Citation: Ross, Christopher v R [2019] NSWCCA 314
Court: Court of Criminal Appeal, NSW
Date: 20 December 2019
Judges: Basten JA (with whom Macfarlan JA and Campbell J agreed)
Background
The applicant, a then-37-year-old man from Dubbo, was sentenced in the District Court in March 2019 following a brief but seriously violent de facto relationship. The offending occurred across April 2016 and included threats to kill, unlawful detention causing actual bodily harm, and common assault against his partner. The parties had known each other since childhood and both were using drugs during the relationship.
While remanded in custody, the applicant repeatedly pressured the complainant by telephone to file a statutory declaration retracting her allegations. She did so, and her false statutory declaration formed the basis of a further charge of seeking to dissuade a witness from giving truthful evidence. In August 2016, after his release on bail, the applicant committed additional offences against the complainant, for which he had already received a separate sentence.
Judge Ingram SC in the District Court imposed an aggregate sentence of 6 years 6 months with a non-parole period of 4 years 8 months across five counts. The applicant sought leave to appeal on the basis that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the aggregate sentence of 6 years 6 months was manifestly excessive
- Whether the indicative (individual) sentences for each offence were themselves excessive, thereby infecting the aggregate
- Whether the sentencing judge adequately reflected the applicant's disadvantaged background and the origins of his drug dependency in the sentence
- Whether the sentencing judge sufficiently accounted for the "real life operation" of the aggregate term, including the cumulative effect of near-continuous custody from July 2014 to an anticipated release in 2022
Decision
The Court granted leave to appeal but dismissed the appeal in its entirety. Basten JA (with whom Macfarlan JA and Campbell J agreed) found that the sentencing judgment was carefully and correctly expressed, addressed all relevant issues, and revealed no error on its face.
On the individual indicative sentences, the Court considered comparable cases and found no basis for concluding that any individual sentence was excessive. Comparisons with sentences in analogous domestic violence matters did not demonstrate that the judge had fallen into error. The most serious count (unlawful detention with intent to obtain an advantage, causing actual bodily harm, under s 86(2)(b) of the Crimes Act 1900) carried a maximum of 20 years, and the indicative sentence for that count was not shown to be disproportionate.
On the applicant's subjective circumstances, the Court acknowledged the principles drawn from R v Fernando and affirmed in Bugmy v The Queen, which recognise that disadvantage and deprivation remain relevant to mitigate moral culpability. However, the Court found that the sentencing judge had in fact addressed these matters. The submissions did not establish that the judge's stated findings were inconsistent with the ultimate sentence imposed.
On the cumulative effect of the aggregate term, the Court noted that the sentencing judge was required to consider the overall effect of the sentence and that totality was a well-recognised principle. The judge had expressly applied this principle. The fact that the applicant would, in practical terms, serve a lengthy continuous period in custody (including time on other sentences) did not of itself demonstrate that the aggregate sentence imposed in this matter was excessive.
Orders Made
- Leave to appeal against the aggregate sentence imposed in the District Court on 8 March 2019 was granted.
- The appeal was dismissed.
Key Takeaways
- No error was established in an aggregate sentence of 6 years 6 months (non-parole period 4 years 8 months) for five domestic violence offences including threats to kill, unlawful detention causing actual bodily harm, assault, and witness intimidation.
- A carefully expressed sentencing judgment that addresses all relevant principles on its face reveals no error, even where an applicant contends the principles were misapplied in practice.
- The Fernando/Bugmy principles, which require courts to take into account an offender's background of disadvantage when assessing moral culpability, do not operate as a standalone ground of appeal where the sentencing judge has demonstrably engaged with those matters.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the cumulative effect of an aggregate sentence in the context of other pre-existing custodial periods does not automatically render the aggregate manifestly excessive, provided the sentencing court has applied the totality principle.
- Comparative sentencing cases may be raised in support of a manifest excess ground, but the court will not find error simply because comparable cases produced different outcomes; the comparison must affirmatively demonstrate that the sentence was outside the appropriate range.
Legislation and Cases Referenced
Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes Act 1900 (NSW), ss 61, 85, 86, 323, 324
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Fernando (1992) 76 A Crim R 58
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v Burton [2008] NSWCCA 128
- R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
- R v MAK; R v MSK [2006] NSWCCA 381
- Warby v R [2007] NSWCCA 173; 171 A Crim R 575
- Evans v R [2017] NSWCCA 281
- Cross v R [2016] NSWCCA 214
- Asplund v R [2014] NSWCCA 237
- Kiernan v R [2016] NSWCCA 12
- Mulato v R [2006] NSWCCA 282
- SHR v R [2014] NSWCCA 94; 241 A Crim R 544
- PD v R [2012] NSWCCA 242