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7
Court of Criminal Appeal 25 September 2020

Yaman v R

[2020] NSWCCA 239

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE DOMESTIC VIOLENCE OFFENCES ASSESSMENT OF OBJECTIVE SERIOUSNESS QUESTION OF MANIFEST EXCESS

Citation: Yaman v R [2020] NSWCCA 239
Court: Court of Criminal Appeal, NSW
Date: 25 September 2020
Judge(s): Fullerton J, Wilson J, Ierace J

Background

The applicant pleaded guilty in the Local Court to aggravated break, enter and commit a serious indictable offence (the serious indictable offence being assault occasioning actual bodily harm), contrary to s 112(2) of the Crimes Act 1900 (NSW). The offence was committed against his former girlfriend, with the circumstance of aggravation being that he knew she was present in the apartment at the time of entry. A related charge of contravening an apprehended domestic violence order (ADVO) was transferred to the District Court to be dealt with alongside the primary offence.

Acting Judge Frearson SC sentenced the applicant in the District Court at Wollongong on 21 October 2019. For the aggravated break, enter and commit offence, he received 6 years and 10 months imprisonment with a non-parole period of 4 years and 6 months. A wholly concurrent term of 7 months was imposed for the ADVO contravention.

The applicant sought leave to appeal against the sentence for the primary offence, advancing four grounds. The appeal raised questions about findings of planning, the use of criminal history on sentence, the characterisation of objective seriousness, and alleged manifest excess.

  • Whether the sentencing judge erred in finding that the offence involved "some significant planning" (Ground 1)
  • Whether the sentencing judge erred in treating the applicant's criminal history as "aggravating on sentence," and whether adequate reasons were given for that approach (Grounds 2A and 2B)
  • Whether the sentencing judge erred in characterising the objective seriousness of the offence as "a mid-range offence" (Ground 3)
  • Whether the sentence imposed was manifestly excessive (Ground 4)

Decision

Ground 1 (Planning): The Court held that the sentencing judge did not treat planning as a statutory aggravating feature under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW), nor did he treat planning as independently aggravating the offending. Instead, the finding of "some significant planning" was used to reject the applicant's submission in mitigation that the offence was spontaneous or impulsive. The large number of unsolicited telephone calls made to the victim in the 24 hours before the offence provided a sufficient factual foundation for that finding. Fullerton J and Ierace J would have granted leave on this ground, though Wilson J would have refused it; all three dismissed the ground.

Grounds 2A and 2B (Criminal History): The Court accepted the established principle that a prior criminal record cannot be used to increase the objective gravity of an offence, as that would breach the proportionality principle established in R v McNaughton (2006) 66 NSWLR 566. However, the Court found that the sentencing judge did not offend that principle. The applicant's criminal record, including multiple ADVO breaches, was properly available to inform where, within the range set by the objective seriousness of the offence, the sentence should fall. While the sentencing judge's language was described as "somewhat opaque," it was not sufficiently unclear to constitute legal error. Fullerton J and Ierace J would have granted leave; Wilson J would have refused it. All three dismissed both grounds.

Ground 3 (Objective Seriousness): Leave to appeal on this ground was refused by Wilson J and Ierace J, with Fullerton J agreeing with that result. The characterisation of the offence as a mid-range matter was not established as erroneous.

Ground 4 (Manifest Excess): Leave to appeal was granted on this ground, but the appeal was dismissed. Wilson J, with whom the others agreed, held that the sentence properly reflected the gravity of the crime and the need for specific and general deterrence. The Court referenced the High Court's observations in Munda v Western Australia (2013) 249 CLR 600 regarding the importance of just sentencing in domestic violence cases as a vindication of victims' human dignity and equality before the law.

Orders Made

  • Leave to appeal refused on Grounds 1, 2, and 3
  • Leave to appeal granted on Ground 4
  • Appeal dismissed

Key Takeaways

  • A prior criminal record, including patterns of ADVO breaches, is a legitimate factor in fixing the precise sentence within the range permitted by the objective seriousness of an offence, but it cannot be used to elevate the objective gravity of the offending itself (confirmed by reference to R v McNaughton).
  • Where a sentencing judge's treatment of a factor is imprecisely expressed, that imprecision alone will not constitute error if the overall sentencing reasons make the approach sufficiently clear.
  • Pre-offence conduct, such as repeated unsolicited contact with a victim in the hours before an offence, can provide an adequate evidentiary foundation for a finding that an offence was not merely spontaneous or impulsive, even without proving a formalised plan.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that courts must give due recognition to victims' human dignity in domestic violence sentencing, and that deterrence, both specific and general, is a significant sentencing consideration in such cases.
  • The decision illustrates that a multi-ground sentence appeal will not succeed where each ground is considered individually and none discloses error sufficient to disturb the exercise of the sentencing discretion, applying the principle in House v The King (1936) 55 CLR 499.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Cherry v R [2017] NSWCCA 150
- Faehringer v R [2017] NSWCCA 248
- House v The King (1936) 55 CLR 499
- Kerr v R [2016] NSWCCA 218
- Mulato v R [2006] NSWCCA 282
- Munda v Western Australia (2013) 249 CLR 600
- Obeid v R (2017) 96 NSWLR 155
- R v CTG [2017] NSWCCA 163
- R v McNaughton (2006) 66 NSWLR 566
- Van Der Baan v R [2012] NSWCCA 5
- Veen v The Queen (No 2) (1988) 164 CLR 465