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Court of Criminal Appeal 8 May 2019

Majzoub v Regina

[2019] NSWCCA 94

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW AGGREGATE SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE COMPLAINTS OF LENGTH OF NON

Citation: Majzoub v Regina [2019] NSWCCA 94
Court: Court of Criminal Appeal, New South Wales
Date: 8 May 2019
Judge(s): Hoeben CJ at CL, Garling J, Hidden AJ (judgment by Hidden AJ, with whom the others agreed)

Background

The appellant was convicted and sentenced in the District Court following a sustained course of domestic violence against a woman with whom he was in a relationship, committed between October 2011 and November 2013. The offences included assault occasioning actual bodily harm, reckless wounding, possession of an offensive weapon, and aggravated detention for advantage. After his arrest in November 2013, the appellant also committed a further series of offences between December 2013 and March 2014, attempting to influence the complainant not to give evidence against him, both directly and through family members.

The appellant pleaded guilty to several counts at arraignment and on the first day of trial, while a jury returned guilty verdicts on the remaining counts. Norton DCJ sentenced him to an aggregate term of 12 years' imprisonment with a non-parole period of 9 years, partly accumulated upon a separate sentence already being served.

The appellant, appearing without legal representation and out of time, sought leave to appeal against the sentence, arguing it was manifestly excessive. The Court granted an extension of time, with no objection from the Crown.

  • Whether the aggregate sentence of 12 years with a 9-year non-parole period was manifestly excessive
  • Whether the length of the non-parole period was appropriate
  • Whether the extent of notional accumulation of the indicative sentences was excessive
  • Whether the sentencing judge properly applied the relevant discounts for pleas of guilty entered at different stages of proceedings

Decision

The Court of Criminal Appeal applied the well-established principle from House v The King (1936) that appellate intervention in sentencing requires demonstration of error or that the sentence is unreasonable or plainly unjust. No such error was established here.

The Court found that the sentencing judge had correctly characterised the gravity of the domestic violence offences, drawing on the approach sanctioned by the High Court in Munda v Western Australia and The Queen v Kilic (2016). Those decisions affirm that current sentencing practices in domestic violence matters reflect changed societal attitudes, and that significant weight must be given to specific and general deterrence, denunciation, and community protection. The sentencing judge's characterisation of the witness-tampering offences as serious interferences with the administration of criminal justice was also unimpeachable.

The sentencing judge allowed discounts of 20% for pleas entered at arraignment and 12% for pleas entered on the first day of trial. The Court found these discounts were appropriate given the timing of each plea. The appellant's subjective case, which included a difficult childhood, early drug use, and a history of offending while on conditional liberty, was fairly assessed by the sentencing judge as "far from compelling," though moderate prospects of rehabilitation were accepted.

The Court concluded that the aggregate sentence, including the non-parole period, fell well within the legitimate bounds of the sentencing judge's discretion. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate 12-year sentence with a 9-year non-parole period for a prolonged domestic violence campaign, combined with witness-tampering offences, was not manifestly excessive.
  • Reflecting the High Court's position in Munda v Western Australia and The Queen v Kilic, the Court reaffirmed that domestic violence sentencing now properly attracts significant weight for deterrence, denunciation, and community protection, departing from past sentencing practices.
  • Offences of attempting to influence a complainant not to give evidence are treated as serious interferences with the administration of criminal justice, warranting substantial indicative sentences.
  • Where a defendant enters guilty pleas at different stages of proceedings, the sentencing court may apply different discount percentages to reflect the timing of each plea, with earlier pleas attracting higher discounts.
  • No appellate error was established in the notional accumulation of indicative sentences, underscoring the breadth of a sentencing judge's discretion in constructing an aggregate term under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 61, 59(1), 33B(1)(a), 35(4), 86(1)(b), 86(2)(b), 322(a)/324, 323(a)/324
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2018] NSWCCA 2
- Pannowitz v R [2016] NSWCCA 13
- Patsan v R [2018] NSWCCA 129
- R v Fidow [2004] NSWCCA 172
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Munda v Western Australia (referenced in judgment)
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Cherry v R [2017] NSWCCA 150
- Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224