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25
Court of Criminal Appeal 24 May 2019

Turnbull v R

[2019] NSWCCA 97

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCING DOMESTIC VIOLENCE OFFENCES STATE AND FEDERAL OFFENCES AGGRAVATING FEATURES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Turnbull v R [2019] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 24 May 2019
Judges: Simpson AJA, Wilson J, Ierace J

Background

The applicant had pleaded guilty to a series of domestic violence offences committed between September and December 2016 against his former wife and children. The offences included using a carriage service to threaten to kill, breach of an apprehended domestic violence order, stalking and intimidation, and breaking and entering. Several offences were committed before his arrest on 2 November 2016; one was committed while he was in custody following that arrest.

The applicant had a prior sentencing history for violent offences against the same complainant. In June 2015 he received an 18-month sentence with a 12-month non-parole period commencing March 2015. He was released on parole in March 2016, but his parole was revoked on 8 July 2016. Critically, he was not taken into custody at the time of revocation and apparently was not notified that revocation had occurred. All of the present offences were committed after parole had been revoked.

At sentencing in the District Court, the judge treated the applicant as having been "on parole" at the time of the offences, identifying this as a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge also elevated the objective seriousness of the break-and-enter offence on this basis. The applicant sought leave to appeal, contending the sentencing judge made both a factual and legal error in this characterisation.

  • Whether the applicant was factually and legally "on parole" at the time of the offences, given that parole had been revoked before any offending occurred
  • Whether the sentencing judge erred in treating "on parole" status as an aggravating factor under s 21A(2)(j) and in using it to elevate the objective seriousness of the break-and-enter offence
  • Whether commission of offences while on conditional liberty (short of parole) can be used to increase the objective seriousness of an offence
  • Whether, if error was established, a lesser sentence was nevertheless warranted in law

Decision

The Crown conceded both the factual and legal errors. The applicant was not "on parole" at the time of the offending because parole had been revoked on 8 July 2016, before the first offence was committed. Simpson AJA confirmed this analysis. However, under s 171(4) of the Crimes (Administration of Sentences) Act 1999 (NSW), the sentence remained current and was extended by the number of days the applicant was at large after the revocation order took effect. The applicant was therefore still subject to a custodial sentence, even though not on parole. The Court accepted the Crown's concession that treating the applicant as being "on parole" was both factually and legally incorrect.

The more significant legal question was whether commission of offences while subject to conditional liberty (other than parole) could be used to elevate the objective seriousness of an offence. Simpson AJA held that it could not. The statutory aggravating factor in s 21A(2)(j) addresses conditional liberty as relevant to culpability in a general sense, but objective seriousness is assessed by reference to the nature and circumstances of the offending itself, not the offender's personal circumstances at the time. Importing the conditional liberty factor into the assessment of objective seriousness was an error of approach.

Notwithstanding those errors, the Court was not persuaded that a lesser sentence was warranted in law. Simpson AJA described the offending as a serious campaign of domestic terror carried out in flagrant disregard of an ADVO, causing lasting harm, while the applicant was in breach of parole and actively evading police. The Court gave little weight to mitigating material in a psychological report, which was based on the applicant's own hearsay account to its author. General and specific deterrence, denunciation, and recognition of the harm caused all supported the sentence imposed.

Leave to appeal was granted, but the appeal was dismissed. Wilson J and Ierace J both agreed on the orders, with Ierace J expressly agreeing with Simpson AJA's reasoning on grounds 1 and 2.

Orders Made

• Leave to appeal against sentence granted
• Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a person whose parole has been revoked is not "on parole" for the purposes of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even if they remain at large and unaware of the revocation.
  • Under s 171(4) of the Crimes (Administration of Sentences) Act 1999 (NSW), a sentence is extended day-for-day when an offender remains at large after a parole revocation order takes effect, meaning the sentence continues to run beyond its nominal expiry date.
  • Commission of offences while subject to conditional liberty is a factor relevant to culpability generally, but it cannot be used to elevate the objective seriousness of an individual offence. Objective seriousness is assessed by reference to the nature and circumstances of the offence itself, not the offender's personal circumstances.
  • Establishing a sentencing error does not automatically result in a lesser sentence. The Court must still determine whether "some other sentence is warranted in law" before intervening, and may dismiss the appeal even after finding error.
  • In dismissing the appeal despite identified errors, the Court emphasised the serious and sustained nature of domestic violence offending, the need for both general and specific deterrence, and the limited weight attributable to psychological mitigation reports grounded in the offender's own unverified account.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 50(1), 53A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 171
- Crimes Act 1900 (NSW), s 113(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)
- Criminal Appeal Act 1912 (NSW)
- Child Protection (Offender's Prohibition Orders) Act 2004 (NSW)

Cases:
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Simpson [2001] 53 NSWLR 704; [2001] NSWCCA 534
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Lehn v R (2016) NSWLR 205; [2016] NSWCCA 255
- Obeid v R [2017] NSWCCA 221
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Jones v R [2015] NSWCCA 180
- Cowling v R [2015] NSWCCA 213
- Davis v R [2015] NSWCCA 90
- Elhassan v R [2018] NSWCCA 118