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Court of Criminal Appeal 19 December 2019

Wood v R

[2019] NSWCCA 309

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL MURDER LONG HISTORY OF DOMESTIC VIOLENCE SENTENCE APPEAL ALLOWED AND OFFENDER RE

Citation: Wood v R [2019] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 19 December 2019
Judges: Hoeben CJ at CL; Price J; Campbell J

Background

The appellant pleaded guilty to the murder of his former partner, committed on 30 September 2017 at Whalan in western Sydney. The relationship had been characterised by a long history of domestic violence, and at the time of the offence, an Apprehended Violence Order was in place against the appellant. The AVO contravention was taken into account on a Form 1 (a procedural mechanism by which related offences are considered at sentencing without separate conviction).

The sentencing judge in the Supreme Court imposed a starting point of 34 years imprisonment, then applied a 25 per cent discount for an early guilty plea, resulting in a non-parole period of 19 years and 1 month with a head sentence expiring in March 2043. The ratio of the non-parole period to the head sentence was approximately 74.8 per cent.

The appellant sought leave to appeal on seven grounds, challenging how the sentencing judge treated a range of aggravating and mitigating factors, and contending the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the appellant's prior criminal record as an aggravating factor
  • Whether being on conditional liberty at the time of the offence was a proper aggravating factor
  • Whether the sentencing judge adequately accounted for the absence of planning in assessing objective seriousness
  • Whether the appellant's disadvantaged background was properly taken into account as reducing moral culpability
  • Whether intoxication was correctly treated as an aggravating factor
  • Whether the Crown had proven beyond reasonable doubt that the offending involved gratuitous cruelty
  • Whether the sentence was manifestly excessive

Decision

Prior convictions and conditional liberty: The Court of Criminal Appeal found the sentencing judge had erred in treating the appellant's prior convictions and his status on conditional liberty as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The prior convictions did not involve offences of the same or a similar kind as required by the statute, and the conditional liberty point had not been established on the facts in a manner that justified aggravation.

Lack of planning: The Court accepted that the sentencing judge had not expressly addressed the absence of planning as a factor bearing on objective seriousness. While spontaneity does not automatically reduce seriousness, the failure to engage with this consideration constituted an error.

Disadvantaged background: Applying the High Court's guidance in Bugmy v The Queen (2013) 249 CLR 571, the Court found the sentencing judge had not sufficiently engaged with the appellant's deprived and violent upbringing when assessing moral culpability. That background was relevant and should have been given meaningful weight.

Intoxication: The Court held it was open to the sentencing judge to treat the appellant's intoxication as an aggravating factor in the circumstances. The Court also upheld the finding of gratuitous cruelty, which had been established beyond reasonable doubt on the evidence. Finding error on a sufficient number of grounds, the Court allowed the appeal and proceeded to re-sentence the appellant. On re-sentence, taking into account comparative cases as a consistency check, the Court imposed a reduced sentence with a non-parole period of 17 years and 6 months.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Prior convictions operate as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) only where they are of the same or a similar kind to the offence being sentenced; the Court of Criminal Appeal confirmed that prior convictions of a dissimilar nature do not satisfy this statutory requirement.
  • A sentencing court's failure to meaningfully engage with a disadvantaged and violent upbringing when assessing moral culpability constitutes error, consistent with the High Court's holding in Bugmy v The Queen.
  • Intoxication can properly be treated as an aggravating factor in appropriate circumstances, and the finding in this case was upheld as within the sentencing judge's available discretion.
  • Where sufficient sentencing errors are established on appeal, the Court of Criminal Appeal will re-sentence and may have regard to comparative cases as a consistency measure, even where such comparisons do not operate as strict benchmarks.
  • Conditional liberty does not automatically aggravate an offence; the factual basis for that finding must be clearly established before it is treated as a factor increasing sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (contravene AVO)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 59
- Crimes Act 1914 (Cth), s 20(1)(b)
- Criminal Code 1995 (Cth), s 474.17(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Munda v State of Western Australia (2013) 249 CLR 600
- Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Baumer v The Queen (1988) 166 CLR 51
- Kentwell v The Queen (2014) 252 CLR 601
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Archer v R [2017] NSWCCA 151
- Cherry v R [2017] NSWCCA 150
- Moore v R [2019] NSWCCA 264
- Majzoub v Regina [2019] NSWCCA 94