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Court of Criminal Appeal 5 November 2021

Kuruppu v R

[2021] NSWCCA 261

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: Kuruppu v R [2021] NSWCCA 261
Court: Court of Criminal Appeal, NSW
Date: 5 November 2021
Judge(s): Meagher JA; Wright J; Fagan J

Background

The appellant was convicted and sentenced in the District Court on two separate occasions. The first sentence, imposed in March 2017 by Colefax SC DCJ at Parramatta, was an aggregate term of seven years imprisonment (with a non-parole period of four years and three months) for a series of domestic violence offences. Those offences included intentionally choking his then-wife while reckless as to rendering her incapable of resistance, aggravated break and enter with intent to commit a serious indictable offence, contravention of an apprehended domestic violence order, and common assault.

The second sentence, imposed in April 2018 by Sutherland SC DCJ at Penrith, arose from a separate incident of violence committed while the appellant was in custody. That sentence was made to commence at a date earlier than the expiry of his existing sentence, reflecting the custodial context.

Both applications for leave to appeal were filed out of time. The Court granted extensions of time having regard to the appellant's circumstances: he was unrepresented, had been refused Legal Aid, was in custody, and was not a native English speaker.

  • Whether the aggregate sentence imposed for the domestic violence offences was manifestly excessive
  • Whether the sentencing judge erred by rejecting the opinions of a forensic psychologist retained on behalf of the appellant
  • Whether the sentencing judge placed too much weight on general deterrence at the expense of the appellant's subjective circumstances
  • Whether the sentencing judge failed to find, or give practical effect to, special circumstances justifying an adjustment of the parole period
  • Whether the sentencing judge erred by not requesting a pre-sentence (sentencing assessment) report, given it was the appellant's first custodial sentence
  • Whether the second sentence involved excessive accumulation, having regard to the concept of a "total effective sentence" across both proceedings
  • The proper construction of "convicted inmate" under s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

First Sentence: Domestic Violence Offences

The Court found no error in the sentencing judge's treatment of the forensic psychologist's evidence. The sentencing judge had not denied the appellant procedural fairness; rather, his Honour had considered the psychologist's opinions and given reasons for declining to accept them, which fell within the proper exercise of the sentencing discretion. No House v The King error was established on this ground.

On the question of general deterrence and subjective circumstances, the Court found the sentencing judge had not erred. His Honour had identified and weighed the appellant's personal history, good prior character, and prospects for rehabilitation, and the emphasis on general deterrence was appropriate given the serious nature of domestic violence offending. The Court also found that the sentencing judge had not been obliged to seek a sentencing assessment report in the circumstances, and any failure to find special circumstances or to give it practical effect did not constitute error warranting intervention.

Second Sentence: Offence Committed in Custody

The Court rejected the submission that the accumulation of the second sentence was excessive. Applying the reasoning in Banks v R, the Court confirmed that where an offence is committed in custody, the accumulation of sentences reflects a distinct criminality arising from the custodial context and there is no obligation to view such sentences as a single "total effective sentence" for the purposes of proportionality across both terms. The Court found there was no justification for reducing the non-parole period of the second sentence to achieve some adjusted ratio across the combined sentences.

Construction of "convicted inmate"

Fagan J addressed the question of whether the appellant fell within the definition of "convicted inmate" under s 56 of the Crimes (Sentencing Procedure) Act, which imposes a requirement that a sentence for an offence committed in custody must be cumulative. The Court concluded that the sentencing judge had acted in accordance with the spirit and legislative intent of the provision, even if the section did not apply in strict technical terms.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing judge does not commit error merely by declining to accept a forensic psychologist's opinions, provided the judge considers those opinions and gives reasons for the rejection.
  • Where an offence is committed by a person already in custody, accumulation of the new sentence onto the existing sentence is appropriate and reflects the separate, distinct criminality of offending in a custodial setting.
  • Attempting to calculate an "overall criminality" or a combined parole ratio across disparate criminal episodes, including one committed in custody, is not a required sentencing exercise; the Court of Criminal Appeal confirmed such an approach would be misconceived.
  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999, the legislative intent requires that sentences for offences committed in custody run cumulatively, and sentencing judges should apply that spirit even in cases where the provision may not apply in strict technical terms.
  • No obligation arises to request a sentencing assessment report solely because a sentence will be the offender's first period in custody; the decision remains one for the sentencing judge's discretion in the circumstances of the individual case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 6, 7, 12, 44, 47, 53A, 56, 69, 76, 80, 88
- Crimes Act 1900 (NSW), ss 33, 35, 37, 59, 61, 113
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Administration of Sentences) Act 1999 (NSW), s 4
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases
- House v The King (1936) 55 CLR 499
- Banks v R [2018] NSWCCA 41
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- GAS v The Queen (2004) 217 CLR 198
- Obeid v R (2017) 96 NSWLR 155
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Moodie v R [2020] NSWCCA 160
- Delaney v R [2013] NSWCCA 150
- JM v R [2014] NSWCCA 297
- CM v R [2020] NSWCCA 136
- Haines v R [2021] NSWCCA 149
- Lai v R [2021] NSWCCA 217