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Court of Criminal Appeal 8 September 2021

MR v R

[2021] NSWCCA 218

DrugsTraffic & drivingDomestic & family violence
CRIMINAL LAW OFFENCES SENTENCE DRIVING OFFENCES DRUG SUPPLY OFFENCE DOMESTIC VIOLENCE OFFENCE

Citation: MR v R [2021] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 8 September 2021
Judges: Bathurst CJ, Simpson AJA, Bellew J

Background

The applicant pleaded guilty in the Local Court to four offences arising from two separate episodes of offending. The first episode, on 14 August 2019, involved a dangerous police pursuit at speeds up to double the posted limit, supply of 449 grams of cannabis, and driving with illicit drugs (cocaine and cannabis) in his blood. The second episode, on 13 September 2019, involved a prolonged and violent domestic assault against his partner at her home, committed in the presence of her ten-year-old son.

Critically, the applicant was on parole for a breaking and entering offence throughout the entire period of his offending. He was also on bail for the first three offences when he committed the domestic violence assault.

The sentencing judge imposed an aggregate sentence of 3 years and 10 months imprisonment with a non-parole period of 2 years and 7 months. The applicant sought leave to appeal, arguing the sentencing judge erred in factoring his parole status into the objective seriousness of the offences, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the applicant's status as being on parole as a factor relevant to the objective seriousness of the offences.
  • Whether the aggregate sentence of 3 years and 10 months imprisonment was manifestly excessive.

Decision

The Crown conceded the first ground of appeal. The sentencing judge had impermissibly taken the applicant's parole status into account when assessing the objective seriousness of the offending. While being on conditional liberty (such as parole or bail) is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), it is not a factor that increases the objective seriousness of the offence itself. It is, rather, relevant to the weight given to personal deterrence and the need for general deterrence. The Court of Criminal Appeal accepted the error and proceeded to resentence.

On the resentencing exercise, Bellew J assessed the objective seriousness of each offence separately and identified multiple applicable aggravating factors. These included the commission of the domestic violence offence while on bail, the fact that the assault was a domestic violence offence, the presence of the victim's child, and the vulnerability of the victim. The offending in count 4 was characterised as particularly serious.

The subjective case for the applicant was described as limited. He had a prior criminal and traffic history, offered no evidence on sentence, demonstrated an absence of insight into his offending, and his remorse was limited to what could be inferred from the guilty pleas. His prospects of rehabilitation were assessed as guarded.

Bellew J concluded that, conducting the sentencing exercise afresh and free from the identified error, a higher indicative sentence would have been appropriate for the domestic violence offence than the one originally imposed. This meant that no lesser aggregate sentence was warranted in law. The appeal was therefore dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Being on parole or bail at the time of offending is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), but it bears on personal and general deterrence rather than on the objective seriousness of the offence. Conflating these two distinct considerations constitutes a sentencing error.
  • Even where a sentencing error is established and conceded, a resentencing exercise does not automatically produce a lesser sentence. The Court of Criminal Appeal will assess the full sentencing discretion afresh and may conclude that no reduction is warranted.
  • In dismissing the appeal, the Court of Criminal Appeal found that the original indicative sentence for the domestic violence offence was actually lower than it should have been, which offset the benefit the applicant might otherwise have gained from the identified error.
  • A limited subjective case, including an absence of demonstrated insight, guarded rehabilitation prospects, and restricted remorse, restricts the mitigating weight available to an applicant on resentence.
  • Prior criminal and traffic histories, while not themselves aggravating factors, do not attract leniency in sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 59(1), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)(ea), (eb), (j)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Road Transport Act 2013 (NSW), s 111(1)(a)

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
- FL v R [2020] NSWCCA 114
- McDowall v R [2019] NSWCCA 29
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Sharma v R [2017] NSWCCA 85