Citation: Leonard v R [2019] NSWCCA 300
Court: New South Wales Court of Criminal Appeal
Date: 20 December 2019
Judge(s): Gleeson JA, R A Hulme J, Button J (all agreeing)
Background
The applicant, a 45-year-old man, pleaded guilty mid-trial to two offences of violence committed against his 17-year-old partner on 12 March 2018. The offences arose from a weekend-long argument at their shared Coffs Harbour apartment after the applicant discovered the victim had been in a sexual relationship with someone else.
The first offence was intentionally choking the victim into unconsciousness while reckless as to that outcome, a charge carrying a maximum of 10 years imprisonment. The second was assault occasioning actual bodily harm, involving biting and striking the victim, which carries a maximum of 5 years. Both occurred on the same morning, though as separate acts.
Judge Norrish QC sentenced the applicant in the District Court to a total head sentence of 4 years 5 months, with a non-parole period of 2 years 10 months. The applicant, self-represented in the Court of Criminal Appeal, sought leave to appeal on the basis that the sentences should have been wholly concurrent and on several other grounds.
Legal Issues
- Whether the sentences for the two violence offences should have been wholly concurrent rather than partly cumulative
- Whether there were any other grounds on which the sentences warranted appellate interference
- Whether the absence of a victim impact statement, the applicant's claimed surgical complications, or his subsequent denial of intentional choking provided any basis for relief
Decision
Button J (with whom Gleeson JA and R A Hulme J agreed) dismissed all grounds and refused leave. On the central question of concurrence, Button J found there was no legal requirement that the sentences be wholly concurrent simply because the offences occurred on the same morning. The two offences were separate acts of violence, and some degree of cumulation was appropriate to reflect their distinct criminality.
On the assault occasioning actual bodily harm count, Button J noted that even a wholly concurrent sentence would have resulted in the applicant spending more than a year in custody attributable solely to that offence, undermining the argument that it should attract no additional weight in the sentence structure.
The remaining specific complaints were each addressed and rejected. The applicant's failure to give evidence on sentence was found to carry no weight given the documentary material available. Claimed surgical complications and a subsequent denial of the choking element did not approach the threshold for withdrawing a plea. The fact that the victim resided with the applicant at the relevant time was expressly recorded in the agreed statement of facts the applicant himself had signed.
Button J also observed that even accepting, for the sake of argument, the applicant's contentions about ongoing medication difficulties, sincere remorse, and rehabilitation efforts in custody, none of those matters individually or together would justify interference with the sentences. Indeed, Button J noted that an available view was that the sentencing judge's approach had been lenient, particularly having regard to the total non-parole period.
Orders Made
- Leave to appeal refused
Key Takeaways
- No legal rule requires sentences for separate offences to be wholly concurrent simply because those offences occurred on the same day or involved the same victim.
- In refusing leave, the Court of Criminal Appeal confirmed that the degree of cumulation must reflect the distinct criminality of each offence, particularly where separate acts of violence are charged separately.
- A self-represented applicant's post-sentence denial of a guilty plea's factual basis does not, without more, provide grounds to withdraw the plea or disturb the sentence.
- The absence of a victim impact statement carries no automatic significance where the objective gravity of the conduct, including choking a person into unconsciousness and causing petechial haemorrhaging, is apparent from the facts.
- Mitigating factors such as difficult personal history, mental health challenges, and rehabilitation efforts in custody remain relevant considerations, but they do not automatically translate into appellate interference with a sentence otherwise within range.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 166 (table offences dealt with by certificate)
Cases:
No cases were cited in the judgment.