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Court of Criminal Appeal 29 June 2018

Patsan v R

[2018] NSWCCA 129

Assault & violenceDomestic & family violence
CRIME ALLEGED MANIFEST EXCESS DOMESTIC VIOLENCE OFFENCE NO ERROR ESTABLISHED CRIME

Citation: Patsan v R [2018] NSWCCA 129
Court: Court of Criminal Appeal, New South Wales
Date: 29 June 2018
Judge(s): Bathurst CJ, Leeming JA, Adamson J

Background

The applicant pleaded guilty in the District Court to recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence arose from a domestic relationship that had become antagonistic. On 12 April 2016, the applicant punched the victim in the face as she was leaving him and photographing evidence of an earlier assault, fracturing her jaw in two places and requiring surgery involving titanium plates and screws.

A further charge of assault occasioning actual bodily harm, arising from a separate incident the previous day in which the victim was pushed through a flyscreen window on the second floor of the applicant's apartment, was taken into account on a Form 1. The sentencing judge, Bright DCJ in the District Court, imposed a sentence of 2 years and 3 months' imprisonment with a non-parole period of 1 year and 4 months.

The applicant, who was 22 at the time of the offending and 24 when sentenced, had no prior criminal history and had engaged in substantial psychiatric and psychological treatment after the offence. He sought an extension of time for leave to appeal, contending the sentence was manifestly excessive.

  • Whether the sentence of 2 years and 3 months' imprisonment was manifestly excessive for recklessly causing grievous bodily harm in a domestic violence context
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether insufficient weight was given to the applicant's subjective circumstances, including his mental health, remorse, and rehabilitation steps
  • Whether the period spent on bail should have been treated as quasi-custody and taken into account by backdating the sentence

Decision

Adamson J (with whom Bathurst CJ and Leeming JA agreed) held that the sentencing judge committed no error. Although the appeal was framed as three grounds, the Court accepted that all three were properly understood as particulars of a single ground of manifest excess rather than independent errors.

The sentencing judge had assessed the offending as "just below the middle of the range of objective seriousness," having regard to the nature of the single forceful blow, the severity of the injuries requiring surgery, and the domestic context in which the victim was leaving the relationship and collecting evidence of the prior assault. The Court of Criminal Appeal confirmed this approach was appropriate, noting the particular importance of general and specific deterrence and denunciation in domestic violence offending.

On the subjective circumstances, the Court found the sentencing judge had expressly and in detail addressed the applicant's mental health, remorse, and rehabilitation. The conditions of the applicant's bail were not sufficiently restrictive to constitute quasi-custody, so it was open to the sentencing judge to commence the sentence from the date of imposition rather than an earlier date.

The Court also observed that sentencing statistics are of limited value generally, and are particularly unhelpful in this case because the sentence was required to reflect a Form 1 charge as well as the index offence. The applicant did not establish that the sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • No error was established in assessing objective seriousness where the sentencing judge considered the nature of the physical act, the severity of the injuries, and the domestic violence context in which the victim was attempting to leave and preserve evidence of prior abuse.
  • The Court of Criminal Appeal confirmed that the dynamic between the parties in a domestic relationship, including the circumstances in which the offence occurs, is a relevant factor in assessing objective seriousness and the weight to be given to deterrence and denunciation.
  • A claim of manifest excess requires the applicant to show the sentence was unreasonable or plainly unjust. Disagreement with the weight given to subjective factors does not, of itself, establish such an error, particularly where the sentencing judge expressly addressed those factors.
  • Bail conditions that fall short of the restrictiveness associated with custody do not amount to quasi-custody. In such circumstances, a sentencing court acts within its discretion in commencing a sentence from the date of imposition.
  • Sentencing statistics are of particularly limited utility where a Form 1 charge has been taken into account, given the difficulty of comparing outcomes across cases with materially different charging configurations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32-33

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cherry v R [2017] NSWCCA 150
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48