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Court of Criminal Appeal 16 November 2020

Hunter v R

[2020] NSWCCA 285

Assault & violenceTheft & property
APPEAL SENTENCE APPEAL SPECIALLY AGGRAVATED BREAK AND ENTER WHETHER SENTENCING JUDGE ENGAGED IN TWO TIER SENTENCING WHETHER CONSIDERATION GIVEN TO REMORSE

Citation: Hunter v R [2020] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 16 November 2020
Judge(s): Hoeben CJ at CL; Harrison J; Ierace J

Background

The appellant pleaded guilty in the Campbelltown District Court to specially aggravated break, enter and commit a serious indictable offence, namely assault occasioning actual bodily harm, with intentional wounding as the circumstance of special aggravation. The offence arose from a domestic incident in September 2018, in which the appellant armed himself with an axe, broke into his partner's home, and attacked her longstanding friend with the axe and a piece of timber. The friend sustained a fractured forearm, a fractured finger, and a laceration requiring sutures. A common assault on the partner was taken into account on a Form 1 (a procedural mechanism allowing courts to take related charges into account at sentencing without recording a further conviction).

The sentencing judge, Judge English, imposed a term of six years' imprisonment with a non-parole period of four years. The maximum penalty for the offence is 25 years, with a standard non-parole period of seven years.

The appellant sought leave to appeal against the sentence on four grounds, arguing the sentencing judge made errors in law and that the sentence was manifestly excessive.

  • Whether the sentencing judge engaged in impermissible "two-tier sentencing" by setting a starting point before applying the plea discount
  • Whether the sentencing judge erred in timing the consideration of the Form 1 matter, specifically by addressing it only after applying the 25% guilty plea discount
  • Whether the sentencing judge made a material error in her findings on remorse
  • Whether the sentence was unreasonable or plainly unjust in light of comparable cases and sentencing statistics

Decision

Ground 1: Two-tier sentencing. Harrison J found no error in the sentencing judge's approach. The reasons on sentence, read as a whole, did not disclose the kind of impermissible structured formula that constitutes two-tier sentencing. This ground was not made out.

Ground 2: Form 1 consideration. The Court found no error in the order in which the sentencing judge addressed the Form 1 matter. There was no demonstrated legal requirement that Form 1 matters be considered before or independently of the guilty plea discount. This ground also failed.

Ground 3: Remorse. The sentencing judge's finding that the appellant was not genuinely remorseful was open on the evidence, including the appellant's own account during the ERISP and his sentencing evidence. The Court found no material error in that factual finding.

Ground 4: Manifest excess. Harrison J accepted that the sentence fell at the more severe end of the statistical range for this type of offence. However, the Court emphasised that sentencing statistics are of limited utility and that each case depends on its own facts. The Court noted that the appellant's criminal record provided no assistance to him and that the sentencing judge found no genuine remorse and identified clear planning in the offending. The Court was not satisfied the sentence was unreasonable or plainly unjust, and appellate intervention was not compelled merely because the sentence sat at the upper end of comparable results.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing statistics establish a general reference range but do not make a sentence at the upper end of that range manifestly excessive by definition.
  • A sentencing judge's factual finding on remorse is not readily disturbed on appeal, particularly where the offender's own admissions and conduct support the finding.
  • No established legal rule requires a sentencing judge to address Form 1 matters at a particular point in the sentencing process, such as before applying a guilty plea discount.
  • "Home invasion" is not a legal term of art, but a sentencing judge may use it descriptively to convey the seriousness of conduct involving a break-in to an occupied dwelling.
  • Appellate intervention in a sentence is not compelled simply because the result below is markedly different from other sentences; the question remains whether the sentence is unreasonable or plainly unjust in all the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- GP v R [2016] NSWCCA 150
- Harper v R [2017] NSWCCA 159
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huang v R [2019] NSWCCA 144
- KG v R [2012] NSWCCA 10
- Medcalf v R [2016] NSWCCA 209
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Campbell [2014] NSWCCA 102