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Court of Criminal Appeal 19 July 2021

Kirby v R

[2021] NSWCCA 162

Assault & violenceDomestic & family violence
SENTENCING NO ERROR ESTABLISHED NO COMMON ELEMENTS SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Kirby v R [2021] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 19 July 2021
Judges: Harrison J, Beech-Jones J, Cavanagh J

Background

The appellant was convicted after a judge-alone trial of eight offences of violence committed on 1 August 2018. The offences fell into two broad clusters. The first involved a serious domestic violence incident against a former partner, including multiple punches, choking to the point of near-unconsciousness, and a common assault. The second arose when police attended the scene and the appellant charged at Senior Constable Lodyga while wielding a machete, striking him twice (no physical injury resulted due to clothing), then resisted arrest.

On 16 December 2019, Judge Robison sentenced the appellant in the District Court to an aggregate term of 7 years and 6 months imprisonment with a non-parole period of 4 years, commencing 1 August 2018. The appellant sought leave to appeal that sentence in the Court of Criminal Appeal.

The appellant's subjective case was substantial. He is an Indigenous man with a severely disadvantaged background, a lengthy history of substance abuse, and a significant criminal record for violent offences in both NSW and Victoria. The sentencing judge accepted that his background engaged the principles in Bugmy v The Queen (2013), reducing his moral culpability, and found that his recent completion of a substance addiction program indicated some prospect of rehabilitation.

  • Whether the sentencing judge erred by treating the victim's status as a police officer as an aggravating factor under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999, in circumstances where that status was already an element of the offence under s 33B(1) of the Crimes Act 1900
  • Whether, if that error was established, the appellant was "doubly punished" for the same matter, as revealed by examining the indicative sentences
  • Whether the aggregate sentence of 7 years and 6 months was manifestly excessive

Decision

Ground 1 and 2: Victim status as aggravating factor

The appellant argued that the sentencing judge impermissibly treated the victim's status as a police officer as an aggravating circumstance when that status was already an essential element of the offence under s 33B(1). Section 21A(4) of the Crimes (Sentencing Procedure) Act prohibits double-counting by treating a fact that is an element of the offence as a separate aggravating factor.

Beech-Jones J found no error. Reading the sentencing remarks carefully, the judge had referred to the victim's police status only when characterising the objective seriousness of the offence overall, not as a freestanding aggravating circumstance. The absence of any express finding about where Count 4 sat on the spectrum of objective seriousness did not, of itself, establish error; the judge's reasoning, taken as a whole, addressed the offence's relative gravity in a lawful way.

Ground 2: Double punishment via indicative sentences

The appellant contended that the indicative sentences for Counts 4 and 5 (the two offences against the police officer) revealed impermissible double punishment, since both counts shared common elements. The Court rejected this. Beech-Jones J examined the elements of each offence and found they did not share common elements in the relevant sense. Count 4 (use of a weapon with intent to assault police under s 33B(1)) and Count 5 (assault police under s 60(1)) had distinct elements, and the indicative sentences disclosed no double punishment.

Ground 3: Manifest excess

The Court was not satisfied that either the indicative sentences or the aggregate sentence were manifestly excessive. The offending was characterised as an extremely serious instance of domestic violence, including choking, followed by a violent machete attack on a police officer. The appellant's lengthy criminal record disentitled him to leniency, and his rehabilitation prospects were described as guarded. The Bugmy principles operated in his favour but were insufficient to render the aggregate sentence excessive in all the circumstances.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • No error was established where the sentencing judge referred to a victim's status as a police officer only when assessing the objective seriousness of the offence as a whole, rather than treating that status as a standalone aggravating factor separate from the elements of the offence.
  • Under s 21A(4) of the Crimes (Sentencing Procedure) Act 1999, a fact that is an element of the offence cannot be treated as a separate aggravating circumstance, but referring to that fact when characterising overall objective seriousness does not necessarily cross that line.
  • In dismissing the double-punishment argument, the Court of Criminal Appeal confirmed that a claim of impermissible double punishment via indicative sentences requires identification of actual common elements shared between the counts, not merely factual overlap in the underlying conduct.
  • Indicative sentences imposed under s 53A(2) of the Crimes (Sentencing Procedure) Act are not independently appealable, though they can inform whether error exists in the aggregate sentence. Even an indicative sentence considered excessive is not determinative of the aggregate sentence question.
  • A strong Bugmy claim based on an Indigenous appellant's severely disadvantaged background will reduce moral culpability, but does not automatically render an aggregate sentence manifestly excessive where the offending is objectively very serious and the criminal record is substantial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1), 37(1), 58, 59, 60(1), 61, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(ea), 21A(4), 44(2A), 53A(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 168(3), 267, 268

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297
- PD v R [2012] NSWCCA 242
- BJS v R [2013] NSWCCA 123
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Lee v R [2020] NSWCCA 244
- Portolesi v R [2012] NSWCCA 157