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Court of Criminal Appeal 10 August 2020

Christou v R

[2020] NSWCCA 193

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCING OFFENCES INVOLVING SIGNIFICANT VIOLENCE TRAUMATIC UPBRINGING WHETHER A DENIAL OF PROCEDURAL FAIRNESS

Citation: Christou v R [2020] NSWCCA 193
Court: Court of Criminal Appeal
Date: 10 August 2020
Judge(s): Meagher JA, Wilson J, N Adams J

Background

The appellant was sentenced in the District Court at Parramatta in February 2019 following guilty pleas to two serious offences: aggravated kidnapping (taking and detaining a person to obtain an advantage, occasioning actual bodily harm) under s 86(2)(b) of the Crimes Act 1900 (NSW), and recklessly causing grievous bodily harm under s 35(2)(b) of the same Act. An aggregate sentence of 8 years and 3 months imprisonment was imposed, with a non-parole period of 6 years.

The offences arose from a sustained attack on a female complainant in August 2017. The appellant subjected her to prolonged and serious physical violence in a public street, including punching, kicking, and kneeing her to the face while she was on the ground. The victim suffered bilateral jaw fractures requiring multiple surgeries and the permanent placement of metal plates. After the assault, the appellant forced the bleeding and injured complainant to drive him to his home, where he required her to enter his premises and clean evidence of the assault before releasing her.

The appellant, aged 26 at the time of offending, had a significant criminal history that included past violence, as well as a long-standing drug problem and a traumatic childhood. He sought leave to appeal the aggregate sentence on several grounds, including procedural fairness, the objective assessment of gravity, and manifest excess.

  • Whether the sentencing judge denied the appellant procedural fairness in the sentencing process
  • Whether the sentencing judge's assessment of the objective gravity of the offences was open on the facts
  • Whether the aggregate sentence of 8 years and 3 months imprisonment was manifestly excessive

Decision

The Court of Criminal Appeal refused leave to advance the first ground (procedural fairness) and otherwise granted leave to appeal, before dismissing the appeal in its entirety.

On the procedural fairness ground, the Court declined to permit that argument to proceed. On the objective gravity ground, the Court was satisfied that the sentencing judge's assessment was open on the evidence. The detain offence was assessed as above mid-range in objective seriousness, and the reckless GBH offence as mid-range. Given the nature of the offending, the Court found no error in those assessments.

On manifest excess, Wilson J and N Adams J both emphasised the extreme seriousness of the physical violence inflicted on the victim and the ordeal that followed. N Adams J noted the victim was assaulted repeatedly while on the ground, forced to drive the appellant while bleeding and in significant pain, and made to enter his home before she was released. The Court applied the established principle from House v The King and Dinsdale v The Queen that an appellate court may substitute its own view only where the sentence is unreasonable or plainly unjust, not merely because it might have imposed a different sentence.

The Court acknowledged the appellant's very unfortunate childhood, including his mother's heroin addiction, a period in foster care, and his own drug dependency from adolescence. However, those mitigating factors did not, in the face of the objective seriousness of the two offences, render the sentence unreasonable or plainly unjust. All three judges agreed no appellable error was established.

Orders Made

  • Leave to advance Ground 1 refused
  • Leave to appeal otherwise granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the manifest excess ground requires an appellant to demonstrate the sentence was unreasonable or plainly unjust, not merely that an appellate court would have exercised its discretion differently.
  • A sentencing judge's assessment of objective gravity will stand on appeal where it was reasonably open on the agreed facts, even if the appellate court might have arrived at a different weighting.
  • Significant personal mitigating circumstances, including a traumatic upbringing and long-standing drug dependency, do not automatically displace the weight given to the objective seriousness of violent offences.
  • The Court applied Markarian v The Queen in confirming that sentencing requires identification of relevant factors, consideration of their significance, and a value judgment, and that appellate interference is not warranted simply because a different balance might have been struck.
  • Where offences involve sustained physical violence resulting in serious injury, followed by a further detention of the victim, the combination of objective gravity across both counts may support an aggregate sentence at the higher end.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(2)(b), 86(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- ES v R [2019] NSWCCA 262
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191
- R v A [2004] NSWCCA 292
- R v Carter [2003] NSWCCA 243
- R v Kain [2004] NSWCCA 143
- R v Pham [2005] NSWCCA 94
- Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Weir v R [2011] NSWCCA 123