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Court of Criminal Appeal 14 March 2018

Diaz v R

[2018] NSWCCA 33

Sexual offencesAssault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL AGGRAVATED KIDNAPPING SEXUAL INTERCOURSE WITHOUT CONSENT RELATED MATTERS ON FORM 1 DOMESTIC VIOLENCE

Citation: Diaz v R [2018] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 14 March 2018
Judges: Payne JA, Garling J, Hidden AJ

Background

The appellant pleaded guilty in the District Court to aggravated detaining of a person for advantage (aggravated kidnapping, carrying a maximum of 20 years imprisonment) and sexual intercourse without consent (carrying a maximum of 14 years). Six additional offences, including property damage, assault occasioning actual bodily harm, and common assault, were taken into account on a Form 1 (a procedural mechanism allowing a sentencing court to factor in related uncharged or untried matters when imposing a principal sentence).

The offences arose from a domestic relationship that deteriorated into a sustained pattern of violence. Between June and July 2015, the appellant committed a series of violent acts against his partner, culminating in an overnight ordeal on 8 to 9 July 2015 in which he restrained the victim for approximately five hours, subjected her to repeated blows to the head with her own mobile phone, and digitally penetrated her without consent to determine whether she had been with another man.

At the time of sentencing, the appellant was already serving the balance of an earlier sentence for domestic violence offences against a different victim, and his parole had been revoked. The District Court imposed a sentence of 7 years and 6 months with a non-parole period of 4 years and 3 months for the aggravated kidnapping, and 3 years and 6 months with a non-parole period of 2 years and 3 months for the sexual assault, partially accumulated to produce an overall sentence of 7 years and 9 months with an effective non-parole period of 4 years and 6 months. The appellant sought leave to appeal on the ground that both sentences were manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective gravity of the aggravated kidnapping offence
  • Whether the individual sentences for the aggravated kidnapping and the sexual assault were manifestly excessive
  • Whether the sentences in combination were manifestly excessive
  • Whether the sentencing judge gave appropriate weight to the relevant sentencing purposes, including specific and general deterrence, community protection, and denunciation, in the context of repeat domestic violence offending

Decision

The Court of Criminal Appeal, with all three judges in agreement, dismissed the appeal. Hidden AJ, who wrote the principal judgment, found that neither individual sentence nor their combination could be described as unreasonable or plainly unjust, the standard drawn from House v The King as applied in Dinsdale v R. The threshold for appellate intervention was not met.

Hidden AJ found that the sentencing judge's assessment of the objective gravity of the aggravated kidnapping was sound. The offence involved prolonged restraint over approximately five hours, repeated and severe physical violence including blows with a mobile phone, and complete domination of a vulnerable victim. The Form 1 matters further reflected a pattern of escalating violence against the same victim over the weeks preceding the principal offences.

Garling J added remarks emphasising that the offences were committed while the appellant was on parole for prior domestic violence offending against a different victim. Despite completing rehabilitation courses in custody, the appellant had reoffended against another innocent woman. Those circumstances demanded significant weight be given to specific deterrence, general deterrence, community protection, and denunciation as sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999.

The Court endorsed the sentencing judge's conclusion that deterrence, both specific and general, "loomed large" in the case, consistent with the principles in Veen v The Queen [No. 2] and the observations in R v Hamid regarding the importance of those factors when sentencing repeat domestic violence offenders.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences for domestic violence offences committed while an offender is on parole for similar prior offending must give significant weight to specific deterrence, general deterrence, community protection, and denunciation.
  • Repeat domestic violence offenders who reoffend against new victims, despite prior rehabilitation efforts, present circumstances that warrant condign punishment consistent with the plurality's statement in Veen v The Queen [No. 2].
  • The standard for appellate intervention in a sentence appeal remains that the sentence must be shown to be unreasonable or plainly unjust; a mere argument that a lesser sentence was open is insufficient.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999, the sentencing purposes of community protection and denunciation carry substantial weight where an offender demonstrates a persistent pattern of violent conduct, particularly in domestic settings.
  • The Court reaffirmed the observation from R v Hamid that sentencing a repeat domestic violence offender requires powerful denunciation of the conduct and recognition of the harm done both to the victim and to the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 86(2)(b), 59(1), 61, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Alkanaan v R [2017] NSWCCA 56
- Diaz v R [2013] NSWCCA 277
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499
- Hurst v R [2017] NSWCCA 114
- Ibbs v The Queen (1987) 163 CLR 447
- Mulato v R [2006] NSWCCA 282
- R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1
- R v Newell [2004] NSWCCA 183
- R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
- Veen v The Queen [No. 2] (1987-88) 164 CLR 465