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Court of Criminal Appeal 21 May 2021

Parker v R

[2021] NSWCCA 102

Domestic & family violencePublic order & justice offences
MANIFEST EXCESS PURPOSES OF SENTENCING LEAVE TO APPEAL REFUSED

Citation: Parker v R [2021] NSWCCA 102
Court: Court of Criminal Appeal, New South Wales
Date: 21 May 2021
Judges: Garling J, Beech-Jones J, N Adams J

Background

The applicant pleaded guilty in October 2019 to three offences: entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation (s 111(2), Crimes Act 1900), common assault (s 61, Crimes Act 1900), and doing an act with intent to pervert the course of justice (s 319, Crimes Act 1900). He was also sentenced for a related offence of contravening an apprehended domestic violence order (ADVO).

The offences arose from the applicant's conduct toward his former partner and her friend. He breached an ADVO by repeatedly attending the victim's home, climbed through a bedroom window to enter after being refused entry, assaulted the victim's friend during the intrusion, and later wrote letters from custody attempting to persuade the victim and her friend not to give evidence or to have charges dropped.

Herbert DCJ sentenced the applicant on 10 March 2020 to an aggregate term of 3 years and 7 months imprisonment, commencing 27 February 2019, with a non-parole period of 2 years and 5 months. The applicant sought leave to appeal, requiring an extension of time, which the Crown did not oppose.

  • Whether the sentence should be reduced on compassionate grounds, given the applicant's father was seriously ill with cancer.
  • Whether the aggregate sentence was manifestly excessive for the offences committed.

Decision

The Court unanimously refused leave to appeal. N Adams J, with whom Garling J and Beech-Jones J agreed, found that the applicant had not identified any error in the sentencing judge's reasoning or in the sentence imposed.

On the compassionate grounds argument, the Court found no legal basis to reduce an otherwise appropriate sentence on account of the applicant's father's illness. The sentencing judge's remarks were described by Garling J as "careful, thorough and comprehensive," and no error was identified in any of the underlying findings.

On manifest excess, the Court rejected the applicant's contention that the sentence was too long. The Court noted that the highest indicative sentence related to the perverting justice offence, not the assault offences, and characterised the applicant's conduct in writing to the victim from custody as "relentless badgering and needling" designed to force her to change her evidence. The applicant's attempt to minimise the assault offences was not accepted.

The Court also observed that the applicant had a significant criminal history, had breached two prior good behaviour bonds for offences against the same partner, showed no acceptance of responsibility, and blamed the victim for his conduct. In those circumstances, the aggregate sentence could not be characterised as unreasonable or plainly unjust.

Orders Made

  • Extension of time granted.
  • Leave to appeal refused.

Key Takeaways

  • No error was established in the sentencing judge's findings, and the Court of Criminal Appeal declined to interfere with a sentence that reflected a serious pattern of domestic violence conduct and a significant criminal history.
  • The perverting the course of justice offence, involving written pressure on the victim and her friend to withdraw evidence, was treated as the most serious charge and attracted the highest indicative sentence.
  • In dismissing the manifest excess ground, the Court emphasised that the public justice offence warranted significant weight, separate from the question of whether actual violence was inflicted on the primary victim.
  • The Court of Criminal Appeal affirmed the principle, drawn from Yaman v R [2020] NSWCCA 239, that offences by individuals who refuse to accept a partner's autonomy must be dealt with sternly to mark societal disapproval and protect victims of domestic violence.
  • An applicant's poor prospects of rehabilitation, failure to accept responsibility, and tendency to cast blame on the victim are properly taken into account at sentencing and do not diminish the sentence's validity on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 111(2), 319
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Yaman v R [2020] NSWCCA 239