Citation: Jackson v R [2021] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 17 February 2021
Judges: Hoeben CJ at CL; Price J (principal judgment); Fagan J
Background
The applicant pleaded guilty on the first day of trial to a series of serious domestic violence offences committed against his partner on 22 June 2017. The offences included intentional choking contrary to s 37(1) of the Crimes Act 1900 (NSW), three counts of assault occasioning actual bodily harm, and contravening an apprehended domestic violence order (ADVO). Three further offences were taken into account on a Form 1.
The offending occurred over a single day and involved sustained physical violence: the applicant choked the complainant, slapped her, threw her onto a coffee table, kicked her while she lay on the floor, and headbutted her nose, among other acts. The complainant's family members arrived at the premises to find the applicant still assaulting her. An ADVO was in force at the time, though the applicant claimed he believed it had expired.
In the District Court, Noman SC DCJ imposed an aggregate sentence of 7 years and 9 months' imprisonment, with a non-parole period of 5 years and 6 months. Her Honour found special circumstances and varied the statutory ratio between the head sentence and non-parole period to 71%. The applicant then sought leave to appeal to the Court of Criminal Appeal.
Legal Issues
The appeal raised the following questions:
- Whether the sentencing judge erred in her approach to the applicant's mental health evidence (a so-called "House error," meaning a legal error in the exercise of sentencing discretion)
- Whether the aggregate sentence was manifestly excessive, having regard to the applicant's mental condition, his guilty pleas, accepted remorse, delay prior to sentencing, and the finding of special circumstances
- Whether the indicative sentence for the choking offence under s 37(1) of the Crimes Act was manifestly excessive
- Whether the sentencing judge adequately took into account delay in the proceedings
- Whether the non-parole period was manifestly excessive following the finding of special circumstances
Decision
Mental health ground: The Court rejected the argument that the sentencing judge committed a House error in her treatment of mental health evidence. The Court noted that the case presented to the judge at sentencing differed in material respects from the case argued on appeal. The judge had before her reports from a psychologist and a consultant psychiatrist, and the Court found she had engaged with the mental health material appropriately. No error in the exercise of discretion was established.
Indicative sentence for choking: The Court considered the s 37(1) choking offence, which carries a maximum penalty of 10 years' imprisonment. The applicant was a repeat domestic violence offender, and the Court emphasised the importance of both specific and general deterrence in this context. The indicative sentence of 6 years and 2 months (after a 10% reduction for the guilty plea) was not found to be manifestly excessive.
Delay and guilty plea: The guilty pleas were entered on the first day of trial, following an indication at a callover the preceding Thursday. The Court observed that further adjournments had been sought at the request of the applicant's own legal representatives. In those circumstances, the 10% discount applied by the sentencing judge was not considered erroneous, and the treatment of delay did not disclose appellable error.
Aggregate sentence and non-parole period: The Court concluded that neither the aggregate sentence of 7 years and 9 months nor the non-parole period of 5 years and 6 months was unreasonable or plainly unjust. The finding of special circumstances had already resulted in a deliberate reduction of the statutory ratio to 71%. The Court held that the non-parole period appropriately reflected the criminality involved, and dismissed this ground along with all others.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- No House error was established in the judge's treatment of mental health material where the applicant's case on appeal differed materially from the case presented at sentencing.
- In sentencing for repeat domestic violence offending, the Court of Criminal Appeal confirmed that specific and general deterrence carry significant weight, particularly for offences involving choking under s 37(1) of the Crimes Act 1900.
- A guilty plea entered on the first day of trial, preceded only by a brief indication at callover and complicated by adjournments sought by the defence, attracted a modest 10% discount; the Court found no error in that approach.
- Finding special circumstances does not automatically reduce the non-parole period substantially: the ultimate constraint is that the non-parole period must still appropriately reflect the criminality involved in the offences.
- In dismissing the appeal, the Court reinforced that an aggregate sentence will only be reduced for manifest excess where it can be shown to be unreasonable or plainly unjust, not merely because a different outcome was arguable.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37(1), 59(1), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
Cases:
- House v The King (1936) 55 CLR 499 (the standard for appellate interference in discretionary decisions)
- Markarian v R (2005) 228 CLR 357
- Barbaro v The Queen (2014) 253 CLR 58
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- R v Hamid [2006] NSWCCA 302
- JM v R [2014] NSWCCA 297
- Obeid v R (2017) 96 NSWLR 155
- R v Todd (1982) 2 NSWLR 517
- R v Simpson (1992) 61 A Crim R 58
- Cherry v R [2017] NSWCCA 150
- Egan v R [2017] NSWCCA 206
- Griffin v R [2018] NSWCCA 259
- Pym v R [2014] NSWCCA 182
- Kerr v R [2016] NSWCCA 218
- Bland v R [2014] NSWCCA 82
- R v O'Connor [2014] NSWCCA 53
- R v Cutrale [2011] NSWCCA 214
- Elsaj v R [2017] NSWCCA 124
- Aslan v R [2014] NSWCCA 114