 467
- R v Dungay [2012] NSWCCA 197
- Drew v R [2016] NSWCCA 310
- Cherry v R [2017] NSWCCA 150
- R v Mitchell [2007] NSWCCA 296
- McCullough v R [2009] NSWCCA 94
- Pattalis v R [2013] NSWCCA 171
- R v Egan [2013] NSWCCA 196
- Regina v RM [2015] NSWCCA 4