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Court of Criminal Appeal 7 April 2017

DH v R

[2017] NSWCCA 64

Assault & violenceTheft & propertyDomestic & family violence
CRIME SENTENCING DOMESTIC VIOLENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: DH v R [2017] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 7 April 2017
Judge(s): Hoeben CJ at CL, Garling J, Beech-Jones J (judgment delivered by Beech-Jones J)

Background

The applicant, identified only by initials to protect the identity of a child victim, pleaded guilty in the District Court to four offences arising from two separate incidents in August 2015. All offences occurred in a domestic violence context. At the time, the applicant was subject to an apprehended violence order (AVO) prohibiting him from assaulting, harassing, intimidating, or stalking his former partner.

The first incident, on 11 August 2015, involved the applicant intercepting his former partner on the Pacific Highway while their young daughter was in the car. He prevented her from closing her car door and struck her with it, causing immediate pain. He then followed her to a police station, begging her not to report him. The second incident, five days later, involved the applicant attending at his former partner's home, breaking through a rear glass sliding door and a kitchen window, entering the premises, and pushing her mother to the ground. Three children, aged four, nine, and eleven, were present in the home. A triple-0 call recording captured the applicant's aggressive demands and threats during the intrusion.

On 21 April 2016, District Court Judge Robison imposed an aggregate sentence of five years imprisonment with a three-year non-parole period. The applicant sought leave to appeal, arguing that the sentencing judge erred in assessing the objective seriousness of the aggravated break and enter offence and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the aggravated break and enter offence under s 112(2) of the Crimes Act 1900
  • Whether the aggregate sentence of five years imprisonment with a three-year non-parole period was manifestly excessive
  • Whether the sentencing judge gave undue weight to the triple-0 call recording when determining the seriousness of the offending

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Beech-Jones J, with whom Hoeben CJ at CL and Garling J agreed, found no error in the sentencing judge's approach to objective seriousness. The aggravated break and enter offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The sentencing judge had characterised the applicant's conduct as approaching a high order of criminal behaviour, and the Court of Criminal Appeal found this characterisation was well-supported by the facts.

On the question of manifest excess, the Court compared the sentence to two earlier decisions involving similar offences: R v John Dechellis [2002] NSWCCA 88 and John Walsh Ngati v R [2008] NSWCCA 3. In both cases, sentences were found to be within range without any suggestion that a higher sentence would fall outside it. The Court noted that the applicant's offending was more serious than those cases, given his significant criminal record, the premeditated nature of the intrusion, the commission of offences in contravention of a bond, and the targeting of his own family. The sentence was described as stern but not so manifestly wrong as to indicate a misapplication of sentencing principle, applying the test from Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2.

The Court also rejected the contention that the sentencing judge gave undue or disproportionate weight to the triple-0 recording. The recording was used not to contradict the agreed facts but to illuminate the context and atmosphere inside the home during the applicant's intrusion. The Court found the sentencing judge was entitled to use it in that way.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge may use an audio recording tendered by the Crown to assess the context and atmosphere of an offence, provided it is not used to contradict or depart from agreed facts.
  • In dismissing the appeal, the Court reinforced that a sentence may be described as stern without being manifestly excessive. The applicable test remains whether the sentence is so wrong that a misapplication of principle must be inferred.
  • Aggravating features in this case included commission of the offences while subject to existing bonds, the premeditated nature of the break and enter, the presence of children, and a significant prior criminal record. These factors collectively justified a sentence above the indicative range suggested by comparable cases.
  • Comparative sentencing cases set an outer boundary for what falls within range but do not, of themselves, establish that a higher sentence is outside that range.
  • Under s 53A(2)(a) of the Crimes (Sentencing Procedure) Act 1999, where an aggregate sentence is imposed, the sentencing court must specify indicative individual sentences. The indicative sentence for the aggravated break and enter was 4 years and 6 months, forming the dominant component of the five-year aggregate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 105A, 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 53A(2)(a)
- Criminal Procedure Act 1986 (NSW), Division 7 of Part 3 of Chapter 3

Cases:
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- R v John Dechellis [2002] NSWCCA 88
- John Walsh Ngati v R [2008] NSWCCA 3
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Martin v R [2011] NSWCCA 188
- PD v R [2012] NSWCCA 242
- SHR v R [2014] NSWCCA 94
- R v Fahda [2013] NSWCCA 86
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Mulato v R [2006] NSWCCA 282
- Shaw, Jason Robert v R [2008] NSWCCA 58