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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: Court of Criminal Appeal
Date: 19 December 2019
Judge(s): Hoeben CJ at CL; Price J; Campbell J

Background

The applicant pleaded guilty to the murder of his former partner, committed on 30 September 2017 at her home in western Sydney. The relationship had been characterised by domestic violence since approximately October 2015. At the time of the killing, the applicant was subject to an apprehended violence order and two supervision bonds, and he had consumed a large quantity of alcohol over the course of the evening. The deceased died from a stab wound that transected her abdominal aorta and inferior vena cava.

At first instance, the sentencing judge imposed a sentence with a starting point of 34 years imprisonment, reduced by 25 per cent for an early guilty plea, producing a non-parole period of 19 years and 1 month. The applicant sought leave to appeal on seven grounds, contending that various aggravating and mitigating factors had been incorrectly assessed.

Legal Issues

  • Whether the sentencing judge impermissibly used the applicant's prior criminal record when assessing the objective seriousness of the offence, rather than treating it as a subjective aggravating factor
  • Whether the sentencing judge impermissibly used the applicant's conditional liberty at the time of the offence to inflate the objective seriousness of the offence
  • Whether the absence of planning was wrongly treated as part of the subjective case rather than as a consideration going to objective seriousness
  • Whether the sentencing judge sufficiently addressed the applicant's disadvantaged background and its effect on moral culpability
  • Whether the applicant's intoxication was properly treated as an aggravating factor
  • Whether the offence involved gratuitous cruelty
  • Whether the sentence was manifestly excessive, including by reference to comparative cases

Decision

Ground 1: Prior criminal record and objective seriousness

The Court dismissed this ground. Properly read, the sentencing judge's reasons addressed prior convictions as a statutory aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, consistent with the principles in Veen v The Queen (No 2), rather than as a matter elevating the objective seriousness of the offence itself (at [86]-[92]). The applicant's criminal history, which included multiple episodes of domestic violence and a breach of an AVO, was relevant to where within the sentencing range the sentence should fall, particularly given what it revealed about specific deterrence and community protection (at [83]).

Ground 2: Conditional liberty and objective seriousness

This ground also failed. The Court confirmed that the fact an offender is on conditional liberty is relevant to the determination of the appropriate sentence but is not to be used to assess the objective seriousness of the offence (at [97]-[98]). The sentencing judge's reasons, properly construed, did not inflate the objective gravity of the murder by reference to the breach of conditional liberty (at [100]).

Ground 3: Absence of planning

This ground succeeded. The Court held that the unplanned and spontaneous nature of the offending is a mitigating consideration that goes to objective seriousness, and the sentencing judge erred by addressing it only within the subjective case section of his reasons (at [108]-[109]). The Crown's submission that the absence of planning was immaterial because the offence was the product of reckless intoxication did not overcome the error in approach.

Ground 4: Disadvantaged background and moral culpability

The majority (Hoeben CJ at CL and Campbell J) held that no error was established. The sentencing judge referred to the applicant's exposure to violence and parental drug and alcohol abuse and stated that he had taken those matters into account. While it would have been helpful to expressly address moral culpability, the Court held the judge was not required to do more (at [122]-[123]). The applicant's background fell short of the profound childhood deprivation discussed in Bugmy v The Queen (at [119]-[120]).

Price J dissented on this ground, finding that where psychological evidence linked the applicant's adverse childhood experiences to his substance dependence and violence, some assessment of the effect on moral culpability was required (at [181]-[184]). In the re-sentencing exercise, Price J applied a modest reduction in moral culpability on account of the background, a finding with which Campbell J expressed agreement.

Ground 5: Intoxication as an aggravating factor

The Court dismissed this ground. Drawing on King v R [2015] NSWCCA 99 and related authorities, the Court confirmed that an offender who knowingly consumes alcohol with awareness of a propensity for violence when intoxicated may be found to have acted recklessly, making the intoxication an aggravating factor (at [141]-[143]). The applicant had a documented history of violence when drunk and had received counselling conditions in previous bonds directed at alcohol rehabilitation. His Bugmy-related submissions did not displace this conclusion because, among other things, his father had been sober since the applicant was twelve and the applicant himself had achieved significant periods of sobriety (at [144]).

Ground 6: Gratuitous cruelty

This ground succeeded. The Court found that, in the absence of expert evidence about the age of the bruising and other injuries to the deceased's body, it could not be established beyond reasonable doubt that those injuries were inflicted by the applicant at the time of the killing for the purpose of making her suffer (at [158]-[159]). The applicant's act of applying pressure to the deceased's neck was not sufficient, on the evidence, to establish the requisite intent to cause suffering independently of the fatal stabbing. The gratuitous cruelty finding was therefore set aside.

Ground 7: Manifest excess and comparative cases

The Court reiterated that comparative sentencing cases do not establish a sentencing range or fix the boundaries within which sentencing judges must act (at [167]-[168]). The cases relied upon by the applicant were distinguishable on their facts, particularly those with notably lower sentences, where the offenders had no criminal record or had not committed the offence in breach of an AVO (at [170]-[171]). Given the success on Grounds 3 and 6, the Court proceeded to re-sentence rather than on the basis of manifest excess alone.

Re-sentencing

Having set aside the gratuitous cruelty finding and corrected the treatment of the absence of planning, the Court exercised the sentencing discretion independently. It took into account the objective seriousness of the offending as above mid-range, the domestic violence context requiring weight to be given to general deterrence and denunciation, the applicant's prior record and breach of conditional liberty warranting significant weight to specific deterrence and community protection, and by way of mitigation the lack of planning, the applicant's disadvantaged background, and his genuine remorse (at [174]-[177]).

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal against sentence is allowed.
  • The sentence imposed by Bellew J on 14 December 2018 is quashed.
  • In lieu thereof, the applicant is sentenced to imprisonment for a period of 24 years, commencing 30 September 2017 and expiring 29 September 2041, with a non-parole period of 18 years expiring 29 September 2035.

Key Takeaways

  • An offender's prior criminal record and the fact of being on conditional liberty at the time of an offence are aggravating factors relevant to fixing the appropriate sentence, but neither is to be taken into account in assessing the objective seriousness of the signature offence (at [82]-[83], at [97]-[98]).

  • Where an offender has a documented history of violence when intoxicated and knowingly consumes alcohol with that awareness, a sentencing court may properly treat the resulting intoxication as an aggravating factor on the basis of recklessness, even where the offender is sentenced for an intentional killing (at [141]-[143]).

  • Gratuitous cruelty as a statutory aggravating factor must be proved beyond reasonable doubt; without expert evidence establishing that bruising and other injuries were inflicted at the time of the killing and for the purpose of causing suffering, the finding cannot stand (at [158]-[159]).

  • The unplanned and spontaneous nature of offending is a mitigating consideration that goes to objective seriousness, not merely to the offender's subjective circumstances, and placing it solely within the subjective case constitutes an error (at [108]-[109]).

  • Comparative sentencing cases do not establish a binding sentencing range or fix limits on the discretion of sentencing judges; their utility is confined and their limitations are well established, as confirmed by authority from both the High Court and the Court of Criminal Appeal (at [167]-[168]).

Legislation and Cases Referenced

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

Cases
- Archer v R [2017] NSWCCA 151
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cherry v R [2017] NSWCCA 150
- Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- DPP v Darcy-Shillingsworth [2017] NSWCCA 224
- Elhassan v R [2018] NSWCCA 118
- Hili v The Queen: Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hilier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312
- Ingrey v R [2016] NSWCCA 31
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- King v R [2015] NSWCCA 99
- Majzoub v Regina [2019] NSWCCA 94
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- Mendes v R [2012] NSWCCA 103
- Moore v R [2019] NSWCCA 264
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Patsan v R [2018] NSWCCA 129
- Pham v R [2014] NSWCCA 115
- R v Archer [2015] NSWSC 1487
- R v Boyd (No 2) [2018] NSWSC 380
- R v Coleman (1990) 47 A Crim R 306
- R v Crickitt (No 2) [2017] NSWSC 542
- R v Darbanou [2018] NSWSC 1672
- R v Gagalowicz [2005] NSWCCA 452
- R v Homann [2018] NSWSC 757
- R v Hosseiniamraei [2016] NSWSC 1181
- R v Irwin [2019] NSWCCA 133
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v Mahon [2015] NSWSC 25
- R v McNaughton (2006) NSWLR 566; [2006] NSWCCA 242
- R v Murray [2015] NSWSC 1034
- R v Ruttley (No 7) [2017] NSWSC 1582
- R v Sjahadi [2013] NSWSC 540
- Regina v Walker [2005] NSWCCA 109
- Smith v R [2011] NSWCCA 163
- Stanford v Regina [2007] NSWCCA 73
- TL v R [2017] NSWCCA 308
- Turnbull v R [2019] NSWCCA 97
- Vandeventer v R [2013] NSWCCA 33
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14