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Court of Criminal Appeal 11 September 2020

Ebsworth v R

[2020] NSWCCA 229

Assault & violenceDomestic & family violence
CRIME SENTENCE APPEAL SERIOUS DOMESTIC VIOLENCE NO DE SIMONI ISSUE APPEAL DISMISSED

Citation: Ebsworth v R [2020] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 11 September 2020
Judges: Basten JA; Rothman J (principal judgment); Price J

Background

The appellant pleaded guilty in the District Court at Armidale to three serious offences arising from a pattern of domestic violence against his former partner between September and October 2017. The offences included aggravated break, enter and assault occasioning actual bodily harm (carrying a maximum of 20 years), and two counts of using a knife with intent to assault. Five further charges were taken into account on a Form 1, including four counts of intimidation and one count of recklessly damaging property. Five AVO contraventions were dealt with by way of a s 166 Certificate.

The sentencing judge imposed an aggregate sentence of five years and six months, with a non-parole period of three years and six months commencing 15 October 2017. A 15% discount was applied for the guilty pleas. The starting point before the discount was six years and six months. The judge also found special circumstances, producing a non-parole period representing approximately 63.6% of the head sentence.

The facts, drawn from an Agreed Facts document, disclosed a sustained and escalating pattern of conduct. On 30 September 2017, the appellant broke into the victim's home, punched and slapped her to the face, kicked her in the head while she was on the floor, then choked her with both hands, lifting her off her feet. He then retrieved a knife from the kitchen and continued to threaten her. The offending was characterised by serious physical violence and repeated breaches of an existing AVO.

  • Whether the sentencing judge improperly took into account conduct (specifically, the choking) that did not form part of the charged offence
  • Whether the sentencing judge breached the principle in The Queen v De Simoni by treating Count 1 as though it involved a more serious offence than the one charged
  • Whether the sentencing judge's assessment of the objective seriousness of Count 1 was affected by either of the above errors
  • Whether an extension of time should be granted for the out-of-time filing of the appeal

Decision

The Court of Criminal Appeal granted an extension of time and leave to appeal, but dismissed the appeal in its entirety.

On Ground 1, the Court found no error in the sentencing judge's reference to the choking. The choking was not treated as an element of any charge but was considered as part of the broader factual narrative to establish that all three principal offences formed a single course of conduct. That approach was permissible for the purpose of applying the totality principle when setting the aggregate sentence.

On Ground 2, the Court rejected the De Simoni argument. The De Simoni principle prohibits a sentencing court from taking into account, as an aggravating factor, circumstances that would have warranted conviction for a more serious offence. Here, however, the sentencing judge did not use the choking to aggravate Count 1 as if it were a standalone element of a graver charge. The conduct was used only for the limited and proper purpose of understanding the overall course of events, consistent with the approach confirmed in LN v R [2020] NSWCCA 131.

Ground 4 (objective seriousness) depended entirely on the errors asserted in Grounds 1 and 2. Because neither of those grounds was made out, Ground 4 also failed. Ground 3 (alleged misapplication of Bugmy principles relating to the mitigatory effect of a deprived background) was not pressed by the appellant and was therefore not considered by the Court.

Orders Made

  • Extension of time granted for the Notice of Application for Leave to Appeal (filed 27 May 2020)
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may refer to uncharged conduct, including choking preceding the principal offences, where that conduct is used only to establish that the offences formed a single course of conduct for totality purposes, not to aggravate any individual charge.
  • The De Simoni principle is not engaged merely because a sentencing judge describes surrounding conduct that could theoretically have supported a different charge; the principle applies where that surrounding conduct is used to increase the penalty for the offence actually before the court.
  • In dismissing Ground 4, the Court confirmed that a challenge to objective seriousness cannot succeed where it is entirely derivative of other grounds that have themselves failed.
  • The Court of Criminal Appeal granted an extension of time despite Crown opposition, accepting that a procedural error by the applicant's solicitor (filing the wrong form) was a sufficient explanation for the delay, where the substantive grounds otherwise warranted consideration.
  • Under the totality principle, a sentencing court is entitled to consider the broader pattern of conduct surrounding charged offences when calibrating an aggregate sentence, provided that consideration does not involve treating uncharged conduct as an aggravating element of any individual count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 29, 33B(1)(a), 37(2), 112(2), 195(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases:
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- LN v R [2020] NSWCCA 131
- Bugmy v R (1990) 169 CLR 525; [1990] HCA 18